Chapter VI: Distribution of Powers Between Nation

AND STATES.

Now the fundamental question in the distribution of powers between the Nation and the States is this—To which authority does the unallotted residue of powers belong? It has been found that no distribution, however careful, can exhaust beforehand all the powers that a legislature or an executive may possibly have to exercise, and it therefore becomes essential to provide, whenever a power not specifically mentioned needs to be exercised, whether it should be deemed to be rightfully exerciseable by the National or by the State authority. In other words, which of these authorities is to be deemed general legatee of any undistributed residue?

This question has been answered differently by different Federations. The United States and Switzerland leave to the States (to which they had belonged previously) the undistributed powers. Canada (whose Provinces were in a different position) bestows them upon the National (Dominion) Government[217]. The question is the more important, because it creates in all sorts of doubtful matters a presumption in favour of the National Government or the State Governments, as the case may be. And it is specially important at the moment of creating a new Federation, because one of the difficulties always then experienced is to induce the States to resign powers they have hitherto enjoyed. Hence it reassures and comforts them to have the residue of powers not specifically distributed left still in their hands.

-----

Footnote 217:

See U.S.A. Constitution, Amendment X: Constitution of Swiss
Confederation, Art. 3: British North American Act (1867), sect. 91.

-----

The Australians have followed the example of the United States and Switzerland rather than that of Canada; and they have done so for the sake of appeasing the local sentiment of the several colonies, and especially of the smaller colonies, who naturally feared that, as they would have less weight than their larger neighbours in the national legislature, they would be in more danger of being subjected to laws which their local opinion did not approve. Section 107 provides that—

‘Every power of the Parliament of a Colony which has become or becomes a State shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State[218], as the case may be.’

-----

Footnote 218:

These words are used to cover the case of the creation and admission
of future States.

The name ‘State,’ which the Australians have substituted for
‘Colonies,’ is significant. It imports a slightly greater independence
and has a more imposing sound than the Canadian term ‘Province.’

-----

Comparatively few powers of legislation are ‘exclusively vested’ in the Commonwealth Parliament; so that upon subjects other than these the State Parliaments retain for the present their previous power to legislate. But as it is also provided that all Acts of the Commonwealth Parliament, within the range of the powers granted, shall override laws of any State Parliament, such laws as the latter may pass upon subjects open to both legislatures are left at the mercy of the Commonwealth Parliament, which may, as and when it finds time or occasion, pass Acts extinguishing, or modifying the effect of, those enacted by the States.

Now the range of powers granted to the National or Commonwealth Parliament is very wide, wider than that of Congress or of the Swiss National Assembly, or even of the Dominion Parliament in Canada. I need not enumerate the powers granted, forty-two in number, for they will be found in sects. 52 and 53 of the Australian Constitution. Among them are the following, which are not specifically given to, and nearly all of which are not even claimed by, the United States Congress:—Powers to take over State railways, and to construct and extend railways (with the consent of the State in which the railway lies), to control telegraphs and telephones and also trading and financial corporations, to take over State debts[219], to legislate on marriage and divorce, on bills of exchange and promissory notes, on invalid and old-age pensions, on arbitration and conciliation in trade disputes (where these extend beyond one State), on bounties on the production or export of goods, on the service and execution throughout the Commonwealth of the civil and criminal process and judgements of the State Courts. If these powers come to be all put in force they may leave for State action a narrower and less interesting field than it enjoys in the United States, where nevertheless the State legislatures are bodies of no great account, seldom enlisting the services of men of first-rate capacity.

-----

Footnote 219:

Canada directs the Dominion to take over the Provincial debts existing
at the time of the Union. In the U.S.A. the war debts of the States
were taken over by the first Congress of the Union.

-----