1907. voked in vain in English Courts. See for instance Colquhoun H. C. OF A. v. Brooks (1) where Lopes L.J. called it "a valuable servant, but a dangerous master.” The Board did not expressly refer to sec. 109 of the Constitution, which provides that— "When a law of a 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.” But in our judgment the provisions of that section have no application to the present controversy, but were enacted for a different purpose. They apply to matters which upon the face of them are within the common ambit of power of both legislatures, but do not apply either to State legislation or to Commonwealth legislation, where either would, if valid, be inconsistent with the express or implied provisions of the Constitution itself. In other words sec. 109 only applies in cases of concurrent legislative jurisdiction. It was, indeed, somewhat faintly suggested that a federal law might be passed annulling a State law which has the effect of interfering with the operations of the Commonwealth. But this argument assumes that the Commonwealth may by its legislation limit the operation of the legislative powers of a State upon a matter within the ambit of those powers. Under the Constitution a State either has, or has not, power to interfere with the free exercise of the powers of the Commonwealth. If it has, the federal legislature can have no authority to say that it shall not exercise such a power. This would not be a case of conflicting laws upon a matter within the concurrent jurisdiction of both. powers. Moreover, the idea of the Commonwealth Parliament. being engaged in the duty of examining State legislation and passing a series of Acts defining and limiting their operation, is not consistent with any practicable theory of the working of a federal Constitution. If, for instance, a State legislature has authority to call federal servants away from the performance of federal duty, we do not see how the federal Parliament could pass a valid law enacting that it shall not have such authority, or that such authority shall not be exercised. The question is one of VOL. IV. (1) 21 Q.B.D., 52, at p. 65. 73 BAXTER บ. COMMIS SIONERS OF 1907. H. C. OF A. power or no power. A declaratory Act of the federal Parliament in the terms of the rule in D'Emden v. Pedder (1) would be either idle or invalid. BAXTER v. COMMIS SIONERS OF ΤΑΧΑΤΙΟΝ We pass to the argument founded upon the existence of the power of the Sovereign to disallow Federal or State legislation. (N.S.W.). It is, correctly, pointed out that the doctrine of M'Culloch v. Maryland (2) is founded upon the necessity of the implied prohibition, and it is said that the necessity does not exist in the case of the Australian Constitution by reason of the power of disallowance. The necessity was said to rest upon the law of self-preservation. We agree. But what is the meaning of selfpreservation? We take it to be the necessity to preserve the Constitution as granted, without the need of recourse to some force which its provisions do not themselves afford. In the case of the United States such force could only be exercised by an act of war. In the case of the Australian Constitution it is said that recourse might be had to the Imperial legislature. This is literally and technically true. But the preamble to the Constitution Act already quoted shows how little weight is to be allowed to such an argument. Moreover, the Constitution itself, like that of the United States, makes provision for its alteration by the people of the Commonwealth themselves-thus showing the plain intention that the people of the Commonwealth were to work out their own destiny with all the freedom that is consistent with allegiance to the British Crown. But it is said that recourse may also be had to the power of reservation or the power of disallowance. The first objection that occurs to this argument is that it is obviously inapplicable to the case of a State law, such as that now in question, passed before the establishment of the Commonwealth, and as to which the question is whether, if literally construed, it interferes with the free exercise of the powers of the Commonwealth. The next answer is that the ambit of a power cannot be controlled by the manner of its execution. A difference in the prescribed mode of execution of two powers expressed in identical terms cannot affect the construction of either power, or the ambit of its operation when duly exercised. The powers conferred upon the 1907. BAXTER บ. Commonwealth Parliament and the States are expressed in the H. C. or A. same terms, and are to be exercised subject to Royal assent through the Governor-General and Governors respectively, and subject in each case to the power of disallowance. But in either case, the assent once given, and the time for disallowance having expired, the Act, if within the ambit of the power, is binding. The difficulty does not, then, arise from the mode of the exercise of the power, but from the co-existence of two powers each of which is in its terms absolute. In order that the power of reservation or disallowance may be effectual to avoid the difficulty, it must be capable of operation in such a way as either to prevent conflicts from arising or to compose them when they have arisen. The latter function could not in any view be performed after the prescribed limit of time for the exercise of the power has elapsed, which might easily happen before the ground of objection had been discovered. So far as regards the power of reservation it is clear that, as that power would be exercised ex parte upon the advice of the federal or State Ministers, it would be ineffective to prevent any attack upon the rights of the other party to a possible conflict. We will assume that the function of prevention could be performed by the exercise of the power of disallowance. But what does that proposition involve? It would be necessary in the first place for the Commonwealth to institute a bureau charged with the function of examining all State Acts to discover whether they could operate so as to interfere with the free exercise of the sovereign powers of the Commonwealth. It would be necessary for the States to institute a similar bureau or bureaux for the like purpose with regard to Commonwealth Acts. The persons entrusted with this duty would need to possess a faculty of prescience hitherto unknown in human affairs, enabling them to anticipate the future operation of laws apparently designed for a purpose quite other than mutual interference. If, however, one of these bureaux reported that a law, if not disallowed, would in its opinion be likely to give rise to future difficulty, a representation would be made to the Sovereign with a view to the disallowance of the Act in question. In most cases the provisions objected to would be COMMIS SIONERS OF (N.S. W.). TAXATION 1907. BAXTER v. COMMISSIONERS OF TAXATION H. C. OF A. a small part of the whole enactment. It would then be necessary for the question of the construction and effect of the Act to be examined with a view to a recommendation from the British Minister to the Sovereign. This would involve the creation of an entirely new department of State, the functions of which (N.S.W.). would be to supervise and control the legislative operations of the Commonwealth and the States; and the effective legislative powers of the Commonwealth and the States would be dependent upon the view which this new department might take of the expediency of sanctioning proposed legislation. It might, or it might not, recommend the disallowance of an Act because one provision of it, quite separable from the rest of the Statute, would involve an interference with the free exercise of federal or State rights, for there is no power of partial disallowance. It is common knowledge that the power of disallowance has never hitherto been used for any such purpose. It is not necessary to say any more to show to any one acquainted with the history of the self-governing dominions of the Empire that this would involve an entirely new departure, and a restriction of their freedom and independence such as has never before been suggested. If this is what the Australian Colonies gained by Federation, they indeed asked for bread and received a stone. Applying then the law of selfpreservation, it is necessary to reject this solution of the difficulty, if the liberties enjoyed by Australians for more than half a century, as well as the enlarged powers conferred by the Constitution, are to be preserved. We have already pointed out that the power of disallowance possessed by the Governor-General of the Canadian Dominion is quite different both in its purpose and in its exercise, but even that power cannot be exercised as to part of an Act. For these reasons we are of opinion that the implication of a prohibition of mutual interference is as necessary in the case of the Australian Constitution as in that of the United States of America, and that the doctrine laid down in D'Emden v. Pedder (1), “that when a State attempts to give to its legislative or executive authority an operation which, if valid, (1) I C.L.R., 91, at p. 111. 1907. BAXTER บ. COMMIS TAXATION (N.S.W.). would fetter, control or interfere with, the free exercise of H. C. or A. the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative," should be once more affirmed by this Court notwithstanding the opinion of the Judicial Com- SIONERS OF mittee in Webb v. Outtrim (1). The rule which was then laid down is, in the words of Chief Justice Marshall, "safe for the States and safe for the Commonwealth." The contrary rule would be dangerous and ruinous for the States, and dangerous and ruinous for the Commonwealth, and would substitute chaos for order, and set up an official in London subject to political accidents in the place of the High Court as the guardian of the Constitution. Nor is the danger an imaginary one, for history tells us that many attempts have been deliberately made in the United States to hamper the federal Government by State laws which have been afterwards declared invalid by the Supreme Court. We pass to the minor questions remaining for determination. The question whether a State tax upon the emoluments of federal officers is within the prohibition is a minor question, for the federal Parliament can make its grants subject to such a tax Quilibet potest renunciare juri pro se introducto. This branch of the case was fully dealt with by this Court after elaborate argument in Deukin v. Webb (2). It is not touched by the reasoning in Webb v. Outtrim (1), and we see no reason to depart from, or even to review, the conclusion there arrived at. We will add only a few words on the subject. It was contended that the decisions in M'Culloch v. Maryland (3), Dobbins v. Commissioners of Erie County (4), and The Collector v. Day (5), had been cut down by later decisions of the Supreme Court of the United States. That argument, which has been often addressed to this Court, is conclusively answered by the judgments, delivered in December 1905, in the case of South Carolina v. United States (6), from which I will read two passages. The first is from the majority judgment at pp. 455-6 :— (1) (1907) A.C., 81. (4) 16 Peters, 435. (5) 11 Wall., 113. (6) 199 U.S., 437, at pp. 455, 465. |