By the operation of the Constitution, and without the necessity of any other formal act, the departments of Customs and Excise in each State will become transferred to the Commonwealth simultaneously with the establishment of the Commonwealth, on 1st January, 1901, the day named in the Queen's proclamation (clause 4). The other departments of the Public Service in each State enumerated in this section will become transferred to the Commonwealth on the date or dates to be proclaimed by the GovernorGeneral.

In addition to the departments mentioned in this section, which will become transferred without the necessity of federal legislation, there are other departments which will come under the control of the Commonwealth whenever the Federal Parliament chooses to authorize their transfer; such as Astronomical and Meteorological Observations (51.-viii.); Census and Statistics (51.-xi.); Currency and Coinage (51.-xii.); Bankruptcy and Insolvency (51.-xvii.); Copyrights, Patents, and Trade Marks (51.-xviii).

REVENUE AND EXPENDITURE.-One result of the transfer of a department will be that the State from which it is transferred will be relieved of the annual expenditure in respect of the department and the property used in connection therewith, and will be compensated for the value of such property. Another result will be that the State will be deprived of the revenue received in connection with the department.

The following table, based on a return presented to the Convention at the Melbourne session (Conv. Proceedings, Melb., p. 231) shows:--(1) the annual expenditure of which each State will be relieved in respect of the above mentioned services, together with interest at 3 per cent. on the value of property used in connection therewith; (2) the annual revenue of which each State will be deprived in connection with such services (apart from the taxation revenue from duties of Customs and Excise). The figures are those of 1896 or 1895-6 :

Total annual Revenue 577,964 707, 122 247,691 275,229 79,954 193,822 2,081,782 (except from Cus

toms)

Net Expenditure

318,538 413,777 303,284 56,054 11,278 76,199 1,179,130

Certain powers of Governors to vest in Governor-General.

70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth 283, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony24, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers285 under the Commonwealth, as the case requires.

CANADA. All powers, authorities and functions which under any Act of the Parliament' of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exercisable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exercisable by the Governor-General, with the advice, or with the advice and consent of or in conjunction with the Queen's Privy Council for Canada, or any members thereof, or by the GovernorGeneral individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.-B.N.A. Act, 1867, sec. 12.

HISTORICAL NOTE.-Clause 11 of Chap. II. of the Bill of 1891 was drawn from sec. 12 of the British North America Act (supra). (Conv. Deb., Syd., 1891, p. 779.) At the Adelaide session, 1897, it was introduced and passed in the same form. In Sydney some drafting amendments were made; and at Melbourne, before the first report, it was re-drafted and condensed into its present form.

§ 283.

"Matters Which.. Pass to the .. Commonwealth."

Among the matters which, under this Constitution, pass to the Executive Government of the Commonwealth are (1) from the establishment of the Commonwealth the administration of the departments of customs and excise (sec. 69); the collection and control of duties of customs and excise, and the control of the payment of bounties; the control of officers and the appointment and removal of officers connected with those departments (secs. 67, 84, and 86). (2) from and after dates to be proclaimed subsequently to the establishment of the Commonwealth the administration of other departments of the public service of each State, which become transferred to the Commonwealth, and the control, appointment, and removal of all officers connected therewith (secs. 69 and 84). In respect of such matters, from the moment when they are transferred to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony vest in the Governor-General of the Commonwealth; all powers and functions which are then vested in the Governor of a colony with the advice of his Executive Council vest in the Governor-General in Council; and all powers and functions which are then vested in any authority of a colony vest in the authority exercising similar powers under the Commonwealth.

$ 284.

"Or in any Authority of a Colony."

In connection with the public service of each colony there may be local authorities, boards or commissions which are endowed with special powers and functions. When a public department is transferred to the Commonwealth it is placed beyond the jurisdiction of such local authorities, boards, and commissions, and becomes subject to the exclusive control of the Federal Executive. In such cases the powers and functions, formerly exercised in respect to the department by the local authority, vest either in the GovernorGeneral or in the Governor-General in Council, until Federal legislation creates a Federal authority to exercise similar powers and functions under the Commonwealth.

§ 285.

"In the Authority Exercising Similar Powers."

Of the administrative powers and functions which, under the Constitution, pass to the Federal Executive Government, some were previously vested in the Governors of the Colonies, some in the Governors of the Colonies with the advice of their respective Executive Councils, and some in local authorities within the Colonies appointed by law. Those described as vested in the Governors belong, technically, to the prerogatives of the Crown; those described as vested in the Governors with the advice of their respective Executive Councils, are dependent on statute law; those described as vested in" any authority of a Colony" were founded on statute and by statute were vested in Ministers, local boards, bodies, commissions, or officers. Thus in connection with the department of light-houses, light-ships, beacons, and buoys, certain powers and functions have been, under the Colonial system, generally assigned to marine boards; so in connection with the quarantine department certain powers and functions have been exercised by Boards of Health. Now, the intention of this section is that on the transfer to the Federal Executive Government of matters involving the exercise of Executive powers and functions, those powers and functions which in the pre-federal period were, by express terms, vested in the Colonial Governors, shall under the Federal regime and by express terms be vested in the Governor-General; that, likewise, those Executive powers and functions which were vested in the Colonial Governors with the advice of their respective Executive Councils shall, by express terms, be vested in the Governor-General in Council; and lastly, that those Executive powers and functions which were formerly vested in local authorities shall be vested in some Federal Authority, exercising similar powers under the Commonwealth.

The difference between transferred powers and functions vested in the GovernorGeneral, and transferred powers and functions vested in the Governor General in Council, is purely an historical one and not one of substance, and all such powers and functions will be exercised by the Governor-General through Ministers having the confidence of the Federal Parliament.

The substantive meaning of this section (which is adapted from section 12 of the British North America Act, quoted above) is that executive functions which were formerly exercised in relation to the separate colonies, but which are now to be exercised in relation to the Federal Government, are vested in some Federal officer or authority corresponding to the provincial officer or authority in whom they were formerly vested.

The section is intended to facilitate the proper performance of duties in connection with transferred departments, before those duties have been regulated by federal law. After the transfer, the exclusive legislative power in respect of those departments belongs to the Federal Parliament; but until the Federal Parliament acts in pursuance of its exclusive power, the departments will be administered in accordance with the provisions of this section. It does not appear to interfere in any way with the discretion of the Federal l'arliament to afterwards assign any of these duties to what officers it pleases. It declares that all these powers and functions "shall vest" in the corresponding department, officer, or authority, but it does not declare that they shall continue to be so vested; and to construe the vesting as permanent would introduce a conflict with sec. 61, which declares that the executive power of the Commonwealth is vested in the Queen, and exercisable by the Governor-General as the Queen's Representative. The whole power is vested in the Queen; but particular statutory powers are to "vest in "-i.e., to be exercisable by-certain officers. The power of the Parliament (sec. 51-xxxix.) to make laws as to matters incidental to the execution of any power vested in the Governor-General of the Commonwealth, or in any department or officer of the Commonwealth, does not seem to be affected by this provisional vesting. The only other point arising out of this section which requires consideration is, how is "the authority exercising similar powers under the Commonwealth" to be created? Could the Executive Government of the Commonwealth appoint a marine board to supervise lighthouses, &c., taken over according to the terms of a proclamation issued under sec. 90? Could the Executive Government establish a Board of Health to manage the quarantine department taken over according to a proclamation under the same section? Would Federal legislation be necessary in order to authorize certain proceedings and operations of those services to be conducted through the agency of Boards? It is conceived that such legislation would be necessary, and that pending its adoption those services, if taken over by proclamation only, would have to be managed directly by responsible Ministers of State. Probably those and other services would not be taken over by the authority of proclamation alone, but by proclamation accompanied by Federal laws, making temporary arrangements for preserving, in each State, the jurisdiction of local authorities until uniform Federal legislation is adopted.

CHAPTER III.-THE JUDICATURE.

Judicial Power and Courts.

71. The judicial powers of the Commonwealth shall be vested287 in a Federal Supreme Court, to be called the High Court of Australia288, and in such other federal courts as the Parliament creates 289, and in such other courts as it invests with federal jurisdiction 20. The High Court shall consist of a Chief Justice, and so many other Justices291, not less than two, as the Parliament prescribes.

UNITED STATES.-The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.Const., Art. III., sec. 1.

CANADA.-The Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the laws of Canada.-B.N.A. Act., sec. 101.

HISTORICAL NOTE.-The idea of a federal Supreme Court is as old as the report of Earl Grey's Committee in 1849 (see pp. 83-85, supra). In the Bill of 1891 the Court was called the " Supreme Court of Australia." Instead of being established by the Constitution, it was left for the Parliament to establish, and the minimum of Justices in addition to the Chief Justice, was fixed at four.-Conv. Deb., Syd. (1891), pp. 779-85.

At the Adelaide Session the clause was drafted in its present form, but with a minimum of four Justices. An amendment by Mr. Carruthers to strike out the minimum was negatived. Conv. Deb., Adel., pp. 935-43.

46

At the Melbourne Session a suggestion by the Legislative Council of Tasmania, to insert at the beginning Until the Parliament otherwise provides," was negatived; also an amendment by Mr. Glynn that the Court should consist of "a Chief Justice, and until the Parliament otherwise provides, the Chief Justices of the States." A suggestion by the Legislative Assemblies of New South Wales and Victoria and the Legislative Council of Tasmania, to strike out the minimum, was negatived, and the minimum was altered to "two." An amendment by Mr. Holder to insert a maximum was negatived on division, by 26 to 14. (Conv. Deb., Melb., pp. 265-308.) Drafting amendments were made after the 4th Report.

SEPARATION OF POWERS.-The judicial power is the power appropriate to the third great department of government, and is distinct from both the legislative and the executive powers. The judicial function is that of hearing and determining questions which arise as to the interpretation of the law, and its application to particular cases. "The distinction between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law." Per Marshall, C.J. (U.S.), Wayman v. Southard, 10 Wheat. 46; Cooley's Constitutional Limitations (5th Ed.) 109.