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When clause 5 was under consideration in the Sydney Convention an amendment, formulated by the Legislative Council of South Australia, was submitted, adding the words "in addition to the laws of Great Britain,” and making the last part of the clause to read" in addition to the laws of Great Britain the laws of the Commonwealth shall be in force on all British ships." The amendment, it was considered, was vague, confusing, and unnecessary. Mr. R. E. O'Connor suggested that the clause might be made clearer by inserting the words "the laws of the Commonwealth in so far as the same are not repugnant to any Imperial Act relating to shipping or navigation." Mr. Isaacs suggested that even that addition was unnecessary, as the laws of the Commonwealth would be subject to the Imperial laws relating to repugnancy, the Imperial laws being paramount. Mr. O'Connor was of opinion that the Colonial Laws Validity Act would apply only to the legislation of the various States, and that it would not apply to this Act at all;" but eventually the South Australian amendment was rejected, and Mr. O'Connor did not press his suggestion. (Conv. Deb., Sydney, p. 252.)



When the Bill was sent to England the question was raised, and a doubt expressed by the Law Officers of the Crown as to the application of the Colonial Laws Validity Act to Acts passed by the Federal Parliament. In support of the doubt attention was drawn to Mr. O'Connor's dictum, also to the definition of "colony" and "colonial legislature,” as given in sec. 1 of the Colonial Laws Validity Act, and to the definition of colony " as given in Clause 6 of the Commonwealth Bill. The Imperial authorities had always held that the Parliament of the Dominion of Canada was "a colonial legislature,' as defined by the said Act; yet it was now submitted that the definition of “colony" in the Commonwealth Bill might raise a doubt whether "the Commonwealth' was a "colony" within the meaning of the Colonial Laws Validity Act, and consequently whether laws passed by the Federal Parliament would be laws passed by "a Colonial Legislature" as defined by that Act. It was, therefore, proposed to remove doubts by adding a paragraph to Clause 6 declaring that "the laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865." It was pointed out in the first Imperial Memorandum that Mr. O'Connor's dictum showed that there was room for misapprehension, which it was desirable to remove. It was important in the interests of the Commonwealth, as well as of the rest of the Empire, that there should be no doubt as to the validity of Commonwealth laws, or as to the supremacy of Imperial legislation. The Memorandum proceeded to argue that there was room for such misapprehension not only from the language of Clause 6 of the covering clauses, but also from sec. 51, sub-sec. xxxviii., of the Constitution, which conferred on the Commonwealth Parliament "the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia." Sub-sec. xxix. of the same section of the Constitution, moreover, empowered the Commonwealth Parliament to legislate in regard to "external affairs," and, consequently, under these provisions it might be claimed that the Parliament of the Commonwealth had power to pass legislation inconsistent with Imperial legislation dealing with such subjects as those dealt with by the Foreign Enlistment Act The responsibility to foreign Powers for such legislation would rest, not on Australia, but on the Government of the United Kingdom, as representing the whole Empire; and in the absence of any definition or limitation of the privilege claimed by these provisions for the Commonwealth Parliament, Her Majesty's Government would fail in their duty if they left any room for doubt as to the paramount authority of Imperial legislation. (See House of Com. Pap. May, 1900, p. 23.)

The Australian Delegates maintained that the doubt raised by the Imperial Law Officers was unfounded, and that there was no necessity for any amendment. They were of opinion that the meaning of the Bill was clear, without any such legislative explanation. The doubt expressed by the law advisers of the Crown arose, as they

explained, from the presence in Clause 6 of the words " Colony shall mean any Colony or Province." It was submitted that this definition was framed simply for the purpose of clearly including South Australia in the Bill, and could in no wise exclude the definition of "Colony" in the Colonial Laws Validity Act from applying to the Commonwealth in relation to its laws.

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The definition in the Commonwealth Bill arises from the fact that South Australia has from time to time been variously designated in legislation as a Colony and as a Province. For instance, in the Imperial Statutes 4 and 5 Wm. IV. c. 95 and 1 and 2 Vic. c. 60, the designation is Province;' in 5 and 6 Vic. c. 61 Colony' and 'Province' are both used for the same purpose. In 4 and 5 Vic. c. 13, in 13 and 14 Vic. c. 59, and in all Imperial Acts relating to South Australia since the passage by the local Legislature of the Constitution Act (18 and 19 Vic. No. 2) the term Colony' is used. But in the Act last mentioned, and in all other local legislation since its passage, South Australia has uniformly been referred to as a 'Province.' Apart from legislation, the Letterspatent, Commissions and Instructions, issued in connection with the offices of Governor, Lieutenant-Governor, and Administrator of the Government for South Australia, have all employed the word 'Colony' alone to designate that possession, while the Regulations and other official documents under or in consequence of local Acts have as regularly referred to South Australia as a Province.' It was merely for the purpose of avoiding the constant repetition of the distinction between the words Colony,' as applied to the other states, and Province,' as applied to South Australia, that the definition in question was placed in the Bill. Inasmuch as Imperial legislation has so generally referred to South Australia as a Colony, it may be that excessive caution has been used by the draughtsmen in this instance. If after this explanation any doubt remains, the Delegates are of opinion that the real point of objection is in the definition itself as introducing that doubt, and if the definition is unnecessary it would not seem to be convenient to counteract any doubt by amendment elsewhere in the Bill. The Commonwealth appears to the Delegates to be clearly a Colony,' and the Federal Parliament to be a Legislature' within the meaning of the Colonial Laws Validity Act, and they cannot think that the larger meaning given to the word 'Colony' in Clause VI. to save words, can be held to take away the protection of the Act of 1865 from any law passed by the Federal Parliament. But the Interpretation Act of 1889 (52 and 53 Vic. c. 63) might itself be cited in support of the same contention. That Act prescribes that 6 unless the contrary intention appears, the expression "Colony" in any Act passed since the 1st January, 1890, is to mean any part of Her Majesty's Dominions, exclusive of the British Islands and of British India.' The Interpretation Act goes on to require that where parts of such Dominions are under both a central and a local legislature, all parts under the Central Legislature shall, for the purposes of the definition, be deemed to be one Colony. It might be argued that this definition secures the application of the Validity Act to Colonial Statutes passed since the end of 1889, and if this be so it would be strange if the occurrence in Clause 6 of the few words quoted were held to deprive the laws of the Parliament of the Commonwealth of Australia of the same protection. It may further be observed that the Constitution of Canada contains no words similar to those proposed to be here inserted, even though that Constitution was enacted prior to 1889; yet it will not be denied that the Colonial Laws Validity Act applies to Dominion Statutes. What then is there which excludes its application to the Statutes of the Commonwealth?" (See House Coms Pap. May, 1900, pp. 14, 15.)

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On the question whether, if an amendment were made, it should be placed in the Covering Clauses or in the Schedule, the Delegates agreed in the opinion that a declaratory enactment of this kind would be looked for rather in the Covering Clauses than in the Schedule. But a separate enactment appeared to be a better vehicle for such a declaration than the measure itself.

The amendment declaring that "the laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865," appeared in Clause 6 of the Bill introduced into the House of Commons. As a result of subsequent negotiations, however, the Imperial Government decided to omit these words, and also to omit the definition of "colony," and in Committee this was done. It may be assumed, therefore, that the Crown Law Officers were satisfied that the Colonial Laws Validity Act is applicable to the Constitution as it stands.

$34. "Shall be Binding on the Courts, Judges

and People."

The importance of these words, as indicating one of the fundamental principles of the Constitution, should be specially noted. They make Clause 5 of the Commonwealth Constitution Act substantially similar in scope and intention to article VI. sec. 2 of the Constitution of the United States, supra. Under this clause, the Act, the Constitution, and laws of the Commonwealth made in pursuance of its powers, will be the supreme law of the land, binding on the Courts, Judges, and people of every State, notwithstanding anything to the contrary in the laws of any State. The latter words operate as a rescission of all State laws incompatible with the Act, with the Constitution, and with such laws as may be passed by the Parliament of the Commonwealth in the exercise of its Constitutional rights. Therefore, by this clause, coupled with sections 106 to 109, all the laws of a State, constitutional as well as ordinary, will be in effect repealed so far as they are repugnant to the supreme law. All the laws of any State, so far as not inconsistent with the supreme law, will remain in force until altered by the proper authority.

The pre-eminent significance of this direct action of the federal laws on the Courts, Judges, and people, is that it forms a distinctly national feature of the Constitution and differentiates it from the weakness and imperfection of a confederate system of government. The constitutional value of these words will be better appreciated by comparing this Constitution with the Articles of Confederation of the American States (1781), from which they are absent.

Those articles established a league of States organized in a Congress in which each State had an equal voice. The Congress was endowed with certain legislative powers, but it lacked any means of enforcing obedience to its mandates. Not only was there no federal executive or judiciary worthy of the name, but the laws of the Congress were directed to the States as political entities and not to private individuals. Congress could not pass a single law binding on the Courts, Judges, or people of the States. It could only recommend the States to pass local Acts giving effect to its laws or requisitions. (Fiske, Critical Period of American History, p. 99.) One of the greatest triumphs of the American Constitution (1787) was that it gave expression to the original and noble conception of a dual system of government operating at one and the same time upon the same individuals, harmonious with each other, but each supreme in its own sphere (id. 239). This dual system gave rise to two groups or classes of lawsState laws and Federal laws-both equally binding on individuals and enforceable by appropriate procedure. Thereby the federal principle of the Union of States, which was the basis of the Articles of Confederation, was preserved and conjoined with the national principle that the laws of the Union should be binding on the people of the Union, interpreted by the judges of the Union, and enforced by the Executive of the Union.

"In all communities there must be one supreme power and one only. A confederacy is a mere compact, resting on the good faith of the parties; a national, supreme government must have a complete and compulsive operation." (Gouverneur Morris, in the Federal Convention, 30th May, 1787. Bancroft's History of the United States, vol. 2, p. 15.)

"In the nature of things punishment cannot be executed on the States collectively therefore such a government is necessary as can operate directly on individuals." (George Mason, id., p. 15.)


he difference between a federal and a national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities." (Madison, in The Federalist, xxxix., p. 237, cited Foster on the Constitution, vol. I., p. 196. )

As of the laws of Congress and the Constitution of the United States, so of the laws of the Federal Parliament and the Constitution of the Commonwealth, it may be

said that their authority extends over the whole territory of the Union, acting upon the States and the people of the States. Whilst the Federal Government is limited in the number of its powers, within the scope of those powers it is supreme. No State Government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which the Constitution has committed to it. (Tennessee v. Davis, 100 U.S. 257.)

$35. "And of Every Part of the Commonwealth."

TERRITORIAL LIMITS.-The Constitution and laws of the Commonwealth are in force within the territorial limits of the Commonwealth. By the law of nations the territorial limits of a country are allowed to extend into every part of the open sea within one marine league from the coast, measured from low water mark. This coastal margin is called "territorial waters," or the "three-mile limit." (See Note, Territorial Waters, infra.) By a later part of this clause the Constitution and the laws of the Commonwealth are conceded an extra-territorial force on British ships. (See Note, § 38" British Ships.")

But there may be "parts of the Commonwealth" which are not States. The territorial limits of the Commonwealth will not be necessarily co-terminous with the boundaries of the States and their territorial waters added; they will also embrace any other regions, with their adjacent territorial waters, which for the time being may not be included within the boundaries of a State, but which may be acquired by the Commonwealth in any of the ways authorized by the Constitution. Thus the seat of govern. ment, when determined by the Parliament and made federal territory, will no longer be part of the State of New South Wales, but will be a part of the Commonwealth. Again, the Queen might place British New Guinea under the control of the Commonwealth; she might detach a part of the vast area of Western Australia from that State and hand it over to the Commonwealth; she might do the same with the Northern Territory of South Australia; Tasmania might agree to surrender King's Island to the Commonwealth. Upon acceptance by the Commonwealth in each of these cases, the territory so surrendered to or placed under the authority of the Commonwealth would even before its erection into a State, or States, become a part of the Commonwealth, and the Constitution and laws of the Commonwealth would be as binding on the people there as on those of a State.

EXTRA-TERRITORIAL OPERATION OF LAWS.-A Colony, Dominion, or Federation, under the British Crown, has no jurisdiction to make laws operative beyond its terri torial limits, unless such power is specially granted by Imperial Statute. "In this respect independent States are in the same position, at least with regard to the subjects of other independent States and their property, as those colonies of Great Britain which possess plenary powers of legislation and self-government. Both are restricted as to acts of legislation by territorial limits, those limits being fixed in the one case by an Imperial Statute, and in the other case by the established principles of international law. The first of the three celebrated axioms of Huberus lays down the rule for independent States in distinct terms: Leges cujusque imperii vim habent intra terminos ejusdem reipublicæ omnesque ei subjectos obligant, nec ultra.' (Per Higinbotham, J., in Regina v. Call, ex p. Murphy [1881], 7 V.L.R. [L.], p. 121.)

There are only two provisions in the Constitution Act explicitly relating to the extra-territorial operation of laws. The first is in Clause 5, which makes the laws of the Commonwealth in force on British ships voyaging solely between ports of the Commonwealth (see Note, § 38, "British ships"); the second is in sec. 51 x., which empowers the Federal Parliament to legislate as to "fisheries in Australian waters beyond territorial limits." The legislative powers given by sec. 51-xxix., as to "external affairs," and by sec. 51-xxxviii., as to powers previously exercisable by the

Imperial Parliament or by the Federal Council, do not necessarily imply extra-territorial operation, and it is therefore submitted that they do not sanction any such operation.

"No State can by its laws directly affect, bind, or regulate property beyond its own territory, or control persons who do not reside within it, whether they be nativeborn subjects or not; a different system, which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them." (Felix, Droit International Privé, s. 10.)

"The Legislature of a colony may authorize the exclusion from its territory of a person charged with an offence in another colony, or that he be punished unless he leaves the territory, or his detention; but it cannot authorize the sending him in custody out of its territory into another colony." (Ray v. McMackin, 1 V.L.R. [L.], p. 272.)

"In Phillips v. Eyre, L.R. 6 Q B., p. 1., it was distinctly enunciated that the superior Courts in England will regard Acts of colonial Legislatures in the same way as they regard Acts of foreign countries legislating with respect to their inhabitants within the limits of their authority. Any attempt to exercise jurisdiction beyond the boundaries of their own territory, domestic or distant, by either one or the other, is treated as being beyond the powers of their Legislatures." (Per Barry, J., in Ray v. McMackin, 1 V.L.R. [L.], p. 280.)

"On Dec. 17, 1869, the Secretary of State for the Colonies notified the GovernorGeneral of Canada, in regard to certain Acts passed by the Dominion Parliament in the previous session of Parliament, that Her Majesty would not be advised to exercise her power of disallowance with respect thereto; but that he observed that the third section of an Act respecting perjury assumed to affix a criminal character to acts committed beyond the limits of the Dominion. As such a provision is beyond the legislative power of the Canadian Parliament,' the Colonial Secretary requested the Governor-General to bring this point to the notice of his Ministers, with a view to the amendment of the Act in this particular. Accordingly, in the ensuing session of the Dominion Parliament, an Act was passed to correct this error." (Todd, Parl. Gov. in the Col., p. 145.)

The Criminal Law Amendment Act, 1883, sec. 54, of New South Wales, enacts that "whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years: It was held by the Privy Council that those words must be intended to apply to persons actually within the jurisdiction of the Legislature, and consequently that the Courts of the colony had no jurisdiction to try the appellant for the offence of bigamy alleged to have been committed in the United States of America. (Macleod v. Att. Gen. for New South Wales [1891], A.C. 455; Digest of English Case Law, vol. 3, p. 486.)

In the case of Re Victoria Steam Navigation Board, ex parte Allan, decided by the Full Court of Victoria, consisting of Stawell, C..J., and Stephen and Higinbotham, JJ., in 1881, the Court (Higinbotham. J., dissenting) were of the opinion that the Passengers, Harbours, and Navigation Statute, 1865, did not give the Steam Navigation Board any jurisdiction to enquire into charges of incompetency of a master. occurring at Cape Jaffa outside Victorian waters, and that the Imperial Merchant Shipping Act, 1854, sec. 242, sub-sec. 5, and Merchant Shipping Amendment Act, 1862, sec. 23, did not confer on it any extra-territorial jurisdiction. The summons to prohibit the enforcement of the suspension of a master's certificate was allowed, with costs. (Ex parte Allen, 7 V.L R 248, 3 A.L T., p. 1.) But now see Merchant Shipping Act, 1894, 8. 478.

The British Parliament, being a sovereign legislature, may pass laws binding on its subjects all over the world; but, according to the principles of international law, it ought not to legislate for foreigners out of its dominions and beyond the jurisdiction of the Crown. (Lopez v. Burslem, 4 Moo. P.C., 300: the Zollverein, 1 Swab. Adm., 96.) The British Parliament has not, according to the principles of public law, any authority to legislate for fereign vessels on the high seas or for foreigners beyond the frontiers of the Empire. (Reg. v. Keyn, 2 Ex. D 220.) Should the British Parliament in violation of those principles attempt to render foreigners subject to its laws with reference to offences committed beyond its territorial limits, it would be incumbent on the Courts of the Empire to enforce those enactments, leaving it to the Imperial Government to settle the question of international law with the governments of the nations concerned. But the laws of the Commonwealth being those of a subordinate and non-sovereign legislature would be examinable by the Courts, and if it appeared that they purported to legislate for matters outside the limits of the Commonwealth they would be pronounced ultra vires and null and void.

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