R v Edwin Frederick Sutton [1908] HCA 26

R v Edwin Frederick Sutton [1908] HCA 26 - HCA 1908 case summary — Zoe

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plaintiffs. Assuming for the purposes of this argument that the State Government was not liable to pay duty on the goods in question, the goods were nevertheless subject to the control of the Customs until released in accordance with the provisions of the Customs Act. All goods imported into the Commonwealth, whether dutiable or not, are subject to Customs control by sec. 30 of the Customs Act. The defendant is therefore liable to a penalty for a breach of sec. 33 or sec. 236 unless the State Government, under whose authority he justified, is not bound by the Act. As regards matters which were placed within the exclusive control of the Commonwealth, the Crown as represented by the States was bound once for all by the Constitution. The Commonwealth has exclusive powers of legislation as to trade and commerce with other countries, see. 51 (i.),and as to Customs and Excise, secs. 52 (ii.), 85-90, since the imposition of a uniform tariff' There is nothing in the Constitution express or implied exempting State Governments from the control of the Common- wealth in these matters. To exclude them from that control would render nugatory the whole scheme of the Constitution in thisrespect. The existence of an exclusive power in the Common- wealth is altogether inconsistent with the exemption of State Governments. The only ground on which such exemption could be claimed is the rule that the Crown is not bound by Statute except by express words or necessary implication. Even if that rule could apply in considering the question whether a State Government is bound by Commonwealth legislation, there is quite sufficient ground for holding that there is necessary implication here. The Constitution may be said to have divided up the pre- rogative of the Crown and allotted different portions to different individuals. Quoad the Customs power, the whole prerogative is vested in the Crown as represented by the Commonwealth, and the Crown as represented by the State is left with nothing. The State is in a sense non-existent for that purpose. The power to control goods imported is incidental to the Customs power, and, _ therefore, the States must be deemed to have given it over wholly _ to the Commonwealth. Whether the goods were dutiable in fact or not is a question to be decided by the Customs, not by the

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only agent in cases where the federal power is exclusive. When that power wholly occupies the field, as in the case of the control of the Customs, the State Governments are ex necessitate out of that field, which knows as occupants one Government and one people, the Australian Government, and the Australian people who give it life. So in the domain of exclusively national legis- lation there is no room for State Parliaments or Executives. They have great powers, which this Court has guarded, and will guard, But as far as the law of the Constitution is concerned, State Governments are supreme in their sphere and powerless beyond it. And this is also true of the Australian Government in its turn. In a note to the case of Stockton v. Baltimore and New York Ruilway &e. Co. (1), a very instructive case, Dr. Thayer, Weld Professor of Law at Harvard University, a high authority, saysat p. 2,068 of his Cases on Constitutional Lav, in relation to the power to regulate commerce with foreign nations, and among the several States, &c.: - " We think that the power of Congress is supreme over the whole subject, unimpeded and unembarrassed by State lines or State laws; that, in this matter, the country is one, and the work to be accomplished is national; and that State interests, State jealousies, and State prejudices do not require to be consulted. In matters of foreign and interstate commerce there are no States." That these words truly express the nature and extent of the commerce power, as interpreted by the Supreme Court of the United States, there can not be a doubt. So long as the legislative exercise of the power is kept within its ambit, that is, so long as the federal grantee does not attempt to regulate the purely internal and domestic commerce of a State, such exercise and its executive consequences cannot be hindered or nullified in any part by any legislative or executive act on the part of a State. A Statute of a State - the highest exercise of power of which it is capable - would be void so far as it pur- ported to authorize such an act; and there is no constitutional authority in the Executive of the State to do that which no Statute of its Parliament could make lawful. It follows that in such a case no citizen can justify under an authority purporting to be granted him by a State Executive, for that is no authority at (1) 32 Fed. Rep., 9.

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: stronger when the subject matter is the control of the Customs. a, 'The power of the Federal Parliament to impose duties of Customs Tux Kixe did not, it is true, become exclusive until the passage of the first doses tariff (see. 90 of the Constitution). But thecollection and control - - of Customs duties passed to the Executive Government of the - - Commonwealth on its establishment (sec. 86). And, subject to the Constitution, the Parliament has from the beginning had exclusive power to make laws with respect to "Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth " (sec. 52(11.) ). It is this power, indeed, that the Parliament exercised when, in anticipation of the tariff, it passed the Customs Act 1901 in its first session, and in the Con- stitution I find nothing that limits the operation of that Statute further than its own terms disclose. But the terms which are employed in secs. 52, 86 and 90 to secure the constitutional powers with respect to the Customs, leave no doubt of their plenary and exclusive character. Hence in the matter of the control of the Customs and the imposition of import duties it may be said that "there is no State" as emphatically, if not more so, than it was said of matters of foreign and inter- state commerce. In this matter, if in any, "the country is one, and the work . . . is national," so purely national (using the word in the limited sense properly imposed by the Imperial connection), that the Constitution has made it the exclusive concern of the Federal Parliament. Bradley J., in the case of Robbins v. Shelly County Taxing District (1), said: - "It seems to be forgotten in argument that the people of this country are citizens of the United States, as well as of the individual States, and that they have some rights under the Constitution and laws of the former, independent of the latter, and free from any interference or restraint from them." What Bradley J, said of the citizens of the United States is equally

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tion to the enactments in question, it would follow that, although that principle may be used to ascertain whether the King, as _ representing the Commonwealth, is bound by the Customs Act, it cannot be used in the inquiry whether the King, as representing the community of New South Wales, is bound by the Constitution or by the Customs Act. In such a case the _ obligation of the Crown as representing the community of New

South Wales to obey the Constitution and laws, such as the
Customs Act passed under its authority, depends upon entirely different considerations. ' It is, of course, conceded that the British Parliament in enacting the Constitution could confer on the Commonwealth the power of controlling the State Executives, and therefore the King as representing the community in any State, and it is beyond question that that power has been conferred in cases where the limitation of State powers is necessary for the effective exercise of Commonwealth powers. The main purpose of the Constitution 5 _is the distribution between the Commonwealth and the States of 4 all the governmental powers of the people of Australia. The States, in the exercise of the powers exclusively reserved to them, : are confined as before Federation within the jurisdiction of their territorial limits. But in the exercise of the exclusive powers of the Commonwealth, State boundaries disappear, and the whole of Australia becomes one territory. The laws of the Common- wealth are, to use the words of sec. V. of the covering clauses of the Constitution," binding on the Courts, Judges, and people of 'every State, and of every part of the Commonwealth, notwith- standing anything in the laws of any State." Such laws have operation on all Australian citizens irrespective of their division into State communities, and any Commonwealth law may also : ~ expressly bind or except from its operation States or Executive Governments of States. In determining, therefore, whether the King, as representing the community of a State, is bound by a Commonwealth law, the only questions that can arise are whether its language includes the subject matter in question, whether the law is within the powers of the Commonwealth, and whether it has excepted the King as representing the community of the

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control. The distribution of power effected by the Constitution has produced this change in the position of the King: that his sovereign power is no longer exercised by means of those repre- sentatives and advisers over so large a field of subject matters or, in some cases, with the same finality. His Commonwealth repre- sentatives and advisers in all matters committed to them are now either the exclusive or the dominant depositaries of the Royal authority. Trade and commerce with foreign countries is one of those matters. Customs taxation is another. The States are still His Majesty's agents - so far, for instance, as the general construction and management of railways are concerned, and for the purpose of acquiring the ownership of property destined for use in connection with the railways in their respective terri- tories - but they are not his agents to exercise his sovereign jurisdiction with regard to the introduction of articles of com- merce into this continent contrary to the declared will of the Federal Parliament. That would be in plain repugnance to the supremacy of Commonwealth law expressly established by the Constitution. If the Commonwealth Parliament cannot bind the King at all because the Constitution gives it no power to do so, that inability on the part of the Parliament must exist with respect to the Sovereign as the head of every part of his Dominions alike. Under cover of this immunity - and learned counsel avowedly pressed the matter so far - the Governments of Canada, Jamaica, India, or Hong Kong could equally compel the Commonwealth to receive their property in opposition to its own laws because His Majesty is in law the owner, and once the goods come within the territory as part of the common stock, federal regulation of trade does not exist. The contention must logically carry with it the power of every State Government to introduce labour for its public works, from any country, of any description, and in any quantity, and in derogation of whatever prohibition upon the entrance of undesirable immigrants the Federal Parliament might think fit to adopt, for the argument if valid cannot stop at any class of Statute. A State might at any moment deem it advantageous to adopt an internal policy that would involve utter conflict between its ideas of public welfare and those declared by the Commonwealth Parliament, and if this

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~ every other subject enumerated in the Constitution, and so make that document practically worthless as an instrument of govern- ment, and reduce federation to a shadow. _ The modified contention alternatively presented is said to be inyolved in previous decisions of this Court that Commonwealth Jaw is incapable of impeding State instrumentalities, or, in other words, the means employed by the State to carry out its govern- mental functions. In this argument a distinction is made between sovereignty and trading, and reference was made to South Carolina v. United States (1). A possible distinction between the King as a Sovereign and as a trader was adverted to by Lord Stowell in the ease of The Swift (2). But no decision to be found anywhere carries with it such a position as the defend- ant here contends for. The governmental authority of the State is limited to its own territory, and this branch of the argument 'is therefore answered by the fact of the fundamental difference between exercising sovereign power over property within the territorial limits, and insisting upon a right to bring property there from abroad, notwithstanding the prohibition by a lawful authority declared by the paramount law of the Empire to be in that regard supreme. I am, therefore, unable to agree with the contention that the Constitution leaves the Commonwealth powerless as against the States to regulate foreign trade and commerce ; or phrasing it differently, that the King, as represent- ing the Executive of the States, was not intended to be affected 7 by the transference or creation of the powers enumerated in the tution; and I entertain no doubt that the Federal Parlia- ment is authorized by appropriate legislation to prohibit the importation of goods by the State Governments. This, however, does not conclude the controversy. The defend- ant took up the further position, that, assuming the power to 'ontrol State importation, the Parliament had not exercised it, "Decanse, on the proper construction of the Customs Act itself ding to acknowledged canons, the King is not bound. So (1) 199 U.S., 437. (2) 1 Dods., 320, at p. 339.

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It would be sufficient to say that, whether or not the general provisions of the Statute as to prohibition and taxation were intended to apply to goods of the State or to goods intended for governmental use, the Commonwealth must at least have control of goods imported to the extent of ascertaining the ownership or the purpose of importation, and to test the assertion of the person actually introducing them into the country. Once that position is reached, it would obviously reduce the public administration of the Customs law to a chaotic condition if individual importers could under any pretence whatever legiti- mately use physical foree in asserting their claims of unlawful detention, leaving the officers of the Crown no alternative but either to submit, which would be equivalent to the abandonment of all government, or else to employ countervailing force in order to overcome resistance. Still more serious would it be and more destructive of public peace and order if States, attempting as in this case to clothe their action with outward but futile forms of lawful authority, were permitted to enter into open conflict with the executive officers of the Commonwealth in the bond fide discharge of their ordinary functions. If the rights of States or individuals ave infringed, the Constitution has provided a method of redress, and any other would inaugurate a reign of disorder, Such a state of affairs as would justify the defendant's action is entirely outside the limits of legal contemplation, and can form no basis of argument in a Court of law. Even on the assumption, therefore, that the State had a right to demand possession of the goods without payment of duty, and that this right was wrong- fully denied by a refusal to restore possession, it was still a wrongful step in forcibly seizing them from the Customs, and the plaintiffs would be entitled to judgment. But, as I have said, the broader question is involved in this and the next case taken together as to whether the State is bound by the terms of the Customs Act 1901. The liability of the State to taxation may depend ultimately upon quite another consideration, but to

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e order of the Governor of New South Wales in Council justify eremoval? It is urged for the defendant that the Customs Act not mention the King; that the King cannot be bound except by express words or by necessary implication ; that even , if the Commonwealth Parliament could by express words bind the King, it has not done so by the Customs Act 1901; and that therefore the State Government, as the King's agent, can ignore all the provisions of the Customs Act, can take goods without passing an entry, without even giving the Customs officials an opportunity of examining into the facts, and of ascertaining whether the goods are dutiable or not. _ The goods in this case are in fact dutiable if imported by pri- yate persons; but for the purpose of dealing with the precise it ty submitted in this special case, freed from other con- rations, I shall assume that they are not dutiable. It would, , be an extraordinary result if a lighter may take goods from a ship before it comes to the wharf, giving the Customs officials information, leaving them in the dark as to the facts, and with- any materials wherewith to decide whether the goods are __ liable to duty, or are prohibited as noxious to health or to morals, oras being made by prison labour, or even to decide whether

they belong to the State. For ordinary imports the Customs
officials have full power of examination (secs. 32, 49, 186), and of errogation (secs. 234, 274). If the defendant is right, the State Government can loftily ignore a prohibition or regulation of the ~ importation of opium, of Kanakas, of goods or persons from an _ infected port; and the powers of the Commonwealth Parliament, : designed for the good of the people of Australia, will be rendered futile andiilusory. According to the argument for the defendant, 'the Canadian Government or the New Zealand Government 'claim an exemption from Customs entry and from examination, as to goods belonging to it and sent to Australia, the claim should 'be allowed; for the goods are in law the King's goods. Moreover, New South Wales imported goods to be landed in Adelaide, in er State - say, for a Broken Hill railway - the goods must

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Now, what are the limits to the doctrine by virtue of which the State Government claims a right to ignore the Customs machinery ? The King, it is said, is not to be treated as bound unless the Statute says so, expressly or by necessary implication. But the State Government is not the King; nor is it an agent of the King so far as regards the function of regulating trade and commerce with other countries. The State Government is an agent of limited powers; the Commonwealth Government is also an agent of limited powers; and the question here is, not as between the King and any of his subjects, but between two agents of the King. One agent - the Commonwealth Parliament

has the exclusive power of regulating importation and of imposing Customs taxation; the other agent - the State Parlia- ment or the State Government - has nothing to do with these subjects. The State does not enjoy the benefit of the King's prerogative rights except as to matters to which its agency extends; just as the Governor of a State is not protected as to matters beyond the authority confided to him: Musgrave y. Pulido (1). Even if the State Parliament passed a law on the subject of importation, it would be void; and even if it passed a law on some subject properly pertaining to the State - such as the State railways - that law is invalid in so far as it is incon- sistent with the laws of the Commonwealth as to Customs; for the Commonwealth law is paramount (Constitution, sec. 109), Moreover, the King is at the back of the Commonwealth as well as at the back of each State; and His Majesty is as much interested in the due execution of the powers of the Common- wealth, so that he may get revenue for Commonwealth purposes, as he is in the due execution of the powers of the State for the purposes of the administration of the railways and the lands of New South Wales. No English case has been cited to us, or is to me conceivable, in which this doctrine, as to the implied exception of the King's property and agencies, has been applied as between one agent of the King and another agent of the King, each of whom has a separate power for separate purposes

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Judgment (153 paragraphs)