Sub-section xxxix. authorizes the Parliament to make laws relating to matters incidental to the execution of these powers, some of them being regulative and others being of a quasi-judicial character; making them fully operative and effective, and providing for their due enforcement by appropriate legal sanctions.

§ 230. "Powers Vested .. in the Government."

This means power vested in the central executive deparment of the Commonwealth. The executive power of the Federal Government is vested in the Queen and is exercisable by the Governor-General as the Queen's representative; it extends to and includes the execution and maintenance of the Constitution, and of the laws of the Commonwealth. The Executive Government will, with reference to matters which pass to it by the Constitution, have all the powers and functions which, at the establishment of the Commonwealth, were with reference to such matters vested in the executive authorities of the colonies (sec. 70). Sub-section xxxix. authorizes the Parliament to pass any laws that may be necessary in order to develop, fortify, and give effect to these constitutional declarations.

§ 231.

"Power Vested . . in the Federal Judicature."

The judicial power of the Commonwealth is vested in a Federal High Court and in such other Courts as may be created (sec. 71). Sub-sec. xxxix. authorizes the Parliament to pass any law necessary for the execution and maintenance of the judicial power. No mention is made in the Constitution of the right of litigants, and other persons interested in proceedings in the Federal Courts, to appear and be heard by Counsel learned in the law; but the grant of ancillary power covered by this sub-section will enable the Parliament to legislate, or to authorize the High Court to make rules, respecting the legal profession, its qualifications, privileges, and obligations in relation to Federal Courts. It will also authorize the appointment of proper officers to preserve the records and enforce the judgments, decrees, orders, and sentences of the Federal Courts.

$ 232.

"Power Vested . . .
... in any Department."

On the establishment of the Commonwealth the customs and excise department will be transferred to it, whilst other departments will be taken over on dates to be proclaimed. There is no section in the Constitution directly vesting power in any department; but the Parliament is empowered by sec. 52-ii. to make laws with respect to matters relating to any department of the public service, the control of which is transferred to the Executive Government of the Commonwealth. Sub-sec. xxxix. enlarges and reinforces the grant of power contained in sec. 52-ii. ; so that when the Parliament legislates concerning transferred departments, there will be no doubt as to its ability to equip them with all the subsidiary powers necessary for their successful and efficient operation.

in any

Officer."

§ 233. "Power vested Section 64 enables the Governor-General to appoint political officers to administer such departments of State as may be established. Here is a bare grant of power "to administer." Sub-section xxxix. comes to the aid of the grant and says that the Parliament may make laws incidental to it and necessary to enable Ministers of State to effectively perform their administrative duties. Similarly by sec. 68 the Command-inChief of the naval and military forces is vested in the Governor-General. Sub-sec. xxxix. will enable the Parliament to grant such powers to the Commander-in-Chief as will enable him to efficiently perform the duties of that high office.

Exclusive powers of the Parliament.

52. The Parliament shall, subject to this Constitution, have exclusive power234 to make laws for the peace, order, and good government235 of the Commonwealth with respect

to

(i.) The seat of government236 of the Commonwealth, and all places acquired 237 by the Commonwealth for public purposes:

238

(ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth :

(iii.) Other matters 39 declared by this Constitution to be within the exclusive power of the

Parliament.

UNITED STATES.-To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.-Const., Art. I., sec. 8, subs. 17.

HISTORICAL NOTE.-Clause 53 of the Commonwealth Bill of 1891 defined substantially the same powers in less concise words. It also contained the sub-clause dealing with the alien races within the Commonwealth, which now forms sub-sec. xxvi. of sec. 51. (Conv. Deb., Syd., 1891, 701-4.) At the Adelaide session the clause was adopted almost verbatim. (Conv. Deb., Adel., pp. 830-4.)

At the Melbourne session the sub-clause as to alien races was transferred to sec. 51. The clause was then verbally amended. (Conv. Deb., Melb., pp. 256-62.) Drafting amendments were made before the first report and after the fourth report.

This section purports to confer on the Federal Parliament exclusive power to legislate concerning certain subjects. "Exclusive" in this section, as in the corresponding sections of the British North America Act, 1867, means the sole or exclusive right of the Federal Parliament, as opposed to the State Parliaments. (Per Hagarty, C.J., in Regina v. College of Physicians, 44 Upper Can. Q.B. 576.) If sec. 51 is designed to enumerate powers which, for a time, may be concurrently exercised by the Federal Parliament, whilst sec. 52 is supposed to specify powers exclusively vested in the Federal Parliament, then the classification intended has not been strictly observed in the allocation of subjects among these sections. There are several powers granted by sec. 51 which, on their face, could never have been exercised by any State Parliament and which are, ex necessitate, federal powers only, such as the powers to make laws in respect of "borrowing money on the public credit of the Commonwealth;" "the naval and military defence of the Commonwealth;" "fisheries in Australian waters beyond territorial limits; " "the service and execution throughout the Commonwealth of State process and judgments;" the relations of the Commonwealth with the islands of the Pacific."

COMMENCEMENT OF EXCLUSIVENESS.-Questions may arise as to the time when the character of exclusiveness attaches to any particular subject of legislation. In the case

of the powers mentioned above as being necessarily exclusive in their nature, exclusiveness of course attaches from the moment when the federal power vests-that is, from the establishment of the Commonwealth. But the powers conferred by this section cannot all become exclusive immediately on the establishment of the Commonwealth. Power over the seat of government cannot be exercised at all-much less become exclusiveuntil its location has been determined by the Parliament; and similarly power over places acquired by the Commonwealth cannot be exercised-much less become exclusive --until such places have been acquired. The question of the time at which the several exclusive powers of the Parliament acquire the character of exclusiveness will be found discussed under the headings of those powers.

EFFECT ON STATE LAWS.-The gift to the Parliament of the exclusive power to make laws in respect of certain subjects withdraws from the State legislatures all power of making laws upon those subjects. From the moment when the exclusiveness attaches, the power of the State Parliaments to legislate is gone. The question then arises-how does this exclusiveness affect the laws of the States, in respect of those subjects, passed before the exclusive federal power attached? Do they continue in existence until superseded by federal legislation, or do they cease to have effect from the moment when the Parliament that passed them ceased to have power?

In the United States there was for many years much difference of opinion as to the nature of an exclusive power. Hamilton (Federalist, No. 32) thought that until Congress had acted in pursuance of an exclusive authority, the States could legislate on the subject. Chief Justice Marshall's opinion seems to have been that where Congress had exclusive power over any subject, the States could not pass laws dealing with that subject as such; but that State legislation upon a subject not exclusively delegated to Congress might incidentally affect the exclusive area, so long as it did not conflict with actual Federal legislation. (See Gibbons v. Ogden, 9 Wheat. at p. 204; Lewis, Federal Power over Commerce, p. 39.) Thus in Chief Justice Marshall's view, the federal power over inter-state commerce was exclusive; but this, though it prevented the States from legislating for the purpose of affecting such commerce, did not invalidate a State law which flowed from an acknowledged power of the State, but which incidentally affected commerce. 'Commerce, as commerce, could not be regulated by the States if the power was exclusively in Congress; but, except in case of an actual conflict, commerce might in effect be regulated, or as we have chosen to call it, 'affected,' by a law passed by a State for the purpose of providing for the health or morals of her citizens." (Lewis, Fed. Power over Commerce, p. 42.) A third view of the exclusive power was that adopted by Mr. Justice Story, that-the commerce power being taken to be indivisible and exclusive-the States were not only unable to regulate commerce as commerce, but were unable, even in the exercise of their acknowledged police powers, to pass a law affecting commerce. (New York v. Miln, 11 Pet. p. 132.)

The third view of the nature of an exclusive power was that most generally accepted, and it appears to have been thought that it involved the conclusion that a gift of exclusive power to the Union would not only prevent State legislation for the future, but would sweep away State legislation existing at the time of the Union. In Cooley v. Port Wardens, 12 How. 299, this was apparently assumed by the court, though the point was not in issue. The assumption was that when the legislative power lapsed, laws already made in pursuance of that power lapsed also.

The Constitution of the Commonwealth, however, is explicit where the American Constitution was vague. The distinction between State powers and State laws is expressly drawn (secs. 107, 108), and it seems clear that while powers which are exclusively vested in the Federal Parliament are, from the moment of such vesting, taken away from the States, laws of the States existing at that moment continue in force "subject to the Constitution." That is to say, such laws, so far as they are not inconsistent with some provision of the Constitution itself, will continue in force until superseded by federal legislation. This is the view which was taken throughout the

Convention (see especially Conv. Deb., Melb., pp. 227-257), and it is emphasized in sec. 90; where, in addition to providing that on a certain event the power to impose customs and excise duties and to grant bounties shall become exclusive, it is thought necessary to declare expressly that on that event all State laws imposing such duties or offering bounties shall cease to have effect. In this section there is no such provision.

Care must, however, be taken to distinguish between powers which are exclusive from an express gift to the Federal Parliament of "exclusive power to make laws,” and powers which are exclusive because any exercise of those powers by the States is expressly, or by necessary implication, prohibited. The provisions, for instance, that a State shall not raise or maintain any naval or military force, or impose a tax on property of the Commonwealth, or coin money, prohibit not only State legislation, but also State administration. A State will not be able, under cover of its existing law, to perform executive acts which infringe these prohibitions; and existing laws which purport to give the State such power will, for all practical purposes, cease to have effect. (See Notes to sec. 108.)

$ 235.

"Peace, Order and Good Government."

It has been already noted in connection with sec. 51 that the words ". for the peace, order, and good government of the Commonwealth" do not in any way expand, amplify, or contract the grant of power, nor will they give jurisdiction to the Federal Courts to enquire whether a particular law does, in their opinion, tend to promote peace, or order, or good government. (See Note, § 161, supra).

Sub-section i. gives the Federal Parliament exclusive authority to make laws with respect to the regulation and control of the seat of Federal Government. The Parliament will not, however, be able to exercise this power until the seat of Government is vested in the Commonwealth under the provisions of section 125. By sec. 125 the seat of Government must be determined by the Parliament; it must be within territory which shall have been granted to or acquired by the Commonwealth; it must be vested in and belong to the Commonwealth; it must be in the State of New South Wales, and be distant not less than 100 miles from Sydney. Such territory must contain an area of not less than 100 square miles, and such portion thereof as consists of Crown lands must be granted to the Commonwealth without any payment therefor. Within this territory, the State out of which it has been carved will cease to have even local jurisdiction; the Parliament of the Commonwealth alone will have exclusive power to make laws for its municipal and general government. As to the question of the representation of this territory in the Federal Parliament, see Note, § 473, infra.

The corresponding provision in the Constitution of the United States (Art. I. sec. viii. sub-s. 17) empowers Congress "to exercise exclusive legislation, in all cases whatsoever, over such district (not excceding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of government of the United States."

Under this clause, Congress may constitute the District of Columbia a body corporate for municipal purposes, but can only authorize it to exercise municipal power. (Stoutenburgh v. Hennick, 129 U.S. 141. Baker, Annot. Const. p. 54.)

Within the District of Columbia, and the other places purchased and used for federal purposes, the national and municipal powers of government are united in the government of the Union. These are the only cases in which all the powers of government are so united. (Pollard v. Hagan, 3 How. 212. Id. p. 54.)

This power is conferred on Congress as the national legislature of the Union. other character can it be exercised. (Cohens v. Virginia, 6 Wheat. 424. Id. p. 55.)

In no

This power includes the power to tax; hence Congress may levy a direct tax on the District of Columbia, in proportion to the census directed to be taken by the Constitution. (Loughborough v. Blake, 5 Wheat. 317. Id.)

Courts established by federal legislation for the District of Columbia may issue all processes necessary to carry their orders into effect, and such process may be executed within any State. (United States v. Williams, 4 Cranch, C.C. 393. Id.)

Under this power Congress may authorize the municipal authorities of the city of Washington to provide for paving the streets of the city and to levy assessments on abutting property to pay for the same. (Willard v. Presbury, 14 Wall 676. Id.)

An inhabitant of the District of Columbia, who there has his permanent abode, is not a citizen of a State. (Cissel v. McDonald, 16 Blatch. 150. Id.)

The sovereign power of the District of Columbia is lodged in the government of the United States and not in the corporation of the District. But the District municipal corporation is a person, and subject to suit, as any other municipality, and cannot claim exemption from the provisions of a statute of limitations on the ground that it is a department of the government of the United States. (Metropolitan R. R. Co. v. District of Columbia, 132 U.S. 1. Id p. 56.)

The principles laid down by the Supreme Court, that the exclusive legislative power involves exclusive jurisdiction, and that Congress is not the local legislature of the District, but possesses, as the national legislature, exclusive legislative power over it, have never been seriously assailed. The power of giving the city of Washington its own municipal government has therefore always been regarded as self-evident. On the contrary, the constitutionality of organizing the District into a territory, like the ordinary territories, has been disputed, because a partial delegation of the legislative power is inadmissible, on account of the expressly-stated exclusiveness of this power. It is, however, generally admitted that exclusive' does not mean the same as 'unlimited. Congress cannot grant the inhabitants of the District any rights which, according to the general political nature of the Union, belong only to the population of the States--such, for instance, as representation in Congress, participation in the Presidential election, &c. And just as little can Congress rule the District without regard to the provisions of the so-called bill of rights.' But what Congress cannot do in regard to the District in matters not involving the rights of the States as such, that it also cannot do in reference to anybody or anything." (Von Holst's Constitutional Law of the United States, p. 173.)

"Congress has tried all sorts of experiments as to the local government of the District, some of them with very unfortunate results. At present there are three commissioners at the head of the administration of the District. The inhabitants cannot well grieve over the loss of their short-lived enjoyment of a limited autonomy, for while their rights have again become more limited (necessarily so under the present system), their interests are better cared for. They must bear the same burdens as the rest of the people, have the same taxes to pay, and are bound to serve in the militia. But in spite of their full citizenship, political rights are withheld from them solely because they have their domicile at the seat of government. This is an anomaly that has never been justified theoretically, and its necessity-not to say its expediency-has become at least doubtful since the power of the Federal Government has become so firmly established and so far beyond the power of each separate State. This anomaly, moreover, will always remain a thorn in the flesh of the American disciples of the doctrine of natural political rights. The creation of the District of Columbia is one of those steps which it is scarcely possible to retrace, even if the circumstances, which at one time made them seem wise, have given room to a completely changed state of things." (Id. 173-4.)

"When the grant of an express power to incorporate a bank was proposed [in the American Federal Convention] Gouverneur Morris opposed it, observing that it was extremely doubtful whether the Constitution they were framing could ever be passed at all by the people of America; that to give it its best chance, however, they should make it as palatable as possible and put nothing into it not very essential which might raise up enemies. (Jefferson's Ana. Works, 1st ed. vol. ix. p. 191.) So Gouverneur Morris opposed the inclusion of an express grant of power to establish a university, saying, ‘It is not necessary. The exclusive power at the seat of Government will reach the object.' (Madison Papers; Elliot's Debates, 2nd ed. vol. v. p. 544. Foster, Const. I. p. 42.)

$ 237.

"And all Places Acquired by the Commonwealth." The right of eminent domain vested in the Commonwealth, under sec. 51 - xxxi. and sec. 85, enables the Parliament to acquire private and provincial property, including land, for Federal purposes. Sec. 122 enables the Parliament to accept from a State or from the Queen, or otherwise acquire, territory to be governed as Federal domain. Property and territory so acquired may become "places acquired by the Commonwealth