privileges, immunities, or powers shall exceed those now held, enjoyed, and exercised by the Commons, House of Parliament, or the members thereof."

Section 35 of the Constitution of South Australia (24th Oct., 1856), contained a similar clause enabling the Parliament of that colony to declare its privileges in like manner. In pursuance of the power conferred by sec. 35 the Parliament of Victoria passed the Act 20 Vic. No. 1, of which sec. 3 (re-enacted in sec. 10 of the Constitution Act Amendment Act, 1890) was as follows:

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'The Legislative Council and Legislative Assembly of Victoria respectively, and the committees and members thereof respectively, shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as, and the privileges, immunities, and powers of the said Council and Assembly respectively, and of the committees and members thereof respectively, are hereby defined to be the same as, at the time of the passing of The Constitution Statute' were held and enjoyed and exercised by the Commons House of Parliament of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with the said Act, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise."

On 29th April, 1862, Mr. George Dill, the publisher of the Argus, was arrested on a warrant signed by the Speaker of the Legislative Assembly, by direction thereof, on a charge of having printed and published a libel concerning the Assembly and one of its committees. On his being brought to the bar of the House, Mr. Dill was adjudged guilty of contempt, and was ordered to be detained in custody for the space of one month. Mr. Dill applied for, and was afterwards brought before a judge of the Supreme Court on, a writ of habeas corpus. Mr. Palmer, the Serjeant-at-Arms, made a return to the writ, justifying detention under the mandate of the warrant of the Speaker, according to the order of the House. The warrant in this case set forth the nature of the contempt complained of as the ground for commitment. It was held by the Court that the power given by sec. 35 of the Constitution Act was well exercised by the legislature of Victoria in the enactment of 20 Vic. No. 1, sec. 3, that the Legislative Council and Legislative Assembly of Victoria have all the privileges, immunities and powers which were legally held, enjoyed, and exercised by the Commons House of Parliament at the time of the passing of the "Constitution Statute," and that the publi cation outside the House, in a newspaper, of an article which the Assemby adjudged to be a libel on the Assembly, on a select committee thereof, and on a member of each, qua such member, is a contempt for which the House has authority to commit. (In re Dill, 1 W. and W. [L.] 171.)

The offending publisher was then remanded in custody. Subsequently he brought an action against Sir Francis Murphy, the Speaker, for false imprisonment. In that action it was held by the Supreme Court that the impossibility of the Legislative Council or Assembly exercising the power of impeachment did not restrict the general words of sec. 35 of the Constitution Act creating the power, or render invalid an enactment which gave other powers that might be exercised by the Council and Assembly. (Dill v. Murphy, 1 W. and W., L. 342, 356.) On appeal to the Privy Council, the decision of the Supreme Court was affirmed. The word "defined was held equivalent to “declared,” and the power given by the Act had been properly exercised. (1864, 1 Moo. P.C. N.S. 487.)

On 11th March, 1869, the Legislative Assembly of Victoria appointed a select committee to enquire and report upon certain charges which had been made relating to the character and couduct of some of its members. Hugh Glass was examined as a witness before the committee, which afterwards reported to the House that Hugh Glass and John Quarterman had been guilty of bribing and unduly influencing certain members of the Assembly. Glass and Quarterman were then adjudged guilty of contempt and of breach of privilege. They were arrested on the Speaker's warrant, brought before the House, found guilty and committed to the custody of the keeper of the Melbourne gaol. The warrant in this case was couched in general terms, and did not recite particulars of the contempt and breach of privilege. Whilst they were in gaol the Speaker issued

another warrant against Glass, similar to the first except that it contained no reference to Quarterman. On 30th April Glass obtained a writ of habeas corpus, directed to the keeper of the gaol, who made a return to the writ, relying on the two warrants as the cause of his detaining the prisoner. The Chief Justice, Sir William F. Stawell, assisted by two other judges, heard the arguments of counsel for and against the discharge of Glass. On the 1st May prisoner was discharged on the ground that the warrant was bad, as it did not describe the contempt so as to show that it was of a kind for which the House of Commons might have committed in 1855. By direction of the House a rule nisi was obtained to set aside the order of the Chief Justice. This rule was argued before the Full Court, which decided that it had no jurisdiction to rescind the order of a judge made on the return to a writ of habeas corpus. The Speaker petitioned Her Majesty in Council for special leave to appeal against the decision of the Chief Justice, and also against that of the Full Court. On the case coming before the Privy Council for hearing, the appeal was allowed, and the orders of the court in the colony were reversed. The Privy Council held that the Assembly had, under sec. 35 of the Constitution Act and the Act 20 Vic. No. 1, the same powers and privileges as those of the House of Commons, and, among them, the power of judging for itself what is a contempt, and of committing for contempt by a warrant stating generally that a contempt has been committed. (Speaker of the Legislative Assembly v. Glass, 1871, L.R. 3 P.C. 560.)

The Legislative Assembly of Victoria, it has been held, does not possess the privilege, by passing resolutions imposing customs duties, to authorize the collection of those duties by a customs officer till the end of the session of Parliament in which such resolutions have been passed. The Supreme Court has power to determine the legality of the privilege. And the statement in the pleadings of such a privilege is a question of law and not of fact, and sec 2 of Act 20, Vic. No. 1, making the journals of the House of Commons, and consequently of the Assembly, prima facie evidence of the privilege, does not turn the privilege into a question of fact; and therefore the privilege could not be admitted by a demurrer to a plea averring such privilege. (Stevenson v. The Queen, 2 W.W. & A'B [L.] 143.)

$158.

"Such as are Declared by the Parliament."

This section authorizes the Federal Parliament, by an ordinary act of legislation, to declare what shall be the powers, privileges, and immunities of the Senate and its members and committees, and of the House of Representatives and its members and committees. The limitation which is contained in sec. 18 of the Canadian Constitution (amended by 38 and 39 Vic. c. 38), in sec. 35 of the Victorian Constitution, and in sec. 35 of the South Australian Constitution, viz., that the powers, privileges, and immunities so declared shall not exceed those then held and enjoyed by the Commons House of Parliament, does not appear in this section. The Federal Parliament has therefore unrestricted authority to define and declare its powers, privileges and immunities. In the exercise of that authority it could not legally arrogate to itself a new jurisdiction, not within the scope of this section. In the absence of such legislation the powers, privileges, and immunities of each House, and of the committees and members of each House, will be those of the House of Commons, as known to law at the establishment of the Commonwealth.

Rules and orders.

50. Each House of the Parliament may make rules and orders 159 with respect to

(i.) The mode in which its powers, privileges, and immunities may be exercised and upheld :

(ii.) The order and conduct of its business and proceedings either separately or jointly with the other House.

UNITED STATES. Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.Const., Art. I., sec. 5, sub-s. 2.

HISTORICAL NOTE.-In the clause as adopted at the Sydney Convention of 1891, and the Adelaide session of the Convention of 1897, the matters as to which rules and orders might be made were somewhat elaborately defined in six sub-clauses, the last of which was: "Generally for the conduct of all business and proceedings of the Senate and House of Representatives severally and collectively." There was no sub-clause dealing with the exercise of powers, privileges, and immunities. At the Adelaide session, Sir Joseph Abbott called attention to the need of some power to protect the privileges of the Houses, and suggested that the power to make standing orders was too narrow. He moved to omit all the sub-sections, and insert words empowering each House to make such standing orders as it should think fit, and giving to such orders the force of law. This was objected to as being too wide, and Sir Joseph Abbott withdrew it. (Conv. Deb., Adel., pp 756-60.) At the Sydney session, on Mr. Isaacs' motion, the word "standing," before rules and orders,' was omitted. (Conv. Deb., Syd., 1897, p. 1035.) At the Melbourne session, before the first report, a new sub-clause was inserted: "The mode in which the powers, privileges, and immunities of the Senate and of the House of Representatives respectively may be exercised and upheld." After the fourth report the five specific sub-clauses were omitted, and verbal amendments were made.

$159. "Rules and Orders."

It will be observed that this section recognizes the important distinction between "powers, privileges, and immunities," and the "rules and orders" by which such powers, &c., are enforced.

Sub-sec. i. enables each House of the Federal Parliament to makes rules and orders, defining the mode or manner in which its powers, privileges, and immunities may be exercised and upheld. It does not authorize the declaration of any power, privilege, or immunity, but merely the procedure requisite for the maintenance and enforcement of the same. Thus, rules could be made prescribing the formalities to be observed in summoning persons to appear at the bar of the House, or to give evidence before its committees; the preparation, form, and execution of warrants for the arrest of persons guilty of contempt, and breach of privilege, and the form of warrants of commitment.

Sub-sec. ii. enables each House to make rules and orders regulating the conduct of its business and proceedings, either when acting separately, or when acting jointly with the other House. Rules and orders may, according to the practice of the Imperial Parliament, be classified as follows: (1) standing rules and orders, (2) sessional rules and orders, (3) orders and resolutions undetermined in regard to duration.

STANDING ORDERS.--These are permanent rules for the guidance and government of the House, which endure from Parliament to Parliament until vacated or repealed. They relate to such matters as the days on which the sittings of the House are held, the

hour for commencement of business, the sequence of business on each day, the distribution of business, the preservation of order, the closure of debate, the taking of divisions on question put, the progressive stages of bills, procedure in money bills, examination of public accounts, standing committees on particular subjects, form and reception of petitions, seats in the House, witnesses before the House and its committees, admission and withdrawal of strangers, and orders relating to the introduction and conduct of private bills. In the House of Lords a standing order cannot be suspended except in pursuance of notice of motion. In the Commons the rule is not so stringent, and in cases of emergency a standing order may be suspended without notice, but the unanimous concurrence of the House is generally necessary. (May, 10th ed. p. 145.)

SESSIONAL ORDERS.-These are orders or resolutions which are intended and expressed to last for a session only and which expire at the end of the session.

ORDERS OF UNDEFINED DURATION.-"By the custom of Parliament any order or resolution of either House the duration of which is undetermined, would expire with prorogation; but many of them are, as part of the settled practice of Parliament, observed in succeeding sessions, and by different Parliaments, without any formal renewal or repetition. For examples of resolutions being observed as permanent, without being made standing orders, may be cited the formal reading of a bill at the opening of a session; several resolutions regarding procedure on petitions; the resolu tion prohibiting members from engaging in the management of private bills; the time for presenting estimates; the rules of the committee of supply; and the means of securing a seat in the house by a member on a select committee." (May's Parl. Prac. 10th ed. p. 145.)

PART V.-POWERS OF THE PARLIAMENT.

Legislative powers 160 of the Parliament.

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

161

UNITED STATES.-The Congress shall have power:-Art 1., sec. 8.

CANADA. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:- B.N.A. Act, 1867, sec. 91.

HISTORICAL NOTE.-In the Commonwealth Bill of 1891, the general words of this section were:-"The Parliament shall, subject to the provisions of this Constitution, have full power and authority to make all such laws as it thinks necessary for the peace, order, and good government of the Commonwealth, with respect to all or any of the matters following, that is to say." At the Adelaide session, 1897, these words were reproduced, except that the word " laws" was substituted for the phrase "all such laws as it thinks necessary." At the Sydney session, there was a short debate upon the words "peace, order, and good government." (Conv. Deb., Syd., 1897, pp. 1035-7.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

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$160. Legislative Powers."

This important section, containing 39 sub-sections, enumerates the main legislative powers conferred on the Federal Parliament. They are not expressly described as either exclusive powers or concurrent powers, but an examination of their scope and intent, coupled with subsequent sections, will show clearly that, whilst some of them are powers which either never belonged to the States, or are taken from the States and are

§ 160.]

POWERS OF THE PARLIAMENT.

vested wholly in the Federal Parliament to the exclusion of action by the State legislatures, others are powers which may be exercised concurrently by the Federal Parliament and by the State legislatures.

CLASSIFICATION OF POWERS.-The powers conferred on the Federal Parliament "external may be classified as (1) the new and original powers not previously exercised by the States, such as "Fisheries in Australian waters beyond territorial limits," affairs," "the relations of the Commonwealth with the islands of the Pacific," &c. ; (2) old powers previously exercised by the colonies and re-distributed, some being (a) exclusively vested in the Federal Parliament, such as the power to impose duties of customs and excise, and the power to grant bounties on the production or export of goods, after the imposition of uniform duties of customs; and others being (b) concur rently exercised by the Federal Parliament and the State Parliaments such as taxation (except customs and excise), trade and commerce (except customs, excise, and bounties), The rule of construction is, that the legislative quarantine, weights and measures, &c. authority of the Federal Parliament with respect to any subject is not to be construed as exclusive, "unless from the nature of the power, or from the obvious results of its operations, a repugnancy must exist, so as to lead to a necessary conclusion that the power was intended to be exclusive;" otherwise, "the true rule of interpretation is (Story, Comm., § 438.) that the power is merely concurrent."

PLENARY NATURE OF THE POWERS.-An important point to consider is whether the Legislative powers vested in the Federal Parliament are to be regarded as plenary, absolute, and quasi-sovereign, or whether they are merely entrusted to the Federal Parliament as an agent of the Imperial Parliament, so as to come within the effect of the maxim delegatus non potest delegare (Broom's Leg. Max. 5th ed. p. 840), according to which a person or body to whom an office or duty is assigned by law cannot lawfully devolve that office or duty on another unless expressly authorized. The distinction The question between the two classes of powers, plenary and delegated, was discussed by the Privy Council in the case of The Queen v. Burah (1878), 3 App. Ca. p. 889. there raised was the legality of a section of an Act passed by the Governor-General in Council of India, conferring on the Lieutenant-Governor of Bengal the power to determine whether the Act or any part of it should be applied to certain districts. The Privy Council, per Lord Selborne, said :-

"Where plenary powers of legislation exist as to particular subjects, whether in an imperial or a provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legisno uncommon thing; and, in The British Statute Book abounds lature to persons in whom it places confidence, is many circumstances, it may be highly convenient. with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the Legislative powers which it from time to time conferred." Per Lord Selborne, The Queen v. Burah, 3 App. Ca. 906.)

At the same time their Lordships were of opinion that the Governor-General in Council could not create in India, and arm with general legislative authority, a new legislative body not created or authorized by the Imperial Act constituting a Council.

In the case of Hodge v. The Queen (1883), 9 App. Ca. 117, the question raised for the decision of the Privy Council was the constitutionality of the Liquor License Act The appellant (1877), ss. 4, 5, by which the Provincial Legislature of Ontario gave authority to a Board of Commissioners to enact regulations for the government of taverns. had been convicted for a breach of one of the regulations passed by the Commissioners, and he appealed on the grounds (inter alia) that the British North America Act, 1867, conferred no authority on the Provincial Legislatures to delegate their powers to Commissioners or any other persons; that a Legislature committing the power to make regulations to agents or delegates thereby effaced itself; and that the power conferred by the Imperial Parliament on the local Legislatures could be exercised in full by these bodies only, according to the maxim delegatus non potest delegare. The Privy Council