Dised Fol Wtrential FollReside. Ap Sean Spe cnancies Trib tial Ter y (aire Tre Teindl git" ae Gar Re SWE fer Re Neen ' : [HIGH COURT OF AUSTRALIA. PIRRIE s x i ' ii is 5 InForMANT, AND McFARLANE i . F . : F . Responpenr, DEFENDANT, ON APPEAL FROM A COURT OF PETTY SESSIONS OF VICTORIA. H.C. or A, High Court—Jurisdiction—Question as to limits inter se of constitutional powers d 1925. Commonwealth and State—Appeal to Supreme Court of State from infer ee Court—Removal to High Court—Exclusion of jurisdiction of Supreme Court Metsourne, Appeal to Privy Council—Proceedings in High Court—The Constitution (63 & 6 May 21. Viet. c. 12), secs. 51 (XxX1X.), 74, 75, 76,77 (11.)—Judiciary Act 19034 (No. 6 of 1903—No. 38 of 1920), secs. 30, 38, 38a, 39, 40a, 41. of traffic—Soldier driving motor-car without licence—Inconsistency Higgins, Commonwealth and State laws—Motor Car Act 1915 (Vict.) (No. 2702), snes. 6, 10, 24—The Constitution (63 & 64 Vict. ¢. 12), secs. 51 (vr.), 52, 69, 106 107, 109—Defence Act 1903-1918 (No. 20 of 1903—N 43, 52, 65, 66, 68, 69, 70, 71, 81, 108—Air Force Act 1923 (No. 33 of 192 sec. 3—Australian Military Regulations 1916 (Statutory Rules 1916, No. regs. 488, 494—Air Force Regulations 1922 (Statutory Rules 1922, No. 16 reg. 3. Sec. 40a of the Judiciary Act 1903-1920 is a valid exercise of the pov conferred upon the Commonwealth Parliament by sees. 77 (11) and 51 (xx of the Constitution. A question as to the limits inter se of the constitutional powers of Commonwealth and those of a State arises, within the meaning of see. of the Judiciary Act 1903-1920, in cases in which a decision upon either following questions is required for the determination of the case : such a State Act as the Motor Car Act 1915 (Vict.) binds persons also officers of the defence force of the Commonwealth; (b) whe .LR.| OF AUSTRALIA. WW provision of see. 404 ousting the jurisdiction of the State Courts and removing H. C. or A. the cause to the High Court is effective. 1925. Held, by Knox C.I., Higgins and Starke JJ. (Isaacs and Rich JJ. dissenting), — —~ Prerre that there is nothing in the Constitution that expressly or impliedly exempts members of the defence force from the State motor. v. r legislation; that McFartane. see. 6 of the Motor Car Act 1915 (Viet.), so far as it prohibits any person from driving a motor-car on a public highway without being licensed for that purpose, is not, in the absen to members of 1 of motor-cars, inconsistent with any provision in the Air Force Act 1923 or of any provision in a Commonwealth law giving lefence for immunity from State laws regulating the use the Defence Act 1903-1918, and, consequently, is not rendered invalid by see. 109 of the Constitution ; that sec. 6 of the Motor Car Act, on its proper construction, applies to all persons driving a motor-car on a public highway ; and, therefore, that a member of the Royal Australian Air Foree who, not being licensed in accordance with the Motor Car Act, drives a motor-car on a public highway pursuant to an order of his superior offic offence under sec. 6 of that Act. . is guilty of an Amalgamated Society of Engineers v. Adelaide Steamship Co., (1920) 28 CLR. 129, followed. D'Emden vy. Pedder, (1904) 1 C.L.R. 91, distinguished. Application of State Acts to the Crown in right of the Commonwealth i diseussed. Order to review removed from the Supreme Court of Victoria to the High Court. At the Court of Petty Sessions at Melbourne before a Police ate on 18th December 1924, an information was heard yy William George Pirrie charged that Thomas McFarlane lon 27th November 1924 drive a motor-car on a public highway, wit St. Kilda Road, without being licensed for that purpose. At the hearing of the information, evidence having been given that the defendant was driving a motor-car at the time and place charged and that he had not a driver's licence, the defendant gave idence that he was a leading air-craftsman attached to the Royal "Australian Air Force, and a duly enlisted member of the Air Force ; that under orders he drove various cars belonging to the Air Force ; tt on 27th November 1924 he was instructed by Lieutenant , whose orders he was bound to obey, to proceed to Flinders t in order to pick up a certain flight-lieutenant ; and that, the informant asked him for his licence, he was driving an Force car under orders and on Air Force business. H.C. or A. 1925. ww Preece, v McFartann. HIGH COURT After the evidence had concluded the Magistrate dismissed the principle laid down in D'Hmden v. Pedder (1), as interpreted by subsequent cases, applies to this case. Sec. 6 of the Motor Car Act 1915 (Vict.), which requires drivers of motor-cars on public highways the men carrying out their duties as servants of the Defe Department, be a fettering or interference with the executive p of that Department. See. 24 of the Motor Car Act 1915 has bi relied upon by the prosecution, but that section is, in my opini which is supported by the argument in Troy v. Wrigglesworth (2), limited to those servants of the Crown who are controlled by the Government of Victoria." The informant obtained from the Supreme Court of Victoria an order nisi to review that decision, returnable before the Full Court the ground of the order nisi being that on the evidence the Court of Petty Sessions was wrong in holding that sec. 6 of the Motor Car Act 1915 did not apply to the defendant; and on the order n coming on for argument before the Full Court, that Court proce no further, the following endorsement being made on the order nisi "On a review of the proceedings brought before the Court and having regard to sec. 40a of the Judiciary Act the Court does not propose to proceed further." The relevant documents w pursuant to that section, transmitted to the High Court, and hi order nisi now came on for argument. There was no appearance for the informant. Sir Edward Mitchell K.C. (with him Russell Martin), for th respondent. This Court has jurisdiction in this matter secs. 30, 38, 38a, 40 and 40a of the Judiciary Act. Sec. authorized by sec. 77 (11.) of the Constitution and sec. 40a by 51 (xxx1x.) as being incidental to sec. 38a. The question of application of the Motor Car Act 1915 (Vict.) to a member of Air Force when on duty is a question of the limits inier se of powers of the Commonwealth and those of a State. There is am (1) (1904) 1 C.L.R. 91. (2) (1919) 26 C.L.R. 305. .R.J OF AUSTRALIA. 173 + conflict in this case between the exclusive power of the H.-C. or A. ommonwealth to legislate as to defence and the legislative power eee the State of Victoria than there was in D'Emden v. Pedder (1) Preare. between the Commonwealth law requiring a receipt to be given Moranvane, nd the State law requiring a stamp to be placed on all receipts, © —— nd the-remarks in Amalgamated Society of Engineers v. Adelaide ship Co. (2), as to the reasons for supporting the decision in it case, apply a fortiori to the present case. [Knox C.J. referred to Great West Saddlery Co. v. The King (3).] he Engineers' Case (4). The Air Force Act 1923 and the Defence 1903-1918 are inconsistent with the provisions of the Motor Car (ct 1915. A soldier when given an order has not to consider whether n obeying it he infringes the provisions of a State law (see Defence sees. 31, 33, 37, 52, 108; Australian Military Regulations 1916 itutory Rules 1916, No. 166), reg. 494). It is for an officer who ves an order to determine its lawfulness. Unless the Common- ealth has stated in reference to matters of defence that the State laws are to apply, they do not apply. The power of the Common- Ith Parliament as to defence is, by sec. 52 of the Constitution, e exclusive, and sec. 109 is not required to invalidate State conflicting with the Defence Act, but State Acts in general terms ust be read as not applying to soldiers when on duty (In re Waite Cur. adv. vult. following written judgments were delivered :-— 'Ave. 4, x C.J. The defendant Thomas McFarlane was prosecuted an information charging him with an offence agaist sec. 6 of Victorian Motor Car Act 1915 in that he drove a motor-car upon ce showed that the defendant was a duly enlisted member Royal Australian Air Force and that on the occasion in uestion he was on duty driving a car belonging to the Air Force, CLR. 91 (4) (1920) 28 C.L.R. 129. 8 C.L.R. 129, at p. 156. (5) (1897) 81 Fed, Rep. 359, at pp. A.C. 91, at pp. 100, 114, 363, 370, 371. H.C. or A. 1925. _~ Pree v. MoFariaxe. HIGH COURT (1925. under orders from his superior officer, on Air Force business, was admitted that he had no licence to drive. The Police Magistrat dismissed the case. He thought that if sec. 6 of the Motor Car Act were held to apply to men carrying out their duties as servants of the Defence Department it would fetter or interfere with the executive powers of that Department. and that the decision in D'Emden y, Pedder (1) governed the He held also that the operation of sec. 24 of the Motor Car Act, which declares that the Act applies to persons in the public service of the Crown as well as to other 2. persons, was limited to those servants of the Crown who are controlled by the Government of Victoria. The informant applied to tl Supreme Court of Victoria for an order nisi to review this dec on the ground that the Police Magistrate was wrong in holding th sec. 6 of the Motor Car Act did not apply to the defendant, and on 15th January 1925 an order nisi was made returnable before the Full Court of the Supreme Court. The application to make absolute the order nisi came on before the Full Court on 17th March 1925 the Court was of opinion that, having regard to sec. 40a of Commonwealth Judiciary Act 1903-1920, its duty was to pro no further in the matter. Unless the expression by the Supre when, after hearing argument, Court of this opinion amounts to an order or decision, no order wi made or decision given by that Court. In compliance with sub-see 2 of see. 40a of the Judiciary Act the proceedings in the matter and the documents relating thereto which were filed of record i the Supreme Court were transmitted by the Prothonotary to Principal Registry of this Court at Melbourne, and the matter Melbourne commencing on 12th May 1925. 7 On 11th May 1925 the Principal Registrar of this Court rece from the Registrar of the Judicial Committee of the Privy Coune a cablegram intimating that the Judicial Committee had grante Supreme Court of Victoria. This Court, being of opinion that it duty was to treat sec. 404 of the Judiciary Act as valid until it hi (1) (1904) 1 C.L.R. 91. 36 C.L.R.] OF AUSTRALIA. 175 been declared invalid, and therefore to regard the application to H- ©. or A- make absolute the rule nisi as a matter properly in the High Court se until the contrary was established, intimated that the matter would — Prrm come on for argument in the ordinary course of business, notwith- McFartane standing that special leave to appeal had been given by the Judicial xnox cy Committee. When the matter was called on for argument neither the informant nor the State of Victoria, which was the real litigant, appeared to' support the application to make the order absolute, and the Court thought it proper, in the circumstances, to call on counsel for the defendant to show cause why the order nisi should See Ct. Oe ee ee ar nae not be made absolute. It is to be regretted that the matter was not fully argued on both sides, but my regret is tempered by the reflection that, although not represented by counsel, the informant obtains all the relief which he claimed in the Supreme Court. Even 'a successful appeal to His Majesty in Council could result directly in no more than an order to review the decision of the Police Magistrate, and, in my opinion, that is the order to which the informant is now entitled. The duty of this, as of every Court, being to take care that it does not go beyond the limits of the jurisdiction conferred upon it, the first question for consideration is whether the Court is properly -seised of the matter. It was introduced into this Court by force of secs. 40a and 41 of the Judiciary Act 1903-1920, which are in the words following :—' 40a (1). When, in any cause pending in the Supreme Court of a State, there arises any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court. (2). Thereupon the proceedings in the cause, and such documents if any relating thereto as are filed of record in the Supreme Court of the State, shall be transmitted by the Registrar, Prothonotary, or other proper officer of the Court, to the Registry of the High Court in the State" &c. "41. When a cause or part of a cause is removed into the High Court under the provisions of this Act, the High Court shall proceed therein as if the cause had been originally H.C. or A. commenced in that Court and as if the same proceedings had been 1925, ~ Prrrie _ proceedings shall be according to the course and practice of the High HIGH COURT [19 taken in the cause in the High Court as had been taken therein in the Court of the State prior to its removal, but so that all subsequent Court." Three questions call for decision on this part of the case, namely, (a) Is sec. 40a a valid exercise of the legislative power of the Commonwealth? (b) If so, was the application to the Supreme Court _ to make absolute the order nisi to review a "cause pending in the - Supreme Court"? and (c) If so, did there arise in that cause a : question as to the limits inter se of the constitutional powers of the Commonwealth and those of a State? It is only if all these questions are answered in the affirmative that the application is properly before this Court. (a) The answer to this question depends on the provisions of the Constitution, By sec. 75 1t is provided that in certain matters, which it is not necessary to specify in detail here, the High Court shall have original jurisdiction. By sec. 76 Parliament is empowered _ to make laws conferring original jurisdiction on the High Court in certain other matters including "any matter arising under this Constitution, or involving its interpretation." By sec. 30 of the Judiciary Act 1903 Parliament in exercise of this power enacted that the High Court should have original jurisdiction in all matters arising under the Constitution or involving its interpretation. Sec. 77 of the Constitution provides that with respect to any of the matters mentioned in sec. 75 or sec. 76 the Parliament may make laws (u.) defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States and (1.) investing any Court of a Stat with Federal jurisdiction. Acting on the assumption, which app' to me amply justified, that the expression "any Federal Court in sec. 77 (11.) included the High Court, Parliament, having by se 30 of the Judiciary Act conferred original jurisdiction on the Hii Court in all matters arising under the Constitution or involving i interpretation, proceeded by sec. 38a of that Act to make th jurisdiction of the High Court in some of those matters exclusi of the jurisdiction of the Supreme Courts of the States. That secti ie F 36 C.L.R.] OF AUSTRALIA. Vi7 "es in matters (other than trials of indictable offences) H.C. oF A. 1925. provides that involving any question, however arising, as to the limits inter se of Ride the constitutional powers of the Commonwealth and those of any Prerre State or States, or as to the limits inter se of the constitutional yorancane. powers of any two or more States, the jurisdiction of the High Court xixes. shall be exclusive of the jurisdiction of the Supreme Courts of the States; so that the Supreme Court of a State shall not have juris- diction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court." 'These words are too clear to admit of any doubt that the intention of Parliament in enacting the section was to take away from the Supreme Courts of the States any jurisdiction in such matters, whether such jurisdiction " belonged to" them independently of, or was vested in them by, Federal legislation; and the words of sec. 77 (11) of the Constitution, in my opinion, clearly authorized Parliament to give effect to that intention. Whatever jurisdiction the Supreme Courts of the States had in respect of such matters immediately before the enactment of sec. 384 must have been derived either from Federal legislation or from some other source. 'The jurisdiction derived from a source other than Federal legislation is aptly described as jurisdiction which "belonged to" them, and the jurisdiction conferred by Federal legislation as that "invested in" them, i.e., that with which Parliament invested them under the authority given by sec. 77 (u1.). It will be observed that sec. 384 was introduced into the Judiciary Act 1903 by the amending Act of 1907. This amendment was made in consequence of the decision of the Judicial Committee in Webb v. Outrim (1) and that of this Court in Baxter v. Commissioners of Taxation (N.S.W.) (2). Its apparent purpose was to remove from the controversy as to the efficacy or the validity of sec. 39 (2) (a) the limited class of questions in which, by sec. 74 of the Constitution, appeals from the High Court to the Queen in Council were prohibited unless the High Court should "certify that the question was one which ought to be determined by Her Majesty in Council, and thus to ensure the effective operation of that provision. Every question comprised in this limited class was necessarily a question arising under the Constitution or involving (1) (1907) A.C. 81; 4C LR. 356. 2) (1907) 4 C.L.R. 1087. a H.C, or A. 1925. —— PIRRIE v. McFariane. Knox HIGH COURT its interpretation, and I entertain no doubt that by virtue of sec, 77 (1.) of the Constitution, construed according to the plain meaning of the words used, the Parliament had power to make a law depriving any State Court of whatever jurisdiction it might have in respect of any such question, whether that jurisdiction arose under a Federal Act or under the Constitution or independently of either of those sources. Sees. 40a and 41 of the Judiciary Act do no more than provide the machinery rendered necessary by the enactment of sec. 384. The Supreme Court of a State haying been forbidden to exercise juris diction in any matter involving any question of the class specified, however arising. it became necessary to provide for the submission of such matters to the only superior Court which had jurisdiction to entertain them; and this is all that secs. 40a and 41 purport to do. I may observe, in passing, that the operation of sec. 40a has been limited by decisions of this Court to matters in which a question as to limits of constitutional powers necessarily arises, i.e., to matters which cannot be finally determined without deciding a question of that kind (see R. v. Maryborough Licensing Cowt ; Ex parte Webste & Co. (1)). Se if that section be within the powers of the Commonwealth Parliament, {0a and 41 are merely incidental to sec. 38a, and, as I think it is, the Parliament was expressly authorized by sec. 51 (xxx1x.) of the Constitution to enact secs. 40a and 41, I maya that although this Court has not hitherto expressly decided that their provisions have been considered. See, for instance, Zn re D (2), a decision of the Supreme Court of Victoria, and the decisions o this Court in R. vy. Maryborough Licensing Court (1); R. v. Brisban Licensing Court; Ex parte Daniell (3); Lorenzo v. Carey (4), and George Hudson Lid. v. Australian Timber Workers' Union (5). (b) W: the order nisi to review a " cause pending in the Supreme Co within the meaning of sec. 40a? This question must be answered i (1) (1919) 27 G.L.R. 249. (4) (1921) 29 CLLR. 243. (2) (1919) V.L.R. 600; 41 ALL.T. (5) (1922-23) 32 C.L.R. 413. (3) (1920) 28 CLLR. 23. wil — 36 C.L.R.] OF AUSTRALIA. : ; the affirmative in accordance with the opinion of the majority of H.C. or A. this Court in George Hudson Ltd. vy. Australian Timber Workers' Union (1). 1925. Prreie (c) Did a question arise before the Supreme Court as to the limits ycrantane. inter se of the constitutional powers of the Commonwealth and those ofa State? The question which arose was whether a law made by the Parliament of Victoria was binding on a person employed in Victoria in the Defence Department of the Commonwealth, and in order to decide this question it was necessary first to determine as a matter of construction whether the provisions of the Victorian Act purported to apply to persons in the public service of the Commonwealth. Tf upon its true construction the Victorian Act did not purport to extend to such persons, the charge could not be sustained ; but if, on the other hand, the Act were held to extend to such persons, the further question arose whether the constitutional power of the Victorian Parliament to make laws for the peace, order and good government of Victoria was so. restricted by the Federal Constitution as to exclude from the operation of an otherwise valid Act of the Victorian Legislature a member of the Defence Force of the Commonwealth while actually employed in the performance of his duty in that capacity: The decisions in In ve Drew (2) and R. v. Maryborough Licensing Court (3), to which I have referred, establish that sec. 40a of the Judiciary Act did not impair the jurisdiction of the Supreme Court to determine the first question, and, if that question were decided in favour of the respondent, the further question as to the constitutional powers of the Victorian Parliament could not arise. It is, however, apparent from the course taken by the Supreme Court that in the opinion of that Court the case could not be disposed of without deciding the question of constitutional power; and it must therefore be assumed that the Supreme Court took the view that, on the true construction of the Motor Car Act, its provisions extended to persons in the public service of the Commonwealth. I agree with my brother Starke in thinking that, _ for the reasons about to be given by him, the conclusion at which the Supreme Court must be taken to have arrived on this question (1) (1922-23) 32 CLLR. 413. (2) (1919) V.L.R. 600; 41 ALL.T. 65. (8) (1919) 27 CLLR. 249. Knox C.J. H.C. or A. 1925. ww Pirie v. MoFartane. Knox C.J. HIGH COURT {hl was clearly right. On this footing it then became necessary to decide whether the Act, so construed, was within the constitutional powers of the Parliament of Victoria. On this question the — contention of the defendant was founded on the provisions express or implied of the Federal Constitution and laws made under it; that of the informant on the power of the Victorian Parliament under the Constitution of that State: and it seems to me to follow necessarily that a question as to the limits inter se of the constitutional powers — of the Commonwealth and of the State of Victoria thereupon arose. — It is clear, therefore, in my opinion, that this question also should be - answered in the affirmative, and that the application to make absolute the order nisi to review is properly before this Court. The ultimate question for decision is whether the order nisi should be made absolute. I have said that in my opinion the Police Magistrate was wrong in holding that on the construction of the Act its provisions did not apply to persons in the public service of the Commonwealth. His view that the case was governed by the decision in D'Emden vy. Pedder (1) remains to be dealt with. That decision was considered in Amalgamated Society of Engineers v.— Adelaide Steamship Co. (2). The majority of the Court in that _ case said (3):—'' D'Emden v. Pedder was a case of conflict between Commonwealth and State law. The Commonwealth law (Audit Act 1901) made provision as to how public moneys of the Commonwealth were to be paid out : written vouchers were required for all accounts paid (secs. 34 (6) and 46). The irresistible construction of the Act is that these vouchers, which the law requires for the protection of the Commonwealth Consolidated Revenue Fund, are to be under the sole control of the Commonwealth authorities. A State Act making it an offence to give such a vouch r except on a condition imposed by the State Parliament, namely, a tax in aid of the State revenue, was, so far, manifestly inconsis with the Commonwealth law. Sec. 109 of the Constitution appli to such a case, and establishes the invalidity to that extent of the State law. The decision rests on the supremacy created by sec. 109, and is sound." The true basis of the decision in D' Emden v. Pedder (1) (1904) 1 C.LLR. 91. (2) (1920) 28 C.L.R. 128, (3) (1920) 28 C.L.R., at p. 156, ' CLR.J OF AUSTRALIA. was stated at p. 157 of the report to be "the supremacy of Com- H.C. or A. monwealth law over State law where they meet on any field," and it was pointed out that Commonwealth legislation on an exclusive 1925. Pierre v. field such as the Post Office might conflict in incidental provisions mcFartaye. with State legislation on a main exclusive field or as to incidental provisions. After dealing with other cases the opinion proceeded (1):—" There are other cases in which the doctrine of implied prohibition is more or less called in aid to limit the otherwise plain import of legislative grants to the Commonwealth: it is sometimes difficult to say how far the decision is dependent upon such a doctrine, and therefore we hesitate to pronounce upon those cases, and leave them for further consideration, subject to the law as settled by this decision; but it is beyond any doubt that the doctrine of 'implied prohibition' can no longer be permitted to sustain a contention, and, so far as any recorded decision rests upon it, that decision must be regarded as unsound." It follows from the opinion expressed by the majority of the Court in the Engineers' Case (2), that in the present case the defendant can derive no assistance from the doctrine of implied immunity of Federal instrumentalities nor can he rely on the decision in D'Emden vy. Pedder (3), unless he can establish that sec. 6 of the Victorian Motor Car Act is, if applied to him, inconsistent with a law of the _ Commonwealth. In my opinion he has failed to establish this. The statutory prescriptions to which we have been referred as supporting the contention of the defendant are as follows :—By the Air Force Act 1923 authority is given to the Governor-General to raise, maintain and organize an Air Force as part of the Defence Force constituted under the Defence Act 1903-1917 for the defence and protection of the Commonwealth and of the several States, and the Royal Australian Air Force is deemed to have been raised under that Act. It is further provided that the Defence Act and the Regulations thereunder shall apply to the Air Force and its members. By sec. 52 of the Defence Act 1903-1917 the Defence Force is made subject to such regulations for the discipline and good government of that Force as may be prescribed. Sec. 81 provides that any (1) (1920) 28 C.LLR,, at p. 159. (2) (1920) 28 C.L.R. 129. (3) (1904) 1 G.LR, 91. : Knox C.J, H. C. or A. 1925. Prrrte v. McFartanr, Knox C3. HIGH COURT ie person who wnlawfully obstructs or interferes with any member of the Defence Force in the performance of any military service or dutyshall be liable to a penalty. Sec. 108 empowers the officer commanding a corps to punish offences against the Act or Regulations committed by any member of the Defence Force. Reg. 494 of the Australian Military Regulations 1916 (Statutory Rules 1916, No. 166) provides for the punishment of any person subject to military law who (xii,) disobeys any lawful command given by his superior officer. It wai argued that these provisions constituted a law of the Commonwealth commanding any member of the Defence Force to obey the order of his superior officer to drive a motor-car on a public highway in Victoria, although such member was not licensed to drive under the Victorian Motor Car Act; that such a law was inconsistent with the law of Victoria forbidding any person to drive a motor-car on a public highway without being licensed for that purpose; and that by force of sec. 109 of the Constitution the law of the Commonwealth must prevail over Victorian law. If the first proposition were well founded, the others would necessarily follow ; but, in my opinion, the Act and regulations referred to have not the effect attributed to them. The law of the Commonwealth, i.e., the regulation in question, requires the soldier to obey, not any command, but any /awful command, and in order to sustain the argument for the defendant it must be shown that the officer who gave the order had lawful authority to order a person not licensed for that purpose under the Victorian Act to drive a motor-car on a public highway in Vietori A command, to be lawful, must not be contrary to ordinary civil law; and the civil law in Victoria as to the use of highways and #l regulation of traffic thereon includes all enactments of the Parliam of Victoria relevant to those matters, subject always to qualifications introduced by sec. 109 of the Constitution that, if am such enactment is inconsistent with a law of the Commonwealth, the law of the Commonwealth shall prevail. Prima facie, then, 6 of the Motor Car Act, which is obviously an enactment dealing wit the use of highways and the regulation of traffic, is binding on any person in Victoria whether employed in the public service of Commonwealth or not. .L.R.] OF AUSTRALIA. The Commonwealth Parliament has. in my opinion, undoubted 4. ¢ power, by legislation with respect to a subject which is within the ambit of its legislative powers, to override the provisions of any Pimene State law, but in the absence of any such enactment the State law \cFanuane. must be given its full effect. The provisions of the Defence Act and regulations to which I have referred certainly contain no express enactment relieving members of the Defence Force from the duty of obedience to sec. 6 of the Motor Car Act, and, having regard to the provisions to which I am about to refer, I think it is clear that no such immunity should be implied. Sec. 43 of the Defence Act provides that members of the Permanent Forces shall be exempt from serving as jurors. Secs. 65 and 66 provide for the carriage of members of the Defence Force on State Railways when required by the Governor-General and as prescribed, or on production of passes. The State laws relating to service on juries and to carriage of persons 'on State or other railways must yield to these provisions. Secs. 68 and 69 authorize members of the Defence Force to do acts amounting : to trespasses under State laws, and to the extent of the authority _ given supersede the State laws on the subject. Sec. 70 e members of the Defence Force, in cireumstances therein specified, from liability to pay any toll or due, whether demandable by virtue 'of any State Act or otherwise, at any wharf, landing-place, bridge, gate or bar on a public road. This provision expressly overrides any relevant State law. Sec. 71 authorizes an officer in certain conditions to stop all traffic on any road or water-way. This and _ the preceding section clearly displace portion of the State law as to ; 'use of highways and regulation of traffic. Reg. 488 of the Australian mpts Military Requlations exhorts members of the Defence Force to bear in mind that a soldier is not only a soldier but a citizen also and as such is subject to the civil as well as to the military law. These provisions, I think, show plainly two things, namely, _ (a) that when the Parliament desired to provide for the immunity of members of the Forces from the provisions of State law it did so in plain words, e.g., in sec. 70 of the Defence Act, and (b) that it recognized that the mere fact that a person was a member of the Defence Force acting in the performance of his duty in that capacity H.C. or A. 1925. sai Pree v. McFartane. Knox C3 HIGH COURT did not relieve him of the duty of obedience to State laws providing for (inter alia) the regulation of traffic. For these reasons I am of opinion that the Police Magistrate was wrong in thinking that the decision in D'Emden v. Pedder (1) justified him in dismissing the charge laid against the defendant. The finding by the Police Magistrate that sec. 6 of the Motor Ca Act, if it were held to apply to men carrying out their duties as servants of the Defence Department, would be a fettering of 0 interference with the executive powers of that Department appears to me to be wholly irrelevant, having regard to the decision in the Engineers' Case (2). The Commonwealth has exclusive power make laws with respect to matters relating to naval and military defence. If the prohibition against driving a motor-car without being licensed under State law is reasonably capable of interfering with the naval or military defence of the Commonwealth or of the States, the Commonwealth Parliament has ample power by legislation to confer on members of the Defence Force the right to drive a motor car in the performance of their duty without being licensed under State law. If Parliament choose, it can exempt them from obligation to obey this provision of the State law; but, in my opinion, it has not yet done so. No repugnant or inconsistent Common- wealth legislation stands in the way of the State law on this subj and such law remains valid and binding in Victoria by virtue of sec. 107 of the Constitution. 4 I may add that there is and can be no suggestion that the Moto Car Act or this provision contained in it was specially aimed at, in any way discriminated against, persons in the service of the Saddlery Co. v. The King (4) which seem to indicate that consideration may not be wholly irrelevant. For these reasons I am of opinion that sec. 6 of the Motor Car Adt decision of the Police Magistrate should be made absolute. (1) (1904) 1 CLLR. 91. (3) (1915) A.C. 330, (2) (1920) 28 C.L.R. 129. (4) (1921) 2 A.C. 91. 36 C.L.R.] OF AUSTRALIA. 185 Isaacs J. A simple incident in the ordinary administration of H.C. or A. Commonwealth defence has given rise to problems of great magnitude a and importance. As to one of them, the third problem, I find myself, Prerre unfortunately, at variance with the view of the majority. The yop, coe prevailing view discloses a condition of the Commonwealth law ,7—, which, in my opinion, Parliament may advantageously consider without delay. If, contrary to my view, which 1s supported by a very clear decision of the Supreme Court of Canada in Gauthier v. The King (1), a State Act binding the Crown simpliciter binds also the Crown in right of the Commonwealth in the performance of all its executive functions, some Commonwealth legislation seems to me instantly imperative. Further, if, contrary to my view, and contrary to fundamental principles of constitutional law as enunciated in such cases as Dizon v. London Small Arms Co, (2), it is correct that for the purposes of State legislation all Commonwealth executive officers of Australia, from the Governor-General and the Ministers of State to the junior member of the public service, while engaged in performing their public functions are to be regarded, not as Crown officials representing the King in right of the Commonwealth, but merely as private citizens, and as such amenable to the ordinary _ State regulations, then again some Commonwealth legislation seems to me imperative. Still, further, if, on those assumptions, those _ charged with the onerous and always urgent responsibility of national - defence~a department of which the affairs are by sec. 52 of the Constitution placed expressly under the exclusive control of the Commonwealth Parliament, and are consequently by secs. 106 and - 107 deleted from State authority—are to be able to discharge their _ essential duties free from the fetters which this case in its direct result _ and its obvious corollaries shows to exist, some amendment of the law is necessary. If public security is not to be permanently assigned in the scale of rights and obligations a position of inferiority, and, indeed, insignificance, compared with the regulation of private motor traffic, the question is naturally one of urgency. There is no reason to fear that Commonwealth officials would hold the lives and _ limbs of their fellow citizens less sacred than does the Police Com- _ missioner of a State or the fire brigade of a city. For these reasons (1) (1918) 56 Can, S.C.R. 176. (2) (1876) 1 App. Cas. 632. VOL, XXXVI. 13 H. C. or A. 1925. ~~ Pree v MoFar1ane. Tsaacs J. HIGH COURT TI examine the law as to this third problem in its place in this judgment with some elaboration, so that those interested may. follow the reasons for my opinion. The first problem is of a novel and delicate character. It tou the propriety of our proceeding to entertain the case at all, having regard tothe fact that leave to appeal from the Supreme Court had been granted by the Judicial Committee of the Privy Council : This Court carefully considered the question, and announced its conclusion that it was its duty to hear the matter. At that time, and indeed until after the reservation of judgment upon the hearing, we were not informed of the grounds of the application to the Privy Council for leave to appeal or of the precise nature of the order made by the Judicial Committee. We have, however, lately had the opportunity of reading a transcription of the shorthand notes taken on that application. From that record it is clear that their Lordships thought it would be well, and might materially assist, if in the meantime this Court were to deal with the matter. The propriety, therefore, placing the question no higher, of our entertaining the case and stating our decision cannot, in view of the expressed opinion of their Lordships, be doubte The announced conclusion of this Court was necessarily b imperative statutory duty, a view that will be presently stai May I add that, in deference to the suggestion that the opinions this Court might assist their Lordships, I shall endeavour to s my own explicitly and fully. The second problem, once the case is entertained, is as to validity of the enactment that commands us to hear the cause This validity has hitherto been assumed, but now circumsta compel its direct consideration. Then, supposing the first two problems are surmounted, third problem directly in issue—in itself apparently quite unconn' with the leave to appeal—is of a totally different character. public highways throughout Australia by the recognized m means of transit on motor-cycles and in motor-cars, a means é .LR.] OF AUSTRALIA. sanctioned by Commonwealth Appropriation Acts (see No. 36 of 1923, Divisions Nos. 80 and 85), restricted under severe penalties— as the law now stands—to such persons as the State Commissioner of Police, or other State authority in other States, thinks qualified to drive such vehicles ?—and, as a further restriction, until those ons pay a tax for the licence? The penalties and other conse- ences for contravention of Victorian State law are not slight. y include the following :—(1) The disqualification of a person ensed who drives a cycle or car for such time as the Court of y Sessions thinks fit ; so that the soldier's services in the selected capacity may be utterly impossible if the State Court so decides. For a first offence, a pecuniary penalty up to £10 both for the tual driver and for the person who employs him—probably the who commands him to do the unlawful act; and for a m, a fine up to £25 with imprisonment with or without hard labour to three months. _ It will be readily admitted that this last problem is an important both officially and personally for those entrusted with the nee of Australia as legislation now stands. The difficulty is it to be disposed of by saying the Commonwealth Parliament may sla Unless present legislation is sufficient, it will be no easy to say what will ever be sufficient. This, however, will be closely dealt with later. e incident itself which arouses these questions is shortly ted :—Thomas Joseph McFarlane, the respondent, is a duly ted member of the Commonwealth Royal Australian Air Force, nd holds the position of leading air-craftsman. Part of his duty is drive motor-cars belonging to the Air Force. On 27th November 24 he was ordered by Flight-Lieutenant Harman, his officer in and whose orders he is bound to obey, to proceed along the St. Road on Air Force duty to pick up Flight-Lieutenant Hepburn. e driving in an Air Force car in obedience to the order, he was d at the intersection of Flinders and Swanston Streets, 'Ibourne, by Police Constable Pirrie, who demanded his motor- er's licence under State law. McFarlane said he had none, that he was a soldier. That is the incident itself. H.C. or A. 1925. Prec v. McF artane. Isaacs J. H.C. or A. 1925. ~~ Prem v McFar.ane. Isaacs J. HIGH COURT (19 1. Duty to Proceed.—The immediate result of the incident was tl Constable Pirrie prosecuted McFarlane under the State Motor Ca Act 1915. The defendant was thus described : " Thomas McFarlane c/o Headquarters R.A.A. Force, Reg. No. 134." So that then never was any doubt as to McFarlane's status. The charge w that the defendant " did drive a motor-car on a public highway, t wit, St. Kilda Road, without being licensed for that purpose." applicable provision in the Motor Car Act is sec. 6: * (1) No per shall drive a motor-car upon any public highway without bein, licensed for that purpose and no person shall employ to drive a motor car any person who is not so licensed. (2) The Chief Commission shall on the application of any person over the age of eighteen year and on being satisfied of the qualification of such person issue an annual licence in the prescribed form to such person to drive a motor car. (3) A fee of two shillings and sixpence per annum shall paid for such licence which shall remain in force fer twelve month from the date thereof. (4) Any person driving a motor-car ai aforesaid shall on demand by any member of the police force produce his licence and if he fails so to do he shall be guilty of an offene against this Act unless he has a reasonable excuse and does within the member of the police force demanding its production." § enacts that " (1) Any Court of Petty Sessions before whom a is convicted of an offence under this Act . . . (b) may if th person convicted does not hold any licence under this Act de thinks fit. . . (5) If any person who under the provisions 0 this Act is disqualified for obtaining a licence applies for or obtain a licence while he is so disqualified . . . that person s car he shall be guilty of an offence against this Act." Sec, 21 impos the pecuniary and prison penalties I have mentioned. See. says: "It ishereby declared that this Act applies to persons int public service of the Crown as well as to other persons." These the relevant provisions when the prosecution came on for heard OF AUSTRALIA. i before the Police Magistrate on 18th December 1924. The Magistrate dismissed the prosecution on two grounds, namely, (1) that it was not competent to the State to impede the performance of Common- H. C. or A. 1925. Prerie wealth functions, and (2) that sec. 24 of the Act, applying its cate anats provisions to servants of the Crown, did not cover servants of the Commonwealth. It is obvious that a direct conflict arose between : the Commonwealth and the State jurisdictions—the one claiming the military right to proceed independently of State regulation, the other claiming the right to prevent a soldier obeying a military command, because State regulations had not been observed. Before ssing on, one observation should be made. Though one of the ounds upon which the Magistrate dismissed the charge was one 'of construction, it was not construction in the ordinary sense. He "was not construing the section as a matter of English or apart from an important point of constitutional law. As a mere matter of words sec, 24 is explicit and, of course, covers every functionary of the Crown. The Crown itself is indivisible. Before Federation military officer in the State Defence Force would, without question, be covered by the section. But in view of the effect of the constitutional severance of Crown authority, defence now falling ' (0 the Crown in right of the Commonwealth and outside the State ere, is sec. 24 to be read as including Commonwealth military ss? If the State Parliament has the power, subject to ervailing Commonwealth law, to control Commonwealth If, on the other hand, the State Parliament has no such wer, then the words should, on the principle adopted by the Privy ead down to meaning only the Crown services controllable by the e Legislature. But the important thing, as I conceive, to bear in considering and determining a question of constitutional law. The second legal stage of the matter was that the constable—really the tate of Victoria—appealed, by order nisi to review, to the Full State Supreme Court, consisting of Irvine C.J. and Mann J., on 17th March ' (1) (1891) A.C. 455. Isaacs J. 'H.C, or A. 1925. Prmrm v McFarvane. Isaacs J HIGH COURT int 1925. It is perhaps desirable to pause for a moment at this point in order to see what questions confronted the Supreme Court. That Court had no outlet of escape from deciding a constitutional point ; As a first step, practically incontestable, it would, of course, be acknowledged that sec. 24 of the State Act, by its mere linguistic force, applied to the general common law of the British Constitution, included a military officer in the service of the Crown. But then, before getting to the final construction of that section, the Court must perforce do in effect precisely what the Privy Council did in Macleod's Case (1), namely, consider the effect of written Constitutions, and so engage itself in a process of determining the limits of constitutional powers inter se (Jones v. Commonwealth Court of Conciliation and Arbitration (2)). This appears to be inevitable on principle. But there exists a very apposite and very valuable illustration of the principle. It is the decision of the Supreme Court of Canada in Gauthier v. The King (3) in 1918 On the point of construction that case was followed in 1924 by the British Columbia Court of Appeal in Montreal Trust Co. v. The King (4). Gauthier's Case (5) arose between the plaintiff and the Dominion Government, and the question before the Supreme Court was the meaning and effect of sec. 3 of the Ontario Arbitration Ad, which was in these words: ' This Act shall apply to an arbitration to which His Majesty is a party." The only question, as Fitzpati C.J. said, was whether "the Crown in right of the Dominion of Canada, isbound by the . . . Act." The Court unanimously held in the negative, and on grounds as applicable to Australia as Canada. But the point of immediate relation to the problem n notwithstanding its literal terms, it was necessary to have regard to the constitutional principle that " provincial legislation can proprio vigore take away or abridge any privilege of the Cro tight of the Dominion." Therefore, it was said by Anglin J. (now Anglin C.J.), whose judgment apparently on this point was cont in, that "it may be accepted as a safe rule of construction that (1) (1891) A.C. 455. Dom. L.R. 353. i (2) (1917) A.C. 528; 24 C.L.R. 396. (4) (1924) 1 Dom, L.R. 1030. (3) (1918) 56 Can. S.C.R. 176; 40 (5) (1918) 56 Can, S.C.R. 176. 36 C.L.R.] OF AUSTRALIA. 191 reference to the Crown in a provincial statute shall be taken to H. ©. oF A. be to the Crown in right of the Province only, unless the statute in ass express terms or by necessary intendment makes it clear that the Pine reference is to the Crown in some other sense." It is plain, as Deraeiscases have said, that any attempt to control Dominion action by a reference to the Crown, would, in the opinion of the Canadian Court, have been ultra vires. In effect, that Court applied the doctrine of Macleod's Case (1). I need hardly add that that is quite a different proposition from the question of how far the State Legislature can bind the individual, regarded as a private person and not as the servant of the Crown. The individual aspect, which at one time was thought Isaacs J. to attract the doctrine of " implied prohibition," stands on a totally different footing. It was dealt with in Canada in Abbott v. City of St. John (2), a case to which I referred in Huddart Parker & Co. v. Moorehead (3) for the purpose of getting rid of Leprohon v. City of Ottawa (4). Abbott's Case has since been approved in Caron v. The King (5). But neither Abbott's Case nor Caron's Case seems to me to assist in this case. They are concerned with the reconciliation of secs. 91 and 92 of the Canadian Constitution. I can find there no principle governing this case, unless it be the natural and fundamental principle that, where by the one Constitu- tion separate and exclusive governmental powers have been allotted to two distinct organisms, neither is intended, in the absence of distinct provision to the contrary, to destroy or weaken the capacity _ or functions expressly conferred on the other. Such attempted destruction or weakening is prima facie outside the respective grants of power. So far as that is relevant to this case, it is opposed to the appellant's contention. It assumes that an expressly granted power is to be fully exercised subject only to expressed limitations, and is thus in exact line with the Engineers' Case (6). Where an express power is given—as, for instance, in pl. xxxv. of sec. 51— it may be exercised, and its full exercise is not controlled by any implied prohibitions, even though a State voluntarily brings itself within its ambit. Where, however, a power—such as defence or _ (1) (1891) A.C. 455, (5) (1924) A.C. 999. (2) (1908) 40 Can, S.C.R. 597. (6) (1920) 28 C.L.R., particularly at (3) (1908-09) 8 C.L.R. 330, at p. 391. pp. 152, 153. (4) (1878) 2 Ont. App. L.R. 522. : — H.C. or A. 1925. Prerre v Isaacs J. HIGH COURT customs—is expressly, by secs. 106 and 107, eliminated from State Constitutions, because made exclusive by sec. 52, and transferred — co nomine to the Commonwealth, its control is necessarily by force of the very words of the Constitution placed outside the ambit of the - State Constitutions and beyond any power of the State to affect it. No State Act can operate on that extraneous field. In the event of an existing Commonwealth power and an existing State power being simultaneously exercised on their admitted respective and concurrent fields, then, if there be conflict at any point, sec. 109 applies to adjust the matter. The doctrine that "implied prohibitions" are inadmissible to cut down the exercise of an admittedly granted governmental power is not inconsistent with the position (1) that the State Parliament cannot legislate at all so as to bind the Crown in right of the Commonwealth in the exercise of the very governmental functions expressly taken from the States and exclusively vested in the Commonwealth, and (2) that, where there is found inconsistent Commonwealth and State legislation, both competently enacted as far as the range of constitutional power is concerned, the former prevails. The first of these two considerations is inseparably connected with the construction of sec. 24 of the Victorian Motor Car Act, and so necessarily involves the construction of the Constitution with reference to the limits of powers inter se. Consequently, the first point, namely, the construction of sec. 24, before the Supreme Court, could not be dealt with as an ordinary matter of verbal interpretatio Their Honors, after partly hearing the case, obviously perceivi that position and, seeing that, however regarded, the matter involved. a constitutional question inter se, falling within the terms of sec. 404 of the Judiciary Act, declined to proceed further, and allowed section to operate of its own force. The limits inter se of thi respective constitutional powers of Commonwealth and State cat into question in a double aspect. They arose, as already shown, i controversy between the litigants, requiring the decision of some Court of Justice. But again they arose when the question presen! itself: Which Court? The State Court—apart from the Common- wealth Judiciary Act—would have had ample jurisdiction determine the controversy as to whether the defendant transgressed the State Motor Car Act 1915. The fact that ' OF AUSTRALIA. constitutional question was involved would add to the difficulty of decision, but would not detract from the jurisdiction. Such was the position when Webb v. Outrim (1) was decided. But the Common- wealth Parliament, asserting its powers under sec. 77 (11.) of the Constitution, had, by sec. 38a of the Judiciary Act, made the jurisdiction of this Court exclusive of the jurisdiction of the Supreme Court of the States " so that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior wt." Sec. 40a is a direction for removal complemental to that 2 provision, and sec. 41 is a mandate to this Court to " proceed therein as if the cause had been originally commenced" in this Court. Pursuant to sec. 40a, the proper officer of the Supreme Court ; transmitted the proceedings in the cause, and such documents telating thereto as were filed of record in the Supreme Court, to the Principal Registry of this Court, where they were received on 6th May with the official endorsement of the Supreme Court's attitude. - This Court was therefore de facto seised of the cause at latest on 6th 'May. It was listed and ready for hearing. On 11th May the Judicial Committee of the Privy Council granted the special leave to informed the Registrar of the Court that the informant had decided not to appear. It was added that this did not imply want of respect but was because "the informant could not consistently seek an order the High Court of Australia when in the appeal to His Majesty Council, now pending, he is denying that in point of law there any proceedings before the High Court, and is contending that sistency in the circumstances in appearing under protest on Argument as to jurisdiction and contesting the case on the merits. 'Such a Position is not infrequent. Even in the case of arbitrators ssessing no such coercive authority as a Court, the authorities are (1) (1907) A.C. 81; 4 CLR. 356. H. C, or A. 1925. es PIRRIE v. McFartane. Isaacs J. H.C. or A. 1925. Prrrie % McFartanr, Tsaacs J. HIGH COURT clear that there is no inconsistency in such a course. See Sheonail v. Ramnath (1); Hamlyn v. Bettelly (2), where Lord Selborne L.C., with the concurrence of Lord Coleridge C.J. and Brett L.J., he against inconsistency both as to strictly legal proceedings arbitrations. On the hearing the informant did not appear. The understanding formed as to the Victorian Court's judicial attitude complained of proves to be correct. The transcribed procees state that Mr. Clawson K.C., the leading counsel for the petitioner, began by saying that the petition was one for special leave to ay Supreme Court of Victoria . . . would not make any order a all . . . but they registered the fact that they refused to procs with the proceedings." This seems to place the merits of the chi leave. Apparently the determination of those merits, which wo include the construction of sec. 24 of the Victorian Act, is intended t be left to the Supreme Court if the appeal succeeds, and to this if the appeal fails. I say apparently this is so, because in view of such cases as In re Muir (3), In re Assignees of Manning (4) and In ve Whitfield (5), which I more fully extracted in 1914 in the properly apprehend the ambit or effect of the leave (see a De Souza's Petition (7)). I could quite understand it if the ¢ were similar in this respect to Hurrish Chunder Chowdry v. Sundari Debia (8). But assuming, as I think I ought, that the appeal for which leavs has been granted would not extend to the determination of tht merits themselves of the controversy in litigation, there rem the second aspect of the constitutional difficulty, namely, wh the Judiciary Act provisions altering the jurisdictional law stood in 1907 is valid. What Court is empowered by law | determine that question? A " question, however arising, the limits inter se of the constitutional powers of the Commonw (1) (1865) 35 L.J. P.C. 1, at p. 6. (6) (1914) 18 C.L.R. 54, at pp. 78,79 (2) (1880) 6 Q.B.D. 63. at p. 65. (7) (1885) 1 T.L.R. 597. (3) (1839) 3 Moo. P.C.C, 180. (8) (1882) L.R. 10 Ind. App. 4 at pp (4) (1840) 3 Moo. P.C.C. 154. 16, 17. (5) (1845) 5 Moo. P.C.C. 157. J C.L.R.] OF AUSTRALIA. 195 and those of any State" includes a question as to any " powers" HT. C. or A- of the respective political organisms. The powers are not limited piste to legislative powers or to executive powers or to judicial powers. — prerie They are not the "powers" of any specific Department of the \yoranrae. organism, but include every power of the organism itself by Isaacs J. whatsoever means it assumes to exercise or possess it. Nor is the 'source of the contested power material. It may be based upon the common law, or on the direct provisions of a written constitution, or on the intermediate authority of a statute founded on the Constitution. The limits are plainly in dispute when a Common- wealth law assumes the power, and that power is denied, to divest a State Court of its pre-existing jurisdiction in a matter within the Commonwealth judicial power and to invest it with Federal jurisdiction at the discretion of the Parliament, in relation to that matter, or to make the jurisdiction of the High Court exclusive. The commanding factor, in my opinion, is what I have described as the mandate to this Court of the Commonwealth Parliament contained in sec. 41 of the Judiciary Act. When a Commonwealth Act says this Court shall " proceed" to hear a matter within the judicial power, some clear and cogent reason must be found to justify the Court in disregarding it. When that mandate is seen to be part _ of a scheme of legislation founded upon the express words of sec. 77 - of the Constitution, it is to be obeyed, unless qualified by some other "valid legislation or some other portion of the Constitution itself. _ There is no contrary legislation. Reference to other portions of the Constitution so far from qualifying the mandate makes it specially imperative. Secs. 38a, 40a and 41 are to be read with sec. 74 of the Constitution. They were passed for the definite purpose of preventing sec. 74 of the Constitution either from continuing to be, as it proved to be, a source of conflict between the Privy Council and this Court, or from becoming a mere dead letter. No one who merely reads sec. 74 of the Constitution can suppose it could remain a dead letter or suppose that it was intended as a source of conflict __ between two final tribunals. No one who reads it as an integral _ and living part of the instrument of self-government fashioned for the most part by the Australian people themselves and, as it stands, directly accepted by them, could doubt the relative importance of H.C. or A. 1925. Perm MoFartanr. Isaacs J. HIGH COURT [1925. the provision, And, going still further, no one already familiar with the history of sec. 74 or reading that history, as, for instance, in Quick and Garran's Constitution of the Australian Commonwealth, pp. 228 et seqq., would venture to weaken its clear intention that, on the purely Australian question of the distribution of the totality of governmental powers on this continent, the High Court of Australia— — the highest judicial organ created by the Australian people—was to be the final arbiter, unless it voluntarily requested the intervention of the Sovereign in Council. I refer to and incorporate my observations in Bazter's Case (1). At one time unfortunately there did arise, as is well known, a conflict of legal opinion between the Privy Council and this Court. It can be found recorded in Bazter v. Commissioners of Taxation (N.S.W.) (2) and Flint v. Webb (3). Circumstances rendered an expression of opinion by the Judicial Committee on the law of that conflict unnecessary (Commissioners of Taxation (N.S.W.) v. Bazter (4)). Notwithstanding a difference of opinion in this Court on the merits of those cases, the whole Court (Griffith C.J., Barton, O'Connor, Isaacs and Higgins JJ.) were unanimous in maintaining the duty of this Court to regard its decisions in constitutional issues of the nature mentioned as absolutely final and free from revision by the Privy Council except at its own request. That decision still stands unimpaired. The power of the Commonwealth Parliament under sec. 77 (I.) as one means of avoiding conflict was expressly indicated by members of the Bench (5). About four months afterwards, the Commonwealth Parliament enacted the statute No. 8 of 1907, which (inter alia) added secs. 384 and 40a to the Judiciary Act, and so amended see. 41 as to bring it into its present form. It cannot, therefore, be denied — that the Commonwealth Parliament deliberately confined, so far — as it could—unless it deprived State Supreme Courts of all jurisdiction _ in matters coming within the Federal judicial power—the legal 4 determination of the constitutional distribution of governmental — power in Australia to the Australian Court. In my opinion, there are no circumstances in this case which make it competent for me, ' (1) (1907) 4C.L.R., at pp. 1148, 1149. (4) (1908) A.C, 214; 5C.L.R. 398 (2) (1907) 4 C.L.R. 1087. (5) (1907) 4 C.L.R.. at pp. 11)4, 1142, (3) (1907) 4 CLR. 1178. 1194, 7 ower 'eae 36 C.L.R.] OF AUSTRALIA. 197 following my duty as an Australian Judge, to disregard the explicit H.C. or A. and prima facie lawful direction of the Australian Parliament in se sec. 41 by declining to entertain this matter. It may not in the prmare circumstances be out of place, even at the risk of over-exposition, to McF. he f further examine the position, so as to make sure of the jurisdiction of this Court to determine the matter. Clearly, in the first place, the Court must, even for the purposes of the day, come to a conclusion as to whether it is a competent Court in relation to the matter in Isaacs J. hand. So much must every Court do, unless some competent superior Court has already determined the question. It is clear also that, if the conclusion of a Court rests on a fact which is part of the res judicanda, and which it therefore is empowered to try, its conclusion is decisive unless an appeal is given by law. Such cases as R. vy. Dayman (1) and Colonial Bank: of Australasia v. Willan (2) support this view. Where the existence of the jurisdiction depends on a question of law, and that question of law is, as here, par excellence the function of the Court to solve, the opinion of the Court upon that question, and consequently upon the jurisdiction, is not to be challenged unless an appeal is given. If, notwithstanding the view taken by this Court as to whether the 24th section of the Victorian Act of 1915, in spite of its generality, applied to Federal military officers by reason of the provisions of the Constitution acting directly or through the medium of a Commonwealth statute, it could be said that this Court was without jurisdiction, it would mean that the decision de facto of this Court was a nullity. If a nullity, any State Court could disregard it and, acting on its own view, determine adversely, subject only to a possible appeal to this Court or to the Privy Council. This would lead to inextricable and most unfortunate consequences. Following the decision of this Court in Bazter's Case (3) and Flint's Case (4), it seemed to me when we first considered our duty in this matter, and it still so seems, that we were bound to hear it, having full jurisdiction to determine the validity of the sections in question and the consequent effect upon the jurisdiction to determine the merits. (1) (1857) 7 EB. & B, 672, at p. 678, (3) (1907) 4 ¢. (2) (1874) LR. 5 P.C. 417, at p. 443. (4) (1907) 4 «,, the sections referred to. Particularly I would refer to Commonwealth HIGH COURT 2. Validity of Secs. 384, to 41.—For reasons to be gathered from what I have already said, and the cases cited, I entertain no doubt as to the competency of the Commonwealth Parliament to enact vy. Limerick Steamship Co. (1). See. 77 (1) of the Constitution seems to me too plain to admit of the opposite view. The word " matter" in sec. 76 does not, of course, mean simply the particular constitutional question or other legal question which identifies: the litigation with the section. In this it differs essentially from the word "question" in sec. 74. "Matter" means the whole controversy—the matter litigated (see South Australia v. Victoria (2)). For instance, looking at sec. 75, the "matter" would not necessarily be simply that part of the controversy depending on the construction or effect of a treaty, or that part of the controversy relating to a consul or the Commonwealth. There might be other necessary parties and other essential questions, all of which would be factors constituting the "matter." The controversy is not intended to be decided piecemeal by different tribunals, State and Federal. If, then, the " matter" is once identified as falling under one or other of the specified heads, it is part of the judicial power of the Commonwealth, and may be dealt with as the Commonwealth Parliament has dealt with such matters in the sections under review. 3. Air Force Act and Motor Car Act.—The vital question as to the charge laid against McFarlane is this: Is insistence on applying sec. 6 of the Motor Car Act to asoldier of the Air Force performing military duty incompatible with the Constitution or the Air Force Act? Thi second ground relied on by the Police Magistrate is in itself sufficient to sustain his decision and dispose of the charge. I assume that, at all events apart from the prohibition in the Motor Car Act, the command to McFarlane was lawful and his obedience was law: But he was acting as a soldier, that is, as a servant of the Crown in tight of the Commonwealth (see per Lord Selborne in Dison v. London Small Arms Co. (3)). The Motor Car Act would not, ap from sec. 24, affect servants of the Crown acting officially. the Parliament of Victoria recognized by sec. 24 in expressly (1) (1924) 35 C.L.R., 69. at pp. 89, 90. (2) (1911) 12 C.L.R, 667. (3) (1876) 1 App. Cae., at p. 660. ] Z OLR.) OF AUSTRALIA. 199 extending it to Crown officers. But that extension, I entirely agree H.C. or A. with the Magistrate, must, having regard to the Federal Constitution, i be read as relating only to the privileges of the Crown in right of Prem Victoria, and not as attempting to affect the Crown in right of the wiapiabink: Commonwealth. Sec. 52 of the Constitution declares the legislative power of the Commonwealth exclusive in respect of the Department of Naval and Military Defence. The other ground taken by the "Police Magistrate is equally sound, namely, that, even if, contrary to the point just dealt with, one can assume the Motor Car Act, upon construction, to apply to McFarlane in the circumstances, it is pro tanto invalid. And, in my opinion, it is to that extent invalid for two distinct reasons independent of each other. The - first is that an enactment expressly or by necessary implication F purporting to bind the Crown in right of the Commonwealth in respect of " primary and inalienable functions of the constitutional : government " of the Commonwealth—that is, of the King in right _ of the Commonwealth (see Coomber v. Justices of Berks (1) )—is entirely outside the range of the State Constitution. Those functions : were expressly taken from the States and vested exclusively in the ~ Commonwealth by the Constitution itself. They are functions that no individual could exercise as a private citizen or otherwise than as representing His Majesty the King. State Constitutions and 7 arliamentary powers must, by virtue of secs. 106 and 107 of the wealth Constitution, be read as not extending to powers usively vested in the Parliament of the Commonwealth. The ; y control of the Crown in respect of those functions rests in 'the Commonwealth Parliament or, theoretically, in the Imperial Parliament. If that be not correct, the State Parliament by omitting sec. 24 would not affect the Governor of the State in opening the Victorian Parliament, but would penalize the Governor- General as an individual while engaged in representing the King _in opening the Commonwealth Parliament. And this, although— except where expresssly stated to the contrary—for Commonwealth purposes Australia is one undivided territory holding one undivided people and knowing no State boundaries for effectuating its national | purposes. I confess my inability to subscribe to any doctrine that (1) (1883) 9 App. Cas, 61, at p. 74. Isaacs J. H.C, or A. 1925. ~~ Pre v. McFartanr. Isaacs J. HIGH COURT denies to the King in right of his Commonwealth—his higher —the common law attributes and prerogatives that admittedly attach to him in right of the States. The fabric of the common law stands behind the words of the Constitution and of every Constitutiqn so far as the written words do not alter it. That is the first reason, The second is the distinct and independent reason depending upon the inconsistency of two concurrently competent sets of enactments on the same field, and governed by sec. 109 of Constitution. As to the first reason, it is, of course, evident that, had this case arisen in Victoria before Federation, McFarlane would not have been touched by the Act, except for sec. 24. But if so and if sec. 24 does not apply to the Crown in right of the Common wealth, by what process of reasoning is he made liable now? TI non-application of sec. 24 to the Commonwealth does not de: the fact that he was acting, not as a private individual, but controlled by law as the representative of the Crown in the perform. ance of a military order. To deny that he was so acting is simply to say that the military order was unlawful because of sec. 6 of Motor Car Act; but that is petitio principit. It sec. 6 does not apply to control Commonwealth executive action in relation to defence, there was nothing whatever to make McFarlane's a unlawful. In my opinion, therefore, if sec. 6 be construed as an attempt to control Commonwealth executive action in respect defence, it is an attempt quite outside the range of State legislative power and bad for that reason. That is quite independent of sides but conflicting in their exercise. As to sec. 109, the point is that, assuming sec. 6 of the State Act, within the State constitutional power, it comes into competit with the Air Force Act and must therefore give way. If the latte Act, either expressly or impliedly, empowers the Commonwealth military authorities at their discretion and upon their own professional judgment as to qualifications to choose their own motor-car drivel! or motor-cycle drivers for the purpose of public defence, it i necessarily incompatible with a State law which insists that m one shall be so employed unless his qualifications are approved b 6 C.L.R.] OF AUSTRALIA. _ the Chief Commissioner of Police in his absolute discretion. Still further is it incompatible if, as this State Act does, a licence fee is required for the soldier's right to drive. That is not a tax on 'property, and so the soldier is not protected by sec. 114 of the Constitution. When the two Acts are compared and applied respectively to the subject of defence, the most grotesque consequences follow if in the present case the State Act applies so as to make McFarlane's act of obedience to his superior officer an offence visited with a penalty and possible total disqualification. The charge against him, as will have been noted, is not for negligent or reckless driving, not for exceeding the bounds of strict military : duty and doing unnecessary damage, nor for trespass or some other clearly civil wrong outside the fair limits of a soldier's duty. It is simply and solely that he was found, while strictly conforming with his duty, driving a military motor-car belonging to the Crown upon a public highway in Victoria without the permission of the Chief Commissioner cf Police. The venue might have been 100 miles from Melbourne, it might have been on the most unfrequented road in Victoria, he may be the most skilful of drivers, he may have been, and the assumption is that he was, driving in the most skilful manner. The offence, if it be an offence, would be the same in h case. The point of the charge is that a soldier must not drive :motor-car or ride a motor-cycle on any public highway in Victoria, s the law now stands, without a permit from the Chief Commissioner Police. Is the law of Australia, as applicable to this case, so - utterly ridiculous as the information in this case asserts it to be ? 'In my opinion, and most unhesitatingly, it is not. To deal with one general observation that at once occurs to the mind, no doubt the State Motor Car Act is designed to serve individual protection. But in a far higher degree the Defence Act stands for the protection of the whole community. Whatever force the former object carries _ tothe mind, it must give way before the wider and more fundamental necessity of the general security which was the prime impulse of "the Constitution, and without which the Defence Act itself would _ be meaningless. I may first complete the conspectus of the Motor Car Act in relation to the subject matter of the Air Force. See. 4 "requires registration of the motor-car itself by the Commissioner VOL, XXXVI, l4 H. C. or A. 1925. ww Prrrie v. McFaruane. Isaacs J. H. C. or A. 1925. Preete v. McFartane. Isaacs J. HIGH COURT of Police. If sec. 6 applies, so does sec. 4, which would prevent the Commonwealth using motor-cars and motor-cycles on any public highway under the same penalties as attach to sec. 6. Then sec. 15 empowers the State Executive to regulate even the construction of motor vehicles and their various parts and the conditions under which they may be used. Regulations, when gazetted, have the force of law. Sec. 16 enables the State Governo in Council to prohibit the use of motor-cars altogether on roads where he thinks it especially dangerous. The opinion of the Governoi General as Commander-in-Chief and of the defence authoritie counts for nothing, whatever they may think of the necessity a defence point of view. Since Australia, for defence purposes, one country, every inch of which is necessary to be under the and control of the Commonwealth, whose express and exclusive constitutional duty it is to protect every State as well as the people generally, the proposition that the Motor Car Act effectively controls the Defence Department, is, to say the least, astonishing. I now consider the Air Force Act 1923, to see whether it is open to that conclusion. The Act consists of only three sections, but tl are of the most comprehensive nature. The effective section is the third. Sec. 3 declares in sub-sec. 1: "' There shall be an Force, to be called the Royal Australian Air Force, which may b raised, maintained and organized by the Governor-General for th defence and protection of the Commonwealth and shall be part of the Defence Force constituted under the Defence Act." Sub-see, adopts the existing Air Force, raised under the Defence Act, places it under the Air Force Act. It says, it " shall be deemed have been raised under this Act, and the members thereof, without any re-appointment or re-enlistment or the taking of any fresh oat shall be subject to this Act." Sub-sec. 3 applies the Defence (except Part XV.) and the regulations thereunder—subject to regulations made under the Air Force Act—to the Air Force. Sub 4 gives power of disbandment. Sub-sec. 5 excludes the applicat of the Imperial Army Acts. Though not a word is said as to force being even an armed force, the broad comprehensiveness 0 sub-sec. 1 is unmistakable. The terms " raised, maintained al organized" are the parliamentary sanction to do what the OF AUSTRALIA. Rights declared, and what every annual Army Act declares, cannot in time of peace be done without parliamentary consent, namely, "the raising or keeping a standing army." History tells us how much that included. The words in an affirmative form were further necessary as regards the Air Force as a permanent force by reason of sec. 31 (2) of the Defence Act. How comprehensive is the authority conferred by the Defence Act, within the contemplation of Parliament itself, is strikingly evidenced by sec. 7, which declares: '"' Nothing this Act shall be taken as an appropriation of any public moneys." Parliament thought it necessary to insert these negative words, t indicates very clearly that the generality of the affirmative visions of the Act has been intentionally adopted to confer a ion limited only by the terms of the Act itself. It is trite law when you have got a main purpose expressed, and ample authority to effectuate that main purpose, things which are incidental it, and which may reasonably and properly be done and against which no express prohibition is found, may and ought, prima facie, to follow from the authority for effectuating the main purpose by per and general means." The word " organize " is in itself of connotation. It certainly includes planning and creating the ucture of the Air Force as an efficient working organism, arranging order of ranks, appointing its members to their several posts and 'ing their respective duties. Reference to the Oxford Dictionary show the general significance of the word, and also that it was d with reference to the Duke of Wellington's " organization" of military establishments. _ This power conferred on the Governor-General by sec. 3 (1) as to Air Force Act is in itself, and also by reason of sub-sec, 3, on sely the same footing as the power contained in sec. 33 of the ence Act 1903-1918. Besides the regulations adopted by sub-sec. tegulations have been made under the Air Force Act 1923 itself 8 y Rules 1923, No. 154). There are two regulations that erve special reference. One is reg. 488 which, as amended, s :—" It is to be borne in mind that a soldier is not only a soldier, citizen also, and as such is subject to the civil as well as to the (1) (1884) 10 App. Cas. 119, at p. 129. H.C. or A. 1925. ww Prete v. McF arrange, Isaacs J H.C. or A. 1925. a Prerre 0. McFarianr. Tsaacs J. HIGH COURT [192 military law. Offences of a military character are enumerated in the Act and Regulations and the Army Act." The latter reference to the Army Act is of course inapplicable to the Air Force. The other regulation is reg. 494, by which it is provided :—* When not on active service every person, subject to military law, who commits any of the following offences, that is to say . . . (xii) disobeys any lawful command given by his superior officer shall on conviction by Court Martial, or by a civil Court, be liable to suffer one or more of the penalties set forth in regulation 495." Those penalties are severe, and include imprisonment with hard labour up to three months and discharge with ignominy. These two regulations, reg. 488 and reg. 494 (xii.), should be considered together. Each has a history. The admonition reg. 488 is not a novel enactment, but is the restatement of ; fundamental principle of British jurisprudence. Sir James Mansfiel C.J. in Burdett v. Abbot (1) said that because men are soldiers do not cease to be citizens, but have all the rights and duties of other citizens. But the same may be said of every public functionary. a Judge, a Minister of the Crown, a member of Parliament, counsel witness in a Court of law. They have each aspecial status whieh: the due performance of their public functions carries with it 5 duties, rights and immunities that are outside the scope of ordin citizenship. It would be illegal to do anything to weaken th obligation or their power to render the necessary public serv (Wood v. Victorian Pier and Pavilion (Colwyn Bay) Co. (2))- taking the case of a Federal Judge or a Commonwealth member 0 Parliament, can it be seriously contended that in relation to th actual performance of their official duties they are—simply bee they are also citizens—bound to conform to State statutor directions ? I hold without reservation that not even prima faci have they any obligation to observe State law in the performance 9 their Commonwealth duties. And I hold that, even supposing is not a syllable in any Commonwealth Act which directly or ind relieves them of such an obligation. Once the assumption is that their act is one of actual performance of Commonwealth 0 duty required by the Commonwealth law, then any State law whit (1) (1812) 4 Taunt. 401, at p. 449. (2) (1913) 29 TLR. 317, at p. ! C.L.R.] OF AUSTRALIA. '| on the performance of that duty is necessarily inconsistent with the Constitution or some Commonwealth law made under it. If a State enes and prescribes any limitation or qualification or condition H.C. oF A. Jaw prescribed that no person should write notes in a book unless it iia aes had red covers, then, though there is not a word to the contrary in any Federal law, a Federal Judge could, when acting as such, disregard it. But, if Judges and members of Parliament are by the ; very nature of their duties to be left to their free exercise, unfettered : by State legislation, how can that be denied to the Commonwealth _ Army and Navy created to preserve the existence of the country? No listinction can be made because Judges perform their duties in Court legislators in Parliament. Soldiers perform their official duty essarily on the highways of the country as well as in barracks. 'The duty of a soldier is just as appropriately performed on a highway as that of a policeman in a public street. The point is: Is the Commonwealth official actually engaged in Commonwealth service required or authorized by Commonwealth law? There is one ly important distinction between the law of England and the law of Australia, and, if this be not carefully observed and given effect to, 'there is likely to be egregious error through a mistaken analogy. In 'land, the fact that a soldier is also a citizen has this result: that must obey the law of the country as to citizenship just as much as e law as to military service. It is the same system or body of law which controls him in all his actions. Every citizen is compellable assist in maintaining order. A soldier is a disciplined and armed citizen, and, if the one body of law prescribes his military character and also—though it may be in another chapter of the same body of iw—requires him to aid in maintaining civil order according to the es of civil law, he must obey whatever the law says. The law ating his duties of ordinary citizenship, if in conflict with the ilitary law and if later, must control his duties as a soldier. The itary law may be read as subject to the law prescribing his duties -acivilian. It is in fact the one system of law—a unitary system government—and the principle of jurisprudence referred to is applied to the statutory law. It is on this basis that the English doctrine stands. And so it was in Australia before Federation. under our Constitution an entirely different rule must be H.C. ov A. 1925. Pree v MoFaruanr. Isaacs J. HIGH COURT (1925, observed. Defence is in Commonwealth hands: ordinary citize ship in State hands. Neither has the right to prescribe on the fie of the other. If the fields overlap, the Constitution gives priority to the Commonwealth regulation. But Commonwealth defence can exist in conflict with a man's duties as a soldier. The Constitution by sec. 119 says that "the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence." A soldi¢ acting for this purpose is acting not in his capacity of State citi but as a soldier of the Commonwealth. It is therefore not the case of one body of law prescribed by the same Parliament and, therefore, speaking with but one voice as to one event, but the case of two bodies of law prescribed by different Parliaments and the will of one to be necessarily fulfilled as to a given subject whether the other speaks on the matter or not. In other words, military commands lawful by Commonwealth law, are not susceptible of denial or abridgment by State law as to citizenship. All the observations English jurists on this subject have to meet this fundamental distinction. We have then to see what is the status of a soldier, since that is the dominant factor. Now, the status of a soldier is his relation to th Australian community as a whole, and as a component part of the particular organism authorized by and created under the relevant Defence Act. That status is assumed by enlistment, and obligations are measured by the requirements of Federal law. States, in In re Grimley (1) :—'* By enlistment the citizen beco a soldier. His relations to the State and the public are chan, He acquires a new status, with correlative rights and duties." United States v. Union Pacific Railroad Co. (2) Grimley's Ca was cited with approval, and it was said: "It is the actu enlistment, the oath of allegiance, that changes the status from civilian to soldier." This change of status from civilian to soldi is at the root of this part of the case. It involves military s (1) (1890) 137 U.S. 147, at p. 152. (2) (1919) 249 U.S. 354, at p. 358 fe. under the Crown represented by the Commonwealth. Nothing but the competent legislature can sanction interference with the service his status demands. The State Parliament is not the competent legislature in respect of Commonwealth functions either in respect of main or incidental powers. I cannot for a moment assent, for instance, that the Motor Car Act prevents the Postmaster-General from employing motor-drivers tested by his own departmental R.] OF AUSTRALIA. officers, without the necessity of approval by the State Commissioner of Police, to collect His Majesty's mails and convey them from "post office to post office or to the railways or ship for despatch. - 'There i is nothing in the Post Office Act, any more than in the Defence Act, expressly to touch the operation of the Motor Car Act. There are several State Acts prescribing that it is unlawful to carry or possess firearms without a State licence. True, dating from _ pre-federation days, one exception is in favour of naval and military Forces, But could any sane person contend—even though nothing : "is said on the subject in the Defence Acts—that the right of the _ Commonwealth Army and Navy to carry arms depends to-day on _ the permission of the States? Even if State Acts stood with the _ prohibition unabridged, who would be bold enough to assert that every soldier and sailor who in the course of his public duty carried 'a rifle or a revolver in Australia was an offender and liable to punishment for breach of State law? But that is the inescapable consequence of supporting the information in this case. I give - one actual instance precisely analogous to the present case. The tecent Victorian Firearms Act 1921, sec. 23 (1), enacts that "a person shall not have in his possession any pistol (whether the same first came or comes into his possession before or after the Btirieroament of this Act) unless the same is registered in his - name i in the prescribed manner and the registration is in force." _ The registration is to be "in the prescribed manner," which means in accordance with whatever regulation the State Governor in Coun makes (sec. 40). Then, the Chief Commissioner of Police _ is to be satisfied that the applicant is a person who can be permitted to have in his possession a pistol without danger to the public safety or to the peace, and the applicant is to furnish the Commissioner with whatever particulars may be prescribed. Registration lasts ' H. C. or A. 1925. —— Prreie . McFaRLane. Isaacs J. H.C, or A. 1925. PrrRie v. McF arrange. HIGH COURT (1925. for three years, and then must be renewed. No exception is made in respect of this registration requirement in favour of Naval or — Military or Air Forces. This is all the more significant since special : exemption is given to these Forces from other provisions of the Act, as carrying without a permit (sec. 25), the exemption being expressly limited to that section. A policeman may under sec. 26 demand production of the certificate of registration of any person whom he believes to be carrying an unregistered pistol (except certain cases of antiques mentioned in the Act). If a certificate of registration is not produced, then the policeman may seize and detain the pistol. By sec. 28 the penalty for contravening sec. 23 (1) _ is up to £50 and imprisonment for three months. This provision of State law stands in no other position qua a soldier in the Common- wealth forces, than does sec. 6 of the Motor Car Act. But who can 7 deny the grotesqueness of applying it to the military forces? If McFarlane be an offender, there must be in the Australian Army — and Navy many thousands of callous offenders against the Firearms Act awaiting retribution. The possibilities of the Firearms Act 7 are, however, not yet exhausted. Sec. 32 makes it unlawful for any — person, without the authority of His Majesty the King or of the — Governor-in-Council or a Commonwealth Act relating to the Commonwealth Forces, to manufacture, sell, carry or have in his possession any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas or other noxious thing, — The penalties are, of course, necessarily heavy. But, apart from the general implication I have referred to, how is the manufacture or possession of such a weapon authorized by the Commonwealth Acts? Again there would be a punishable contravention of State law on the theory of McFarlane's culpability. It is common knowledge that aeroplanes and their adjuncts, petrol and gear, are as vital to the defence of a country as are rifk in some circumstances more so. Motor-cars in modern tactics are essential adjuncts in military operations. A regiment on the mai may be much better informed, and more quickly informed, of whai is ahead of them, if preceded by an air force using motor trans} for reconnaissance purposes. Defence, it must be remembered, i not confined to active warfare. Training is an essential part of i 36 C.L.R.] OF AUSTRALIA. To put into the field men untrained or inadequately trained, except in dire necessity, is very like murder. The use of the best equipment and of the best and most perfect accessories is, in my opinion, well within the comprehensive terms in which Parliament has legislated. Intimately bound up with the principle of the relation of military status and civilian citizenship is reg. 494 (xii.), which involves both the soldier himself and his superior officers. Substantially, that form of words took shape in the Mutiny Act of 1749 as the result of great discussion and has continued. The lawfulness of a command must necessarily depend upon the relevant circumstances at the time itis given. But in this case the facts give rise to no discussion, and McFarlane, as well as his superior officer, must be assumed to have known the law. Judges may err as to the law with impunity; a soldier placed between the Scylla of military punishment and the Charybdis of civil penalties may have to suffer if he mistakes his legal duty. But let us ask ourselves, in order to test the legality of the command to McFarlane, "' what ought he in law to have done?" The law, that is, the resultant law, did not speak to him with a double tongue. It required him to adopt one course, and one course only—either to obey or to refuse. Could he legally have said: "The law requires a licence from the Police Commissioner and, as I have not that and he may never give one, I must refuse to break the law'? Had he been ordered to shoot down an unoffending bystander, the law would have required him to refuse, because that would have been transparently outside a lawful command. And so the question is: Should he have refused on the ground that to comply was illegal? To maintain that he broke the law by obedience is to contend that he would have observed it by a refusal tocomply. But to maintain that and at the same time to preserve the Defence Force as efficiently organized under the National Constitution for the protection cf the Commonwealth seem to me irreconcilable propositions. The question is which of the two prevails? The answer is not difficult. It is common knowledge that the original and an ever-active stimulus to create a federated Australia was the Tecognized necessity of placing the national defence of this continent unreservedly in the hands of one central authority for effective and uniform treatment. The very nature of the subject demands ™ Hi. C. or A. 1925. Pree e. McFaRLaNE. Isaacs J. H. C. or A. 1925. ww Prerie v McFarrane. Isaacs J. HIGH COURT fg that complete power shall rest in the one authority. Uniformity is essential. Instant execution of protective orders may be vita The law we are dealing with must be the same in war as well as in peace. Varying State regulations operating to confuse, delay and hamper, and perhaps prevent, operations considered essential by those having the sole responsibility for the defence of the nati (The Zamora (1) ) are necessarily impediments and might be critically dangerous. It was suggested in argument that a soldier might, if unrestrained by traffic regulations, dash into traffic regardless of property and life. That is a double-edged objection. So might a police in pursuit of a criminal, or so might a fire brigade rushing to the scene of a fire. But the objection, which is of the ever-recurri type, has its standing answer, namely. that possibility of abuse is no argument against the existence of a power. With the known safeguards of constitutional and civil government, the words of Lord Dunedin in R. v. Halliday (2) are apposite: "' The danger of abuse is theoretically present; practically, as things exist, it is in my opinion absent." I am fully aware, as already mentioned that it is urged that, as everything depends on the construction of the Commonwealth Acts, Parliament may so alter its legislation as to cover the present case. If it were a simple matter to fre Commonwealth administration from State interference by any general form of express enactment, I should not, apart from the question of exclusive powers, bestow somuch attention on the present appeal. Bi is it so simple? In the first place, the Commonwealth Parliament has no power to repeal a State enactment operating on a State field of legislation (see Attorney-General for Ontario v. Attorney-General for the Dominion (3) ). That is solely within the province of the Stat Parliament. All that the Commonwealth Parliament so far sec. 109 is concerned can do, as it seems to me, is to le; on its own field in such a way that, whether from its express or the legitimate implication of the language and scheme adopte its enactment so occupies that field that the operation of the Stat law in question would be incompatible. Implication is as powerfil (1) (1916) 2 A.C. 77, at p. 107. (2) (1917) A.C. 260, at p. 271. (3) (1896) A.C. 348. CLR. OF AUSTRALIA. Bye this purpose as explication. It is obviously impossible for the Commonwealth Parliament to search out and collect all the various existing State regulations interfering with its departmental operations and severally legislate in some way to the contrary, and then to follow day by day new State regulations by Federal laws specially directed to them and counteracting them. But, if this be conceded, what can be found wanting in the necessary implication i from the present Defence Acts? I find it impossible to attribute _ to Parliament, when it framed its bold comprehensive authorization ~ to the Executive on this great subject, that blindness or inattention : to the high considerations mentioned which I should feel forced to ~ agsume if those considerations were left unprovided for. For instance, the contrary view would lead to this situation :—On some - important occasion a despatch-rider, we will suppose, carrying a confidential order, is sent on a motor-cycle from Sydney to Adelaide. Can anyone believe it was the intention of Parliament (for that is the problem), by using the unlimited terms found in its Acts, that, before the soldier could start a step on his mission, he must get _ permission from the New South Wales State motor authority, a. permission which might be refused ? Supposing that to be obtained, then when Albury is reached the rider, under penalty like McFarlane, must not dare to travel on the broad national road into Wodonga and thence to Melbourne without a similar permission from the Victorian Commissioner of Police in Melbourne. But, when secured, that is necessarily valid only as far as Serviceton. Again, the South Australian authorities must be approached for similar permission. At last, if fortunate enough either to receive the necessary permission or, if not, then to elude the vigilance of the State police, the confidential messenger of the Defence Force is able triumphantly to reach his destination. I am not able to subscribe to such an interpretation of the law. Sec. 70 of the Defence Act ought to be referred to, as it was specially debated with respect to the comprehensiveness of the statute. It isnot unique. In substance it is found also in the Post and Telegraph Aet, in sec, 13. When carefully read, so far from tending to limit Commonwealth freedom of action that section supports it. The section frees the Department from tolls even under " Acts "—that H.C. or A. 1925. Pre v. McFar.anr. Isaacs J. H.C. or A. 1925. > Pree v McFarxane. Isaacs J. HIGH COURT ist is, Commonwealth Acts—and even includes State Acts and otherwis But it distinctly assumes the freedom of defence vehicles with arms or prisoners to pass unmolested, and certainly with no idea that the driver is in any circumstances thereby offending against the law. I take my stand, then, in this case, which is really a test case for much Commonwealth legislation, on the exclusive powers of the Commonwealth in the Department of Defence and on the necessary implication of the Acts mentioned and of the Appropriation Acts, and hold that the orders McFarlane received were lawful commands from a superior officer, which he was bound to obey, and that the Gth section of the Motor Car Act 1915 was as to him in those circumstances invalid by secs. 106, 107 and 109 of the Constitution. Hicars J. I have read the judgment of the Chief Justice, and LT agree with him in the opinions—(a) that sec. 40a of the Judiciary Act is within the powers granted by the Constitution to the Federal Parliament (chap. III., sec. 77); (b) that sec. 6 of the Motor Car Act 1915 of Victoria is binding on the defendant, as there is no Federal Act to the contrary; (c) that the defendant was guilty of an offence under the Victorian Act in driving the motor- without a licence—even though he was a military man actin; under military orders when passing through the streets: (d) that the order nisi for review should be made absolute. I do not propos to add anything to that which my learned brothers have said as to the circumstances under which we proceeded with this case i its due order on our list. To proceed was our duty. The Police Magistrate considered that the principles laid down in D' Emden v. Pedder (1) applied to this case. In that case, however, the Court had before it what it regarded as two inconsistent Acts, State and Federal—a State Act which forbade the giving of am receipt without a State stamp, and a Federal Act which requir a receipt to be given even if unstamped. Some of the dicta in D'Hmden v, Pedder (1), however, cannot regarded as law, since the decision in the Engineers' Case (2): The Police Magistrate says: "Sec. 6 of the Motor Car Act 19V which requires drivers of motor-cars on public highways to hol (1) (1904) 1 C.L.R. 91. (2) (1920) 28 C.L.R. 129. CLR.) OF AUSTRALIA. 213 licences, would, . . . if it were held to apply to men carrying out H.C. or A. their duties as servants of the Defence Department, be a fettering ee or interference with the executive powers of that Department." Prerm v. Dicta used by the Court in D'Emden v. Pedder (1) favour the view yorartaxe. that a general State law, applying to all persons using the streets, a law designed for the safety of the public and making no discrimination, need not be obeyed by the Federal officer. This would involve that a Federal officer—whether of the Customs, or of the Post Office, or of the Defence Department, &¢.—using the street: in pursuance of his duty, may drive on the wrong side, at a - speed of 60 miles per hour, and may disregard the policeman directing 'the traffic. Such a grotesque result of the Constitution must startle Higgins J. | the unsophisticated. It was held also on the same principle that ; a Federal officer is not liable to State income tax although he _ gets the same benefit from the State's activities as others (Deakin -y. Webb (2) ; Baxter v. Commissioners of Taxation (N.S.W.) (3) ). It was held that Federal properties are exempt from municipal rates, : although they enjoy the benefit of the municipal services (Sydney Municipal Council v. Commonwealth (4) ). It was held that the Commonwealth is entitled to have its transfers of land registered under the State Act without paying the State any stamp duty on transfers (Commonwealth v. New South Wales (5)). Tt was held that a Commonwealth Act which applied the provisions of the Conciliation Act to employer and employees in State undertakings was invalid (Railway Servants' Case (6) ). Tt was held that a night-soil contractor is entitled, if his contract be with the Commonwealth, to remove night-soil from Commonwealth premises without taking out the licence required by the municipality (Roberts v. Ahern (7)). _ Without prejudging these and other similar cases, should the same questions arise again, I may say that the questions will have to _ be considered now in the light of the Engineers' Case (8). This Engineers' Case, indeed, overruled Deakin v. Webb and the Railway Servants' Case. (1) (1904) 1 O.L.R. 91. (5) (1906) 3 C.L.R. 807. (2) (1904) 1 C.L.R. 585. (6) (1906) 4 C.L.R. 488. (3) (1907) 4 C.L.R. 1087. (7) (1904) 1 C.L.R. 406. (4) (1904) 1 C.L.R. 208. (8) (1920) 28 C.L.R. 129. H.C. or A. 1925. YY Pree ., part of the legislature of Maryland to injure, to destroy by taxation, — HIGH COURT All these decisions are based ultimately on a decision of the Supreme Court of the United States in the case of McCulloch vy, Maryland (1). In that case there was a clear attempt on the the newly-created National Bank of the United States; and, in place of deciding that the National Congress could by Act forbid the payment of the tax—isolate the Bank, as it could isolate a fortress, from State attacks—the Supreme Court propounded the doctrine that all taxation of a Federal agency was illegal. Subse quently the same Court propounded a correlative right of a State' to be immune from Federal taxation. But it may now be taken to be established in Australia, as well as in England, that this doctrine, in its extreme form, will not be accepted. As the Chief Justice has pointed out, if and so far as a member of the Defence Force ought, in the opinion of the Federal Parliament, to be exemy from the operation of the State laws, that Parliament has only to say so by an Act; and the Federal Act prevails over any State Act so far as they are inconsistent (Constitution, sec. 109). Great care will, of course, have to be taken in framing such a Fed Act; as an Act which goes too far in excluding State Acts produce much injustice and confusion. The view taken by this Court in the Engineers' Case (2), and in this case as its corollary, will no doubt have far-reaching—and, if I am entitled to say so, wholesome—reactions. The decisions based on McCulloch vy. Maryland (1) have never been undisputed; and th judgment of the present Chief Justice cannot therefore be acci of any startling novelty. Twenty or twenty-one years ago decision that a Victorian, employed in the Post Office, who paid Victorian income tax before Federation, had not to pay it a Federation, was much canvassed among lawyers and in the pul press; and men wanted to know where this principle was to found in the new Constitution. I was at the Bar at the time; and may not be amiss for me to mention (for I can speak more definitely as to my own acts than as to the acts of others), that I ventured to express my doubt as to the law laid down in the Income Tax Case, the Commonwealth Law Review, vol. 11, 1904-1905, p.97; and when (1) (1819) 4 Wheat. 316. (2) (1920) 28 C.L.R. 129. OLR.) OF AUSTRALIA. 'I came to the Bench, I freely expressed my doubt (Baster v. Commissioners of Taxation (N.S.W.) (1)). Subsequently, from time to time, I regarded it as my duty to reiterate my doubt on suitable occasions, and to express my hope that the cases based on McCulloch y. Maryland (2) would be reconsidered (see, e.g., Steel Rails Case (3) ; Wheat Lumpers' Case (4); Engineers' Case (5)). Moreover, we have the support of certain decisions of the Judicial Committee of the Privy Council as to similar problems arising in Canada. In Bank Of Toronto v. Lambe (6) a direct tax was imposed by a Province, 'under sec. 92 of the Canadian Constitution, upon banks which carried on business within the Province, and it was held to be enforceable against a bank incorporated by Act of the Parliament of Canada. It was urged that the Canadian Parliament had powers under sec. 91, and that the Parliament could not exercise these powers freely : if Canadian banks were to be treated as being subject to taxation by the provincial legislature; and McCulloch v. Maryland was cited insupport. The Judicial Committee refused to apply to the Canadian Constitution the principles of that case (7) :—" The appellant invokes - that principle to support the conclusion that the Federation Act must be so construed as to allow no power to the provincial legis- es under sec. 92, which may by possibility, and if exercised in ie extravagant way, interfere with the objects of the Dominion exercising their powers under sec. 91. . . . If they" (their Lordships) " find that on the due construction of the Act a legislative wer falls within sec. 92, it would be quite wrong of them to deny existence because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion Parliament." 'This position has been adhered to consistently in a series of recent interesting cases—John Deere Plow Co. v. Wharton (8); Great West Saddlery Co. v. The King (9); Caron v. The King (10). In Canada, the powers given to the Dominion Parliament under sec. 91 and the powers given to the provincial legislatures by sec. 92 are mutually (1) (1907) 4 C.L.R. 1087. (6) (1887) 12 App. Cas. 575. @ (1819) 4 Wheat. 316. (7) (1887) 12 App. Cas., at p. 587. (3) (1908) 5 C.L.R. 818, at p. 852. (8) (1915) A.C. 330. "gai 1819) 26 C-LAR. 460, at pp. 471, (9) (1921) 2 A.C. 91, (10) (1924) A.C. 999. (5) (1920) 28 C.L.R. 129. H. C. or A. 1925. Pree v. MoF aR.ane. Higgins J. H.C. or A. 1925. w Pieris v MoFartanr. Higgins J. HIGH COURT exclusive; but, by the concluding words of sec. 91, " any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the Provinces." The Judicial Committee held, in Great West Saddlery Co. v. The King (1), that a company incorporated by the Dominion, with power to trade in any Province, may be subject to provincial laws of general application, such as laws imposing taxes, or relating to mortmain, or requiring licences for certain purposes; — but a provincial legislature cannot validly enact for the enforcement of such laws sanctions which would sterilize or destroy the capacities and powers which the Dominion has conferred. " It is only where there is actual inconsistency that the effect of the concluding words of sec. 91 can be invoked" (2). In Caron v. The King (3) it was held" that a Minister of the Government of a Province was liable under # Dominion Income Tax Acts to pay the tax even in respect of his ministerial salary and " sessional indemnity " as a member of the Legislature. In the same case the Judicial Committee approved of the Canadian case of Abbott v. City of St. John (4), in which it was held, é converso, that the Provinces had a right to impose income tax upon Dominion officials resident within them in respect of thei official salaries. These words of Davies J. in that case are quoted by not attempt to interfere directly with the exercise of the Domi power, but merely says that, when exercised, the recipients of the salaries shall be amenable to provincial legislation in like manner as other residents. . . . Itissaid the Legislature might authoriz income tax denuding a Dominion official of a tenth or even a fifth of his official income, and, in this way, paralyze the Dominion service and impair the efficiency of the service. But it must be borne in mind that the law does not provide for a special tax on Dominion officials but for a general undiscriminatory tax upon the incomes of residents and that Dominion officials could only be taxed upon their (1) (1921) 2 A.C. 91. (4) (1908) 40 Can. 8.C.R. 597. (2) (1921) 2 A.C., at p. 117. (5) (1924) A.C., at pp. 1005, 1006. (3) (1924) A.C. 999. 36. C.LR.] OF AUSTRALIA. incomes in the same ratio and proportion as other residents. At any rate, if, under the guise of exercising power of taxation, confiscation of a substantial part of official and other salaries were attempted it would be then time enough to consider the question and not to, assume beforehand such a suggested misuse of the power." The Judicial Committee laid great stress on the fact that the Income Tax Acts were not discriminating statutes, but statutes for imposing on all citizens contributions according to their means, irrespective of the source. There seems to be no doubt, therefore, that the Judicial Committee would treat this undiscriminating law for the protection of the public in the streets as binding on Federal servants, if on its true construction it applies to them. The only question covered by the only ground for the appeal, as stated in the order nisi, is, does the law apply to Federal servants ? _The precise words are: "' That on the evidence the said Court of Petty Sessions was wrong in holding that sec. 6 of the Motor Car Act 1915 did not apply to the defendant." But this ground naturally follows the line of reasoning of the Police Magistrate, who, after referring to D'Emden v. Pedder (1) and subsequent similar cases, said that sec. 6 would "if it were held to apply to men carrying out - their duties as servants of the Defence Department, be a fettering or interference with the executive powers of that Department." It is clear that the Magistrate decided that sec. 6 did not apply on the constitutional ground ; and this ground, for the reasons which I have stated, is no longer tenable. The Police Magistrate referred to sec. 24 of the same Act, and said it was limited to those servants of the / Crown who are controlled by the Government of Victoria. The words, taken from the English Motor Car Act 1903, sec. 16, are these : "Tt is hereby declared that this Act applies to persons in the service of the Crown as well as to other persons." There is no reference to 'sec. 24 in the order nisi; but I shall assume that the effect of sec. 24 may be treated as included under the question as to the effect of sec. 6. In my opinion, sec. 6 would apply to the defendant even if there were no sec. 24. Such a section as sec. 24 is often necessary, or at least expedient, where the Legislature wants to affect servants of the Crown by an Act; because, prima facie, "the law made by (1) (1904) 1 CLR. 91. VOL. xxv. 15 H.C. or A. 1925. _~ Prerre v. McF arrange. Higgins J H.C. or A. 1925. ww Pinrie v. McFarane. Higgins J. HIGH COURT the Crown, with the assent of Lords and Commons, is made or subjects and not for the Crown" (Attorney-General v. Donaldso (1)). For this reason, it was held, that the British Locomotives Ad 1865, regulating speed on highways, was not binding as to a locomotive owned by the Crown and driven by a servant of Crown on Crown service (Cooper v. Hawkins (2)). This decisi was given on 15th July 1903; and in the Act amending Locomotives Act, 14th August 1903, and dealing for the first ti specifically with motor-cars, this sec. 16 wasincluded. The positionin England was simple; for there there is no federation, and there is ne distinction between the King in his Federal capacity and the King in his State capacity ; here there is the distinction. The King in his State capacity is presumed, prima facie, not to mean to bind hi and it is generally expedient to use express words in a State Act in order to bind him and his State servants. But in a State Act no tion, there is no need for express words. The Act is passed by State Legislature within its powers, for the regulation of motor ti in the highways ; and for that regulation to be effective all the tr must be bound; and all the traffic is bound unless the Fed Parliament, consisting of the King, Senate and House Act, or regulation under an Act, to the contrary effect, for se of Federal Departments. So far as the laws are inconsistent, Federal Act prevails (sec. 109). Sec. 24 merely gets rid of th presumption that the King in his State capacity did not mean highway without being licensed for that purpose." In the com case, where the State Government claimed exemption from imp duty for wire-netting which it had imported, urging the rule that: Crown was not bound except by express words, it was held the Judges of this Court that that rule in a Commonwealth A applies to the King as head of the Commonwealth Government, 2 to the King as head of the State Government (R. v. Sutton ( (1) (1842) 10M. & W. 117, atp. 124, (3) (1908) 5 C.L.R. 789, at pp. (2) (1904) 2 KB. 164. 801, 806, 814. 816-818. OF AUSTRALIA. 219 'Tf then, the rule be excluded from application, there can be no doubt H.C. or A. that, as a matter of ordinary grammatical construction, it is ee impossible to find in this universal negative, "no person," any Eee exception in favour of Federal servants. The intention of the yoranzaxe, Victorian Legislature is clear; and that intention must be carried 'out unless and until the Commonwealth Parliament say not. _ The result of this case, if the view which my learned colleagues the Chief Justice and Starke J., and myself, have expressed be adopted, vill be to make it clear that a soldier is also a citizen and must obey he laws of the State in which he is, as well as the Federal laws. is nothing in what I have said inconsistent with the doctrine the Crown, through all the British Dominions, is one and sible. The Crown is one and indivisible; but the Crown icting with the advice and consent of the Australian Federal ment is distinct in aspect and function from the Crown acting h the advice and consent of the State Legislature, and distinct from the Crown acting with the advice and consent of the British iament. Perhaps, if we must bring the position within ognized legal categories, we may say that the Dominion and ite Parliaments are distinct agencies of the Crown ; and when the State agency legislates, it had better say expressly—as the law tands—that it means to bind itself, if such be the intention. Tn my opinion, the Court of Petty Sessions was wrong in its sion, and the order nisi should be made absolute. Higgins J. (cH J. This case comes to us via the Supreme Court of Victoria the provisions of sec. 40a of the Judiciary Act. But for the that the Privy Council on 11th May 1925 had granted to the ecutor special leave to appeal from the course taken by the reme Court in refusing to proceed with the appeal by the itor, this would have been an ordinary case. This Court have entertained and decided it without question unless its ic tion was denied, in which case the objection would have been and dealt with. Having been informed of the special ve, this Court thought it was bound to proceed, being already of the case and having regard to its constitutional duty. of the notes of the proceedings before the Privy Council H.C, or A. 1925. ~~ Pirie v. MeFarLane, Rich J. HIGH COURT (1925. leads me to observe that that proceeding now will be actually in — conformity with the wishes of the Board. Treating the point of jurisdiction to entertain the matter as if it were formally questioned before us, I am of opinion that the eflect of the Judiciary Act — and the Commonwealth Constitution, especially sec. 74, is to confer exclusive jurisdiction on this Court, in the events that have happened, to hear and determine this case. 4 The next question is that which the Magistrate had before him, — namely, should the soldier be convicted under the Victorian z Motor Cav Act 1915 for driving a motor-car on a public highway — without complying with the requirements of that Act? The Police Magistrate dismissed the case on two grounds—(1) that on its construction the statute did not apply to the defendant when acting in his character of soldier, and (2) that, assuming ib even expressly applied to him in that character, it would have been so far inoperative. The first point does not depend on any — doubt as to verbiage. It depends entirely on constitutional law. 4 That constitutional law goes back at last to a question whether — the State Parliament can validly regulate the official duties of Commonwealth officials. That being a necessary step in the reasoning as to construction, there is involved a constitutional question inter se between Commonwealth and State whichever answer is given to the question. The second question, as to whether the provision is valid, of course involves such a question whatever answer is given. The Supreme Court, I may observe in passing, was therefore bound to hold its hand according to prior decisions of this Court and according to my own present view. This Court consequently cannot remit the case to the Supreme Court under any circum stances, whatever conclusion it comes to on the subject matter of the charge. That clears away, so to speak, the preliminary obstacles to our deciding the subject matter of the information, I have read the judgment of my brother Zsaacs, and I a with his reasons for thinking the charge was rightly dismis In my opinion the Magistrate was right on both grounds takt by him. I may compress the reasoning in this way:—The De Acts are, except where specially restricted, couched in the broade 36 CLR.) OF AUSTRALIA. 221 terms, which leave all necessary details for Commonwealth H.C. or A. 1925. administration. Hither there is power under those Acts to use =" motor-cars or there is not. If there is not, the order was unlawful. Pmrme If there is power, it was lawful by Commonwealth law. But, if ycranaxe. it was lawful by Commonwealth law, any State Act purporting Rich J. to say it was unlawful. is necessarily in collision with the Commonwealth law. If in collision, sec. 109 of the Constitution is conclusive and makes the State Act to that extent invalid. Moreover, even apart from any special provision of Common- wealth law, I am unable to see how a State law can validly dictate to the Commonwealth in what manner or under what conditions it is to perform the executive functions expressly and exclusively ~ committed to it by the Constitution. As I am unable to accept the argument that it is unlawful by Commonwealth law to use motor-cars for military purposes, it follows that the State law is not applicable and the result is as I have stated. Srarke J. The defendant, Thomas McFarlane, was charged before the Court of Petty Sessions at Melbourne with a contravention of sec. 6 of the Motor Car Act 1915 (Vict.). That section provides that ~ "no person shall drive a motor-car upon any public highway without being licensed for that purpose." It was not disputed by the defendant that he drove a motor-car on a public highway without being licensed for that purpose. But it was proved that he was a member of the Royal Australian Air Force, which is part of the Defence Force of Australia, and that he was driving the car in the course of his duties as a member of the Air Force and pursuant to we ae ee eee the orders of an officer thereof. Consequently, it was contended that the defendant, as an officer of the Defence Force, was immune from the State law, either because the Motor Car Act, on its proper construction, did not extend to him or because that Act was invalid and inoperative to the extent that it fettered, interfered with or controlled thé performance by the defendant of his duties as an officer of the Commonwealth. These contentions were upheld and the information dismissed. An order nisi to review the decision was granted by the Supreme Court of Victoria and made returnable before the Full Court. But, on this order coming on for hearing, H. C. or A. 1925. Prreie v. McFartane. Starke J. HIGH COURT the order nisi was endorsed as follows: "On a review of the proceedings brought before the Court and having regard to sec. 40a of the Judiciary Act the Court does not propose to proceed further." The matter was, by virtue of the Judiciary Act, sec. 40a, and without order, thus treated as removed to this Court. All the relevant documents were, pursuant to sec. 40A, sub-sec. 2, transmitted to this Court, the parties proceeded to prepare a transcript of the record, and on 6th May 1925 the matter was listed for hearing, as described by the Chief Justice. On 11th May the Judicial Committee granted special leave to appeal from the refusal of the Supreme Court to proceed with the hearing of the order nisi. The shorthand notes of the argument before the Committee are before us, but not the formal Order in Council issued upon thei Lordships' advice. It is doubtful, I think, if the Committ appreciated the fact that no order has been made by the Supreme Court. Their Lordships, however dealt with the case on the bas that the Supreme Court had wrongly declined jurisdiction: tl assumes a decision of some sort by the Supreme Court, or leave to appeal would not, I apprehend, have been given (see In re Muir (1), Inve Assignees of Manning (2), In re Whitfield (3) and the observations made in Colonial Bank v. Warden (4) ; ef. Hurrish Chunder Chowdry v. Kali Sundari Debia (5) ). Should this Court proceed with the matter at all in view of th Order in Council made on the advice of the Judicial Committee think, defer to the Judicial Committee, if that were all that w involved in the present case. The Supreme Court, however, refus to proceed, in view of the provisions of sec. 40a of the Judiciary Ad that section provides that " when, in any cause pending in the Sw Court of a State, there arises any question as to the limits inler of the constitutional powers of the Commonwealth and those of an (1) (1839) 3 Moo. P.C.C. 150. (4) (1846) 5 Moo. P.C.C, 340, at (2) (1840) 3 Moo. P.C. . 348 et seqq. (3) (845) 5 Moo. T (5) (1882) L.R. 10 Ind. App. RB.) OF AUSTRALIA. proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed on which questions as to the limits inter se of the constitutional powers of the Commonwealth and the States or of the States inter se or in which Federal jurisdiction is involved (Judiciary Act sec. 39 (2) ), clear and distinct: it is emphatically to this Court that these stions must be brought, under the laws made by the Parliament. it is not for this Court to abdicate its functions or to refuse a diction intended by the Parliament to be exercised by it (see flintv. Webb (1)). But, if the Court is to exercise that jurisdiction g in the Supreme Court" of the State of Victoria within the words of sec. 40a (see Hudson's Case (2)). But did there any question as to the limits inter se of the constitutional 8 of the Commonwealth and those of any State or States ? the cause can be decided without the determination of any such tion, then sec. 40a does not withdraw the cause from the ne Court or remove it into this Court. But if the cause nnot be decided without the determination of a question as to the its inter se of the constitutional powers of the Commonwealth e Magistrate was right in his opinion that sec. 6 of the Motor Car ict 1915 is limited to those servants of the Crown who were controlled by the Government of Victoria, no constitutional question arises and he case is outside the provisions of sec. 40a. But if he was wrong, did the other grounds of immunity raised by the defendant 1) (1907) 4 C.LAR. 1178, (4) (1920) 27 CLLR. 395 (1922-23) 32 CLR. 413. (5) (1919) 27 i LR. 249. (1919) V.L.R. 600 ; 41 ALL.T. 65, yers of any two or more States, it shall be the duty of the Court H.C. or A. 1925. zou the High Court." The intention of the Parliament, in matters McFanzase. 8) Starke J. H.C. oF A. 1925. ~~ Pirrie % McFaruane. Starke J, HIGH COURT involve any question as to the limits ier se of the constitutional. powers of the Commonwealth and those of any State or States? The : Motor Car Act was undoubtedly enacted pursuant to the consti- tutional powers of the State, but it encountered, according to the argument for the defendant, the constitutional prohibition against interference with Commonwealth instrumentalities (D'2mden vy, Pedder (1)) or legislation enacted by the Commonwealth pursuant to its constitutional powers and inconsistent with the State legislation. That, in my opinion, directly raises questions as to the limits inter se of the constitutional powers of the Commonwealth and the State (Jones v. Commonwealth Court of Conciliation and Arbitration (2) ). Now, if the Supreme Court had been of opinion that the Motor Car Act 1915 was limited in its operation to those servants of the Crown who were controlled by the Government of Victoria, then it ought, I apprehend, to have disposed of the case according to its own decision in In re Drew (3). But it was evidently of opinion that questions as to the limits inter se of the constitutional powers — of the Commonwealth and the State necessarily arose, and required — determination in the case. Consequently, it gave no decision, and proceeded no further with the cause, in accordance with the provisions of sec. 40a of the Judiciary Act. And in taking that course the Supreme Court acted, in my opinion, in strict accordance with the law. It will be convenient, however, to postpone consideration of | the construction of the Motor Car Act to a later stage, and to consider now the validity of the provisions contained in sec. 40a of the Judiciary Act. The Parliament enacted the section for the express purpose of avoiding conflicts between the Judicial Committee and this Co upon questions as to the limits infer se of the constitutional powe of the Commonwealth and the States or of the States inter se, and for the purpose of giving full effect to the provisions of sec. 74 of the Constitution. "The plan adopted, therefore," as is said by Professor 4. Berriedale Keith in his work on Respo Government in the Dominions, vol. Tu, p. 1372, "is to debar Supreme Courts from ever pronouncing a decision on any questi (1) (1904) 1 CLLR. 91. (2) (1917) A.C. 528; 24 CLR, 396. (3) (1919) V.L.R. 600; 41 ALP. 65. 7 86 C.L.R.] OF AUSTRALIA. 225 in which the rights of the Commonwealth and of the States, or of H. ©. or A. the States inter se, are at issue, and thus every such case falls to be ine decided by the High Court, which by refusing a certificate for Pieri an appeal could make itself the final arbiter." It is, perhaps, yroranuaxe. interesting to note the opinion of Professor Keith (ibid., p. 1372): "That the law is intra vires the Commonwealth Parliament appears perfectly clear, and it may be said to be not only a sensible and satisfactory solution of a difficulty, which brought both the High Court and the Privy Council into some degree of contempt, but to be in keeping with the spirit of the Constitution, which was intended to reserve to the High Court such constitutional cases." The provisions of sec. 404 must be considered in connection with Part VI. of the Judiciary Act, " Exclusive and Invested Jurisdiction," secs. 38, 38a and 39. The provisions of sec. 40 are the complement of sec. 384. This Court has examined sec. 39 and upheld its validity under the powers contained in secs. 76 and 77 of the Constitution. The reasons are set forth in Bazter's Case (1), Lorenzo v. Carey (2), the Limerick Steamship Co.'s Case (3) and Hudson's Case (4), and need not be repeated here. But the reasoning which upholds sec. 39 necessarily supports the power of the Parliament to enact the Starke J. provisions of secs. 38 and 38a; for the exclusive jurisdiction vested in the High Court by those sections is founded upon the same words in sec. 77 of the Constitution as is the exclusive jurisdiction vested in the High Court by sec. 39. If the one section be valid, the others must, for the same reasons, be also valid, And sec. 40a, as the complement of sec. 38a, is sustained as incidental to the power contained in sec. 77, and also as expressly authorized by reason of the power conferred by sec. 51, pl. xxx1x., of the Constitution. The case must, therefore, be examined on its merits. It is urged that the Motor Car Act is limited, on its proper construction, to the servants of the Crown controlled by the Government of Victoria. By see. 24 it is declared that the Act applies to persons in the public service of the Crown as well as to other persons. Now the Crown is one and indivisible (cf. Williams v. Howarth (5); In re Oriental Bank Corporation; Ex parte Guillemin (6) ). But, it is said, the (1) (1907) 4 C.L.R. 1087. (4) (1929-23) 32 CLLR. 413. (2) (1921) 29 CLLR. 243. (5) (1905) A.C. 551. (3) (1924) 35 CLLR. 69. (6) (1884) 28 Ch. D. 634. H.C. or A. 1925. "~~ PreRie v McF arrange. Starke J. HIGH COURT (19: section only applies to persons in the public service of the Crown considered as the executive authority in relation to the statute in question (cf. R. v. Sutton (1); Gauthier vy. The King (2) ). If this — be so, then the rule of construction that the Crown is not bound by a statute unless specially named or clearly intended should be "applicable only in the determination of the question whether the King, as representing the community whose legislation is under -" and — consideration, is or is not bound by the enactment "cannot be applied to determine whether the enactment binds the King as representing" the Commonwealth (O'Connor J. in R. v. Sutton (3); Attorney-General of New South Wales v. Collector of Customs for New South Wales (4) ). This line of argument really avoids difficulties without solving them. The real solution must depend upon the powers or immunities given to or conferred upon the State and Commonwealth Governments by their Constitutions. The Commonwealth power of defence cannot exempt soldiers from the obligation of all State law, nor can the power of the States to regulate the use of motor-cars within their territories be used so as to destroy or abrogate or derogate from the Commonwealth power of defence (cf. John Deere Plow Co. v. Wharton (5); Great West Saddlery Co. v. The King (6); Attorney-General of British Columbia v. Attorney-General of Canada (7) ). "The only principle that can be laid down for such cases is that legislation the validity of which has to be tested must be scrutinized in its entirety in order to determine" if the provisions of the State law are repugnant to or inconsistent with the law of the Commonwealth (Great West Saddlery Co. v. The King (8) ). Now, the Motor Car Act regulates the use of motor-cars in Victoria, and is designed to preserve the public — safety and security. That is a subject matter wholly within the | domain of the States and prima facie one in which they have plenary power to make laws for the peace, order and good government of the States and to bind all persons within their respective territories. The argument denying the power of the States to affect Common-— wealth officers based upon some prohibition expressed or implied ie (1) (1908) 5 C.L.R. (5) (1915) A.C. 330. (2) (1918) 56 Can. . 176, (6) (1921) 2 A.C. 91. (3) (1908) 5 C.L.R., at p. 806. (7) (1924) A.C. 229, (4) (1908) 5 C.L.R. 818. (8) (1921) 2 A.C, at p. 117. SC.L.R.] OF AUSTRALIA. in the Constitution can no longer be sustained (Engineers' Case ' (1), adopting the view of the Judicial Committee in Webb v. Outrim : (2), Caron v. The King (3), and overruling such cases as Deakin vy. Webb (4), Baxter v. Commissioners of Tazation (5) and the Railway Servants' Case (6) ). So the immunity claimed in this case must rest upon some law enacted by the Parliament (Engineers' Case; D'Emden v. Pedder (7)) coupled with sec. 109 of the Constitution, which provides that "when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." How, then, is the Motor Car Act 1915, and particularly sec. 6 thereof, inconsistent with any law of the Commonwealth ? A soldier or a member of the Air Force does not cease to be a citizen : if he commits an offence against the ordinary criminal law, he can be tried and punished asif he werea civilian. The command of an officer cannot justify a breach of the law (Burdett v. Abbot (8) ; Australian Military Regulations 1916, reg. 488, and Air Force Regulations 1922, No. 160, reg. 3; Manual of Military Law (1924), issued by the War Office, pp. 17-18, 213-224 et seqq.). The Con- stitution, sec. 51, pl. vi, it is true, confers upon the Parliament of the Commonwealth the power to make laws for the peace, order and good government of the Commonweath with respect to the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the law of the Commonwealth; and the States cannot, without the consent of the Commonwealth, raise or maintain any naval or military force (sec. 114). And by force of sec. 52 of the Con- stitution the Parliament has exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to matters relating to the Department of Defence. Under the powers so conferred by the Constitution, the Defence Act 1903- 1918, the Air Force Act 1923 and various regulations, have been 'made—the regulations particularly material to the case being the heilg (1) (1920) 28 C.L.R. 129. (5) (1907) 4 C.L.R. 1087. (2) (1907) A.C, 81; 4 C.L.R. 356. (6) (1906) 4 C.L.R. 488. (3) (1924) A.C. 999, (7) (1904) 1 C.L.R. 91. (4) (1904) 1 C.L.R. 585. (8) (1812) 4 Taunt. 401. H.C. or A. 1925. Preis v McFariane. Starke J. H.C. or A. 1925. Preis b McFarrang. Starke J. HIGH COURT (1925. Australian Military Regulations (Statutory Rules 1916, No. 166) and the dir Force Regulations (Statutory Rules 1922, No. 160). An Air Force is organized under the Defence and Air Force Acts with — all necessary arms and equipment for training in peace and service in war. And its government, discipline, and military duty are — provided for on much the same lines as in Great Britain. These Acts restrict to some extent the civil rights and duties of soldiers, but nowhere do they exempt them from obedience to the civil law. If the Imperial Parliament had prescribed that no person should — drive a motor-car upon any public highway in Great Britain without _ being licensed for that purpose and declared that the law should apply to persons in the public service of the Crown as well as to other persons, the duty of soldiers to obey that law would be clear (see Motor Car Act 1903 (3 Edw. VIL. c. 36); ef. Cooper v. Hawkins (1)). This duty would be superimposed upon their military obligations and in no wise inconsistent with them. What difference does it make that in Australia the Constitution has distributed legislative power between the Commonwealth and the States? Unless there be some limitation upon the States, expressed or implied — in the Constitution, with respect to interference with persons who are Federal officers, then the case must be founded upon some inconsistency between the law of the State and the law of the Commonwealth. There is no express limitation in the Constitution, and the Engineers' Case (2) denies any such implied limitation. When a power exists in the States, then " they are entitled to the — same complete independence in its exercise as is the national govern- ment in wielding its own authority," subject only to the provisions of sec. 109 of the Constitution (cf. Cooley's Principles of Constitutional Law, 3rd ed., p. 35). The Motor Car Act, it is said, will paralyze the Defence Forces of the Commonwealth and impair the efficiency of their service: they cannot, in Victoria, be trained in peace nor used in war without the sanction of the State. Extravagant arguments such as this may well be considered when the State passes legislation caleulated to lead to such dangerous consequences (cf. Caron v. The King (3) ). All the State has done in this case is to regulate (1) (1904) 2 K.B. 164, (2) (1920) 28 C.L.R. 129. (3) (1924) A.C. 999. OF AUSTRALIA. 229 , 36 OLR] the use of motor-cars and to require all citizens to observe provisions H. ©. oF A. for the preservation of public safety and security. The Act is directed mass to acts of a purely local character, and its object is peculiarly within Prmrm the authority of the State. It is not aimed particularly at the qcrarvane. Defence Forces of the Commonwealth, nor is it in opposition to Starke J any express provision of the laws of the Commonwealth. A civil duty is, no doubt, established for all citizens using the public highways of Victoria, reasonable in itself and in no wise interfering with or infringing the military duties and obligations of the Defence Forces of the Commonwealth. Again, we were urged to consider the possible consequences of sec. 4 of the Act relating to the regis- tration of motor-cars. Must the Commonwealth, it was said, register all its motor vehicles required for defence purposes? It will be time enough to answer that question when it arises. It may be found that sec. 4 does not require either the Commonwealth or the State Governments to register any motor vehicle. But, however that may be, the Commonwealth has ample legislative power to maintain its Forces free from any inconvenient legislation of the States. The Magistrate, in my opinion, was wrong in his decision, and the defendant should have been convicted of the offence charged against him. The case is, I suppose, a test case, for the offence was trivial. A nominal penalty without costs will sufficiently maintain the law, and establish a principle evidently of some importance to the Commonwealth and State Governments. Order absolute. Respondent convicted of offence charged and fined one shilling. Solicitor for the appellant, Z. J. D. Guinness, Crown Solicitor for Victoria. Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth. B.L. ] : '