Notes on Imperial Constitutional Law

British Institute of International and Comparative Law

Notes on Imperial Constitutional LawAuthor(s): A. Berriedale KeithSource: Journal of Comparative Legislation and International Law, Third Series, Vol. 15, No. 1(1933), pp. 117-123Published by: Cambridge University Press on behalf of the British Institute of International andComparative LawStable URL: http://www.jstor.org/stable/753492 .

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NOTES ON IMPERIAL CONSTITUTIONAL LAW.

[Contributed by PROFESSOR BERRIEDALE KEITH, D.C.L.]

The Nature of Inter-Imperial Relations.-With the coming into operation of the Statute of Westminster there has been eliminated actually, or as regards these Dominions which have not yet adopted the statute potenti- ally, the possibility of the regulation of inter-imperial relations by Act of the British Parliament. There now therefore arises the difficult problem of determining a code of principles upon which the relations of the several parts of the Empire are to be based. Are the relations, for example, of the Dominions to the United Kingdom and inter se to be subject to the rules of international law, or are they to be governed by some other principles, and if so what are these principles to be ? The matter, of course, in the typical British manner will doubtless have to be worked out piecemeal by the adoption of solutions of cases arising in practice. It is the manner in which Dominion autonomy evolved, and practical politicians necessarily must concern themselves with immediate solutions of each controversial issue as it emerges.

The Character of Inter-Imperial Contracts.-No better example of the confusion of view can be adduced than the contentions on which stress is placed by the British and the Irish Free State Governments as regards the annuities payable in respect of Irish land. The British Government in general admittedly stands for the view that international law is not

applicable between the various parts of the Commonwealth, but one of its chief contentions against the State rests on the view that the agreement for a financial settlement of 1926 did not require ratification from the

standpoint of international law. The Free State again stresses in its contentions the constitutional doctrine that no government by its executive authority can pledge a country to pay moneys so as to create an

obligation binding on that country. Any such compact is concluded on the basis of the essential constitutional understanding that the assent of Parliament is necessary for the homologation of the undertaking. It is further asserted by the State that the Land Act of 1923 did not constitute a Parliamentary approval of the financial agreement between the two countries of 1923, and it is insisted that the agreement of 1926 was never

approved by Parliament at all. The British contention, of course, can be supported by international law precedents,' though there are arguments which lead to a contradictory result. But there is one fact which un-

1 See Wheaton, International Law (ed. Keith), i, 490-6.

I"7



118 NOTES ON IMPERIAL CONSTITUTIONAL LAW.

questionably weakens the value of the British contention regarded tech-

nically. Whether a pecuniary agreement is such as to require formal ratification must as between any two countries depend largely on the course of action between the two, and in the case of the United Kingdom and the Free State it must be admitted that the pecuniary settlements of 1921, 1925 and 1929 were all carried out by formal instruments which

expressly demanded ratification as necessary to their validity. The

agreement of 1923 was avowedly provisional and therefore was naturally not couched in treaty form, but that of 1926 was final, and it is certainly difficult to claim for it the same binding value as the treaty form and ratification gave to the other settlements. It is not, therefore, possible to dismiss as wholly untenable the claim that in its nature the agreement of 1926 was a mere governmental accord which cannot be insisted

upon by one government against another, if the latter decides on national grounds that the settlement can no longer be deemed just.

Parliament and the Executive.-The Free State argument from constitutional practice is of special interest, because it rests on a principle which all the courts of the Empire have stressed, the inability of the executive to usurp the functions of Parliament and to bind a country to pay money. The principle clearly is absolutely sound; the control of the purse is the root of the power of Parliament and the necessity of

securing appropriation from the House of Commons must not be weakened. The Privy Council has applied the doctrine so as to rule that payments made without Parliamentary sanction can be recovered from the payee; 1

the High Court of the Commonwealth has denied the right of the executive to bind the Commonwealth by contract irrespective of Parliamentary control,2 and the Parliament of Canada has been held by the Supreme Court of the Dominion not to have the power to create a liability of a

province, which can be enforced against it, by requiring that the aid of the militia in time of labour unrest shall be accorded only on a promise by the Attorney-General of the province that the local government shall

recoup the cost.3 The conclusion seems unavoidable that the effect of a

governmental compact under the common law of the British Common- wealth is merely to impose an obligation to seek Parliamentary sanction for the compact, and that without such sanction the compact is ineffective.4 There is an analogy in the agreements reached at Imperial Conferences, which are clearly subject to approval by Parliaments, and which do not bind governments other than those by which they are made.

The Commonwealth and New South Wales.-The issue of Parlia-

mentary control of expenditure was the most effective argument which

1 Auckland Harbour Board v. The King, [1924] A.C. 318, 326, 327. 2 Commonwealth v. Colonial Combing, Spinning and Weaving Co., Ltd., 31 C.L.R.

421. 3 Troops in Cape Breton Reference, [1930] S.C.R. 554. 4 The Ottawa Agreements were in all cases submitted for Parliamentary sanction

for their duration.



NOTES ON IMPERIAL CONSTITUTIONAL LAW. nig

was adduced for the State in the controversy over the right of the Commonwealth Parliament to enact the Financial Agreements Enforce- ment Act of 1932.' It has always been doubted how far the Common- wealth legislative power extended to coerce the States to make payments. The issue arose obviously in the matter of industrial awards, once it had been decided by the High Court that the instrumentalities of the States were not exempt from control by the decisions of the Commonwealth Court of Conciliation and Arbitration. Could railway employees in the States compel the State governments to pay rates of wages, if the Parlia- ments failed to provide the necessary sums ? The best opinion clearly was that they could not. The award of the court was binding, but the obligation was one of imperfect character; it placed a moral obligation on the Parliament and government concerned, but, if they had failed to act, the matter must rest there.2 Was this analogy binding in the case of the agreement as to State debts ? The majority of the High Court, no doubt rightly, held that it was not.3 The decision seems clearly sound. It rests on the obvious fact that an agreement as to debt payments would be worthless if in the last resort it could not be enforced by effective means, and this means was accorded by subsection 3 of the new section I05A added by constitutional change in 1928-9 to the federal constitution. By this subsection the Commonwealth Parliament was given power to make laws for the carrying out by the parties thereto of the agreement, and every consideration of probability suggests that so definite a power was adequate to secure the validity of the measure of 1932. It must be remembered that, once a power is given, the method of exercising it is beyond legal control, and to interpret the power in a narrow sense, as it was interpreted by the minority of the court, would in effect have been to substitute the discretion of the court for that of the Parliament, an encroachment of the judicial on the legislative power. Nor must it be ignored that by subsection 5 the agreement was made binding on the Commonwealth and the States, despite anything contained in their constitutions or legislation, a provision which could be invoked to negative the application to the payments required by the agreement of the necessity of observance of the rule of Parliamentary appropriation by the State.

The Finality of the High Court's Jurisdiction.-It is not surprising that an effort by the State to secure the right to appeal to the Privy Council received short shrift from the High Court.4 On one occasion only has such permission been given, and it is notorious that the result of the appeal was distinctly unsatisfactory to Australian legal opinion. In the present case there could be pleaded a distinct cleavage of opinion

I See Journ. Comp. Leg., Third Series, vol. xiv, pt. iv, pp. 259-61. 2 Australian Railways Union v. Victorian Railways Commissioners, 44 C.L.R.

319, 352 per Isaacs J. 3 New South Wales v. The Commonwealth, 46 C.L.R. 155. 4 Ibid. (No. 2), 46 C.L.R. 235.



12o NOTES ON IMPERIAL CONSTITUTIONAL LAW.

in the court, and the great importance of the issue in its bearing on the rights of the States. But neither ground was ruled by the court, with but one dissentient, to be sufficient ground for allowing an appeal. Nor indeed would it have been reasonable to expose Australia to the grave delay which any appeal must involve. Moreover, seeing that the High Court has held that the task of the interpretation of the Constitution was deliberately entrusted to it by the framers of the Constitution, it could not with any consistency permit the Privy Council to pass judgment on an issue of this kind. From the imperial point of view such an appeal would be most embarrassing to the Privy Council, for a decision in favour of the Commonwealth would have certainly been denounced by extreme Labour opinion in Australia as another proof that the Privy Council was animated by econoiriic prejudices in favour of British interests. It is, of course, impossible to minimize the unfortunate effect of the whole

dispute on the status of the States, but the blame must rest on the government of New South Wales and not on the Commonwealth. It is significant that the governments of Victoria and Tasmania alike intervened to

support the contentions of New South Wales, in so far as the derogation from State legislative sovereignty was concerned.

The Sovereignty of the States.-Incidentally once more a certain measure of disfavour was displayed by certain justices of the High Court towards the application of the term sovereignty in connexion with the

States, stress being laid on the fact that for certain matters the States are subject to the control of Commonwealth legislation. The issue seems, however, rather one of terminology than of substance. It is clear, as Evatt J. pointed out, that in certain reserved spheres over which the Commonwealth has been given no authority the States do exercise uncon- trolled legislative power and executive authority, and that in these

aspects they may fairly be styled sovereign, without any abuse of that term. Clearly it is impossible to call the Commonwealth sovereign in matters which it cannot in any degree deal with, and that sovereignty for certain purposes should in a federation be divided among the various

governments and Parliaments is hardly open to objection as a juridical conception.

Delegated Legislative Power in the Commonwealth.-We owe to the desire of the government of Mr. Scullin in the Commonwealth to give a

preference in the loading and unloading of inter-State and overseas

shipping to members of the Waterside Workers' Federation, a body of advanced labour views, an interesting series of cases exploring the power of the Commonwealth Parliament to delegate legislative power to the executive.' The difficulty, of course, arises from the formal constitution of the federation with its effort to distinguish between executive, legislative and judicial powers. The distinction between the first two of these

powers and judicial power is moderately intelligible, and it has been 1 Huddart Parker Pty. Ltd. v. The Commonwealth, 44 C.L.R. 492; Victorian

Stevedoring and General Contracting Pty. Ltd. v. Dignan, 46 C.L.R. 73.



NOTES ON IMPERIAL CONSTITUTIONAL LAW. 121

accepted by the Privy Council.' But prior to these new cases the issue had never been fought out seriously in the courts. This was in part due to the fact that the most important instances arose during the war period, or out of war period legislation when the courts were certain to take a generous view of the ambit of legislative power. It was naturally more difficult to see that the Governor-General in Council under authority to regulate transport work could give a preference to a set of workers whose political support was assured to the Labour government. But the High Court insisted that motive was immaterial, and that all that must be considered was the issue whether the exercise of the power fell within its ambit, and whether the Parliament could delegate power. The justices all held such delegation valid, though Dixon J. brought out the difficulties which arose, under the decisions on the American Constitution, of framing an intelligible doctrine of the extent of the power to confer what was essentially legislative authority on bodies other than Parliament. He pointed out, however, that British practice strongly supported the view that such delegation was valid. Evatt J. made a very interesting effort to put the position as to what is licit and what is forbidden; he denied the power of the Commonwealth Parliament to make a law regarding legislative power, simpliciter, e.g. to transfer absolutely to the executive the full Commonwealth power to deal with trade and commerce. Parlia- ment, however, can transfer authority on a definite topic; such a law is indeed in part a law as to legislative power, but in essence it is a law as to the special subject-matter with which the executive is empowered to deal. The truth is that in abstract the question is insoluble; the courts in the United States and in Australia will have no real difficulty in deciding concrete issues.

The High Court's Powers on Appeal.-The disadvantages of the rigid limitation of the High Court's power under the Constitution were neatly illustrated in the same case.2 The regulations held valid had been disallowed by the Senate, but certain convictions had taken place under them, whence appeal had been brought. Could the court on appeal, having regard to the disallowance, rule that the fines need not be paid ? The court held otherwise; it was merely a court of appeal; 3 all it must decide was whether, on the state of law existing when the convictions took place, the latter were legal. It could not review the cases in the light of subsequent events and overrule the convictions. This would involve exercise of original jurisdiction, nor was it even certain that under the Constitution 4 Parliament could confer such jurisdiction if it wished. In any case it had not been conferred. That the decision is correct seems as certain as that it is inconvenient.

The Senate and the Executive.-An interesting issue arose in this connexion regarding the powers of the Senate to disallow executive

x Shell Co. of Australia v. Federal Commissioner of Taxation, [1931] A.C. 275. 2 Victorian Stevedoring and General Contracting Pty. Ltd. v. Dignan, 46 C.L.R. 73,

86, 87, per Rich J.; 105-9 per Dixon J. Constitution, s. 73 (ii). 4 Ibid., s. 76.



122 NOTES ON IMPERIAL CONSTITUTIONAL LAW.

regulations. The general principle insisted on by the Senate is that it may not be denied the right to control subordinate legislation by the executive, and therefore any regulations made must be laid before it so that it can disallow them if it thinks fit, a period of fifteen sitting days being allocated within which such a motion to disallow must be intimated.1 The question arose whether the Senate was bound to wait until it pleased the executive to submit regulations, or whether it could disallow as soon as the regulations were made effective by publication in the Gazette. The challenge came from the government, which insisted, when regulations had been disallowed, on enforcing its views by the immediate issue of another set to like effect. If this could not be countered by equally prompt action by the Senate, its power to disallow could plainly be rendered worthless, and it is not to be regretted that the High Court has negatived firmly the right of the executive to defy the Senate." It ruled that the Senate might of its own motion take cognizance of the regulations and by suspending its standing orders annul them without waiting for their being placed before it by the government. It is difficult to deny the justice of the decision, and it is noteworthy also that the court was strongly disinclined to deal with an issue regarding the internal economy of the proceedings of the Senate. That the executive acted unconstitu- tionally can hardly be denied, for to re-enact immediately regulations deliberately disallowed by the duly appointed authority is to strain the Constitution. It had been hoped that the Governor-General might intervene, by refusing to sign the reissue of the regulations, but Sir Isaac Isaacs 3 felt that the question was not one of sufficient importance to justify a crisis between the representative of the Crown and the ministry, a fact which renders it the more satisfactory that the High Court was able to intervene. It is, however, clear that constitutional conventions are far too little respected by the Labour party in the Commonwealth. It is forgotten that the whole fabric of responsible government is artificial, and that its success in the United Kingdom is vitally dependent on acceptance by the parties of the rules of moderation and regard for the rights of minorities.

Ambiguities of Ottawa.-The extreme difficulty of framing agreements which will not offer cause for disagreement as to their interpretation has been exhibited with remarkable promptitude by the diverse versions given in the United Kingdom and in the Dominions as to the effect of the Ottawa agreements. The agreement with Canada alone has furnished conflicts on two very vital points, the issue under Art. I, whether Canadian exports to benefit by the new terms must be consigned from Canadian ports or at least merely pass through the United States on through

1 Acts Interpretation Act, 1901-1930, s. 10. 2 Dignan v. Australian Steamships Pty. Ltd., 45 C.L.R. 188. 3 He acted similarly in respect of Mr. Scullin's request for a dissolution of the

Commonwealth Parliament, November 25, 1931, stressing the effect of the change inl position of the Governor-General,



NOTES ON IMPERIAL CONSTITUTIONAL LAW. 123

consignment, or whether they may be consigned to the United States and exported thence, and the right under Art. 15 of British manufacturers and others to have direct access to the Canadian Tariff Board. No doubt such issues may be adjusted by personal conference, the opportunity for which in the case of Canada is easily afforded and has taken shape in the form of the Prime Minister's recent visit. But the question arises whether these trade agreements should not contain a simple procedure for reference of disputed issues to a small standing tribunal which could give reasoned decisions; if there is hesitation to accept the binding character of such decisions, they might at least be advisory on the analogy of the tribunal erected under the Boundary Waters Treaty with the United States. Reference to the possible inter-imperial tribunals envisaged by the Imperial Conference of 1930, as suggested by Professor Mackay in an address to the Canadian Political Science Association in May 1932, is open to the objection that these bodies are merely facultative and have to be constituted ad hoc, perhaps the worst way of creating bodies which can be expected to give impartial rulings. The matter is important, for the proceedings in the Dominion Parliaments indicate that much friction may be generated between parts of the Empire in the operation of the compacts. The proceedings in the Dominions have illustrated a striking diversity of view on the constitutional issue, much discussed in the United Kingdom,' of the duration of the compacts; it seems fairly certain that on a change of government a new ministry will claim the right to reopen the question.

Iraq and the United Kingdom.-The termination of the mandate over Iraq by the entry of that State into the League of Nations on October 3, 1932, unquestionably affords grounds for satisfaction to believers in the value of the mandatory system. For the United Kingdom the position now created is one of great delicacy and some difficulty. The necessity on imperial grounds of retaining an air force in the territory under treaty exposes the British Government to the risk of being virtually compelled in the event of local disorder arising from unwise government to afford the aid of that force to repress the results of a policy which was adopted without British responsibility, and of which British opinion would not approve. The same issue in New Zealand produced the gravest friction which ever existed between a British colony and the United Kingdom in the period 1865-70. In the case of the Indian States the fact of British responsibility for order has necessitated assumption of an ultimate over- riding control of State policy under the claim of paramountcy, and in Egypt it is admitted that the presence of the British garrison raises problems not easy of satisfactory solution and still wholly unsolved. It is therefore earnestly to be hoped that the general prudence with which the government of Iraq has hitherto been conducted may continue opera- tive, and that the British forces may be confined to their legitimate imperial purposes.

I Journ. Comp. Leg., Third Series, vol. xiv, pt. iv, p. 264.



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Notes on Imperial Constitutional Law