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military defense in the London Conference of 1881 led Sir Henry Parkes to undertake the calling of a national Australasian Convention. After considerable delay the Convention met in Sydney in 1891 and drew the famous Draft Bill which contains in substance the present Constitution. This Constitution was put in final form and adopted by the Convention of Adelaide in 1897. It received the Royal Assent in 1900 and went into operation on January 1, 1901.
Mr. A. Inglis Clark, who with Sir Samuel Griffith was the draftsman of the Bill of 1891, was strong in his admiration of American institutions. His knowledge of the constitutional history of the United States was profound and his zeal in advocating American principles had a marked effect upon the Convention. It is generally conceded that the fact that the Constitution of Australia so closely resembles that of the United States is due in a large measure to Mr. Clark.
"For my part,” he said in one of his notable speeches, “I would prefer the lexis of the American Union to those of the Dominion of Canada. In fact I regard the Dominion of Canada as an instance of amalgamation rather than federation and I am convinced that the different Australian colonies do not want absolute amalgamation.” 3
FEATURES OF THE CONSTITUTION Act
The Constitution Act of the Commonwealth of Australia gives evidence of a study and comparison of many existing constitutions. There is a distinct effort to combine the salient features of English parliamentary government with some of the notable principles of federal government as developed in the United States. In some instances the language of the Constitution of the United States is followed directly and there is an evident intent throughout to model the form of government after that of the United States and yet to leave the basic features of parliamentary government intact. While the term Parliament is used, the familiar American designation of the Chambers - Senate and House of Representatives -- was adopted. A Governor General with powers similar to those exercised by the Crown in England and by the Governor General of Canada, a
: WISE, THE MAKING OF THE COMMONWEALTH OF AUSTRALIA, 74–76. See also pp. 118 and 230.
Senate with at least six senators from each state, a House based on an apportionment according to population, are all included among the salient features of the Act.
The powers of Parliament are specified in thirteen sections and include among other things the control of taxation, trade and commerce, foreign affairs, naturalization, and control of naval and military defenses; foreign corporations; currency, coinage, legal tender, and public credit, including banking and insurance; bills of exchange, promissory notes, bankruptcy and insolvency; lighthouses, etc.; quarantine regulations and fisheries in Australian waters; marriage and divorce; postal, telegraph, and telephonic services; invalid and old age pensions; conciliation and arbitration in industrial disputes; control of railways for naval and military purposes. In the scope of powers assigned to the federal Parliament the Constitution Act follows the Dominion of Canada rather than the Constitution of the United States. Finally, authority over matters incidental to the execution of any power has been vested by this Constitution in the Parliament, a provision similar to the elastic clause of the Constitution of the United States. Within one year the home government may disallow any law passed by Parliament. Provision is made for a Cabinet and Council of Ministers, similar to that of England. A judiciary consisting of a High Court is provided with jurisdiction to hear and determine appeals from lower federal courts and with original jurisdiction as to suits against the Commonwealth or its officers and suits between residents of different states. Parliament may confer original jurisdiction along other lines involving federal matters and has full power to define the jurisdiction of other federal courts.
Matters with regard to finance and trade are dealt with in considerable detail in a separate section, and in like manner separate consideration is accorded to the rights, duties, and obligations of states as well as to the admission of new states.
Amendments may be proposed by an absolute majority of each house, or by a second vote by absolute majority in one of the two houses, and when approved by a majority of the electors in a majority of the states become a part of the Constitution.
PECULIARITIES OF THE COMMONWEALTH CONSTITUTION
1. The Commonwealth government is one of limited and enumerated powers and the parliaments of the states retain the residuary powers of government. In this respect the American rather than the Canadian plan is followed.
2. There is no general supervision of the state in the exercise of the powers belonging to it as is enjoyed by the Dominion Government over the provinces of Canada.
3. Declarations of individual right and the protection of liberty and property against the government such as exist in the United States are conspicuously absent from the Constitution; the individual is deemed sufficiently protected by that share in the government which the Constitution insures him.
4. The theory of the separation of powers after the model of the United States was adopted, but with certain well-understood limitations and modifications.
There is no doubt but that it was intended to establish legal limitations on the organs of government, and that it devolves upon the courts to define these limitations. But attention is called to the fact that the greater number of cases in American courts which refer to the separation of powers have been decided not on the implied prohibition arising from the separation of powers, but upon express restraints imposed on the legislature such as the prohibition of bills of attainder or ex post facto laws and the prohibition against the state legislatures as to laws impairing the obligation of contracts, or the deprival of due process of law. Especial care must therefore be taken, say the Australian authorities, in the application of American precedents on this subject to a constitution where these additional restrictions do not exist. The separation of powers in the states is held to be merely a rule of expediency subject to political sanctions. As to the Commonwealth government, any attempt by the Parliament to set aside or reverse the judgment
• Cf. MOORE, COMMONWEALTH OF AUSTRALIA, 2 ed., 68–71. • Ibid., 94, 96, 97.
. On the effect of the lack of specific limitations, consult QUICK & GARRAN, CONSTITUTION OF THE AUSTRALIAN COMMONWEALTH, 720–22.
7 MOORE, 96.
of a court of federal jurisdiction, it is maintained, would be held void as an invasion of the judicial power. Whereas in America the ordinary rule of separation requires that the executive shall exercise no discretion in the making of rules and regulations except as to the details of administration, the executive of Australia is specifically granted an ordinance power.'
5. In the distribution of powers the Constitution Act is more specific than the Constitution of the United States. There are matters:
(a) Exclusively federal, such as the location of the seat of government and the public property of the Commonwealth.
(6) Over which the power of the Commonwealth Parliament operates by way of paramount legislation merely, overriding any exercise by the state of its own power. This division includes such powers as are expressly granted to the Commonwealth but concerning which federal legislation is not adequate or exhaustive.
(c) Over which the Parliament of the Commonwealth and the parliaments of the states have concurrent and independent jurisdiction, such as taxation.
On a few subjects procedure is direct from the states to the Colonial Office in England and consequently these matters are not within federal jurisdiction. The most important are the allowance and disallowance of state legislation, the appointment and removal of state governors, and the amendment of state constitutions.
6. The establishment of judicial review in the High Court as to federal constitutional questions.
Each of the peculiar features of the Commonwealth Constitution might profitably be considered in detail, but it is intended at this time to deal particularly with the development of judicial review. After a prolonged controversy in which the representatives of the home government and a few of the Australian delegates aimed to establish an appeal to the Privy Council similar to that in force in Canada, the following section eventually was accepted by both parties and made a part of the Commonwealth Constitution:
8 See Field v. Clark, 143 U. S. 649 (1891).
9 For a criticism of the American doctrine and a defense of the Australian plan, see MOORE, 99-101.
“Section 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State, or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.” 10
The language is sufficiently indefinite to leave some doubt as to the intention of the framers, but the majority of the Australian delegates accepted this wording on the belief that it gave practically final jurisdiction to the High Court on constitutional questions. The controversy which arose over the interpretation of the section is one of the most interesting raised in the history of self-government as well as one of the greatest issues of modern constitutional interpretation.
The interpretation of the Commonwealth Constitution was first presented to the court in D'Emden v. Pedder, 11 wherein was involved the Tasmanian Stamp Act, on which the question was raised whether the Act operated as an interference by way of taxation and consequent control with a federal agency or instrumentality. As a similar issue to that determined in McCulloch v. Maryland was raised, the court quoted freely from the American precedent and commended the opinion of Chief Justice Marshall. The doctrine of the immunity of federal instrumentalities from taxation as formulated in the McCulloch case was accepted and incorporated in the court's opinion and judgment. The intention to follow American precedents was thus expressed:
"When, therefore, under these circumstances, we find embodied in the Constitution provisions undistinguishable in substance, though varied in form, from the provisions of the Constitution of the United States which had long since been judicially interpreted by the Supreme Court of that Republic, it is not an unreasonable inference that its framers intended that like provisions should receive like interpretation.” 12
It was emphatically asserted to be the duty of the court to determine the validity of an attempted exercise of legislative power, and the principle was announced that
10 For the history of the introduction and passage of this clause, consult Quick & GARRAN, especially pp. 242, 247, 724, 735, 748-50.
11 1 C. L. R. 91 (1904).
12 Ibid., 113.