R v Edwin Frederick Sutton [1908] HCA 26

Customs Act 1901 (No. 6 of 1901), secs. 30, 33, 236 - The Constitution (63 & 64 Sypney,

Vict, ¢. 12), sees. 52 (ii.), 86, 90. April 14, 15. May

'The rule that the Crown is not bound by a Statute except by express words or necessary implication applies only to those representatives of the Grime o. Jen Crown who have executive authority in the place where the Statute applies, O'Connor, 'and as to matters to which that executive authority extends. 'The Con- pisine JJ. stitution binds the Crown as represented by the various States, and takes no account of the States and State Governments in relation to Commonwealth legislation on matters within the exclusive control of the Commonwealth Government, and, therefore, in the construction of Commonwealth Statutes dealing with such matters, the rule applies to the Sovereign as head of that

Government, but not to the Sovereign as head of the State Governments.

'The Customs Act 1901, being a valid exercise by the Commonwealth of the exclusive power to impose, collect and control duties of Customs and Excise conferred by secs. 52 (ii.), 86, and 90 of the Constitution, applies to goods imported by the Government of a State as well as to those imported by private persons ; and, therefore, goods imported by a State, whether dutiable 'or not, are by sec. 30 of the Act subject to the control of the Customs, and the authority of the State Executive is no justification for their removal from that control contrary to the provisions of the Act.

'A quantity of wire netting, which had been purchased in England and imported into the Commonwealth by the Government of New South Wales, 'VOL. V. 53

was landed at the port of Sydney. Without any entry having been made or passed, and without the authority of the Customs officers, the defendant, acting under the authority of the Executive Government of the State, removed the goods from the place where they were stored.

Held, that the defendant had committed a breach of secs. 33 and 236 of the Customs Act.

SprcraL Case stated for the opinion of the High Court under Order XXIX., r. 1 of the Rules of the High Court.

This was a proceeding by the Customs for the recovery from the defendant of pecuniary penalties for breaches of sees. 33 and 236 of the Customs Act 1901. The defendant was a carrier who at the time of the alleged offences held the contract from the Government of New South Wales for the carriage of its goods from the Sydney wharves. In August 1907 a large quantity of wire netting, which had been purchased in England by the State of New South Wales and imported into the Commonwealth at the port of Sydney, was landed from the steamship in which it had been brought there by the ship's hands with the consent of the Customs officers, and stacked near the wharf. A demand was made on behalf of the State Executive on the Collector of Customs that he should admit the wire netting duty free as being the property of the Crown, but the Collector refused to comply with the demand, and required that an entry should be passed and duty paid or deposited before the delivery of the goods. A few days afterwards, before any entry had been tendered, made, delivered or passed for the goods, the defendant, acting under an order issued by the Premier of the State in pursuance of a minute by the Governor in Council, removed a portion of the wire netting from the place where it had been deposited, without the authority and against the objections of the Customs officers, and delivered it to the officers of the State Government.

This case was stated by the parties for the opinion of the High Court upon the questions set out in the judgments hereunder, judgment to be entered for the plaintiffs or the defendant in accordance with the decision of the Court.

Gordon K.C. (Cullen K.C., and Blacket with him), for the H. C. or A.

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

importer. The defendant, therefore, must contend that the State Government is altogether outside the operation of the Customs Act, because it is not mentioned. But there was no necessity for express words to bind the States. The Customs laws of the Com- monwealth operate on all the people of the Commonwealth. On the one side is the Crown as represented by the Commonwealth, and on the other the people. The States are merely groups of subjects in the ambit of the sovereignty of the Commonwealth, General words in legislation under the exclusive powers are sufficient to bind the State Governments equally with private individuals. The Crown, which under the rule of construction may or may not be bound, according to the words used, is the Commonwealth Government, not the State. The State was, therefore, bound to comply with the Customs Act in order to obtain the goods, and the defendant had no justification for removing them.

Pilcher K.C., Knox K.C., and Lamb, for the defendant. The goods were not subject to the control of the Customs and were never lawfully in the custody of the Commonwealth. The Customs Act does not bind the Government of the State. A Statute is presumed to be intended to apply to subjects unless it appears on the face of the Statute that the Crown was intended to be bound: Attorney-General v. Donaldson (1); Roberts vy. Ahern (2); Weymouth, Mayor of v. Nugent (3); The King v. Cook (4). There is no reason why that rule should not apply to the Crown as represented by the State as well as to the Crown as represented by the Commonwealth. [They referred to The Commonwealth vy. State of New South Wales (5); Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Trafic Employés Association (6).] The King is the same throughout the Empire, as was pointed out in Williams v. Howarth (7). The prerogative right of the Crown to immunity is not eut down by the fact that in the particular instance only part of the Crown's functions are (5) 3C.L.R., 807, at p. 819.

exercised by the authority representing the Crown. [They H.C, or A.

referred to Young v. 8.8. " Scotia" (1).] _ [O'Connor J. - Surely the whole scheme of distribution of py» Kise powers between Commonwealth and State under the Constitu- bs

tion presupposes the distinction between the King as represented hy the Commonwealth and the King as represented by the State : Municipal Council of Sydney v. The Commonwealth (2).]

The Act neither purports to bind the Crown nor does it by necessary implication. Full power and effect can be given to it without affecting the prerogative of the Crown, by making it apply only to subjects.

[Isaacs J. - But if it is the King who is keeping the goods, what cause of action is there ?

Hicans J. - Can the rule as to the King not being bound apply in actions between the King in one capacity and the King in another ?]

The prerogative is invoked on one side only. The power claimed by the Commonwealth is a statutory one, and the question is how far it extends. [See Attorney-General of British Columbia v. Attorney-General of Canada (3).] The whole Act should be looked at, and, if as a whole it is inapplicable to the Crown, none of it is binding upon the Crown, The rule is as applicable here as it was in the circumstances of Roberts v. Ahern (4).

If the Customs Act purports to bind the Crown or attempts to do so it is so far invalid, because under the Constitution the Commonwealth has no power to do so. Such a power must be expressly given. It will not be implied. The power depends upon sec. 90.

(Grirrira C.J. - The trade and commerce power has always been held to include the power of prohibiting importation]

Possibly it may as regards importation by subjects, but not j importation by States, which represent the Crown. It is not a necessary implication of that power or of the Customs power that the Commonwealth can exclude State property. The

• States have power to carry on their government in their own

(1908) A.C, 502. (3) 14 App. Cas., 295. ICL, 908. (4) 1G.ER., 408.

way free from interference by the Commonwealth unless that interference is clearly authorized. The Constitution should be construed in such a way as to preserve the rights of the States just as much as those of the Commonwealth. Neither has a greater claim to consideration than the other. If the Common- wealth can prohibit the importation of goods by the State Governments it can prevent them from importing things necessary for carrying on State agencies and thereby practically cripple them. [They referred to M'Culloch v. State of Mary- land (1); South Carolina vy. United Stutes (2).]

Even if the defendant's act was unlawful, he acted under the authority of the Crown and in the bond fide belief that the Crown had power to authorize his act: Reg. v. James (3).

(Grirriru C.J. - The intention with which the act was done is immaterial. A man who violates the specific provisions of the law is liable, whatever his motive or reason for doing so.}

Gordon K.C.,in reply. The rule in MCulloch y. State of Maryland (1) has no application to this case. The question there was as to the extent to which powers admittedly possessed by the States could be exercised so as to infringe upon powers of the Commonwealth. Here the question is what is the power given to the Commonwealth by the Constitution? The Consti- tution gives exclusive power to the Commonwealth to make laws as to trade and commerce with other countries. The Common- wealth, therefore, ex necessitate rei, has power to do what would amount to an infringment upon the powers possessed by the States before federation. A State cannot do by an executive act what it has no power to do by legislation.

The rule, that the King is not bound except by express words or necessary implication from the words of the Statute, would apply if it were a question whether the Commonwealth Govern- ment were bound. For the purposes of such an inquiry the King means the King as represented by the authority which passes the Statute.

(1) 4 Wheat., 316. (2) 199 U.S., 437. (3) 80. &P., 131.

Grirrrra C.J. This is an action for penalties for a breach of sec, 33 of the Customs Act 1901, which provides that no goods subject to the control of the Customs shall be moved, altered, or interfered with except by authority and in accordance with the 'Act. The defendant, by authority of the Executive Government of New South' Wales, took from the control of the Customs a quantity of wire netting recently landed from an oversea ship upon which Customs duties were claimed by the Commonwealth authorities. 'The Government of New South Wales claimed that the goods were not liable to duty, and that they were entitled to take possession of them as soon as they were landed. Three questions are formally submitted for the opinion of the Court : -

(@ Do the provisions of the Customs Act 1901 bind the Crown as representing the community of New South Wales '

(b) Were the said 1,313 rolls of wire netting at the time of their removal by the defendant subject to the control of the Customs ?

(c) Was the defendant lawfully entitled to remove the said 1,318 rolls ?

The rule that the Crown is not bound by a Statute unless expressly mentioned, or unless it appears: by necessary implication that it was intended to bind the Crown, is a rule of construction, the object of which, as of other rules of construction, is to give effect to the intention of the legislature. If it appears clearly that the intention was that the Crown should be bound, effect is given to this rule by so holding. The rule was expounded by this Court in the case of Roberts v. Ahern (1). In that case, I said, in delivering the judgment of the Court : - *It is a general rule that the Crown is not bound by a Statute unless it appears 'on the face of the Statute that it was intended that the Crown should be bound by it. The rule has commonly been based on the Royal prerogative. Perhaps, however, having regard to modern developments of constitutional law, a more satisfactory basis is to be found in the words of Alderson B., delivering the judgment of the Court of Exchequer in Attorney-General v. Donaldson (2): 'It is a well established rule, generally speak-

(1) 1 C.L.R., 406, at p. 417. (2) 10 M. & W., 117, at p. 124.

ing, in the construction of Acts of Parliament that the King is not included unless there be words to that effect; for it is inferred primd facie that the law made by the Crown with the assent of the Lords and Commons is made for subjects and not for the Crown.' The modern sense of the rule, at any rate, is that the Executive Government of the State is. not bound by Statute unless that intention was apparent. The doctrine is well settled in this sense in the United States of America. In the language of Story J.: 'Where the Government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischief to be redressed, or the language used, that the Government itself was in contemplation of the legislature, before a court of law would be authorized to put such a construction upon any Statute. In general, Acts of the legislature are meant to regulate and direct the acts and rights of citizens, and in most cases the meaning applicable to them applies with very different and often contrary force to the Government itself. It appears to me, therefore, to be a safe rule founded on the principle of the common law that the general words of a Statute ought not to include the Government unless that construction be clear and indisputable upon the text of the Act: United States v. Hoar (1)."

This being the meaning of the rule, it follows that it does not apply to every person who in any part of the world represents the Crown, but only to those representatives of the Sovereign who have executive authority in the place where the law applies, and, even there, only as to matters to which that executive authority extends. The limits of the authority of a Governor were pointed out by the Judicial Committee in the case of Musgrave v. Pulido (2). "It is apparent from these authorities that the Governor of a Colony (in ordinary cases) cannot be regarded as a Viceroy ; nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that, for acts of power done by a Governor under and within the limits of his commission, he is protected, because in doing them he is the

(1) 2 Mason (U.S. Cireuit Court), 311. (2) 5 App. Cas., 102, at p. 111.

_ the like protection cannot be extended to acts which are wholly

• beyond the authority confided to him. Such acts, though the

• Governor may assume to do them as Governor, cannot be con- sidered as done on behalf of the Crown, nor to be in any proper sense acts of state. When questions of this kind arise it must necessarily be within the province of Municipal Courts to deter- mine the true character of the acts done by a Governor, though it may be that, when it is established that the particular act in question is really an act of state policy done under the authority of the Crown, the defence is complete, and the Courts can take no further cognizance of it."

The limits of the authority of the Executive Government of an Australian State are not merely geographical. Under the Constitution there are many matters with respect to which the Commonwealth Government has exclusive authority, and the State Governments have no concern whatever. The Crown, as the head of the Commonwealth Government, is for many, if not all, purposes a separate juristie person from the Crown as head of a State Government, as was pointed out in Lhe Municipal Council of Sydney v. The Commonwealth (1).

Tn matters under the exclusive control of the Commonwealth Government the doctrine applies to the Sovereign as head of that

_ Government, but has no application to the Sovereign as head of the State Governments.

What concern then has the State Government with the admin- istration of Customs laws? In my judgment, none. By sec. 86 of the Constitution the collection and control of duties of Customs passed to the Executive Government of the Common- wealth from its establishment, and by sec. 52 the power of the Parliament with respect to all matters relating to that Depart-

ment of the Public Service became exclusive. It follows that for _ the purposes of Customs administration the State Governments

are in no better position than private persons. For these pur- i - poses there is one territory only, and all goods imported into

• that territory are subject to the law of the Commonwealth. It is suggested that, although this may be so, yet if the goods

servant of the Crown, and is exercising its sovereign authority ; H. ©. or A.

were in fact not dutiable the State Authorities were justified in taking them out of the control of the Customs. In the case of a private individual who imports non-dutiable goods, this argument will not bear statement. The Customs Authorities are not bound to accept the assertions of the importer as to the character of the goods imported, of which the importation may be alto- gether prohibited. The nature of the case renders it necessary

• as has always been done in practice - that imported goods should be retained under the control of the Customs for a suffi- cient time to discover (1) whether they may be lawfully imported, and (2) whether they are dutiable, and if so at what rate. In my opinion, this law applies to goods the property of a State Government as well as to those of private persons, and it is quite immaterial whether the goods are in law dutiable or not.

The result of the contrary view would be extraordinary. Notwithstanding the paramount control as to external trade given in express words to the Commonwealth, the States would retain concurrent power to introduce goods the introduction of which is prohibited by the Commonwealth law. Moreover, Customs laws have always been regarded as a mode of exercising this power of control. If, however, the States have a concurrent power, that of the Commonwealth would be neither exclusive nor paramount.

If the suggested right of the Crown as representing the State Government exists at all, it must be capable of being exercised in any other part of the Commonwealth, a view which is, of course, inconsistent with the geographical limits of the authority of the State Executive.

For these reasons I am of opinion that the Customs Act 1901 applies to goods imported by the Government of a State.

It was not disputed that, apart from any question depending upon their being the property of the State, the goods in question were at the time of their removal subject to the control of the Customs.

It follows that the defendant was not lawfully entitled to remove the goods in question, and that there is no defence to this action.

Barton J, The questions for our opinion are : - i ay (a) Do the provisions of the Customs Act 1901 bind the Crown, as representing the community of New South Wales? (b) Were the 1,313 rolls of wire netting at the time of their removal by the defendant subject to the control of the Customs ? (c) Was the defendant lawfully entitled to remove the said

'The case was argued on the assumption that the goods were

not dutiable, although demand had been made for their admission duty-free, and the Collector for New South Wales had refused to comply with that demand, and had required that an entry should be passed and duty paid or deposited (sec. 167) before the delivery of the goods, Let us assume then that the Collector was wrong in insisting on duty; the real question is whether the defendant, acting on the authority of the Executive Government of the State, was justified in removing even non-dutiable goods in respect of which the conditions of Part IIL. of the Act had not been complied with, or whether by removing them in such cireumstances he has not rendered himself liable in this action to pay a penalty under sec. 33. His liability depends upon the answers of the Court to the questions stated in the special case. Unless the defendant is protected by the authority of the Govern- ment of New South Wales he has clearly no defence. Sec. 167 of the Customs Act provides a means of deciding disputes as to the liability of goods to duty. In this case the means provided were not adopted, but the goods were removed in face of the opposition or objection of the Customs Authorities, and if the

_ protection claimed is not valid in law, the penalty has been ineurred.

The question whether the goods were instrumental in carrying on the Government of the State was faintly suggested at the bar,

but has not been seriously raised in this case. There is nothing

in the case stated on which such a defence could be rested. The question will, however, demand close consideration in connection _ with the case of The Attorney-General of New South Wales v. The Collector of Customs (1), on which judgment stands reserved.

It is necessary now to inquire on what grounds the defendant

relies on his authority from the Government of this State as a defence. They ave two - I think in effect only one - namely, that the goods were the King's property, and that the Customs Act does not bind the Crown. The terms "the King" and "the Crown," are of course used respectively to denote the Executive Head of the State. The first proposition was based, broadly, on the rule of construction stated by Alderson B. in Attorney- General v. Donaldson (1). But I take the two propositions - that these goods were not subject to Customs control because they were the King's property, and that the Customs Act does not bind the Crown - as invocations of one and the same principle with a difference of form. To say, as Alderson B. said, that " it is inferred primd facie that the law made by the Crown, with the assent of Lords and Commons, is made for subjects and not for the Crown," is only to say in other words, with Story J. in United States v. Hoar (2), that it appears to be "a safe rule founded on the principles of the common law that the general words of a Statute ought not to include the Government unless that construction be clear and indisputable upon the text of the Act." But, indeed, whether the matter is considered from the side of prerogative or from that of statutory construction matters little, since, if the words or the clear inference from words show that the Government of the legislating authority was intended to be included, the result is in either case the same,

and the intention of the legislature will prevail. Let us turn then to the Act in question and examine a few of its pro- visions on this subject of Customs control. Sec. 30 provides that "Goods shall be subject to the control of the Customs

(4) As to all goods imported - from the time of importation until delivery for home comsumption," &c. By sec. 31, "All goods on board any ship or boat from parts beyond the seas shall also be subject to the control of the Customs whilst the ship or boat is within the limits of any port in Australia." (" Australia" includes the whole of the Commonwealth, see Acts Interpretation Act 1901, sec. 17). "The control of the Customs especially includes the right of the Customs to examine all goods subject to such control" (sec. 32). Is it possible to overrate the degree of

tion of the Customs over this Continent and Tasmania, if pro- visions such as these were not of general application? Is it possible to suppose that the intention of Parliament was to license the wholesale importation of. goods by States the sum of whose operations extends to every port and throughout this yast area; an importation unchecked not merely in extent, not merely in respect of duties, but even in respect of the most casual inspection? But what doubt remains when we look at sec, 337 " No goods subject to the control of the Customs shall be moved altered or interfered with except by authority and in accordance with this Act." Remembering that the absence of all check in respect of duty or otherwise would enable any State (for such is the real extent of the authority claimed) to be its own judge of what and how much it will import, and to set to such importation no bounds but those which the extent of its projects, or its relations with the Australian Government, might dictate; if every movement or treatment of every part of the enormous bulk to which such importations would soon grow is to be free of all regulation or control by the fiscal authority of any port, can one well conceive the state of affairs which would speedily arise if such uncontrolled importations and moyements were licensed to proceed side by side with the work of ordered administration on the part of the Customs Department? It is not possible that Parliament has given its sanction to a state of the law which, onee it reached its full operation, could only be productive of chaotic conditions and ruined revenue. In my opinion the Statute excludes the supposition.

But happily there is no danger of such results, for the federal power is strong to avoid them. In the first place the doctrines invoked by the defendant do not sustain the assumed authority on which he relies. They are correctly stated, but they fail completely in their application. It is its own Executive Govern- ment, in this case that of the Commonwealth, that the Parliament is deemed not to include by general words " unless that construc- tion be clear and indisputable upon the text of the Act." A State

_ Executive cannot claim the protection of the doctrine where it is not the King's agent. The Federal Executive is the King's

confusion and inconvenience that would result to the administra- 4. ©. oF A.

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.

: all. Now, the case against interference by a State becomes H ©. or A

: 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

In my view, then, the answer to the first question must be in the affirmative, but with strict remembrance that in exclusively Com-

monwealth matters there are not seven Executive Governments, but only one, that of the Commonwealth itself. It follows that the second question must be answered in the affirmative, and the third in the negative.

Judgment must therefore be for the plaintiffs, for such penalty as may now be fixed.

O'Connor J. The Customs Act 1901 subjects all goods imported into Australia to Customs control from the time of importation until an entry passed in the proper form gives the importer authority to move them, and the passing of such an entry is as necessary in the case of goods duty free as in the case of those liable to duty. It is therefore abundantly clear that, if the goods, which are the subject of this action, and the persons whose conduct is complained of, are subject to the Customs Act, there can be no answer to the claim for penalties. The defendant, however, rests his defence upon the legal ground raised by the special case, which is that the Crown, as representing the community of New South Wales, is not bound by the Customs Act, and that the goods are its property.

The whole controversy turns upon the proper interpretation to be placed upon the Constitution and upon the Customs Act. The words of both Acts are wide enough to cover the facts of the case and must be held to cover them unless for some reason their meaning is to be restricted so as not to apply to the Crown in the sense in which that expression is used in the case. The principle relied on is entirely one of construction.

Before considering in what form it should be stated and in what way it is applicable in the construction of the two Statutes I have mentioned, it is necessary to advert to the position of the King as executive head of each of the States and of the Common- wealth respectively. For some purposes the King, as represent- ing the executive power of the Empire, is the same juristic person throughout the whole of his Dominions. The enlistment and control of his army is one of those purposes, as was held in Williams y. Howarth (1). But, except for those purposes, he is not the same juristic person throughout the whole of his

The Commonwealth (1) it became necessary to consider the

in as it was by Mr. Justice Burton and myself, represents the opinion of the Court. "Tt is manifest from the whole scope of the Constitution that, just as the Commonwealth and State are regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown, as representing those several bodies, isto be regarded not as one, but as several juristic persons, to use a phrase which well expresses the idea. No better illustration can be given than is afforded by the lands now sought to be rated, which, having originally been 'property of the State, ic. lands of the Crown in New South Wales, have become ' vested in the Commonwealth,' i.e. vested in the Crown in right of the Common- wealth."

The King's representative in the Commonwealth and in each of the States cannot, as was pointed out in Musgrave v. Pulido (2), be regarded as Viceroy, or as possessing sovereign power. His powers are limited by his instructions and are also necessarily

limited by the Constitution of the State or the Commonwealth as the case may be. In anything outside the exercise of the Powers so limited he is in law no more than an individual subject of the King. A Federal Constitution in its very nature pre- Supposes the separate and independent existence of the King as __tepresenting the community in each State and in the Common- wealth respectively, the King in that representative capacity as head of the Executive being in a position in each case to assert maintain the rights of the political entity he represents.

Now, the rule of construction upon which the defendant

relies was fully considered in Roberts v. Ahern (3), and I take it that the statement of the principle contained in the judgment in that ease is that which must now be adopted by the Court : -

i "It is a general rule that the Crown is not bound by a Statute unless it appears on the face of the Statute that it was intended that the Crown should be bound by it. This rule has commonly

(1) LC.L.R., 208, at p. 231. (2) 5 App. Cas., 102, at p. 111.

• 8) 1 CLR, 406, at p. 417. a a of

i. Dominions. In the case of the Municipal Council of Sydney H.C. oF A.

matter, and the following statement of the Chief Justice, concurred Tur Kixe

been based on the Royal prerogative. Perhaps, however, having regard to modern developments of constitutional law, a more satisfactory basis is to be found in the words of Alderson B., delivering the judgment of the Court of Exchequer in Attorney- General v. Donaldson (1): 'it is a well established rule, generally speaking, in the construction of Acts of Parliament that the King is not included unless there be words to that effect; for it is inferred primd facie that the law made by the Crown with the assent of Lords and Commons is made for subjects and not for the Crown. The modern sense of the rule, at any rate, is that the Executive Government of the State is not bound by Statute unless that intention is apparent. The doctrine is well settled in this sense in the United States of America. In the language of Story J.: 'Where the Government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischief to be redressed, or the language used, that the Government itself was in contemplation of the legis- lature, before a Court of law would be authorized to put such a construction upon any Statute. In general, Acts of the legislature are meant to regulate and direct the acts and rights of citizens, and in most cases the meaning applicable to them applies with very different and often contrary force to the Government itself. It appears to me, therefore, to be a safe rule founded on the principles of the common law that the general words of a Statute ought not to include the Government unless that construction be clear and indisputable upon the text of the 'Act': United States v. Hoar (2)."

Such being the principle upon which the rule of construction rests, it is obviously applicable only in the determination of the question whether the King, as representing the community whose legislation is under consideration, is or is not bound by enactment. It cannot be applied to determine whether the enactment binds the King as representing some other community. It is applicable in the inquiry whether a Commonwealth Act binds the King as representing the Commonwealth. But where the inquiry is whether the Commonwealth Act binds the King as representing one of the States it can have no relevancy.

(1) 10M. & W., 107, at p. 124. (2) 2 Mason (U.S. Circuit Court), 311.

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

~ Coming now to the application of the principle of construc- H- ©. oF A.

State, State itself, the State Executive, or the goods of the State from its operation.

Coming now to the Commonwealth law under consideration, it may also be an exercise of the power to regulate commerce, but it is primarily an exercise of the exclusive power of the Common- wealth to impose duties of Customs and Excise. Neither the King, as representing the community in each State, nor the State Executives have been excepted from its provisions - on the contrary it is plain that the effective operation of the Act would be impossible if the exemption now claimed were allowed. In my opinion, the goods of the State of New South Wales are under the Customs Act in the same position as the goods of any citizen of New South Wales, and the individuals constituting the executive authority of New South Wales are under that Act in the same position as any other individuals in New South Wales, and equally bound to obey the provisions of the Customs laws.

For these reasons I am of opinion that the legal ground of defence set up by the State of New South Wales must fail, and the questions put in the case must be answered in favour of the plaintiffs.

Isaacs J. No question of taxation is raised in this case. It was assumed that wire netting was free from Customs duty, and strictly speaking the only point for decision is as to the legality of the forcible seizure of the wire by the defendant. The following case (1), however, fully raises for judicial determination larger questions argued in both, and consequently it will be con- venient to consider them at once so far as they are common to both cases. I leave out of consideration in this judgment the force and effect of sec. 114 of the Constitution. Apart, then, from that section, the issue is clear cut ; whether the States can import into Australia any goods they desire, of whatsoever nature and condition, free from the operation of the Commonwealth laws, and free from any Commonwealth supervision or examination ; or, if that proposition be not universally true, then with this limitation only, that the goods must be intended for utilization in some governmental function. When the power of legislation with respect to trade and commerce with foreign countries was granted

~ to the Commonwealth, it was a surrender, not partial, but com- H- plete, of the supreme authority to control the introduction into

merchandise might be the subject of that trade and commerce and intermingled with the common stock of property in the Common- wealth was not to be dependent on the single will of any State, nor on the separately declared will of all the States, but was to be determinable by the united action of the whole Commonwealth speaking for all the people, regarded as one community undivided by State lines. The grant of the trade and commerce power was not intended to be illusory ; but if the States had the rights con- tended for of bringing in whatsoever goods they please, even in antagonism to Commonwealth regulation of the subject, the grant would be altogether illusory. By sec. 92, inter-state trade is declared to be absolutely free, and foreign goods once incor- porated into the common stock are subject only to State regula- tion of trade, and consequently any federal regulation of foreign commerce would be nugatory if by means of State ageney merchants could evade or overcome it. On the plea that the goods were the King's property, the whole power of the trade and commerce clause could be rendered futile, and in this simple fashion one of the prime essentials of the federal system could be nullified. A construction of the Constitution leading to so absurd and destructive a result is impossible of acceptance.

The argument is rested on the doctrine that the King is not bound by a Statute unless referred to expressly or by necessary implication. So far as this argument is addressed to the Con- stitution, the instant answer is that the very essence of that instrument is to bind the Crown. 'True, in a sense, the Crown is one and indivisible throughout the Empire, but its power is not one and indivisible: it acts by different agents with varying authority in different localities or for different purposes jin the same locality. The Constitution redistributed the Royal power over the territory of Australia. Formerly, and subject only in

the last resort to the will of the Imperial Parliament, the Sovereign exerted his authority over his subjects in each sepa- rate Colony solely by his local representatives and advisers

• there, and with regard to all matters of legislative and executive

Australia of goods from abroad. How far any specified articles of ae Kixe

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

for the State to disregard every federal law upon the sub-

~ 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.

ent for the defendant were to prevail, the way would be 4. ©. or A.

ject of foreign trade and commerce, immigration, and almost Tye Kixe

H. C. of A. far as the facts of this particular case are concerned, it appears

that the defendant, without entry made or tendered, seized the goods vi et armis while in the control of the Customs within the meaning of the Act.

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

propose to regard it from the standpoint of dutiability as well as prohibition. Prohibition of imports is enacted in secs. 50 to 57 inclusive. The prohibition is perfectly general. It is immaterial to whom the goods belong. The goods themselves are prohibited imports. I need not repeat what I have already said as to the

• impossibility of maintaining this prohibition with any effect if _ six entrances are provided whereby free and unchecked access is

permissible. This clearly could not have been the intention of the legislature. Nevertheless, says the defendant, however un- reasonable it may be, however inconvenient it may prove, the Parliament has omitted technically to close up those entrances by express or necessarily implied references to the State Govern- ments, and so they exist in law. I reserve my opinion as to whether this objection may not receive an equally technical answer by the combined effect of the Acts Interpretation Act 1901, sees. 2 and 32, aided by the Magdalen College Case (1). I

do not enter upon that question because the question may be

Tn The Municipal Council of Sydney v. The Commonwealth (2) the learned Chief Justice said : - "It is manifest from the whole scope of the Constitution that, just as the Commonwealth and States are regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown, as representing these bodies, is to be regarded not as one, but as several juristic persons, to use & phrase which well expresses the idea."

Tagree with those observations, which must govern, not only the construction of the Constitution itself, but also the laws made under it. The Constitution, in apportioning and distributing political powers, rights and duties, between Commonwealth and States, regards them as distinct and separate organisms for their several functions, This was necessary to the scheme of government it introduced, for operating as these several authorities do, at the

same time, on the same territory, the same persons, and the same

property, any other conception would produce confusion. No doctrine of law, however applicable to the purely unitary form of (1) 1 Rep., 66. (2) 1 C.L.R., 208, at p. 231.

determine the applicability of this Act as such to the Crown I H. ©. of A.

• government, can, if inconsistent with the great, essential and

dominant purpose of the Federal Constitution, be allowed to

Any theory, therefore, is inadmissible which would permit the the States, merely because allegiance is owed to the same Crown, to claim entire exemption from the general operation of a federal law, regulating a matter of national concern, and made by virtue of a granted power of such a nature that the exemption would or might either utterly frustrate the legislation or render it practically ineffective.

-The regulation of foreign trade and commerce and the imposition of Customs duties are necessarily powers of that character.

In Pensacola Telegraph Co. v. Western Union Telegraph Co. (1), Waite C.J. in words singularly appropriate to the present occasion said of the Government of the United States : - *It legislates for the whole nation, and is not embarrassed by State lines. Its peculiar duty is to protect one part of the country from the encroachments by another upon the national rights which belong to all."

If, then, State lines are not to be observed in the field of national regulation of external trade and commerce and duties of Customs, there can be no room for the contention that the Crown, as representing the States, is not bound without express words or necessary implication, and the argument must consequently fail through its want of relevancy.

For these reasons the acts of the defendant were, in my opinion, contrary to the law, and he is liable to the penalty imposed by the Customs Acts.

Hicerys J. It is unquestionable that, if this wire netting had belonged to a private person, it was subject to the control of the Customs, and that the defendant was liable to a penalty for removing it without passing a Customs entry, even if it was free from duty: Customs Act 1901, sees. 30, 33, 36. The defendant's counsel have wisely refrained from pressing the untenable point which was suggested in the case - that the wire netting was no

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

'The question is, does the fact that the goods were removed by Tye

in the control of the Customs after it had been placed on 4H. ©. or A.

• as admitted in the argument - be landed without entry and without inspection. '

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

~ Royal purse would take money for taxation as would pay, or when (b) the contest is between the King and his subjects. The

• doctrine is a mere rule of construction, and as such it gives way to necessary intendment. A local authority is in the same position as a subject for the purposes of the doctrine; for the moneys collected by the local authority are not to be spent by the King: Weymouth, Mayor of v. Nugent (1). The King is entitled to take the benefit of Statutes which do not name him, if they are for his advantage, or for the public benefit; and the Commonwealth is entitled to the benefit of this principle, as much as the State Government is to the benefit of the converse principle, as to the burden of a Statute. The defendant argues __asif the King were behind the State only, and not behind the : Commonwealth - as if he were the King of the State and not

of the Commonwealth. The case of R. v. Wright (2) shows

sufliciently that, where the King's interest is as much on one side as on the other, the maxim of construction pressed on us for the defendant does not apply. It seems to me to be also correct to say that the doctrine of construction applies to the Government of the State in State Acts, to the Government of the Common- wealth in Federal Acts. In other words, the Crown to be con- sidered in applying the doctrine to a Customs Act is the Crown of the Commonwealth - the separate "juristic person" referred toin Municipal Council of Sydney v. The Commonwealth (3). To my mind, indeed, if secs. 106-109 of the Constitution be rightly considered, most of the difficulties as to the conflict of powers will vanish. The States' laws, and the States' powers to make laws, are all "subject to the Constitution"; and the Commonwealth laws made under the Constitution override any ; conflicting State laws made within the States' powers; and, so far as regards Customs machinery provided by the Common- Wealth Parliament, the State officials must submit to it as if they Were private persons. They are not servants of the King so far as regards importation ; and the burden lies upon them, as it lies on other subjects of the King, of showing that they are

: & (l) 6B. &S., 22, at pp. 32-33. (2) 1A. & E., 434, at p. 441. ; (3) 1C.L.R., 208, at p. 231.

• of the King. The case is quite different when (a) the same H.C. oF A.

exempted, without express words to that effect, from the obligations created by a Federal Act.

TI ought to add that I feel no doubt as to the power of the Commonwealth Parliament, as well as of a State Parliament, to expressly bind the Crown by its acts.

Solicitor, for the plaintiffs, The Crown Solicitor for the Com-

monwealth. Solicitor, for the defendant, The Crown Solicitor for New South

=e Cops Victoria Dirac C. As We 'wealth (1! Boer HARD Geers Fol, RAT Pe Span Se alan S62 e, seieTay

SOUTH 'WALES ~:..> » si ses Sos eee ap THE COLLECTOR OF CUSTOMS FOR, NEW SOUTH WALES . °° ~) ];=yeUHuaiaiaa

Powers of Commonwealth Parliament - Duties of Customs - Importation of goods by State Government - Instrumentality of State - -Liability to duty - Construction

• The Constitution (63 d: 64 Vict. c. 12), seca. 51 (i.), (ii.), 52 (ii.), $6, 90, 114.

The rule laid down in D'Emden vy. Pedder, C.L.R., 91, at p. 111, and applied to the case of interference by the Commonwealth with State instru- mentalities in the Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employés Association, 4 C.L.R., 488, has no application to powers which are conferred upon the Commonwealth in express terms and which by their nature manifestly involve control of some operation of the State Governments, such as the power to make laws with respect to trade and commerce with other countries and with respect to taxation, It must be assumed that the legislature intended that, so far