Page 927 Annotated Constitution of the Commonwealth of Australia


¶ 444. “The States.”
The States are parts of the Commonwealth; this is one of the basic principles in the structure and organization of the federated community. In order to present a true conception of the position of the States in the Commonwealth some of the ground previously traversed must be here reviewed, and attention drawn to the fundamental conceptions and relations expressed by the words “Empire,” “Commonwealth,” “States,” “Constitution,” and “Government.”
In accordance with the agreement of the people of the Australian Colonies to unite in one Federal Commonwealth under the Crown, the British Parliament, in which resides the supreme and absolute sovereignty of the Empire, has established the Commonwealth and ratified and legalized the Constitution previously approved by the people. The Commonwealth is the united political society thus established; it consists of the people and of the pre-existing colonies, converted into States.
Attention is particularly drawn to this definition of Commonwealth, which is clear and unchallengeable, according to the express wording of the Preamble and the first six clauses of the Imperial Act. In certain sections of the Constitution, however, the word Commonwealth is used to denote the central Government established by the Constitution, and not the political society itself which is organized under the Constitution, and governed by Federal and State governments alike. In the American Constitution it has been noticed that a similar confusion of meaning exists. In the Preamble and other sections, the term “United States” means the united political society composed of the people of the States. Occasionally, however, as in Art. IV. Sec. 4, and the Tenth Amendment, the term “United States” is used to signify the Federal Government. (Luther v. Borden, 7 How. 1; Pomeroy’s Const. Law, 10th ed. p. 68. Note, ¶ 466, infra.) These are illustrations of the manner in which a political community capable of exercising sovereign or quasi-sovereign powers may be confused with its governing organs. Care must, therefore, be taken to note and understand the meaning of the word Commonwealth, as conveyed by its context; by so doing misapprehension and confusion of thought will be avoided.
The primary and fundamental meaning of “The Commonwealth” is the united political community composed of the people and the antecedent colonies, now converted into States. That political community has been established by the Imperial Parliament, and endowed with the powers of self-government, by virtue of which the community may be described, for the purpose of this analysis, as possessing a kind of political sovereignty; not absolute and independent sovereignty, for that belongs to the British Parliament, but a derivative, delegated, or quasi-sovereignty. This quasi-sovereignty is conveyed to the new society by the Imperial Act, and through the Constitution in that Act. The Constitution partitions or distributes the powers pertaining to this quasi-sovereignty in the following manner: One bundle or set of the totality of quasi-sovereign powers is expressly and definitely assigned to certain governing organs called the Federal Parliament, the Federal Executive, and the Federal Judiciary, accompanied by limitations and prohibitions, determining the methods or principles according to which those powers are to be used. The balance of the quasi-sovereign powers are reserved to certain autonomous and governing groups, formerly called colonies, now called States; those powers being such as are defined in the Constitutions of the States, granted to them by the Imperial Parliament before the union. By the Federal Constitution the State Constitutions were confirmed and continued in existence, subject to the grants of power made by the Constitution to the Federal organs of government. In addition to these assignments of power among the two sets of governing agencies, the Constitution contains a section enabling the people of the united community, in the exercise of their quasi-sovereign power, to amend the supreme instrument of government itself. This power of amendment enables the people, if necessary, to redistribute the powers granted and apportioned by the Constitution, either by taking from the State Governments and giving to the Federal Government, or by taking from the Federal Government and giving to the State Governments. The subjoined conspectus may be used to illustrate the relation of the State Governments to the Federal Government, and the joint relation of both to the amending power, to the Constitution, and to the Commonwealth:—

From these observations it appears that the Imperial Parliament has vested, in the united and indivisible people of the Commonwealth, some of the highest attributes of sovereignty, limited only by its own paramount supremacy; that in the Constitution there is a division of that delegated sovereignty into two spheres or areas, one being assigned to the Federal Government, and the other to the State Governments; that each Government is separate and distinct from the rest; that the Federal Government cannot encroach on the sphere or area of the State Governments, and that the State Governments cannot encroach on the sphere or area of the Federal Government; that the sphere or area of the Federal jurisdiction can only be modified, enlarged or diminished by an alteration of the Constitution; that the sphere or area of the State jurisdictions can only be modified, enlarged, and diminished by a similar alteration. This dual system of government is said to be one of the essential features of a Federation.
It may be added that the governing powers reserved to the States are not inferior in origin to the governing powers vested in the Federal Government. The States do not derive their governing powers and institutions from the Federal Government, in the way that municipalities derive their powers from the Parliament of their country. The State Governments were not established by the Federal Government, nor are they in any way dependent upon the Federal Government, except by the special provisions of sec. 119. The States existed as colonies prior to the passing of the Federal Constitution, and possessed their own charters of government, in the shape of the Constitutions granted to them by the Imperial Parliament. Those charters have been confirmed and continued by the Federal Constitution, not created thereby. Hence, though the powers reserved to the States are not wide, general, and national, no badge of inferiority or subordination can be associated with those powers, or with the State institutions through which they are exercised. State powers and State institutions, Federal powers and Federal institutions, all spring directly from the same supreme source—British sovereignty. The Federal Government and the State Governments are in fact merely different grantees and trustees of power, acting for and on behalf of the people of the Commonwealth. Each of them has to exercise its powers within the limits and in the manner prescribed by the Constitution; each of them has different powers to be used in different domains for different purposes. The Constitution is the title, the master, and the guardian of all these various governing agencies. At the back of the Federal and State Governments are the quasi-sovereign people of the Commonwealth, organized within the Constitution as a quasi-national State; they can alter the instrument of government, abolishing existing institutions of government, and substituting new ones, subject only to its special provisions and the Imperial supremacy. The States, therefore, as governing organizations, are not inferior in origin or status to the Federal governing organizations. Both are equally subject to the law of the Constitution, and equally entitled to its protection. “The perpetuity and indissolubility of the Union by no means imply the loss of distinct and individual existence, or of the right of self-government by the States. Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may not be unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States.” (Per Chief Justice Chase in Texas v. White, 1868, 7 Wall. 724–5.)
“In these opinions the Supreme Court, for the first time in its entire history, struck the solid ground of historic fact, and announced a theory which defines and preserves both the inherent nationality of the United States, and the separate existence, necessity, and local rights of the several States.” (The Nation, 29th June, 1871.)

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