Responsible government in the Dominions: Responsible government in the Dominions

Responsible government in the Dominions (Vol. 2)

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Multivolume work

Identifikator:: 1896933912

Document type:: Multivolume work

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Place of publication:: Oxford

Publisher:: Clarendon Press

Year of publication:: 1912-

Collection:: Economics Books

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Volume

Identifikator:: 1896935052

URN:: urn:nbn:de:zbw-retromon-238139

Document type:: Volume

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Volume count:: Vol. 2

Place of publication:: Oxford

Publisher:: Clarendon Pr.

Year of publication:: 1912

Scope:: XI Seiten, Seiten 570-1100

Digitisation:: 2022

Collection:: Economics Books

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Chapter

Document type:: Multivolume work

Structure type:: Chapter

Title:: Part IV. The federations and the union // Chapter II. The commonwealth of Australia

Collection:: Economics Books

¢HAP. 11] THE COMMONWEALTH OF AUSTRALIA 823 government. This also followed, in their opinion, from 8. 61 of the Constitution, and it was part of the essence of the Constitution that within the ambit of its authority the Commonwealth should exercise its legislative and executive powers in absolute freedom, without any interference or control except that prescribed by the Constitution itself. In cases in which the states had similar power, s. 109 provided that the law of the Commonwealth should prevail ; but in matters within the exclusive competence of the Federal Parliament no conflict could arise, inasmuch as from the point at which the quality of exclusiveness attached to the Federal power the competency of the state was altogether extinguished. If, then, a state attempted to give to its legis- lative or executive authority an operation which would fetter or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution. was to that extent invalid and inoperative. The Court cited in support of this view the case of McCul- loch v. State of Maryland} decided in 1819, in which Chief Justice Marshall laid down doctrines which have ever since been accepted as establishing on a firm basis the fundamental rules governing the relations of the Federation of the United States and the constituent states. While an attempt had been made by the Attorney-General for Tasmania to distinguish that case from the present case on the ground of ss. 107, 108, and 109 of the Commonwealth Constitution, they were unable to see any material difference between the provisions of those sections and the provisions of the tenth amendment of the United States Constitution. The Court was not, of course, bound by the decisions of the Supreme Court of the United States, but so far as the constitutions of the two federations were similar, the construction put upon the United States Constitution by the Supreme Court should be ' 4 Wheat. 316. For a criticism of this judgement cf, Mr. Higgins (now a justice) in Harvard Law Review, xviii. 559 ; Commonavealth Law Review, ii. 917. Tt had been invoked unsuccessfully in Wollaston’s Case, 1902) 28 V. L. R. 357; see especially at pp. 387. 388. ner Madden C.J.

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