To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making authority, and must therefore be subject to inquiry and determination outside the halls of legislation. Conditional Legislation. - In the Australian case of Baxter v. Ah Way there was a provision in the Commonwealth Customs Act establishing a category of " prohibited imports," and imposing a penalty on importation. The section set out an enumeration of prohibited imports, and included among them "all goods the importation of which may be prohibited by proclamation." The High Court of Australia held that this was "conditional legislation" by Parliament itself, and accordingly sustained a proclamation prohibiting the importation of opium. Isaacs J. (at p. 641) says: The Governor-General does not legislate, using that word in the true sense. There is no subject handed over to legislate upon as he pleases without any substantive provision as to consequences by the Parliament itself." With all deference to the Court, it is not very clear that the matter falls within the principle of conditional legislation. No direction or guide is given to the Executive; there is an unqualified power in the Executive to exclude anything on any ground or no ground. All that Parliament has done is to provide the means of coercion; its only will is that what the Executive has decreed as to the goods that may be imported is law. The other ground taken by the Court appears the stronger : that common experience shows that in certain classes of cases it is not practicable or desirable for the Legislature to do otherwise than leave the utmost discretion to the Executive. It would hardly be possible on any narrower ground to support the delegations of rule-making power that have been made to the Executive during the war. The influence of accustomed methods is seen in the judgments in all the cases that have been cited above. Subjects differ from each other in their aptness for treatment by a representative Legislature. There is a distinction, for instance, between those matters which are essentially matters of administration to which legislation is really ancillary, and, on the other hand, matters which are essentially legislative, with an attendant and 1 (1909) 8 L.C.R. 626. 2 See also the Australian case of Roche v. Kronheimer (1921) to be reported in 29 Commonwealth Law Reports, where the High Court sustained the Treaty of Peace Act conferring upon the Governor-General a power to do all things necessary to give effect to the Treaty, and a Regulation issued under the Act embodying provisions of the Treaty. 4 incidental administration. Defence is an example of the first: there is a defence service to be organised, directed and controlled. The measures to be taken in the interest of defence, whether in peace or war, call for the exercise of a special kind of knowledge and judgment which the Legislature does not affect to possess. In such matters the Legislature exercises its judgment when it remits them to a competent authority. On the other hand, there are matters which are primarily matters of legislation, e.g. bills of exchange, banking, marriage, property, and contract rights, as to which certainly the same practical reasons for delegation could not be assigned. Legislative Powers in the United States. In the United States the principle applicable to delegation appears to be that, while the Legislature may commit powers, it may not delegate legislative powers, and much subtle classification and distinction goes to the solution of problems which arise in an ever-growing tendency to enlarge administrative discretion. But there are, at any rate, two considerations which distinguish the American situation from our own: first, that in the United States the Legislature is itself regarded as holding the legislative power by delegation from the people; secondly, that legislative, executive and judicial power having been communicated by the constitutions to distinct organs, each is restricted to its own sphere and may not intrude on the - others. Further, we must bear in mind the description of the nature of colonial Legislatures as repeatedly given by the Privy Council: Plenary powers as large and of the same nature as those of Parliament itself" (R. v. Burah) 1; "authority as plenary and as ample within the limits prescribed... as the Imperial Parliament in the plenitude of its powers possessed and could bestow" (Hodge v. The Queen) *; a Legislature restricted in the area of its powers, but within that area unrestricted" (Powell v. Apollo Candle Co.)'; if indeed it were repugnant to the provisions of an Act of Parliament extending to the colony, it might be inoperative to the extent of its repugnancy (see the Colonial Laws Validity Act, 1865); but, with this exception, no authority exists by which its validity can be questioned or impeached" (Webb v. Outtrim) '; "the legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted" (McCawley v. The King.)' ،، 13 A.C. at p. 904. * (1907) A.C. at p. 88. 29 A.C. at p. 132. 10 A.C. at p. 290. 5 (1920) A.C. at p. 714. "The nature" of the Imperial Parliament-putting aside any question that may arise as to the effect of the Parliament Act, 1911 -is that it is supreme over all other authority; that any division or distribution of powers is dependent on its will; that it may assume non-legislative powers, that it may devolve legislative powers. Can we, in the case of a Legislature built after this model, say that the limits of its powers of devolution are reached when what is disposed of is found to be not administrative or executive or judicial, but legislative in its nature? But if it is once established that the Legislature may delegate not merely power supplementary to its own legislation, but legislative power itself, are not all other considerations—the extent of the legislative power which may be delegated-matters of judgment and discretion which can be subject to no authority other than the Legislature itself? It is of the nature of the Imperial Parliament to determine which of its powers shall be exercised by authorities in subordination to itself. Granted that a colonial Legislature must not part with its supreme control, is there any other limitation upon delegation than the will of the Legislature itself? Would not Courts trained in the traditions of parliamentary sovereignty decline to enter upon the inquiries which, under the influence of the doctrine of people's sovereignty and the separation of powers, have proved so troublesome in American Courts? The Crown's Power of Disallowment. There is one matter, however, to be considered here. The Acts of the colonial Legislature are subject to the power of the Crown, on the advice of Imperial Ministers, to disallow them. Other activities of the colonial Government, including those of the agents and instruments set up by that Government, are not subject to such supervision. It is therefore an objection to an unrestricted power of delegation that it may enable things to be established as law which, had they been set down in the Act of the Legislature itself, would have been in peril of disallowance on Imperial grounds. The case is not a fanciful one; discriminations have in some cases been made by rules issued by the subordinate authority which would hardly have passed scrutiny in an Act of Parliament. The answer to the objection appears to be that it is more political than legal, and that the Crown's power of disallowance if evasion is threatened must be protected by action taken when the delegating Act itself is passed. That is to say, if an Act is passed which by reason of its extensive delegation of powers suggests the danger referred to, the Crown can at that stage exercise its power of disallowance. But colonial Legislatures to-day have more than a general legislative power. Under the Colonial Laws Validity Act, 1865, s. 5, they may as representative Legislatures make laws respecting the constitution, powers and procedure of such Legislature. The effect of this provision was recently considered by the High Court of Australia in Taylor v. A.-G. for Queensland (1917), 23 C.L.R. 457. In that case an Act and a Bill of the Queensland Legislature were under consideration. The Legislature (which was, of course, a "representative Legislature" within the meaning of s. 5 of the Colonial Law Validity Act) had made an enactment (The Parliamentary Bills Referendum Act, 1908) whereby when a Bill passed by the Legislative Assembly (the elective chamber) in two successive sessions had in the same two sessions been rejected by the Legislative Council (a nominee chamber) it might be submitted by referendum to the electors, and, if affirmed by them, was to be presented to the Governor for His Majesty's assent. It thus provided for an alternative Legislature exercising concurrent power with the King, the Legislative Council, and the Legislative Assembly, the Legislature established by the original Order in Council founding the Colony in 1859. This Act having been passed, a Bill for the abolition of the Legislative Council was passed in two successive sessions by the Assembly and rejected by the Council. This Bill was then submitted to the electors under the preceding Act. The questions before the High Court were: (1) whether the Parliamentary Bills Referendum Act was valid, (2) whether there was power to abolish the Legislative Council of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act. The Court held (unanimously) that the Parliamentary Bills Referendum Act was a law respecting the constitution or the powers 1 of the Queensland Legislature within the meaning of s. 5 of the Colonial Law Validity Act; and that a Bill for the abolition of the Legislative Council was a law respecting the constitution of the Legislature, within the same provision. 1 The original proceedings were taken in the Supreme Court of Queensland, which granted an interlocutory injunction against taking the referendum. The Government appealed to the High Court, which pro forma allowed the appeal for the purpose of removing the matter into the High Court, where it was argued upon a special case. Meantime, the Government having undertaken not to act upon the result of the referendum pending the decision of the Court, the referendum took place. The electors rejected the Bill, and consequently, in the opinion of some of the Justices the Court ought not to answer questions which had become hypothetical, except so far as the answers to them should lead up to the determination of the matter of costs. The majority of the Court, however, held a different opinion. L The "grave question" raised by the Privy Council in the Initiative and Referendum Act whether a colonial Legislature can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence "-is thus answered by the High Court in the affirmative as to Legislatures which come under the Colonial Laws Validity Act. It will be observed that in this case there is no reservation of control by the Parliament of Queensland; the powers of the new legislative authority are as ample as those of the Parliament itself. The Parliament might no doubt repeal the Act of 1908, and thus restore its supremacy. But equally-if the Act were valid-the new legislative authority could destroy the old. In fact, the argument on the second point-the power to abolish the Legislative Council -was directed to the question whether the Parliament of Queensland had itself such power. The Court rejected the argument that the power of a representative Legislature to make laws respecting the constitution, powers and procedure of such Legislature was limited by the obligation to preserve the identity of all the component parts of that Legislature. The Legislature was not, for instance, limited in respect to the Legislative Council to changes in the constitution of the Council, as by substituting a system of election for nomination; it might abolish the Council itself, substituting some other authority with all or any of its functions, or it might leave the powers of the Legislature to be exercised by the parts remaining, the Crown and the Legislative Assembly. The Court did not go the length of holding that under s. 5 the Legislature might substitute for itself some wholly distinct authority, constituted according to the uncontrolled will of the Legislature. Barton (p. 468), Isaacs (p. 474), and Power (p. 481) JJ. were of opinion that probably the representative character of the Legislature must be maintained “ as a basic condition of the power relied on.” Duffy and Rich JJ. (p. 477) expressed no opinion in the matter, as being unnecessary to the decision. Isaacs J. was of opinion that there was a further limitation--" When power is given to a colonial Legislature to alter the constitution of the Legislature, that must be read subject to the fundamental conception that, consistently with the very nature of our constitution as an Empire, the Crown is 1 (1920) А.С. 935, 945. |