Chapter VII: Constitutional Position of the

AUSTRALIAN STATES.

The Australian Constitution, like that of the United States, assumes the States to be already organized communities, and contains nothing regarding their constitutions. The case of Canada was different, because there the previous government of the Upper and Lower Provinces, which had been one, had to be cut in two, and arrangements made for duly constituting the two halves. But in the case of Australia, the pre-existing constitutions of the Colonies, granted by the Imperial Government at various times, go on unchanged, subject only to the supersession of some of their functions by the Commonwealth, and to one or two specifically mentioned restrictions. That these restrictions are comparatively few may be partly ascribed to that aversion which the English everywhere show to this kind of safeguard against the misuse of legislature power. The omnipotence of the British Parliament seems to have fostered the notion that all Parliaments ought to be free to do wrong as well as to do right. The only things from which a State is disabled are the keeping of a naval or military force (except with the consent of the Commonwealth Parliament), coining money, and making anything but gold and silver coin legal tender[220]. A State is not, as are the American States, forbidden to grant titles of nobility, or to pass any _ex post facto_ law or law ‘impairing the obligation of contracts.’ That no such prohibitions exist in Canada may be ascribed to the fact that in Canada the National or Dominion Government has the right of vetoing laws passed by provincial legislatures, so that improper legislation can be in this way checked. The power is not often exercised in Canada, but when exercised has sometimes led to friction. This plan, however, is neither so respectful to the Provinces nor so conformable to general principles as is the American plan, which leaves the States subject only to the restrictions imposed by the Constitution, restrictions which _ipso iure_ annul a law attempting to transgress them. And the Australians have wisely followed the American rather than the Canadian precedent. The Australians have, to be sure, in reserve a power to which nothing similar exists in America, viz. the right of the British Crown at home to veto legislation. Rarely as this right is put in force, it might conceivably be used at the instance of the National Government to avert an undesirable conflict between State statutes and National statutes. Note further that each Australian State is left as free to amend its own constitution as it was before, subject of course to the veto of the British Crown, but to no interference by the Commonwealth, whereas in Canada acts of the Provincial legislatures amending their constitutions are subject to the veto of the Dominion Government as representing the Crown.

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Footnote 220:

See sections 114 and 115 of Constitution, and compare Art. I. sect. 10
of Constitution of U.S.A.

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The omission of any provision similar to the famous and much litigated clause which debars an American State legislature from passing any law impairing the obligation of contracts is especially noteworthy. That clause, introduced by the Philadelphia Convention in order to check the tendency of some reckless States to get rid of their debts, produced in course of time unexpectedly far-reaching results, from some of which American legislatures and courts have made ingenious attempts to escape. It has indeed been thought that several subsequent decisions of the Supreme Court are not easily reconcileable with the famous judgement in the Dartmouth College Case (A.D. 1818), in which the full effect of this clause was for the first time displayed. That effect has been to fetter legislation in ways which are found so inconvenient in practice that they are acquiesced in only because many State legislatures are in the United States objects of popular distrust. No corresponding distrust seems to be felt in the British colonies, and therefore the Australians have not deemed any such prohibition needful, following the example of the British House of Commons, which in 1893 rejected a similar clause when moved as an amendment to the Irish Home Rule Bill of that year.

In another point the Australian States have been treated with respect. In each of them the nominal executive head has hitherto been a Governor appointed by the British Crown. This was the case in Canada prior to 1867: but when the Canadian Federation was formed, the appointment of the Governors of the several provinces was entrusted to the Governor-General of the Dominion, that is to say, to the Dominion Cabinet by whose advice the Governor-General, being a sort of constitutional monarch, is guided. In practice, therefore, these governorships have become rewards bestowed upon leading party politicians. The Australians wisely (as most Englishmen will think) avoided this plan. Neither did they adopt the American method of letting the people of each State elect the Governor, a method unsuited to government on the Cabinet system, because, as the State Governor is under that system only a nominal head of the Executive (the Cabinet being the real Executive), there was no good reason for setting the people to choose him, and good reasons against doing so, inasmuch as popular elections are invariably fought on party lines. Accordingly the Australians have preferred to let him continue to be appointed by the Home Government, and to allow him to communicate directly with the Colonial Office in London. His Ministers are indeed described in the Constitution (sect. 44) as being ‘the Queen’s Ministers.’