of the inconsistency be invalid." The third source is to be found in the express prohibitions contained in sections 114, 115, 116 and 117, and in certain implications which arise from the nature of the Federal scheme as a whole; implications necessary to preserve the harmonious working of the two sets of legislatures which are parts of the dual system of Government.

It must be taken to be of the essence of the Constitution that the Commonwealth is entitled, within the ambit of its authority, to exercise its legislative and executive powers in absolute freedom and without any interference or control whatever except that prescribed by the Constitution itself. This is the proposition on which the immunity of State and Federal instrumentalities and agencies from Federal or State interference is based: D'Emden v. Pedder, (1904) 1 C.L.R., p. 109.

This rule of construction is reciprocal and applies to any case of the Commonwealth attempting to fetter, control or interfere with the free exercise of the legislative or executive power of the States as well as to the States attempting to interfere with or encroach on Commonwealth powers and functions: The Attorney General of New South Wales v. The Brewery Employees' Union of New South Wales, (1909) 6 C.L.R., 469.

There is, however, a large class of cases with respect to which a similar power is for a time reserved to the States (concurrent powers). With respect to these matters there is consequently a possibility of conflicting legislation. This contingency is dealt with by section 109 of the Constitution, which provides that when a law of the State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall to the extent of the inconsistency be invalid. "This sentence," said Sir SAMUEL GRIFFITH," may be thus expanded supplying the verba subaudita :— When a law of a State otherwise within its competency is inconsistent with a law of the Commonwealth on the same subject, such subject being also within the legislative competency of the Commonwealth, the latter shall prevail': (1903) 1 C.L.R., 111. If, in exercising its acknowledged power to regulate its own purely internal, domestic trade or police affairs a State enacts laws which are contrary to an Act of the Federal Parliament passed in pursuance of the Constitution in the exercise of its control over inter-state commerce the Courts will enter upon the inquiry whether the State laws have come into collision with the Federal act and thereby deprived a citizen of a right to which the Federal Act entitled him.

Should a collision exist the State Act must yield to the Federal Act: Gibbons v. Ogden, (1824) 9 Wheat., 209.

With respect to matters within the exclusive competence of the Federal Parliament no question of conflict can arise, inasmuch as from the point at which the quality of exclusiveness attaches to the Federal power the competency of the State is altogether extinguished. So likewise with respect to matters within the exclusive competence of the State Parliament such as internal, police, commerce, domestic and industrial matters not extending beyond the limits of a State, the quality of its exclusiveness attaches to the State powers whether it has been exercised or not and the competence of the Federal Parliament to interfere with such State matters by an inter-state commerce law or by "a two-State" industrial award is denied. This is a further application of the doctrine of implied prohibition: United States v. Dewitt, (1824) 9 Wall., at p. 52.

(10) FEDERAL CONSTITUTIONS COMPARED. Applicability of American Decisions.

In the official reports of arguments heard and judgments delivered in Constitutional cases in the High Court, the abundance and aptness of quotations from decisions of the Supreme Court of the United States on cognate questions is conspicuous. It has been suggested that the High Court has at times shown a preference for American over Canadian precedents. Preference is scarcely the word to use but the reason for such preference, if any, is obvious. The Constitution of the Commonwealth has been framed largely on the model of that of the United States to which it bears a nearer resemblance than it does to that of Canada.

The distribution of legislative powers in the Constitution of the United States is shown in the following diagram in which the powers of the Federal Government and those of the States are placed in separate compartments :

:

CONSTITUTION OF THE UNITED STATES.

Art. I., Sec. VIII.

Exclusive specified Federal

powers.

E.g. Inter-state trade; cus

toms and excise.

Concurrent

10th Amendment.

Exclusive, reserved powers of the States.

E.g. Police powers and internal trade.

powers of the Union and the States in which in

cases of inconsistency the laws of the Union prevail.

The following diagram shows the distribution of the legislative powers in the Constitution of the Australian Commonwealth; and the resemblance of the American and Australian Constitutions :

CONSTITUTION OF THE AUSTRALIAN COMMONWEALTH.

Sections 51, 52, 90.

Exclusive specified Commonwealth powers.

E.g. Inter-state trade, cus

toms and excise.

Section 107.

Exclusive reserved powers of the States.

E.g. Police powers and internal trade.

Concurrent powers of the Commonwealth and the States in
which in all cases of inconsistency the Commonwealth law
prevails.

The framers of the Australian Constitution were familiar not only with the Constitution of the United States but with that of Canada. When, therefore, we find embodied in the Constitution of the Commonwealth provisions undistinguishable in substance from the provisions of the Constitution of the United States which before the sittings of the Australian Convention in 1897 had been judicially interpreted by the Supreme Court of that Republic, it is not an unreasonable inference that those framers intended that like provisions should receive like interpretation: D'Emden v. Pedder, (1903) 1 C.L.R., 103. It is a matter of common knowledge that the leading members of the Australian Convention were particularly well acquainted with the two great examples of Englishspeaking Federations and that in the distribution of powers between the Commonwealth and the States they deliberately followed the plan of the United States of America in preference to that of the Dominion of Canada: Deakin v. Webb, 1 C.L.R., 606. Hence, whilst the American decisions were in no way binding on the High Court the Chief Justice (Sir SAMUEL GRIFFITH) pointed out in one case that they could be regarded as a most welcome aid and assistance in any analogous controversy. It was in these circumstances that the High Court followed the decision of the Supreme Court. of the United States in McCulloch v. Maryland, 4 Wheat., 316.

In Webb v. Outtrim, (1907) App. Cas., 88, the Privy Council (per THE EARL OF HALSBURY) questioned the supposed analogy between the Constitution of Australia and that of the United States. "There is," he said, "no such analogy between the two systems of

jurisprudence as the learned Chief Justice of the High Court suggests. No State of the Australian Commonwealth has the power of independent legislation possessed by the States of the American Union. Every Act of the Victorian Council and Assembly requires the assent of the Crown, but when it is assented to, it becomes an Act of Parliament as much as any Imperial Act, though the elements by which it is authorized are different. The American

Union, on the other hand, has erected a tribunal which possesses jurisdiction to annul a Statute upon the ground that it is unconstitutional."

With reference to the power of "independent legislation possessed by the States of the American Union; this is, of course, as pointed out by Sir SAMUEL GRIFFITH literally true only in a limited extent. There is a veto power over the American State Legislatures as effectual as the veto power over any Australian Legislature. True, there is no monarch in America to disallow laws proposed by American State Legislatures but the power of veto is nevertheless vested in State Governors. Nor can the Federal Government of the United States veto State Acts as can be done by the King in Council with reference to proposed colonial laws. At the same time the State Legislatures are only "independent" when acting within the powers and sphere assigned to them by the Constitution. If they purport to pass laws in excess of their Constitutional authority whilst those proposed laws cannot be disallowed by a monarch, they may be pronounced null and void by the Supreme Court of the United States in a suit between parties properly brought before it. So that the American States are no more “independent " than the Australian States whose laws in like circumstances, may be passed upon by the High Court.

Within the British Empire, said the Chief Justice, the power of reserving proposed colonial laws for the royal assent and the power vested in the Sovereign to disallow proposed colonial laws is exercised with great caution and only on rare occasions when some question of Imperial interests or constitutionality appears on the face of the Bill. The power of disallowance, he said, would in many circumstances be of no avail to prevent conflicts between State and Federal legislation. Thus in the case of State laws passed before the establishment of the Commonwealth, or State laws discovered to be in excess of State powers after the expiration of the time limited for disallowance, the power of disallowance would be of no value; it

would be too late to call into action. In either case the assent once given or the time for disallowance having expired the Act would be binding until pronounced invalid by a Court of competent jurisdiction. But there is no very great difference between the judicial power of "annulling invalid laws in the United States and within the British Empire. Annulment is not the correct term to apply to the result of a judicial decision inter partes. Even under the British Constitution (Colonial Laws Validity Act 1865) colonial laws repugnant to Imperial Statutes extending to the colonies are null and void and may be so declared by any Court of competent jurisdiction asked to enforce them. This is all that has been done in such cases as D'Emden v. Pedder and Deakin v. Webb. The applicability of certain State Acts was questioned because they were repugnant to the true meaning of the Commonwealth Constitution Act which is undoubtedly an Imperial Act extending to the States.

The Privy Council judgment in Webb v. Outtrim (supra) affirms that the American Union, on the other hand, has erected a tribunal which possesses jurisdiction to annul a Statute upon the ground that it is unconstitutional." Referring to this paragraph the Chief Justice (Sir SAMUEL GRIFFITH) said:" The Supreme Court of the United States was created by a provision in the American Constitution identical with that by which the High Court was created. The power of the Supreme Court of the United States to decide whether an Act of Congress or of a State is in conformity with the Constitution depends upon and follows from the Constitution itself. which is, by section 2 of Article VI., declared to be the Supreme law of the land, as the Australian Constitution is declared to be by Clause V. of the Constitution Act. Such questions must certainly arise under a Federal Constitution, and must be determined by the Courts before which they are raised. Their Lordships seem to have thought that the High Court had asserted a power to declare a law invalid on the ground that it was unconstitutional,' using that word in some vague general sense, but meaning something different from a contravention of the written Constitution."

The High Court of Australia," said the Chief Justice, never asserted any such power, nor did it ever occur to it to treat the word unconstitutional,' as used in the American Courts, as meaning anything more than contrary to and forbidden by the Constitution, nor have those Courts ever claimed to do anything more than construe the written Constitution by the light of recognized canons.