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The extent of judicial control is evidenced in Lazarus v. Stutchbury, where it was held that although a rule of court was inconsistent with the terms of an act, but the practice of the court had followed the rule for twenty years, the practice must prevail.55
When the question was raised whether a power existed in a state court to grant a mandamus to compel a federal officer to perform duties' imposed upon him by the federal parliament when the duties were to be performed within the state, Justice Owen remarked:
“There is no case analogous to this in any of the English cases that throws any light on the subject. We must go to some country where there are two such Constitutions as we have here, such as America and Canada. In America it had been decided over and over again that a mandamus will not lie in a state court to compel the performance of a duty by a Federal officer. That appears to me to be an analogous case to that now before the Court. The American decisions appeared to be based upon the principle of separate sovereignties, the Federal and the State Governments, and here the Federal Government and the State Government are two distinct entities, as distinct to my mind as if they were separated by territorial boundaries. I think that exactly the same principle must apply in dealing with the question in this State as would apply in America. For these reasons I am of opinion that we have no power to grant a mandamus to compel the Collector of Customs to perform duties imposed upon him by the Federal Parliament.” 56
In the Royal Commissions case the justices, quoting Sir Edward Coke, held that the king may constitute new courts of law with the assent of Parliament, but insisted that such courts must proceed by due process of law, and administer the law whether common law or statute law, so that the subject may know precisely how and by what law his case is to be dealt with. Consequently, a royal commission intended to inquire into a matter which was within the jurisdiction of the Court of Arbitration was held illegal. The theory of the separation of powers and of the independence of the courts were thus defended:
“No lawyer has ever ventured to contend that the prerogative of the King can be stretched so as to give him the right to interfere with the proceeding of Courts of Justice, Such an interference, whether it be by asserting a right to give judgments in disputes which are pending or
to constitute an irregular Court of Appeal to revise the decision of a regular and constitutional Court, is, in my opinion, illegal.” 57 In Crick v. Harnett 58 a standing order of a legislative assembly relative to misconduct was attacked as being ultra vires. It was held by the court that the House had no power to pass the standing order, even though the order had been passed and had been approved by the Governor. Chief Justice Griffith, holding that the court had power to inquire into the validity of the standing order, said:
“It is obvious that a court of law has the duty of enquiry, should occasion arise, as to what are the inherent powers that must be implied from mere necessity, and would it not be more than strange if the Court was debarred from considering whether the Legislative Assembly, itself the creature of the Constitution Act, was, in a vital matter, exceeding the power expressly given to it by the Act. If the Court was so debarred, then indeed I know not to what excess standing orders might be passed, even to the extent of committing a member to a long term of imprisonment." 59
Similar authority was exercised by the state judiciary when a portion of the Australian Agricultural Company Act was declared void.60 On another occasion an act of Parliament giving the Crown power to invade private rights was construed strictly with the observation that “private rights should be guarded and protected from invasion to a greater extent than the law allowed. When a private right is invaded it is no answer to say that it is for the public good. It is altogether contrary to constitutional principles to permit the invasion of private rights.” 61 Subsequently a New South Wales law excluding Australian nativeborn convicts was declared ultra vires. 62
For the states the principle had been long established that the colonists carry with them only so much of the English law as was considered applicable to their own situation — the applicability of 57 Ex parte Leahy, 4 N. S. Wales 401, 425 (1904).
N. S. Wales 126 (1907). 59 Ibid., 133. When this issue was carried to the Privy Council the decision of the Supreme Court was reversed on the ground that it was impossible to say upon a fair view of all the circumstances that the standing order in question did not relate to the orderly conduct of the Assembly. See 7 N. S. Wales 451.
60 See v. Australian Agricultural Company, 10 N. S. Wales 690 (1910).
any law being a question for judicial determination as occasion arises.
CONSTITUTIONAL INTERPRETATION AND JUDICIAL REVIEW IN Aus
TRALIA, CANADA, AND THE UNITED STATES COMPARED
Lawyers and the courts in Australia are constantly making comparisons with the law and the practice of judicial review in similar federations, particularly Canada and the United States.
It was intended throughout the movement which resulted in the formation and adoption of the Constitution Act to create a form of union which differs fundamentally from the union of the provinces of Canada. This intention is apparent in the rejection of the Canadian plan of retaining reserved powers in the Dominion and enumerating the powers of the provinces and also the rejection of the Canadian scheme of executive veto over provincial legislation. The difference between the Constitution Act and the British North America Act seemed to the founders of the Australia federation so marked that in defining the new government they refused to accept the term “Dominion” and adopted “Commonwealth” 63 instead.
"It is a curious fact,” says the Canadian commentator Lefroy, “that whereas the Canadians living alongside of the United States endeavored when confederating to reproduce British forms and principles rather than American whenever the two differed, the Australians have very largely preferred the latter.” 64
The distinction between the Constitution Act and the North America Act is further evidenced by the fact that the Australian courts refused to follow the Canadian Supreme Court and the Privy Council in determining the doctrine of implied prohibitions and in the insistence on retaining section 74 in the Constitution, whereby the High Court has refused to accept the right of review of the Privy Council on constitutional questions.
In comparison with the federal system of the United States the Constitution Act shows striking similarities, first in the distribution of powers between state and federal authorities, and second in the evident intention to adopt American principles of judicial review of legislative acts and judicial interpretation of the Constitution itself. In a number of instances the language of the Constitution of the United States is followed and a similar interpretation is accepted by the courts. A large part of the constitutional law of Australia, it is frequently claimed, has been taken from the legislation of the Congress and the decisions of the Supreme Court of the United States. The similarity in this respect is greatly increased by the extent and freedom with which Australian judges make use of American judicial precedents. In accepting the American doctrine of judicial review, Justice Clark observed: “so great and momentous a power has probably never been vested in any other judicial tribunal in the world, and the impregnable position assigned to the Supreme Court of the United States may always with pardonable pride be claimed by the advocates of a republican form of government as having been first exhibited to the world in association with republican institutions." 65 As in the United States, the power is nowhere expressly granted in the Constitution but is held to exist as an incident of judicial power. It is held to belong of right to all courts within the Commonwealth.
63 On the significance of the selection of name, consult MOORE, 66, 67.
64 Lefroy, “The Commonwealth of Australia Bill,” 15 L. QUART. Rev. 156. "It seems a pity that the Australians should destroy the symmetry of things by preferring the word 'Commonwealth' with its decidedly American flavour. However, in like manner they prefer ‘States' to 'provinces' and most deplorable of all, as it seems to me, the term 'House of Representatives' to that of ‘House of Commons,' with all its honoured associations,” 156–67.
Certain differences between the two federations are worthy of note. One difference to which Australian writers usually refer is the extent of popular participation in the making of the Constitution.
“The federation of Australia was a popular act, an expression of the free will of the people of every part of it, and therein, as in some other respects, it differs in a striking manner from the federation of the United States, of Canada, and of Germany.” 66 Moreover, the Australians did not see fit to enact as a part of their Constitution the provisions which are familiarly known as the Bill of Rights of American constitutions. Nor did they insert any of the general phrases, such as due process of law and equal protection of the laws, which have been such a fruitful field for the judicial mind in the effort to limit legislative action. With no inhibition as to the obligation of contracts and no due process restriction, the states of the Australian Commonwealth have a freedom which the states of the United States do not enjoy.67 In Australia, where there is no background of enumerated and implied individual rights secured against legislative invasion, there is a strong presumption in favor of the power of the legislature as against that of the other organs of government.
65 CLARK, 5.
66 MOORE, 64. In comparison with the United States “the most scrupulous care was taken to make the popular participation a reality and not a fiction,” 66, 67.
There is a disposition to claim also that American courts have gone too far in interposing limitations to legislatures and to charge that judges in the United States have a tendency to make rather than to interpret the law. Thus it is contended that “the freedom with which American Judges resort to first principles is remarkable. They build up a theory of sovereignty and, in fact, construct laws on that basis, in a manner comparable to that which would be followed by an International Jurist in dealing with some branch of his science not yet covered by authoritative practice. The reasoning of Marshall (making allowance for the fact that he was dealing with popular sovereignty) is such as might have been used by an early jurist in formulating the immunity of a foreign ambassador from local taxation.” 68 In this connection it has been held that an implication as a basis for legislative restrictions must be necessary, not conjectural or argumentative.
While apparently the states of Australia are more favorably situated than those of the federal system of the United States, there is a decided tendency toward centralization which may change the federal relations so as to curtail considerably the range of state powers. That the states are destined to a subordinate position is the judgment of some careful students of Australian affairs.69 In view of the wide range of subjects which is accorded to the Commonwealth it is thought that the control of state legislation will tend to become as extensive as that of the Dominion Parliament over provincial legislation in Canada.
From the standpoint of constitutional law by far the most
67 MOORE, 314-15; also 342.
68 F. L. Stow, "Federal and State Constitutional Domains,” 5 COMMONWEALTH L. REV. 10.
60 See especially the opinion of Sir C. Ilbert, 12 J. Soc. OF COMPARATIVE LEGISLATION (N. s.) 30. Also Lefroy, 15 L. QUART. REV. 162-63.