Baxter v Ah Way [1909] HCA 30

Baxter v Ah Way [1909] HCA 30 - HCA 1909 case summary — Zoe

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Grirrita C.J. The point submitted for the opinion of the Court in this case is whether a proclamation by the Governor- General in Council of 29th December 1905, which prohibited the importation of opium suitable for smoking, is valid. See. 50 of the Customs Act provides that no prohibited imports shall be imported. See. 52 states what are prohibited imports; they are enumerated in a series of sub-sections, of which sub-see. (g) is as follows: "all goods the importation of which may be prohibited by proclamation." Sec. 56 provides that "the power of pro- hibiting importation of goods shall authorize prohibition subject to any specified condition or restriction and goods imported contrary to any such condition or restriction shall be prohibited imports." The prohibition in this case is of opium suitable for smoking, that is, opium in a particular form or condition. The objection is now taken that this power to prohibit the importa- tion of opium is a power that must be exercised by the legislature directly, and cannot be delegated to the Governor-General in Council. The foundation of the argument that this power cannot be delegated by the legislature is to be found in the case of Reg. v. Burah (1). It was suggested that the legis- lature in India was a delegate of the Imperial Parliament, and that the maxim delegatus ion delegare potest applied to such a Parliament. That contention was scouted by the Privy Council although it had been accepted by a majority of the High Court of Calcutta. It is of course obvious that every legislature does in one sense delegate some of its functions. It is too late in the day to say that the legislature cannot create, for instance, a municipal authority and give it power to make by-laws, or create a public authority with power to make regulations that shall have the force of law, or confer upon the Governor in Council power to make regulations having the force of law, or upon the Judges of the Court power to make Rules of Court having the force of law. Nor is it to the purpose to say that the legislature could have done the thing itself. Of course it could. In one sense this is a delegation of authority because it authorizes another body which it specifies to do something that it might have done itself. It is too late in the

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objectionable in any sense. The objection certainly cannot be supported by relying on the maxim delegatus non delegare potest, nor, in my opinion, on any other ground. This was pointed out by Marshall C.J. in 1825, and no doubt has ever been cast upon his opinion in the United States since, although it has been decided that Congress is to be regarded as a mere delegate of the people. In truth the whole question in this case was disposed of by the Privy Council in Reg. v. Burah (1). In that case the legislature having authority to pass laws on the subject had provided that certain special laws, which had the effect of ex- cluding the jurisdiction of the High Court, should apply to certain districts specified, and to certain other districts if and when the Lieutenant Governor by notification in the Calcutta Gazette should declare that it should so apply. The question was whether it was within the legislative power of the Council to pass such a law. I will read a few passages from the judgment. I remark here that under that Act the Lieutenant Governor was authorized to fix both the time and the place. Lord Selborne in delivering the opinion of the Judicial Committee (2) pointed out that it was left to the Lieutenant Governor to determine both whether the law should apply and if so when, and added : "Legislation which does not directly fix the period for its own commencement, but leaves that to be done by an external authority, may with quite as much reason be called incomplete, as that which does not itself immediately determine the whole area to which it is to be applied, but leaves this to be done by the same external authority. If it is an act of legislation on the part of the external authority so trusted to enlarge the area within which a law actually in operation is to be applied, it would seem fortiori to be an act of legislation to bring the law originally into operation by fixing the time for its commencement." So far as I know it has never been doubted that that is a power that may be conferred by the legislature upon the Governor in Council or upon the Government of the State. It is in fact a power continually exercised, and it has never occurred to anybody to dispute it. Then his Lordship, after pointing out that the whole

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argument proceeded upon the erroneous opinion that a legisla- ture of that kind is a delegate of the Imperial Parliament, went on to say (1): "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor-General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act (XXII. of 1869) itself. The proper legislature has exercised its judgment as to place, person, laws, powers ; and the result of that judgment has been to legis- late conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provincial legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or con- ditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it: and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian legislature, contemplate this kind of conditional legislation as within the scope of the legis- lative powers which it from time to time conferred." The same observations apply exactly to a law of the Commonwealth or of a State under its Constitution. It is suggested that the words of the first section of the Constitution, which provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament, make a difference. But that section is merely introductory to the provisions of the Constitution which deal with the legislature. Then come other provisions dealing with the executive power, followed by another series dealing with the judical power. The actual powers of the Parliament are conferred by sec. 51, and in their ambit they are unlimited. There being then no objection to a conditional law being passed, this is a case of that sort. It is not necessary to express (1) 3 App. Cas., 889, at p. 906.

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could be delegated by the legislature. But the legislature can say that certain goods shall be prohibited, that any goods which it is not desirable to admit into the Commonwealth shall not be imported. And unless the legislature is prepared to lay down at once and for all time, or for so far into the future as they may think fit, a list of prohibited goods, they must have power to make a prohibition depending upon a condition, and that con- dition may be the coming into existence or the discovery of some fact. The expediency of admitting particular goods into the Commonwealth at a particular time is a question of - fact. Whether it is desirable or reasonable that goods in a certain condition should be excluded is another question of fact. And if that fact is to be the condition upon which the liberty to import the goods is to depend, there must be some means of ascertaining that fact, some person with power to ascertain it; and the Governor in Council is the authority appointed to ascertain and declare the fact. That seems to me to follow directly the language of their Lordships of the Privy Council in Reg. v. Burah (1). There is another passage in the judgment in that case to which I will call attention, that affords a very weighty argument (2): - "If their Lordships were to adopt the view of the majority of the High Court, they would (unless distinctions were made on grounds beyond the competency of the judicial office) be casting doubt upon the validity of a long course of legislation, appropriate, as far as they can judge, to the peculiar circumstances of India ; great part of which belongs to the period antecedent to the year 1861, and must therefore (as Sir Richard Garth well observed) be presumed to have been known to, and in the view of, the Imperial Parliament, when the Councils' Act of that year was passed." So in this case, if we were to give effect to this objection, we should be casting doubt upon the validity of a long course of legislation in Australia. For in every State before the establishment of the Commonwealth, such powers as this Act purported to confer or recognize in the representative of the Sovereign were frequently conferred by the legislature. Such powers are conferred by the English Customs dct of

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made a valid law to prohibit the importation of opium, by expressly mentioning that article in the Act. It is not contended that, if the Governor-General in Council had been authorized to prohibit the importation of any article which he deemed to be injurious to the health or well being of the community in any way, and if in the exercise of that discretion he had prohibited the importation of opium, there could have been any objection to the exercise of that power. But it is said that, because the filling up of the blank, and the naming of the article in each contin- gency that may happen in the future, is left to the absolute discretion of the Governor-General in Council, that is an attempt to exercise a power which is not conferred upon the legislature by the Constitution. And that is the narrow point which we have to decide. Now the powers of legislation conferred in respect of this particular matter are contained in sec. 51 of the Constitution, and those powers are conferred in a form of words which has been universally adopted by the British Parliament in conferring powers of legislation upon its self-governing com- munities. The power, so far as my research has enabled me to discover, has always been conferred in the same words : - power to make laws for the peace, order, and good government." The power of legislation is given in that form in sec. 51 with respect to trade and commerce with other countries, and with respect to taxation. And there is also a power to make laws incidental to the exercise of any power vested in Parliament by the Constitu- tion, Within that latter class is sub-see. (xxxix.) of sec. 51. It is a fundamental principle of the Constitution that everything necessary to the exercise of a power is included in the grant of a power. Everything necessary to the effective exercise of a power of legislation must, therefore, be taken to be conferred by the Constitution with that power. Now the legislature would be an ineffective instrument for making laws if it only dealt with the circumstances existing at the date of the measure. The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases, and, there-

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same terms. Ido not refer to the Customs Act of New South Wales because it was more limited in its operation. Therefore, at the time when the power of legislation was conferred upon the Commonwealth Parliament this was a common form in which the power had been exercised in all kinds of legislation : and in regard to Customs legislation there were then actually in existence these illustrations of its exercise that I have mentioned. Not only that, but when the Constitution was enacted and the administration of the Customs of Australia passed into the control of the Common- wealth Parliament, that administration necessarily went on under the State laws, and to provide for continuity of administration sec. 70 of the Constitution provided that all powers under State Acts administered by the Governors of the different States, in respect of matters which passed to the Executive of the Common- wealth by the Constitution, should vest in the Governor-General or the Governor-General in Council. So that this very power which is in question here, to prohibit any goods from being im- ported, vested in the Executive of the Commonwealth, at all events as far as Victoria and South Australia were concerned, at the passing of the Constitution. Now that brings me to the essence of this objection. It is contended that, so far from the legislature of the Commonwealth having the plenary powers which are undoubtedly conferred upon it within the ambit of its authority, its power is less than that of the States the administration of whose laws had passed to it, and is less,than the power exercised by the legislature in England in dealing with the same subject matter. Can it be seriously contended that, in creating a legis- lature such as that of the Commonwealth with plenary powers, and in giving it power to deal with this particular subject matter, the power is to be denied it which is necessary and essential, and has been always treated as necessary and essential, for the exercise of that legislative power in England and in several of the Australian States. To read the gift of power to the Parliament of the Commonwealth in that limited way would, it scems to me, be altogether to deny full force and effect to the words of the

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Act 1901. What does see. 51 (1) of the Constitution enable the Federal Parliament to do? What has that Parliament done under sec. 52 of the Customs Act? The Parliament has power to make laws - that is to say, any kind of laws - for the peace, order, and good government of the Commonwealth with respect to (inter alia) trade and commerce with other countries. As under this power, the Parliament has enacted that no prohibited imports shall be imported (sec. 50). The meaning of the word "prohibited" is defined by sec. 52. It is sec. 50, not sec. 52, which forbids the importation of goods which are in the list of goods called "prohibited." It is true that sec. 52 (g) uses the words "prohibited by proclamation," as if it were the pro- clamation that excluded the goods. But if we consider sec. 50 - *No prohibited goods shall be imported " - it is clear that in substance it is the Parliament that excludes such goods as are mentioned in the proclamation. Sec. 52 is essentially a defining section - " The following are prohibited imports"; and amongst other goods which are to be in the list of "prohibited" imports are (g) "all goods the importation of which may be pro- hibited by proclamation " (that is, proclamation by the Governor- General in Council). If Parliament had said that all goods ex- eluded from entrance into Great Britain by British law, from time to time, are to come within the definition of "prohibited imports" for the purpose of sec. 50 of an Australian Customs Act, there surely could be no doubt that the provision would be valid. Mr. Lamb, indeed, admits it. Then why should not a provision be valid to the effect that all goods named, from time to time, on a black list to be kept by the Governor-General, shall be prohibited imports, shall not be imported? True, the British Parliament exercises its own judgment, its own discretion in making the law for Great Britain; but that fact does not involve the result that it is the British Parliament that makes the law for Australia. Nor in this case is it the Governor-General that has made the law for Australia. The operative will in the making of the law, as regards Australia, is the will of the Australian Parliament. The prohibition comes into operation by the will of the Australian Parliament, and ceases to operate as soon as the Australian Parliament so determines. It is the will of that Parliament that

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in Council in his discretion shall determine. So long as that Parliament leaves the Customs Act unaltered, the prohibition applies to any class of goods mentioned in a certain public pro- clamation to that end. I base my reasoning on what I conceive to be the strict principles of dry statutory construction, regard- less, for the nonce, of the disastrous confusion and embarrassment into which a contrary judgment would plunge the federated people. But it has to be remembered, even in accordance with those strict principles, that at the time of the adoption of the Constitution by the British Parliament, the word "law" included in England and in the Colonies legislation such as the presenty enabling functionaries or bodies other than Parliament itself to say under what circumstances, and to whom, and in respect of what things a given course of action is applicable; and there is no ground for treating a law of this kind as excepted from the powers given by sec. 51 of the Constitution. The only difficulty arises when it is attempted to apply the principle of delegatus non delegare potest - a principle which is so familiar to lawyers in connection with agents and trustees. But, according to my view, there is not here in fact any delegation of the law-making power ; and besides, as I understand the cases of Reg. v. Bwrah (1) and the other cases following it before the Privy Council, that principle is not applicable to the case of the numerous subordinate Parliaments created by the British Parliament, whether they have power in themselves to alter their own Constitutions or not. Analogies are dangerous; but if I may, for the present purpose, venture on one, I should say that within the ambit of the subjects committed to it, the Federal Parliament, and that within the ambit of the subjects committed to them, the State Parliaments, are like general agents, not like special agents; and that the Federal Parliament has, within its ambit, full power to frame its laws in any fashion, using any agent, any agency, any machinery that in its wisdom it thinks fit, for the peace, order, and good government of Australia.

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Judgment (102 paragraphs)