Mr. Kingston thought it important that some definition of the term "Australian waters" should be inserted. "I do not know," he said, "if the hon. and learned member, Mr. Barton, is satisfied in his own mind as to what meaning would be attached to the term. I think that there was some provision in connection with the Federal Council by which, under an Imperial order, these waters were defined; and legislation was adopted by the colony of Western Australia and Queensland in the exercise of powers conferred on the Council in regard to those matters. The clause applies only to matters beyond territorial limits, which increases the difficulty." (Conv. Deb., Syd., 1897, p. 1073.)

In the absence of a definition, it was said, complicated questions might arise in practice as to how far from the Australian coast "Australian waters" might be deemed to extend, and whether at a given time a fishing boat was within those waters. More important still was the innovating proposal to give the Federal Parliament power to legislate respecting fisheries beyond its territorial limits. Outside those limits the ocean was the highway of all nations, and no country could claim to exercise exclusive jurisdiction over the high seas. It was not conceivable that any law affecting fisheries outside the territorial limit would be legally operative. It was not sufficient to say that the Imperial Parliament would give the Commonwealth power to legislate in respect of matters occurring beyond those limits. The Imperial Parliament could not effectively grant the Commonwealth a power which, according to the law of nations, it did not possess. Suppose the Federal Parliament passed such a law, and the captain and crew of a foreign ship violated it, in contempt and defiance of the Commonwealth, would not the law in that case be made a laughing stock? Then, again, the power as it stood in the sub-section recognized two legislative authorities, with respect to fisheries, one within, and the other beyond the three-mile limit. This might lead to a clashing of State regulations with Federal regulations. The boundary line between State jurisdiction and Federal jurisdiction would be vague and not capable of easy and satisfactory delimitation. Persons engaged in the fishing trade might very often be unable to say whether they were liable to and bound to obey State laws or Federal laws. A vessel engaged in trawling should not be under one set of laws when fishing close to the coast, and under another set when compelled to go further out to sea in order to find fish. Rather than risk such doubt and possible conflict it might be advisable to omit the subsection altogether and allow the fishing trade to be governed by the laws relating to trade and commerce, or by the laws relating to navigation and shipping, which were within the competence of the Federal Parliament. Such laws would enable the Federal authorities to issue fishing licenses and attach all necessary and proper conditions, and such a course would meet all the requirements of the case. (Mr. E. Barton, Conv. Deb., Melb., pp. 1857-8-9.)

The arguments in support of retaining the words admitted the difficulties pointed out, but claimed that there were powerful considerations which more than outweighed those difficulties In the first place this was by no means a new and untried grant of power. By section 15 (c) of the Federal Council of Australasia Act (48 and 49 Vic. c. 60), power was given to that body to legislate in respect of "fisheries beyond territorial limits "the identical words used in this sub-section; the only condition to the exercise of its jurisdiction being (1) that its laws should be enforced only in colonies which had adopted the Act and which were represented in the Council, and (2) that proposed laws relating to sec. 15 (c) should be reserved for the signification of Her Majesty's pleasure. This had not remained a dormant power, but had been exercised.

In January, 1888, the Federal Council passed an Act to regulate pearl-shell and beche-de-mer fisheries in Australasian waters, adjacent to the colony of Queensland. The preamble recited:

"Whereas, by certain Acts of the Parliament of the colony of Queensland, provision has been made for regulating the pearl-shell and beche-de-mer fisheries in the territorial waters of that colony; and whereas, by reason of the geographical position of many of

the islands forming portion of that colony, vessels employed in such fisheries are, in the prosecution of their business, sometimes beyond the territorial jurisdiction of Queensland; and whereas it is expedient that the provisions of the said Acts should extend and apply to such vessels during all the time they are so employed, and that for that purpose the provisions of the said Act, so far as they are applicable to extra-territorial waters, should be extended to such waters by an Act of the Federal Council of Australasia."

The Act contained provisions to regulate the pearl-shell and beche-de-mer fisheries in Australasian waters adjacent to the colony of Queensland. Such waters were defined as being within the following limits :

"All waters within a line drawn from Sandy Cape northwards to the south-eastern limit of the Great Barrier Reef; thence following the line of the Great Barrier Reef to their north-eastern extremity near the latitude of 94 south; thence in a north-westerly direction embracing East Anchor and Bramble Cay; thence from Bramble Cay in a line west by south (south 79° west true) embracing Warrior Reef, Saibai and Tuan Island; thence diverging in a north-westerly direction so as to embrace the group known as the Talbot islands; thence to and embracing the Deliverance island and on in a west by southern direction (true) to the meridian of 138° of east longitude; and thence by that meridian southerly to the shore of Queensland.'

This Act was reserved for the Royal assent, which was proclaimed on 19th July, 1888. In February, 1889, the Federal Council passed an Act to regulate the pearl-shell and beche-de-mer fisheries in Australasian waters adjacent to the colony of Western Australia. It contained provisions substantially similar to those of the Queensland Act. The extra-territorial waters, within which it was declared to be in force, were defined in the schedule as follows:

"A parallelogram of which the north-western corner is in longitude 112° 15" east and latitude 13° 30' south; of which the north-eastern corner is in longitude 129° east and latitude 30° 30'; and of which the south-west corner is in longitude 112° 52' east and latitude 35° 8' south; and of which the south-eastern corner is longitude 129° east and latitude 35° 8' south."

Both the Queensland and West Australian Acts are remarkable for the stringency of their provisions relating to the employment of coloured labour, showing that "laws with respect to fisheries are capable of comprehending regulations controlling the employ

ment of labour used in connection with fisheries. These Acts are still in force, their operation being preserved by clause 7 of the Commonwealth Constitution Act. Thus, it was pointed out, extra-territorial laws relating to fisheries had been already sanctioned by the Imperial Government, and enforced by the Governments of the two colonies over a wide expanse of ocean, the boundaries of which were defined within parallels of latitude and degrees of longitude. The pearl-shell and beche-de-mer trade had been regulated; the fisheries had been protected; fees had been collected; labour had been supervised, and everything expected and desired had been obtained. Here, therefore, they had an illustration of the practicability of the grant of power contemplated. Having received such a grant in the Federal Council Act, it would not be wise for Australia to surrender it by omitting a similar enabling provision from the Constitution of the Commonwealth. The power should appear on the face of the Constitution; they ought not to trust any implication hidden away in other clauses.

The practical arguments were strengthened by broader and more patriotic considerations. Such spheres of influence and control as had been already granted by the Imperial Parliament to the Federal Council should be reserved for and transferred to the Commonwealth. The people of such a continent as Australia, unique in its isolation and configuration, should have the right of control over waters outside the ordinary territorial limits. We should begin our career as a Commonwealth by mapping out a sphere of influence, and of commercial trading operations, all round the continent, and for some considerable distance from the coast. Within that sphere the Commonwealth would represent and protect, not merely Australian interests, but Imperial interests. We were taking over general powers from the States and from the Federal Council, and those powers should be accepted undiminished, and maintained unimpaired, without abandon

ing one jot or yielding one tittle of what had been acquired by the labours and triumphs of the pioneers of Australian progress. (See speeches of Mr. C. C. Kingston, Sir John Forrest, Mr. A. Deakin, and Mr. R. E. O'Connor. Conv. Deb., Melb., pp. 1861-3 and 1872.)

51. (xi.) Census175 and statistics :

HISTORICAL NOTE.-Sec. 91 of the British North America Act specifies "The census and statistics." (Subs. 6) The sub-clause "Census and statistics" was in the Commonwealth Bill of 1891, and was adopted by the Convention of 1897-8 without debate.

A census is the periodical numbering of the people of a country. Since the beginning of the nineteenth century a census has been taken of the inhabitants of Great Britain and Ireland every ten years, and the practice now extends throughout the English speaking portions of the Queen's dominions. The object of the census is to supply statistical information respecting number and conditions of the population, and respecting the resources and developments of the country. As the census is taken between the same hours of the same day of the same year, the necessity for uniform legislation in contiguous countries is apparent. For the purpose of a census the whole country is divided into districts, called enumerators' divisions, over which schedules are distributed requiring particulars as to name, sex, age, profession or occupation, marriage, relation to the head of the family, birthplace, and whether deaf, or dumb, or blind, or imbecile, or lunatic. When the schedules so filled up are collected, the details are verified and the results sent to the Registrar-General, who prepares a final abstract thereof, which is submitted to Parliament.

The Parliament of Canada has exclusive jurisdiction of census and statistics. The legislature of British Columbia passed an Act respecting the registration of births, deaths, and marriages in that Province. On 2nd January, 1879, the Minister of Justice of the Dominion called attention to the fact that the Act might be questioned as being connected with statistics.

The census and statistical departments of the States will be taken over by the Federal Government, as soon as enabling legislation is passed by the Federal Parliament.

51. (xii.) Currency 176, coinage177, and legal tender178:

to

HISTORICAL NOTE.-The Constitution of the United States empowers Congress coin money, regulate the value thereof, and of foreign coin ;" and "to provide for the punishment of counterfeiting the securities and current coin of the United States." (Art. I. sec. viii. sub-secs. 5-6.) Sec. 91 of the British North America Act specifies currency and coinage" and "legal tender" (sub-secs. 14-20).

66

"Coinage" was specified as a federal subject in the Bill attached to Wentworth's Memorial in 1857. "Currency, coinage, and legal tender" were specified in the Commonwealth Bill of 1891, and the sub-clause was adopted by the Convention of 1897-8 without debate.

Currency in this connection means the acceptance, reception, passing or circulation from hand to hand, from person to person, of metallic money, or of government or bank notes as substitute for metallic money.

The only gold coin now current in England is that coined during the present reign at the London Mint, or the Australian branch mints. Pre-Victorian gold was decried by proclamation in 1890. The designs current are those of 1838, 1870, 1887, and 1893. The Pre-Victorian gold has been called in in several colonies; in Australasia and in New Zealand in 1890; in the Cape and Fiji in 1893. All silver coin coined since 1816 is still current and legal tender. The designs now legally current are those of 1817 and 1893. Besides this general currency, in 1849 florins were made current coin. The design was altered in 1852, and double florins were made current under the proclamation of 1887. Until 1861 copper coins of the face value of Id.. d., and 4d. were coined as part of the currency. They were then superseded by bronze money of the same denominations, and the copper coinage was decried as to the United Kingdom in 1869, and as to all colonies in which they were current in 1876. The designs adopted in 1861 were superseded by a new design in 1895. (Encyc. of Laws of England, iii. p. 75.)

The Federal Legislature has power, by suitable legislation, to restrain the circulation. as money, of any notes not issued by its own authority. (Veazie Bank v. Fenno, 8 Wall. 533. Baker Annot. Const. p. 46.)

The Federal Legislature has power to provide by law for the punishment of the offence of counterfeiting notes of foreign banks, or for having in possession a plate from which such counterfeit notes may be printed. (United States v. Arjona, 120 ̊U.S. 479. Id.)

This clause does not prevent a State from passing laws to punish the offence of circulating counterfeit coin of the Union. Counterfeiting and circulating_counterfeit coin are offences essentially different in their character. The former is an offence against the government; the latter is a private wrong. (Fox v. Ohio, 5 How. 410. Id. p. 47.)

$177. "Coinage."

Coinage is the act or process of converting metal into money for circulation. The coining and legitimation of money is one of the exclusive prerogatives of the Crown, but from the earliest times it has been regulated by Act of Parliament.

Sterling money (gold and silver money) of a given weight and fineness, seems to have been first established in 1351 by 25 Edw. III., st. 5, c. 13, but for a long time after that date the Crown exercised, or as Blackstone says (1 Com. 278), usurped, as part of its prerogative, the right to debase the coin. It was not until the time of Charles II. that the currency was put on a comparatively sound footing. The standard and value of English coin was extended to Scotland in 1706. Prior to 1870 the coinage and management of the mint were regulated by a series of enactments, wholly or partly repealed by and specified in the Coinage Act, 1870, 33 and 34 Vic. c. 10, on which the regulation of coin of the realm and the colonies now mainly depends. That Act fixes the standard of coins, prohibits the issue, except from the mint, of any piece of metal as token or coin, under a penalty of £20, recovered summarily; directs all contracts to be made in currency; regulates the purchase and coining of gold bullion; and directs mint profits to be paid into the exchequer. The exercise of the prerogative of coinage is defined and controlled, but the powers are left very wide. The purity of the coinage and the conformity to standard is ascertained annually by the trial of the pyx, which is held under an Order in Council of 1871. At this trial a jury of six competent freemen of the Goldsmiths' Company examine coins of each minting, set apart for testing by the standard trial plates and standard weights, which are kept in the custody of the Board of Trade, and produced on notice for the occasion. The Chancellor of the Exchequer is master of the mint, which is managed and regulated by the Treasury, subject to the Act of 1870. (Encyc. of the Laws of England, iii. p. 74.)

The language of the American Constitution, by its proper signification, is limited to the facts or to the faculty in Congress of coining and stamping the standard of value upon what the government creates or shall adopt, and of punishing the offence of producing a false representation of what may have been so created or adopted. The imposture of passing a false coin creates, produces or alters nothing; it is an offence punishable by State law, since it leaves the legal coin as it was-affects its intrinsic value in no wise whatever. (Fox v. Ohio, 5 How. 410-413; compare with United States v. Marigold, 9 How. 560. Baker, Annot. Const. p. 47.)

Under this power, as well as under the power to regulate commerce, Congress has authority to enact laws providing for the punishment of persons who bring into the United States, with intent to pass the same, any false or counterfeit coin, and also to

punish persons for passing, altering, publishing or selling any such false or counterfeit coin. (United States v. Marigold, 9 How. 560, id.)

The Mint opened in Sydney on 14th May, 1855, and that opened in Melbourne on 12th June, 1872, are Imperial Institutions, being branches of the Royal Mint. They were established, and are now administered, by the Imperial Government at the request of the Colonial Governments, which guarantee it against loss. The Queen's proclamation, pursuant to which these branches were opened, declared that the coin issued therefrom was to be a legal tender for payment within the United Kingdom. The Parliament of New South Wales and the Parliament of Victoria have made permanent provision, by special appropriations, for defraying the salaries, allowances, expenses, and contingencies connected with the branch mints in their respective colonies. The Victorian special appropriation is £20,000 per year; that of New South Wales is £15,000 per year. All fees, dues, and charges collected at the branch mints are accounted for and handed over by the deputy masters to the Treasurers of their respective colonies and paid into the consolidated revenue.

The West Australian Government has obtained the sanction of the Imperial Government for the establishment of a branch mint in Perth, of which the foundation stone was laid by Sir John Forrest on 23rd September, 1896. The building was completed and handed over to the Mint authorities in October, 1898, and the necessary machinery has since been erected. The expenditure involved up to the present has been about £30,000. The Parliament of Western Australia has appropriated the sum of £20,000 per year towards the maintenance of the Mint. On the authority of the Master of the Imperial Mint, it is stated that the new Mint will probably relieve the Melbourne Mint of a third of the deposits presented there. This will affect materially the profits of the Melbourne Mint, which have for some years past been of a most satisfactory character. The Perth Mint was opened for the reception of bullion on the 20th June, 1899.

The following statement of the capital value of the Sydney and Melbourne Mint properties, the annual interest payable thereon, the ordinary annual expenditure, the annual receipts, and the net cost per annum, has been compiled from returns presented to the Convention. (Votes and proceedings of Melbourne Session, p. 232; Victorian Federation Papers, 296.)