direction. Sub-section (g) of section 52 merely conferred upon the Governor-General a discretion to determine to what goods other than those already mentioned, and under what conditions, the prohibition of importation should apply. It went no further than the legislation discussed in Reg. v. Burah, 3 App. Cas., 889. Hodge v. The Queen, 9 App. Cas., 117. Powell v. Apollo Candle Co. Ltd., 10 App. Cas., 282, which was held intra vires.

It was held by the High Court that section 52, sub-section (g) of the Customs Act was not a delegation of legislative power, but conditional legislation, and therefore within the power conferred on Parliament by the Constitution, section 51, sub-sections I., II. The prohibition of importation was a legislative act of the Parliament itself, the effect of sub-section (g) being to confer upon the Governor-General in Council the discretion to determine, subject to section 56 of the Act, to which class of goods other than those specified in the section, and under what conditions, the prohibition shall apply. It was held. therefore, that a proclamation by the Governor-General in Council, prohibiting the importation into the Commonwealth of opium suitable for smoking, was valid: Baxter v. Ah Way, (1909) 8 C.L.R., 626.

The Chief Justice (Sir SAMUEL GRIFFITH) after reviewing the Privy Council's decision said :-" The same observations apply exactly to a law of the Conmonwealth or of a State under its Constitution. It is suggested that the words of the first section of the Constitution, which provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament, make a difference. But that section is merely introductory to the provisions of the Constitution which deal with the Legislature. Then come other provisions dealing with the executive power, followed by another series dealing with the judicial power. The actual powers of the Parliament are conferred by section 51, and in their ambit they are unlimited. There being no objection to a conditional law being passed, this is a case of that sort": 8 C.L.R., at p. 634.

Mr. Justice O'CONNOR said:"I think, therefore, that there can be no question whatever that the full powers of legislation which are conferred upon the Commonwealth Parliament to deal with Customs and to deal with trade and commerce between the Commonwealth and other countries embody a power to enact the conditional legislation now in question, which enables the Executive

Government, in keeping a watchful eye upon the interests of the Commonwealth and its commerce, to act in the public interest on some sudden emergency which it would have been impossible for any Legislature, no matter how great the extent of its prescience, to foresee. Under these circumstances, without referring to the authorities which undoubtedly bear out and support, as my learned brother the Chief Justice has pointed out, the common use of this power of conditional legislation and the sound principle upon which it rests, I content myself with saying that by the Constitution, if its words are to be read in the sense in which they have always been understood, the power to authorize such a proclamation by the Governor-General in Council is clearly conferred in the Common

wealth."

66

Mr. Justice HIGGINS said :—‘ According to my view, there is not here in fact any delegation of the law-making power; and, besides, as I understand the cases of Reg. v. Burah, and the other cases following it before the Privy Council, that principle is not applicable to the case of the numerous subordinate Parliaments created by the British Parliament, whether they have power in themselves to alter their own Constitutions or not. Analogies are dangerous; but if I may, for the present purpose, venture on one, I should say that within the ambit of the subjects committed to it, the Federal Parliament, and that within the ambit of the subjects committed to them, the State Parliaments, are like general agents, not like special agents; and that the Federal Parliament has, within its ambit, full power to frame its laws in any fashion, using any agent, any agency, any machinery that in its wisdom it thinks fit, for the peace, order, and good government of Australia": Baxter v. Ah Way, (1909) 8 C.L.R., 646.

War Powers by Regulation.

The War Precautions Act 1914-15, provides that the Governor General may make regulations for securing the public safety and the defence of the Commonwealth, and for conferring

such powers and imposing such duties as he thinks fit, with reference thereto, upon the Naval Board and the Military Board, and the members of the Naval and military forces of the Commonwealth, and other persons. Under these statutory powers, a regulation was passed as follows:-" Where the Minister has reason to believe that any naturalized person is disaffected or disloyal, he may, by

warrant under his hand, order him to be detained in military custody in such place as he thinks fit during the continuance of the present state of war."

The War Precautions Act 1914-15 was passed under the power conferred by the Constitution, section 51 (VI.) to make laws with respect to naval and military defence. The primary purpose of the Act was to make regulations for the safety of the Commonwealth during a state of war. The Act evidently authorized the delegation of legislative power under peculiar circumstances and for special purposes. Its object was to provide means of legislating freely and quickly on all sorts of matters as might arise during a critical juncture in the history of the Commonwealth whether Parliament was sitting or not.

A naturalized citizen of the Commonwealth named Francis Wallach, having been taken into custody and interned by virtue of a warrant issued by the Minister of Defence certifying that such person was believed by the Minister to be disaffected or disloyal, Wallach applied to the Supreme Court of Victoria for a writ of habeas corpus. On the return of the writ the Supreme Court, by a majority, ordered Wallach to be discharged on the grounds that the regulation was invalid ( (1915) V.L.R., 476). From that decision the Commonwealth, by special leave, appealed to the High Court. It was held by the whole Court, that assuming that the fact of the Minister's belief and the grounds for his belief were examinable, and that the Minister was properly called as a witness, the Minister was entitled to refuse to answer questions as to his belief; that there was no evidence to challenge either the fact of his belief or the grounds for it; and therefore that Wallach's detention under the warrant was justified.

66

The Chief Justice, (Sir SAMUEL GRIFFITH) said :- The term ' regulations' has of recent years been much used to denote ordinances having the force of law made by subordinate authorities under delegated powers, and in my opinion it is used in that sense in the War Precautions Act. The power now in question is therefore a delegated power to make laws for (1) securing the public safety and the defence of the Commonwealth, and (2) conferring such powers and imposing such duties as the Governor-General thinks fit thereto upon the persons designated. A question was raised whether the words with reference thereto' mean with

L. P.

15

reference to securing the public safety and the defence of the Commonwealth' or 'with reference to the regulations.' The second construction involves, perhaps, an awkward repetition in the phrase ' regulations for conferring powers and imposing duties with reference to the regulations,' but the general sense is, I think, sufficiently plain, whichever of the two suggested meanings is adopted. The power conferred is to make laws to be observed by subjects, and also to prescribe the mode of enforcing the laws so made and designate the persons on whom the duty of enforcement is to be imposed. I think therefore," said the Chief Justice, "that the regulation is a power conferred by an Act and is valid."

Mr. Justice HIGGINS said, "There is no question as to the power of the Parliament to delegate legislative powers-power to legislate by regulations to subordinate persons or bodies": Lloyd v. Wallach, (1915) 20 C.L.R., 299.

Governor-General.

2. A Governor-General appointed by the Queen shall be Her Majesty's representative20 in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions 21 of the Queen as Her Majesty may be pleased to assign to him.

§ 20. "HER MAJESTY'S REPRESENTATIVE.” The King's Representative.

The King's representative in the Commonwealth and in each of the States cannot, as was pointed out in Musgrave v. Pulido, 5 App. Cas., 102, at p. 111, be regarded as Viceroy, or as possessing sovereign power. His powers are limited by his instructions and are also necessarily limited by the Constitution of the State or the Commonwealth as the case may be. In anything outside the exercise of the powers so limited he is in law no more than an individual subject of the King. A Federal Constitution in its very nature pre-supposes the separate and independent existence of the King as representing the community in each State and in the Commonwealth respectively, the King in that representative capacity as head of the executive being in a position in each case to assert and

maintain the rights of the political entity he represents: Per O'CONNOR, J. in The King v. Sutton, 5 C.L.R., at p. 805.

$21. "POWERS AND FUNCTIONS."

Royal Instructions.

The following is a copy of the instructions to the GovernorGeneral and Commander-in-Chief of the Australian Commonwealth passed under the Royal Sign Manual and Signet of Queen Victoria :-

VICTORIA R. I.

Dated 29th October, 1900. INSTRUCTIONS to Our Governor-General and Commander-in-Chief in and over our Commonwealth of Australia, or in his absence, to our Lieutenant-Governor or the Officer for the time being administering the Government of our said Commonwealth.

Given at Our Court at Saint James's, this Twenty-ninth day of
October, 1900, in the Sixty-fourth year of Our Reign.

WHEREAS by certain Letters Patent bearing even date herewith, We have constituted, ordered, and declared that there shall be a Governor-General and Commander-in-Chief (therein and hereinafter called the Governor-General), in and over Our Commonwealth of Australia (therein and hereinafter called Our said Commonwealth). And We have thereby authorized and commanded Our said Governor-General to do and execute in due manner all things that shall belong to his said command, and to the trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of the said Letters Patent and of such Commission as may be issued to him under Our Sign Manual and Signet, and according to such Instructions as may from time to time be given to him, under our Sign Manual and Signet, or by Our Order in Our Privy Council, or by Us through One of Our Principal Secretaries of State, and to such laws as shall hereafter be in force in Our said Commonwealth. Now, therefore, We do, by these Our Instructions under Our Sign Manual and Signet, declare our pleasure to be as follows:

I. Our first appointed Governor-General shall, with all due solemnity, cause Our Commission, under Our Sign Manual and Signet, appointing Our said Governor-General to be read and published in the presence of Our Governors, or in their absence of our Lieutenant-Governors of Our Colonies of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia, and such of the members of the Executive Council, Judges, and members of the Legislatures of Our said Colonies as are able to attend.

64

II. Our said Governor-General of Our said Commonwealth shall take the Oath of Allegiance in the form provided by an Act passed in the Session holden in the thirty-first and thirty-second years of Our Reign, intituled An Act to amend the Law relating to Promissory Oaths;" and likewise the usual Oath for the due execution of the office of Our Governor-General in and over Our said Commonwealth, and for the due and impartial adminis tration of justice; which Oaths Our said Governor and Commander-in-Chief of Our Colony of New South Wales or, in his absence, our Lieutenant-Governor or other officer administering the Government of Our said Colony, shall and he is hereby required to tender and administer unto him.