The Federal Government and the State Governments are, within their respective spheres and areas, subject equally to the Constitution, and, in the last resort, to the Imperial Parliament. In the case of Maritime Bank of Canada v. New Brunswick Receiver-General (1892), App. Cas. 437, the question raised was whether the Provincial Government were entitled to payment in full over the other depositors and simple contract creditors of the bank. When the bank stopped payment, the Provincial Government was a simple contract creditor for $35,000, being public money of the Province deposited in the name of the Receiver-General. The Receiver-General claimed payment in full as representing Her Majesty. The Judicial Committee (per Lord Watson) held that the effect of the Dominion Act was not to sever all connection between the Crown and the Provinces. The Act of 1867 nowhere professes "to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the Provinces. The object of the Act was neither to weld the Provinces into one, nor to subordinate provincial governments to a central authority, but to create a Federal Government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy" (1892, App. Cas. 441). "The prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's Colonial possessions as in Great Britain. And the Crown, as a simple contract creditor for public moneys of the Province deposited with the bank, was entitled to priority over other creditors of equal degree." (Wheeler, C.C., p. 31.) § 446. "Subject to this Constitution." The Federal Constitution withdraws powers and functions, but it does not abolish or interfere with any of the political institutions established in the States under their respective Constitutions. The States retain their executive, legislative, and judicial departments as before, but shorn of some of their powers and functions. The Governor and Executive of a State will not be required to discharge all the duties which belonged to the Governor and Executive of a separate colony. The Parliament of a State will not have the same quantity of work to get through as the Parliament of a separate colony. The Courts of the States, however, will not, to any appreciable extent, lose any of their old duties, whilst new Federal work may be imposed upon them. UNIMPAIRED EXECUTIVE POWER.-The Executive Government of each State retains the right to hold direct and immediate communication with the Imperial Government in all matters relating to State business. In the Draft Bill of 1891, ch. V. clause 5, it was provided that "all references or communications required by the Constitution of any State or otherwise to be made by the Governor of the State to the Queen shall be made through the Governor-General, as Her Majesty's Representative in the Commonwealth, and the Queen's pleasure shall be made known through him." In support of this section strong arguments were advanced by members of the Convention of 1891, of known sympathy with State rights: "I have always maintained that one of the principal reasons for establishing a federation in Australia was because the Governments were always pulling in different directions. Australia speaks with seven voices instead of with one voice. Now, the hon. gentleman wishes that Australia should continue to speak with seven voices instead of with one voice. (Mr. Gillies: Only on matters appertaining to themselves! Dr. Cockburn: On matters appertaining to themselves they should not want to communicate with the Imperial Government at all!) I maintain that ministers in Australia are to be the Queen's ministers for the Commonwealth, and any communication affecting any part of the Commonwealth which has to be made to or by the Queen, should be made with their knowledge. Without that we shall not have the voice of one Commonwealth in Australia. I maintain that this argument is quite indisputable. The hon. member's argument amounts to this somebody will not like it; some people object to it, and it is not absolutely necessary. I admit that it is not absolutely necessary; but I say it is necessary if we are going to establish a real Commonwealth in Australia. I think the idea is that there is to be but one Government for Australia, and that we shall have : nothing more to do with the Imperial Government except the link of the Crown. We recognize the Crown, but do not desire to have the Governments of Australia all trying to attract the attention of the Secretary of State in Downing-street. (Mr. Gillies: We cannot prevent them from having agents-general!) Certainly not; but the agentsgeneral will be limited to their functions as commercial agents. (Mr. Gillies: Will they?) They will no longer be diplomatic agents. I maintain that Australia is to have only one diplomatic existence, and, therefore, only one diplomatic mouth-piece in any other part of the world." (Sir Samuel Griffith, Conv. Deb., 1891, p. 850.) "I do not think there is in this Convention a stronger advocate of State rights and State interests than I am; but, still, I strongly support the clause as it stands, for it seems to me that one of the very fundamental ideas of a federation is that, so far as all outside nations are concerned, we shall be Australia to the outside world, in which expression I include Great Britain; that we shall speak, if not with one voice, at all events, through one channel of communication to the Imperial Government." (Mr. R. C. Baker, id. p. 852.) "It really does one good to hear so sound a sentiment from my hon. friend, Mr. Baker, to which I entirely respond. I cannot understand for the very life of me, how we can aspire to be one Australian people under the Crown, and have several channels of communication with the Crown. We must either be a nation or we must be a chain of unfederated States." (Sir Henry Parkes, id. 853.) The clause was carried by 16 votes to 6. The draft of the Constitution, as submitted by the Constitutional Committee to the Federal Convention at Adelaide, contained no such clause. In the Convention Mr. Deakin proposed to insert a clause similar to that of the old Bill. Such a provision, he argued, was absolutely essential to secure a proper national administration of Australasian affairs. There should be only one channel of communication with the Imperial Government. If there were separate and independent communications sent to the Imperial Government through the various State Governors, there would be the possibility of dissension and discord. There should be only one Australian voice heard in London, and to secure that, every official communication relating to public matters within the Commonwealth should go through the GovernorGeneral. (Mr. A. Deakin, Conv. Deb., Adel., p. 1177.) The proposed new clause was strongly objected to by Sir Edward Braddon and Mr. Kingston. It was agreed that the federation should speak with only one voice on behalf of Australia generally, but subject to the qualification that it should only speak on national affairs, and that it should leave State affairs to the management of the States without the slightest interference. If every communication relating to State affairs had to pass through the Governor-General, it would mean the subordination and degradation of the office of State Governor to the position occupied by a Lieutenant-Governor in Canada. The States would regard it as objectionable to have to send their reserved Bills to the Imperial Government through the Governor-General. It would be a serious blow to the autonomy of the States, and likely to lead to friction between the Governments of the States and the Federal Government; it might result in the loss of power and prestige, which it was not intended that the States should suffer. The proposed clause was negatived. LOSS OF EXECUTIVE POWER. - Among the prominent executive powers to be transferred from the States to the Federal Government are the administration of the customs and excise departments, and the control of the payment of bounties, from the establishment of the Commonwealth; the administration of the post, telegraph, and telephone departments, the command-in-chief of the naval and military forces, the management of light-houses, light-ships, beacons, buoys, and quarantine, on dates to be proclaimed by the Governor-General after the establishment of the Commonwealth. GAIN OF EXECUTIVE POWER.--The Governments of the States have, under the new Constitution, assigned to them some new executive powers, among which may be mentioned the issue of writs for election of senators (sec. 12); the certification to the Governor-General of the names of senators chosen for each State (sec. 7); on the place of a senator becoming vacant, before the expiration of his term of office whilst the Houses of Parliament of the State are not in session, the appointment of a person to hold the place temporarily (sec. 15). 1 Saving of power of State Parliaments. 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. UNITED STATES -The powers not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. -Amendment X. SWITZERLAND. The Cantons are sovereign, so far as their sovereignty is not limited by the Federal Constitution; and, as such, they exercise all the rights which are not delegated to the Federal Government.-Art. 3. HISTORICAL NOTE.-Clause 1, Chap. V. of the Commonwealth Bill of 1891, was as follows: All powers which at the date of the establishment of the Commonwealth are vested in the Parliaments of the several Colonies, and which are not by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliaments of the several States, are reserved to, and shall remain vested in, the Parliaments of the States respectively." (Conv. Deb., Syd. [1891], pp. 849-50.) At the Adelaide session, 1897, the clause was passed almost verbatim. Melbourne session, before the first report, it was re-drafted as follows:- At the "All powers of the Parliament of a colony or province which at the establishment of the Commonwealth or afterwards becomes a State, except such powers as are by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, shall continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be." After the fourth report the clause was altered to its present form. § 447. "Power of the Parliament of a Colony." The Parliament of each State is a creation of the Constitution of the State. The Constitution of each State is preserved, and the parliamentary institutions of each State are maintained without any structural alteration, but deprived of power to the extent to which their original legislative authority and jurisdiction has been transferred to the Federal Parliament. In the early history of the Commonwealth the States will not seriously feel the deprivation of legislative power intended by the Constitution, but as Federal legislation becomes more active and extensive the powers contemplated by the Constitution will be gradually withdrawn from the States Parliaments and absorbed by the Federal Parliament. The powers to be so withdrawn may be divided into two classes-"exclusive" and "concurrent." Exclusive powers are those absolutely withdrawn from the State Parliaments and placed solely within the jurisdiction of the Federal Parliament. Concurrent powers are those which may be exercised by the State Parliaments simultaneously with the Federal Parliament, subject to the condition that, if there is any conflict or repugnancy between the Federal law and the State law relating to the subject, the Federal law prevails, and the State law to the extent of its inconsistency is invalid. EXCLUSIVE POWERS.--The following are the powers which in the course of time will be absolutely withdrawn from the States :- (1.) Power to make laws with respect to the seat of Government (sec. 52-i.). This power will become exclusive on the acquisition of the territory within which the seat of Government is situated (sec. 125). (2.) Power to make laws with respect to places acquired by the Commonwealth for public purposes (secs. 52-i. and 122). (3.) Power to make laws with respect to any part of a State surrendered by the State to and accepted by the Commonwealth (sec. 111), or to territory placed by the Queen under the authority of and accepted by the Commonwealth (sec. 122). (4.) Power to make laws with respect to departments of the public service transferred to the Commonwealth (sec. 52-ii.). This power will become exclusive immediately upon the transfer of the departments. (5.) Power to make laws imposing duties of customs and of excise (sec. 90). This power will become exclusive on the imposition of uniform duties of customs. (6.) Power to make laws granting bounties on the production or export of goods (sec. 90). According to the literal words of the Constitution this power does not become exclusive until the imposition of uniform duties of customs. (7.) Power to make laws with respect to the naval and military defence of the Commonwealth and of the States (sec. 51-vi.). This power becomes exclusive on the establishment of the Commonwealth (sec. 114). (8.) Power to make laws with respect to the coinage of money (sec. 51-xii., and sec. 115). (9.) Power to make laws with respect to legal tender in anything but gold and silver coin (sec. 115). CONCURRENT POWERS.-Of the 39 classes of subjects enumerated in sec. 51, with respect to which the Federal Parliament has power to make laws, 13 are quite new, and are applicable only to the Commonwealth, having been created by the Constitution, and are of such a character that they could only be vested in and effectually exercised by the Federal Parliament; such as: The power to borrow money on the credit of the Commonwealth, fisheries in Australian waters beyond territorial limits, and sub-sections xxiv., xxv., xxix., xxx., xxxi., xxxiii., xxxv., xxxvi., xxxvii., xxxviii., and xxxix. Three of those 39 classes of subjects, viz. : (1.) Bounties (except aids on mining for gold, silver, or metal)—after the imposition of uniform duties of customs (sec. 90). (2.) Naval and military defence (secs. 51-vi. and 114). (3.) Coinage and legal tender (secs. 51–xii. and 115). formerly vested in the States - are exclusively within the competence of the Federal Parliament. Trade and Commerce is a concurrent power, but a branch of it, viz., the power to impose duties of customs and excise, becomes exclusively vested in the Federal Parliament on the imposition of uniform duties of customs (sec. 90). This leaves, in the list of 39 subjects, 23 old powers which formerly belonged to the States, but are now concurrently vested in the State Parliaments and the Federal Parliament, subject to the condition imposed by sec. 109. These concurrent powers are as follows:(1.) Astronomical and meteorological observations (viii.). (2.) Banking, other than State banking; also State banking extending beyond the limit of the State concerned, the incorporation of banks, and the issue of paper money (xiii.). 3.) Bankruptcy and insolvency (xvii.). (4.) Bills of exchange and promissory notes (xvi.). (5.) Census and statistics (xi.). (6.) Copyrights, patents of inventions and designs, and trade-marks (xviii.). (7.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants (xxii.). (8.) Foreign corporations, and trading or financial corporations formed within the Commonwealth (xx.). (9.) Immigration and emigration (xxvii.). (10.) Influx of criminals (xxviii.). (11.) Insurance, other than State insurance; also State insurance extending beyond the limits of tho State concerned (xiv.). (12.) Invalid and old-age pensions (xxiii.). (13.) Light-houses, light-ships, beacons and buoys (vii.). (14.) Marriage (xxi.). (15.) Naturalization and aliens (xix.). (16.) People of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws (xxvi.). (17.) Postal, telegraphic, telephonic, and other like services (v.). (18.) Quarantine (ix.). (19.) Railways, control with respect to transport for naval and military purposes of the Commonwealth (xxxii.). (20.) Railway construction and extension in any State with the consent of that State (xxxiv.). (21.) Taxation; but so as not to discriminate between States or parts of States (ii.). (22.) Trade and commerce with other countries, and among the States (i.); except that on the imposition of uniform duties of customs the power to impose duties of customs and excise becomes exclusively vested in the Federal Parliament (sec. 90). (23.) Weights and measures (xv.). RESIDUARY LEGISLATIVE POWERS. -The residuary authority left to the Parliament of each State, after the exclusive and concurrent grants to the Federal Parliament, embraces a large mass of constitutional, territorial, municipal, and social powers, including control over : Agriculture and the cultivation of the soil : Banking-State banking within the limits of the State: Borrowing money on the sole credit of the State : Charities-establishment and management of asylums: Constitution of State: amendment, maintenance and execution of Corporations-other than foreign corporations and trading or financial corporations: Courts-civil and criminal, maintenance and organization for the execution of the laws of a State: Departments of State Governments - regulation of Education Factories Fisheries within the State: Forests Friendly Societies Game Health Inspection of goods imported or proposed to be exported in order to detect fraud or prevent the spread of disease: |