Australian Widows' Fund Life Assurance Society Limited v National Mutual Life Association of Australasia Limited [1914] UKPCHCA 2

17 C.L.R.]} OF AUSTRALIA.

Commonwealth Parliament, has been actually exercised, and until it has been it cannot be prayed in aid. No doubt the Act of 1900 contains large powers of moulding the Constitution. Those who framed it intended to give Australia the largest capacity of dealing with her own affairs, and the Imperial Statute enables her to act without coming to the mother Parliament. But the people of Australia have elected to put into the Act restrictions on change of another kind. Their Lordships are called on to interpret the legislative compact made between the Common- wealth and the States, and they have to determine on the language of the Statute what rights of legislation the federating Colonies declared to be reserved to themselves. It is clear that any change in the existing distribution of powers has been safe- guarded in such a fashion that on a point such as that before the Board the Commonwealth Parliament could not legislate so as to alter that distribution mere)y of its own motion.

Nor, in their Lordships' opinion, is the question carried further by sub-head xxxix., which declares to be within the legislative capacity of the central Parliament matters incidental to the execution of any power vested by this Constitution in the Parlia- ment, or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any depart- ment or officer of the Commonwealth. These words do not seem to them to do more than cover matters which are incidents in the exercise of some actually existing power, conferred by Statute or by the common law. The authority over the individual sought to be established by the Royal Commissions Acts, the new offences which they create, and the drastic powers which they confer, cannot, in their Lordships' opinion, be said to be incidental to any power at present existing by Statute or at common law. A Royal Commission has not, by the laws of England, any title to compel answers from witnesses, and such a title is therefore not incidental to the execution of its powers under the common law. And until the Commonwealth Parliament has entrusted a Royal Commission with the statutory duty to inquire into a specific subject legislation as to which has been by the Federal Constitution of Australia assigned to the Commonwealth Parlia- ment, that Parliament cannot confer such powers as the Acts in