R v Kidman [1915] HCA 58

R v Kidman [1915] HCA 58 - HCA 1915 case summary — Zoe

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plenary in the sense that its ambit includes any enactment on any subject whatever. The scheme of the Constitution was, as pointed out by Lord Haldane L.C., delivering the opinion of the Judicial Committee in the case of Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1), to select certain subjects, thirty- eight in number, which are enumerated in sec. 51, and most of which were already within the ambit of the legislative power of the feder- ating Colonies, and to confer upon the Federal Parliament power to legislate with respect to them. These subjects do not in terms 'include a power to legislate with respect to the criminal law. On this point, indeed, the Judicial Committee remarked that " None of them relate to that general control over the liberty of the subject which must be shown to be transferred if it is to be regarded as vested in the Commonwealth." But pl. xxxrx. of sec. 51 declares to be within the legislative power of the Parliament " matters 'incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any depart- ment or officer of the Commonwealth." These words, in the opinion of the Judicial Committee, do no more than cover matters which are incidents in the exercise of some actually existing power conferred by Statute or by the common law (2). So far, indeed, as they relate to the execution of legislative power, they seem to be no more than an express statement of what would be implied without them, since the very notion of law, in the sense of a rule of conduct prescribed by a superior authority, connotes provisions as to the consequences which are to follow from its infraction. The imposi- tion of such consequences, commonly spoken of as sanctions, which are generally in the form of penalties, is in the strictest sense of the term incidental to the execution of the power to make the law itself. With regard to matters incidental to the execution of powers vested in the Executive Government and in the Judicature, the express provisions of pl. xxx1x. may perhaps be necessary. But the mean- ing of the term " incidental " is the same in all cases.

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tae Kine as imposed loss of life or liberty for infraction of it. When the several Kiaax, Australian Colonies were erected this law was not abrogated, but continued in force as law of the respective Colonies applicable to the Sovereign as their head. It did not, however, become disinteg- rated into six separate codes of law, although it became part of an identical law applicable to six separate political entities. The same principles apply to laws of the United Kingdom of general application, such as the Statute of Treasons. In so far as any part of this law was afterwards repealed in any Colony, it, no doubt, ceased to have effect in that Colony, but in all other respects it continued as before. When in 1901 the Australian Commonwealth was formed, this law continued to be the law applicable to the rights and prerogatives of the Sovereign as head of the States as before, subject to any such local repeal. But, so far as regards the Sovereign as 'head of the Commonwealth, the current which had been temporarily diverted into six parallel streams coalesced, and in that capacity he succeeded as head of the Commonwealth to the rights which he had had as head of the Colonies. It is not necessary to speculate as to what would have been the effect of a positive law passed in any of the Colonies making it lawful, e.g., to defraud or conspire to defraud the Colony, for no such law was passed. I entertain no doubt that it was an offence at common law to conspire to defraud the King as head of the Realm, that on the settlement of Australia that part of the common law became part of the law of Australia, that on the establishment of the several Colonies it became an offence to conspire to defraud the King as head of the Colony, and that on the estab- lishment of the Commonwealth the same law made it an offence to conspire to defraud the Sovereign as head of the Commonwealth. Such a law, or to put it in other words, such a right to protection, seems, indeed, to be an essential attribute to the notion of sovereignty. I have, therefore, no difficulty in holding that the indictment in this case discloses an offence against the common law of Australia. In my opinion the power conferred by pl. xxx1x. extends to enacting in the form of a Statute the unwritten law of the Common-

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full force and operation, except so far as it has in any portion of the jand been modified by a competent Legislature. For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written. The necessary implication of unrestrictable right to per- form its functions as a sovereign power - because in law it is the King who acts - carries with it the corollary that obstruction to the King in the exercise of his Commonwealth powers is,.at common law, an offence with reference to the Constitution, and not with reference to any State law or the State Constitution. It is entirely outside the domain of the States. It was forcibly stated by Miller J., when delivering the opinion of the Court in Neagle's Case (1), that "there is a peace of the United States." So here. there is a peace of the Commonwealth, not because there is a special common law of the Commonwealth, but because the common law of Australia recognizes the peace of the King in relation to his Commonwealth, by virtue of the Constitution, just as it recognizes the peace of the King in relation to each separate State. The idea was well expressed in the Western Union Telegraph Co. Case (2) in these words : - "There is no body of federal common law separate and distinct from the common law existing in the several States in the sense that there isa body of Statute law enacted by Congress separate and distinct from the body of Statute law enacted by the several States, But it is an entirely different thing to hold that there is no common law in force generally throughout the United States; and that the countless multitude of inter-State commercial transactions are sub- ject to no rules and burdened by no restrictions other than those expressed in the Statutes of Congress." Mutatis mutandis, those words are applicable to Australia. Parke B. said, in his observations on the codification of the criminal law, "the rules of the common Jaw have the incalculable advantage of being capable of application

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Judgment (204 paragraphs)