1

Comparative Public
Law
COURSE FACULTY
-
DR. DEEPAK SHARMA
 MODULE

CLASSIFICATION OF
CONSTITUTIONS

FEDERAL-UNITARY
PARLIAMENTARY-PRESIDENTIAL
 3
Module Outline

I. Unitary forms of Government- Meaning, Advantages and Disadvantages

II. Federal forms of Government- Meaning, Advantages and Disadvantages etc

III. Unitary v Federal form of Government-A comparison

IV. Patterns of Federalism: India, USA, Canada, Australia

V. Parliamentary and Presidential Forms of Government

 4

Unitary MEANING,
ADVANTAGES,
Government DISADVANTAGES.
 5
Meaning

 All powers are concentrated in the hands of the central government .

 The units are merely creation of the central government

 They exist as long as the central government allows them to exist

 “agents of the Centre for the purpose of local rule and autonomy”

 Before, GoI Act 1935, India was Unitary

 Present Examples- England and France

 6
Advantages

 Strength- no hindrance from the units

 No danger of units seceding from the center

 System of government is simple and economical- no duplication of officials, no

heavy expenditure on units

 National Unity- people owe loyalty to the center alone

 Better suited to deal with emergencies

 7
Disadvantages

 Centralization- little scope for local initiative

 Suitable only for small countries with homogeneous population, Unsuited for
country of vast extent, where there is a variety of local conditions and
diversity of standards and conceptions.

 Increased evils of bureaucracy

 Local interests ignored

 8

CONCEPTUAL
FRAMEWORK,
Federal DEFINITIONS,
Government MERITS & DEMERITS,
 9
Conceptual framework

 Federalism is derived from the Latin word ‘foedus’ which means agreement.
In fact federation is an agreement between two types of government sharing
power and controlling their respective spheres.

 Federation is a constitutional diffusion of power in which the activities of the

government are conducted in such a way so as to maintain their respective
integrities.

 In such a form of government, power is distributed between the Federation

(also called federal government, general government, national government.
Union or Centre) and the federating units (also known as States, Cantons or
regional governments), which has a constitutional sanction behind it.
 10
Definitions

K C Wheare Herman Finer

“The method of dividing powers so “The plan of government of a

that the general and regional number of contiguous territories
governments are each, within a in association neither in
sphere, coordinate and separation nor in one
independent.” compound.”
 11
…continued

“A great factory wherein two sets of

machinery are at work, their revolving
wheels apparently intermixed, their bands
crossing one another, yet each set doing its
own work without touching or hampering
the other.”
-James Bryce
 12
Therefore,

 A federation is a system of national and local governments, combined

under a common sovereignty with both the national as well as
federating units having autonomous spheres assigned to them by the
Constitution.

 Federalism is an amalgamation of two separate and yet inter-

connected desires; desire for union and desire for separate identity. It
is a desire for union and not for unity; it is not assimilation; it is a
desire for independence: it is for distinct existence.
 13
Merits

 Strength- Union is composed of many states- bound to be stronger in their collective capacity

 National unity harmonised with local autonomy

 Based on the system of decentralisation and division of powers- great efficiency in

administration. Central government not overburdened

 Lesser chances of despotism. Checks and Balances. Units don’t allow centre to be despotic &
vice-versa

 Greater economy- units generate their own taxes, reducing dependence on Centre. In cases of
merger of smaller units, pooling of resources

 Greater people’s participation

 14
Demerits

 No promptness of action

 Danger of secession of units from the federation

 Foreign affairs not conducted properly. ( Differing view)

 More expensive- More money to be spent on units, duplication of administrative

machinery
 15
Modes of creating a Federation

Federations are never born, they are always created

 The centripetal or integrative mode of
forming a federation (or as it is called
federation from below) is one when some
sovereign states agree to constitute a central
state above them, sacrificing, in the process,
their separate sovereignties.
 The centrifugal or disintegrative mode (or as it
is referred to federation from above), on the
other hand, is one when a large state creates a
number of states from out of itself and grants
them powers of lesser or regional importance
through the constitution.

  The Indian and the erstwhile Soviet federations

The American, Australian and the Swiss
 16
Factors that lead to formation of a
federation

 The need for common defence,

 The desire to be independent,
 Geographical contiguity
 The hope of economic advantage
 Desire to maintain separate identity- to keep their regional identities, as
demonstrated in their different religions, cultures, languages traditions, mode
and style of their living, intact.

Federations in the USA, Australia, Switzerland and Canada too emerged because
of the factors as enumerated above.
 17
Forms of distribution of power

I II III
• When the constitution • When the powers • When the powers of the
Centre are defined; there is
specifies powers of the of the Provinces are a Concurrent List in which
national government defined and the both the Centre and the
and gives the residuary powers States can legislate.
• However, the State's
residuary powers to are vested in the powers have not been
the federating units. Centre defined and the residuary
powers are vested with
•Eg- USA & Earstwhile them.
• Eg- The Canadian
USSR
Federation • Eg- Australia
 18
Types of federalism

1. ASYMMETRIC AND SYMMETRIC FEDERALISM

 Asymmetric federalism is found in a federation in which different constituent states

possess different powers. One or more of the states has considerably more
independence than the other sub states, though they have the same constitutional status.
The division of powers between sub states is not symmetric.

 In a symmetric federation, there is no distinction is made between constituent states

 Generally ‘Asymmetric federalism’ is preferred as a solution when one or two

constituent units or states feel significantly different needs from the others, as the result
of an ethnic, linguistic or cultural difference.

 The finest example of asymmetric federalism is the special provision in the

Constitution of India regarding the state of Maharashtra, Nagaland, Goa etc.
 19
..Continued

2. DUAL FEDERALISM
 Dual federalism, also known as layer-cake federalism or divided sovereignty, is a
political arrangement in which power is divided between the federal and state
governments in clearly defined terms, with state governments exercising those
powers accorded to them without interference from the federal government.

 Generally this is the concept of balancing the scales of power between a large,
sweeping government and a more local, centralized one.

 Eg- 1790s to 1930s USA

 20
..continued

3. COOPERATIVE FEDERALISM
 Cooperative federalism, also known as marble-cake federalism, is a concept
of federalism in which federal, state, and local governments interact cooperatively and
collectively to solve common problems, rather than making policies separately but more
or less equally or clashing over a policy in a system dominated by the national
government.

 It was popular in US all the way through the Great Depression, the Second World War, the
Cold War and up until the 1960s.

 Lines between the two governments’ powers are blurred within this approach.

 India is also an example

 Opposite of Competitive federalism

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..CONTINUED

4. COMPETETIVE FEDERALISM

 The competitive federalism involves the competition amongst the states and
also the Centre for the economic benefits within the economy.

 This concept became prominent post-1990s economic reforms. When India

opened its doors for globalization, there was the increasing competition
between the states for the limited resources. This resulted in the imbalance
and inequalities between the states.

 However, in recent times, competitive federalism has become an efficient

tool to enhance the economic development of the individual states.
 22
Confederation

 Confederations are voluntary associations of independent states that, to secure some

common purpose, agree to certain limitations on their freedom of action and establish
some joint machinery of consultation or deliberation.

 Historically, confederations have often proved to be a first or second step toward the
establishment of a national state, usually as a federal union.

 Eg- the federal union of modern Switzerland was preceded by a confederation of the
Swiss cantons

 Germany’s modern federal arrangements may be traced to the German Confederation

of the 19th century

 The federal constitution of the United States is the successor to the government of the
Articles of Confederation(1781-89)

Confederation and Federation
CONFEDERATION
 Held by the member states. In a
1.Sovereignty
Confederation, the federal
government is accountable to
the member states, who are the
ultimate authority.
 The central authority of a
confederation is usually a weak
2. Central
body appointed by the member
Authority states.
 The units have the right of
3. Right of secession
secession
23
FEDERATION
 Held by the federal government.
In a Federation, the federal
government will hold the
ultimate authority and the
member states will be
subordinate to it
 The central authority of a
federation is a federal
government which governs the
member states.
 No such right to the units.
 24
..continued

CONFEDERATION FEDERATION
 It fails to provide for an  It has a well established
4. Strength of the
effective executive authority executive authority at the
Central and lack viable central Centre
executive governments

5.Status of Units
 Equal  May or may not be

6.Apex Judiciary
 Decisions Not necessarily  Binding for the State and the
binding Centre
Eg ICJ
 25
..continued

CONFEDERATION FEDERATION
7.Subject matter  Governs the relation  Governs the citizens as well
between states, no
authority over citizens

  State represented in one of

It has single chamber
8.Legislature legislature at the centre the two houses at the Centre
where all the constituent
units are represented

9. Source  Gets power from its

 Gets power from treaty Constitution
 26
Basic Characteristics of a Federal Constitution

Division of Powers

Supremacy of the Constitution

Written and Rigid Constitution

Independent Judiciary

A Bicameral Legislature
 27
Division of Powers

 The division of powers between two levels of governments is an essential feature

of federalism.

 Federalism means the distribution of powers of the state between the central and
the state governments. The basis of such distribution of power is that in matters of
national importance, in which a uniform policy is desirable in the interest of the
units, authority is entrusted to the centre and matters of local concern remain with
the states.

 In a Federation there should be clear division of powers so that the units and the
centre are required to enact and legislate within their sphere of activity and none
violates its limits and tries to encroach upon the functions of others
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Supremacy of the Constitution

 A federal state derives its existence from the constitution. The constitution in a
federal state constitutes the supreme law of the land.

 As Prof. K. C. Wheare rightly says, “ these two institutions the supremacy of the
constitution and the written constitution are, then essential institutions to a
federal government.

 The Supremacy of the Constitution is essential if the government is to be

federal; the written constitution is essential if the federal government is to work
well.”

 In a federation, the constitution should be the supreme source of strength, both

for the centre as well as the federating units.
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Written and Rigid Constitution

 WRITTEN-A Federal constitution must almost be a written constitution. It will

be practically impossible to maintain the supremacy of the constitution and
division of powers between the centre and the states, unless the terms of the
constitution have been reduced into writing.

 RIGID- This feature is a corollary to the Supremacy of the Constitution.

Rigidity does not mean the unamendability of the Constitution, but simply
means the power of amending the Constitution, specially the regulating status
and powers of the Federal and the State governments, should not be confined
exclusively either to the Federal or to the State government.
 30
Authority of Court

 In a federal State the legal supremacy of the Constitution is essential to the

existence of the federal system. It is essential to maintain the division of powers
not only between the coordinate branches of the government, but also between
the Federal Government and the States themselves.

 This is secured by vesting in the Courts a final power to interpret the

Constitution and nullify any action on the part of the Federal and State
Governments or their different organs which violates the provisions of the
Constitution.
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Bicameral Legislature

 A bicameral system is considered essential in a federation

because it is in the Upper House alone that the units can be
given equal representation.
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Federal v Unitary
A COMPARATIVE
forms of ANALYSIS
government
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1. Checks

There is a concentration of power in Unitary Government, the Centre can do

whatever it pleases, there is absolutely no check on its authority

However,

In federal Government, the powers are divided between the federal government and
the units, and each is independent in its own affairs.
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2. Supremacy of the Constitution

In a federation, there is the supremacy of the Constitution. A federation is a

contractual union and its Constitution embodies all the terms on which the units
agree to join it and would like to continue in it.

However,

In a unitary government, the Centre can pass any law which it considers to be for
the good of the people. There is absolutely no limitation or restriction on its powers.
 35
3. Separate entity

In a federation, there is a strong desire on part of the units to maintain their separate
entity

However,

In a unitary government, the units merge themselves into the Central Government
and lose their separate entity.
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4. Suitability

The unitary government works successfully where the people are relatively
homogenous.

However,

A federal Government serves the needs of a country where the different parts have
varying interests that demand satisfaction.
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5. Need for written and rigid
Constitution

Every federal government must have a written Constitution and that must be a
rigid one.

However,

In a unitary government, no such thing is essential.

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1 INDIA
PATTERNS OF
2 USA
FEDERALISM 3 CANADA
4 AUSTRALIA
 39
PATTERN OF
FEDERALISM IN INDIA
 40
Federal nature of Indian Constitution- Matter of
controversy?

K.C.Wheare, a well-known British authority on federalism, says, “the

Constitution is quasi-federal,” and classifies India as “a unitary state with
subsidiary federal principles rather than a federal state with subsidiary unitary
principles.

Sir. Ivor. Jennings feels, that India is a federation, with a strong centralizing
tendency.

Norman D. Palmer, “The Republic of India is a federation, although it has many

distinctive features, which seem to modify the essentially federal nature of the
state.
 41
..continued

K.M.Munshi, the constitution made India “a quasi-federal union invested with

several important features of a unitary government.

P.B.Gajendragadkar, a former Chief Justice of India, opined that though the

Constitution “part takes of some of the characteristics of federal structure, it cannot
be said to be federal in the true sense of the term

W.H.Morris Jones, held the view that “Indian federalism was a kind of cooperative
federalism where bargaining took place between the centre and the states, but
ultimately a solution came out and both agreed to co-operate.
 42
..continued

Benjamin N. Schoenfeld, opines that, “there was a tendency of centralism in the

Indian Federalism, but that was not because of its structural framework but because
of its socialistic goals and centrally devised plan development

Prof. P.K.Tripathi, formerly member of the Law Commission of India, finds

“federalism in India a myth and not reality

Marcus Franda, remarks that in India, there is not one model of federalism but in
practice various models of federalism are in operation. The Centre has encouraged
different models of relations with the different states, and hence a varied mode of
federalism is perceivable
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Federal features of Indian
Constitution

1. Division of Powers-
In a Federation there should be clear division of powers so that the units and the
centre are required to enact and legislate within their sphere of activity and none
violates its limits and tries to encroach upon the functions of others.
 The Seventh schedule contains three legislative lists which enumerate subjects of
administration viz., Union, State and Concurrent lists.
 The union list consists of 97 subjects, the more important of which are defense,
railway, posts and telegraph, currency etc.
 The state list consists of 66 subjects, including public order, police,
administration of justice, public health, education, agriculture etc.
 The concurrent list embraced 47 subjects including criminal law, marriage,
divorce, trade unions, electricity etc. The residuary powers have been vested in
the central government.
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2. Supremacy of the Constitution

In a federation, the constitution should be the supreme source of
strength, both for the centre as well as the federating units.

 Accordingly, Indian constitution is also supreme and not the

hand maid of either the centre or of the states.

 If, for any reason, any organ of the state dares to violate any
provision of the constitution, the court of law is there to ensure
the dignity of the constitution, which is upheld at all costs.
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3. A Written and Rigid Constitution

 The Indian constitution is a written document containing 395 Articles and

10 Schedules, and therefore fulfills this basic requirement of a federal
government. In fact the Indian constitution is die most elaborate
constitution of the world.

 The Indian constitution is largely a rigid constitution. All the provisions of

the constitution concerning federal state relations can be amended only by
the joint actions of the state legislatures and the union parliament. Such
provisions can be amended only if the amendment is passed by a two-third
majority of the members present and by voting in the parliament, and is
ratified by at least one half of the states.
 46

4. Authority of Court
 The constitution has provided for a Supreme Court, and every
effort has been made to see that the judiciary in India is
independent and supreme.
 The Supreme Court of India can declare a law as
unconstitutional if it contravenes any provisions of the
constitution.
 In order to ensure the impartiality of the judiciary, our judges
are not removable by the executive and their salaries cannot be
curtailed by the Parliament.
 47

5. Bicameral Legislature

 Constitution of India provides for a bicameral legislature at the

Centre consisting of the Lok Sabha and the Rajya Sabha.

 While the Lok Sabha/ The House of people consists of the

elected representatives of people, the Rajya Sabha/Council of
States mainly consists of representatives elected by State
Legislative Assemblies.
 48
Unitary features of Indian
Constitution

1. Single Citizenship
 The makers of the Indian constitution have provided only a single citizenship. But
usually the federal constitutions provide dual citizenship, that is, national, and state
citizenships.
 Among the world federations, the United States and the Swiss Republic provide the dual
citizenship.
 Though the Indian constitution provides the concept of dual polity, in this case it has
departed from the federal principle
 49

2. A strong Centre
 In India, the centre is very strong. Though our constitution has adopted the federal principles, it has been
gradually heading towards a strong centralized constitution.

 Our constitution clearly demarcates the division of powers between the centre and the states. The distribution
of powers is presented in the eleventh part of the constitution. The three lists are embodied in the seventh
schedule of the constitution.
 The union list consists of 99 subjects. The state list covers 61 subjects and the concurrent list consists of 52
subjects. The residuary powers are with the centre.
 In America, Australia and Switzerland the constitution has specifically enumerated the powers of the federal
government.
 In all these federations, the residuary power rests with the states. Our constitution follows the Canadian model.
The centre and the state has powers to make the laws on the concurrent list, but if there is a conflict between the
two, then the central law will prevail over the state law.
 This shows that the centre is strong in India.
 50

3.Single Constitution

 The framers of the Indian constitution hammered out a single

constitution for the union and the states.
 Usually, under a federal system, the states have their own
constitution separate from that of the union.
 But unlike other federations of the world, the Indian states
have not been permitted to frame their own constitutions
 51

4. Centre can Change Name and Boundaries of States

 In a federation, the centre has no right whatever to change die
boundaries of the states.
 But in India the centre has a right to change the boundaries of
the state and to carve out one state out of the other.
 In the fifties, Andhra Pradesh was carved out of the then
Madras state.
 There is perhaps no state whose boundaries have not been
changed at one stage or another. The right of the centre to
change the boundaries of the states is said to be against the
federal set up.
 52

5. Single Unified Judiciary

 In India, there is a single unified judiciary. This system has
been working since 1950.
 The Supreme Court is the highest Court in India and it is at the
apex of the judiciary hierarchy. But the Indian constitution has
adopted a single integrated judicial system.
 In the United States of America there is a dual system of
Court. All the states in America have adopted their own
Independent Judicial System.
 In India, the Supreme Court exercises supervision and control
over the functioning of other courts including High Courts
 53

6. Unitary in Emergencies:
 The Indian constitution has given emergency powers to the
president. During the time of emergency, the central
government will become powerful. Even it makes the laws on
the state list also; the states will lose their voice.
 54

7. Flexibility of the Constitution- Procedure of Amendment

8. No Equality of State representation- RS membership varies from 1 to 31.US

Senate has 2 from every state

9. All India Services- IAS, IPS etc

10. Integrated Audit Machinery- CAG

11. Parliament’s authority over state list- Article 249, 250, 252, 253 etc
 55

12. Appointment of Governor

13. Integrated Election Machinery

14. Veto over State bills- Governor can reserve certain bills for assent for the
President and President can withhold assent in the 1 st as well as 2nd instance.
PATTERN OF FEDERALISM IN USA

 The American federal system as we know it today was not

planned.

 The structure of the American federal system has evolved

over a period of time as a result of the Supreme Court’s
interpretation of the provisions of the Constitution dealing
with federal and state power and the Court’s development
of constitutional policy with respect to the nature and
operation of the American federal system.
more perfect Union
 58
Sources of American Federalism

 The tenth amendment to the Constitution

 The fourteenth amendment
 The grant of unique powers of various levels of government
under the Constitution
 Numerous Supreme Court decisions
 59
The TENTH amendment
 60
Tenth Amendment and American
Federalism
 The Tenth Amendment embodies the fundamental principle governing the
constitutional division and distribution of political authority between the
national government and the states.

 According to this basic principle, the U.S. national government possesses all
those powers delegated to it by the national constitution and the states
possess all those powers which the U.S. Constitution neither delegates to the
national government nor prohibits the states from exercising.

 What the Tenth Amendment Makes Explicit. The Tenth Amendment

expressly states - i.e., makes explicit - what was implied, or implicit, in the
seven original articles of the U.S. Constitution: Under the Constitution, there
are two levels of government, each with its own sphere of authority and each
enjoying constitutional protection of its right to exist. All powers neither
delegated to the central government nor denied to the states remain within
 61
The Scheme of Power Distribution

FEDERAL SHARED STATE

Delegated Concurrent Reserved

Powers Powers Powers/

Enumerated Residual
Powers Powers
(Original.
Implied Inherent &
Powers Largely undefined

Inherent
Powers in
Foreign Affairs
 62
Delegated Powers - The Sphere of
National Authority

 The delegated powers are the powers granted to the national

government by the U.S. Constitution.

 The delegated powers are the powers of government which the

states gave up when they ratified the U.S. Constitution and which
were vested in the central government by the Constitution.

 There are two categories of powers delegated to Congress by the

U.S. Constitution:
i. The enumerated, or express, powers and
ii. The implied powers.
 63
Enumerated Powers - A Definition

 The enumerated powers, or express powers, of Congress are

those powers enumerated, listed or mentioned in the
Constitution as grants of authority to Congress. Particular
clauses in the Constitution explicitly delegate these powers to
Congress.

 The express grants, or delegations, of power to Congress are

contained in the following provisions of the U.S. Constitution:
i. Article I, Section 8, Clauses 1-18;
ii. Article IV, Section 3;
iii. Amendment 16;
iv. Enforcement Sections, Amendments 13, 14, 15, 19, 23, 24,
and 26.
 64
Implied Powers - Powers Implicit
in the Constitution

 The implied powers of Congress are those powers which

are not listed or mentioned in the Constitution, but are
deemed by Congress and the U.S. Courts to be reasonably
implied from the enumerated, or expressly delegated,
powers of Congress.
 65
Inherent Powers of the National
Government
 In a number of cases, the U.S. Supreme Court has ruled as follows:
“In the field of foreign affairs, or international relations, the national government
of the U.S.A. possesses inherent powers as well as delegated powers.”

 The inherent powers of the national government are powers that do not depend
on the constitutional delegations of power, neither delegation by enumeration nor
delegation by implication.

 The national government's inherent powers in foreign affairs inherits in the

national government as the sole spokesman and representative of a sovereign
state, the United States of America, in its dealings with other sovereign states in
the world.

 These powers grow out of the very existence of the U.S. central government as
the instrument of a sovereign nation-state.
 66
..continued

 America's national government, in its dealings with the

governments of other sovereign states in the world, has
the same powers that the governments of all sovereign
states have in the area of international relations.

 Examples of the inherent powers of the U.S. national

government include:
i. Authority to acquire by discovery and occupation
territory outside the existing boundaries of the U.S.A.
and
ii. Authority to make and enforce immigration laws
regulating, limiting, and prohibiting the entrance of
aliens into the U.S.A.
 67
The Sphere of State Authority

 The reserved powers, or residual powers, make up the

sphere of political authority allocated to the states by
the U.S. Constitution.

 The reserved powers of the states are the powers

which the Constitution neither delegates to the national
government nor denies to the states. The Constitution
reserves these powers to the states, or the people.

 The reserved Powers are original, general and largely

undefined
 68
Reserved Powers - Examples

 Examples of the reserved powers include state authority to:

i. Adopt and change state constitutions and organize state governments;

ii. Organize and establish local governments;

iii. Exercise the general police power - the power to protect the public health, public
safety. public morals, and public welfare within the borders of a state; (The general
police power of a state is the power to regulate the conduct of individuals within the
borders of that state in order to protect the health, safety, morals, and welfare of the
citizens of the state. In short, it is the power of the state to act in the public
interest within the state -power to regulate human conduct to safeguard and promote
the general welfare, or common good of the state.)
iv. Protect life and property and maintain order within a state, under ordinary conditions;

v. Set up tax-supported systems of public education, e.g., state-supported elementary

and secondary schools and state-supported colleges and universities.
 69
Concurrent Powers - The Sphere of Shared Authority

 Concurrent Powers - A Definition:

 The concurrent powers constitute the sphere of

authority shared by the states and the national
government under the U.S. Constitution.

 The concurrent powers can be exercised by the

central government and the states concurrently,
i.e., simultaneously (at the same time).
 70
Concurrent Powers - Examples

 Examples of the concurrent powers include authority to

i. lay and collect taxes,

ii. spend public funds in the public interest, i.e., spend the taxpayers' money to provide
for the general welfare, or common good,

iii. borrow money on the public credit,

iv. charter banks and other corporations,

v. make and enforce laws,

vi. Establish courts,

vii. exercise the power of eminent domain, i.e., the right to take private property for
public purposes, and

viii. Regulate intrastate commerce, i.e., regulate trade and other economic activities
carried on within the borders of a state.
 71
NECESSARY & PROPER CLAUSE: THE
CONSTITUTIONAL BASIS OF THE IMPLIED POWERS

 The Necessary and Proper Clause, or Elastic Clause, is Article I,

Section 8, Clause 18, of the U.S. Constitution.
 The clause provides as follows:

"The Congress shall have power ... to make all laws which shall be
necessary and proper for carrying into execution the foregoing
[17 express, or enumerated] powers, and all other powers
vested by this Constitution in the government of the United
States, or in any department [branch] or officer thereof."
 72
Necessary and Proper Clause - The
Literal Meaning

 Article I, Section 8, Clause 18 - the Necessary

and Proper Clause - delegates to Congress
authority to make any laws necessary and proper
for:
i. exercising its own enumerated powers and
ii. putting into effect the constitutional powers of
the other branches or organs of the national
government.
 73
Necessary and Proper Clause -
Significance
 The Necessary and Proper Clause is the constitutional basis of
the implied powers of Congress.

 The implied powers of Congress derive from the broad

construction - the very loose and generous interpretation - the
U.S. Supreme Court has given to the authority of Congress under
the Necessary and Proper Clause.

 The Necessary and Proper Clause is called the "Elastic Clause"

because it has been interpreted, or construed, in such manner as
to allow the authority of Congress to be stretched far beyond the
enumerated, or express, grants of power by the Constitution.
 74
NATIONAL SUPREMACY
CLAUSE

 The National Supremacy Clause is Article VI,

Paragraph 2, of the U.S. Constitution:

"This Constitution, and the laws of the United

States which shall be made in pursuance thereof;
and all treaties made, or which shall be made,
under the authority of the United States, shall be
the supreme law of the land; and the judges in
every state shall be bound thereby, anything the
constitution or laws of any state to the contrary
notwithstanding.”
 75
What the Clause Does

 Firstly, the clause defines the content of the supreme law of the land in the
U.S.A. - the law which is superior to and takes precedence over all other laws and
public policies in the country. The supreme law of the land is defined to include:
i. The provisions of the U.S. Constitution;

ii. All national laws made in pursuance of the U.S. Constitution, i.e., all congressional
statutes and federal court decisions that are in harmony with the provisions of the
U.S. Constitution;

iii. All treaties made under the authority of the United States, i.e., all treaties made
in accordance with the procedure of treaty making prescribed by the U.S.
Constitution.

 Secondly, the National Supremacy Clause requires that all state judges (as well as
federal judges) be bound by the supreme law of the land, regardless of any
contrary provisions in state constitutions or state statutes. Thus, any legitimate
exercise of national authority under the U.S. Constitution supersedes any conflicting
state decisions or actions.
 76
THE DECISION IN MCCULLOCH V.
MARYLAND (1819)

FACTS
 In 1816, Congress chartered The Second Bank of the United
States in the state of Maryland.

 In 1818, the state of Maryland passed legislation to impose taxes

on the bank.

 James W. McCulloch, the cashier of the Baltimore branch of the

bank, refused to pay the tax.

 The state appeals court held that the Second Bank was
unconstitutional because it was without any specific constitutional
authorization for the federal government to create a bank.
 77
Questions involved

Does Congress, under the U.S. Constitution, have the power to incorporate a
bank, even though this power is not listed, or enumerated, in the Constitution as
one of the expressly delegated powers of Congress?

Can the State of Maryland, without violating the U.S. Constitution, tax the bank
notes issued by the Baltimore Branch of the Bank of the United States, a bank
which was created by an act of Congress and designed to function as the central
bank for the entire country?

In other words,
Can a state legally tax an instrumentality of the national government?
 78
Supreme Court’s answer to
question no. i

Held:

 Yes, Congress does have the power, under the

U.S. Constitution, to incorporate a bank. It is not
necessary for the Constitution expressly to
authorize Congress to create a bank.

 Rather, the power can be reasonably implied from

some of the expressly delegated powers of
Congress.
 79

Reasoning:

 The authority to establish a bank is not among the enumerated, or express, powers of
Congress. However, Congress possesses implied powers as well as the expressly
delegated powers.

 A major source from which the implied powers of Congress can be drawn is Article I,
Section 8, Clause 18 - the Necessary and Proper Clause, or Elastic Clause.

 This clause grants to Congress the power to make any laws necessary and proper for
exercising its enumerated powers. "Necessary and proper" means "appropriate," not
"absolutely necessary," "essential," or "indispensable."

 Congress may legally utilize any means that are appropriate to the exercise of its
enumerated powers.

 In short, Congress may legally exercise not only every power expressly delegated to it
by the U.S. Constitution, but also every power which can be reasonably implied from
 80
Supreme Court’s answer to
question no. ii
Held

 No, Maryland cannot legally tax an instrumentality of the national

government.

 Congress has full authority, under the U.S. Constitution, to establish

such an entity as the Bank of the United States.

 Therefore, Maryland's tax on the bank notes issued by the Baltimore

Branch of the Bank of the United States is an encroachment on and
challenge to the supremacy of national law and is therefore a
violation of Article VI, paragraph 2, of the U.S. Constitution.

 The Maryland tax on the central bank's notes

is unconstitutional and null and void (of no force and effect).
 81

Reasoning
 The national government is supreme in the exercise of the powers assigned to
it by the U.S. Constitution. The national government and its agencies and
instrumentalities must be free from nullification and destruction by the states.
Since the power to tax is the power to negate and destroy, the states cannot
legally tax any agency or instrumentality of the national government.

 “The states have no power, by taxation or otherwise, to retard,

impede, burden, or in any manner control the operation of the
constitutional laws enacted by Congress to carry into execution the
powers vested in the general [national, or central] government.”

 In other words, the states do not have any right to interfere in the
constitutional functions or operations of the national government. State laws,
policies, actions, agencies, or instrumentalities cannot legally be used to
impede, hinder, thwart, or nullify exercise by the national government of its
 82

 The legitimate exercise of national power supersedes any

conflicting state policy or action.

 If there is a conflict between a state law and a national law

which Congress possesses constitutional authority to enact, then
it is the state law that must give way to the supreme law of the
land (supreme law which includes any and all statutes enacted
by Congress in the exercise of the powers delegated to it by the
U.S. Constitution).
 83
The Constitutional Test
propounded

"Let the end be legitimate, let it be within

the scope of the Constitution, and all
means which are appropriate, which are
plainly adapted to that end, which are
not prohibited, but consist with [are
consistent with] the letter and spirit of
the Constitution, are constitutional."
 84
Result of the decision

 The Doctrine of Implied Powers.

This judicial doctrine, or rule of law, has developed for the U.S.
national government an vast source of constitutional authority.
Under the doctrine, the powers of Congress have been
enlarged and extended far beyond the enumerated powers.

 The Doctrine of National Supremacy.

This rule of law denies to the states any authority to interfere
in the constitutional activities and functions of the central
government.
 85
Long term significance of the two
doctrines
 The two rules of law have enabled the U.S national government to
deal with the problems of American society as it has evolved over
more than two centuries, changing from the small, primarily agrarian
frontier nation that America was in the late eighteenth and early
nineteenth centuries to the highly complex modern industrial and
commercial society and principal major world power that the U.S.A.
now is.

 If the Supreme Court, in McCulloch v Maryland, had decided the

case in favor of the State of Maryland, had applied a narrow
construction to the constitutional grants of congressional power and
had adhered to this precedent in subsequent cases, the U.S. central
government would have been so weak and impotent that it would
have lacked the ability to cope with the problems of a growing nation
and changing society operating in a tense and troubled international
environment which, over the past two centuries, has become
increasingly complex, volatile, and dangerous.
 86
Similar decisions that followed

I. Gibbons v. Ogden, (1824), was a landmark decision in

which the Supreme Court of USA held that the power to
regulate interstate commerce, granted to Congress by
the Commerce Clause of the US Constitution, encompassed
the power to regulate navigation.

II. U. S. vs Gettysburg Elec. Ry. Co. (1896) considered

whether Congress had the power to condemn a railroad's
land in what was to be Gettysburg National Military Park.
Writing for the Court, Justice Peckham found that the power
to condemn the railroad's land was implied by the powers of
Congress to declare war and equip armies because creation
of the park "tends to quicken and strengthen" the motives
of the citizen to defend "the institutions of his country."
 87

III. U. S. v Comstock 2010

 The Court upheld a federal law that authorized the continuing
detainment, under a civil commitment program, of potentially
dangerous sexual offenders who had completed their prison terms.

 The Court found the law "reasonably adapted" to a "legitimate" and

constitutional end of government, and therefore to be constitutionally
supported by the Necessary and Proper Clause.

 Writing for the Court, Justice Breyer said the fact that the law was
several steps removed from any of the enumerated powers of Article I
was not fatal. Justices Thomas and Scalia dissented, arguing that the
law "executes no enumerated power," and was therefore
unconstitutional.
 88
FEDERAL CONSTITUTIONAL LIMITATIONS ON
STATE AUTHORITY

1. Article I, Section 10, Limitations on State Power:

a. Absolute Prohibitions:

Article I, Section 10, of the U.S. Constitution prohibits the states from
i. entering into treaties, alliances, or confederations with foreign nations,
ii. coining money,
iii. emitting bills of credit, i.e., issuing paper money,
iv. making something other than gold or silver tender in payment of
debts,
v. passing a bill of attainder,
vi. passing an ex post facto law,
vii. passing a law impairing the obligation of contracts, and
viii. granting titles of nobility.
 89

b. Conditional Prohibitions:

Article I, Section 10, prohibits the states from taking certain

actions without the consent of Congress. These conditional
prohibitions apply to such actions as:
i. taxing imports or exports,
ii. entering into an agreement or compact with another state or
with a foreign government,
iii. levying any duty of tonnage, i.e., a duty on ships at so much
per ton of cargo,
iv. keeping troops or ships of war in time of peace and
v. engaging in war, unless actually invaded or in such imminent
danger as will not admit of delay.
 90
Additional Federal Constitutional Limitations on
State Power

a. Fourteenth Amendment Prohibitions:

Amendment 14, Section 1, contains three clauses which limit
state authority:

i. The Privileges and Immunities Clause: Prohibits any state from

making or enforcing a law which abridges the basic rights and
liberties ("privileges and immunities") of citizens of the United
States.

ii. The Due Process Clause:- Prohibits any state from depriving a
person of life, liberty, or property without due process of law.

iii. Equal Protection Clause: Prohibits any state from denying a

person within its jurisdiction the equal protection of the laws.
 91

b. Fifteenth Amendment Prohibition:- The Fifteenth Amendment

prohibits the states from denying or abridging the right of
citizens to vote on account of race or color.

c. Nineteenth Amendment Prohibition:

Under the Nineteenth Amendment, the states are prohibited from
denying or abridging the right of citizens to vote on account of
sex (gender).
 92

d. Twenty-fourth Amendment Prohibition:

By the terms of the Twenty-fourth Amendment, the states are
prohibited from denying or abridging the right of citizens to vote
in federal elections by reason of failure to pay any poll tax or
other tax

e. Twenty-sixth Amendment Prohibition:

The Twenty-sixth Amendment prohibits the states from denying
or abridging the right of citizens eighteen years of age or older
to vote on account of age.
FEDERALISM IN CANADA
 94
The Constitution of Canada

Constitution Creates federal

system of
Act 1867 Government

Constitution Protection of basic

Act 1982 rights
 95
Federal System of government

 Created by the Original Constitution

 BRITISH NORTH AMERICA ACT 1867

 An Act of Imperial Parliament

 Renamed in 1982 as – THE CONSTITUTION ACT

1867 ( as an Act of parliament of Canada)
 96
Division of Powers

 Canadian federalism has two constitutionally recognized levels of

government:
1. federal and
2. provincial.

 The country also has two further forms of government,

1. territorial and
2. local,
which are not constitutionally recognized.
 97
Legislative distribution of powers

 Section 17- Parliament of Canada

 One Parliament for Canada comprising:
i. Queen (Head of the State)
ii. Senate (The Upper House)
iii. House of Commons (The Lower House)

 State Legislative Assemblies-

i. Province of Ontario with single house (Sec 69)
ii. Province of Quebec with two houses (Sec 71)
iii. Each for Provinces of Nova Scotia and New Brunswick (Section 88)
 98
Federal Level of Government

 The first constitutionally recognized level of government is the federal or

national government. This level is responsible for enacting and
implementing laws for the whole country. In doing so, the federal
government is provided with its own constitutional powers and jurisdictions,
which it may exercise independently from the provincial level
of government.

 The head of state for the federal government is the Monarchy; however,
his/her role is primarily ceremonial under Canada’s contemporary system of
government
 99

 The bulk of federal power lies with the federal head of government and his/her executive
council, which are officially referred to as the Prime Minister and the Cabinet as well as the
elected legislative chamber, the House of Commons.

 The second federal legislature, the Senate, is an appointed body and exercises considerably
less power relative to the elected House of Commons.

 Another key federal institution is the federal judiciary. This includes the Supreme Court of
Canada which is appointed by the federal government and is the highest court in the country.

 Other important federal-level courts include the Federal Court of Appeal, the Federal Court ,
the The Court of Canada, etc.

 Another important federal institution is the national public service. This includes all of the
federal government departments and agencies, which are responsible for helping the federal
 100
Section 91: Powers of Parliament

Federal  91. It shall be lawful for the Queen, by and with the Advice and
Parliament Consent of the Senate and House of Commons, to make Laws for
the Peace, Order, and good Government of Canada, in relation to
all Matters not coming within the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces; and for
Federal greater Certainty, but not so as to restrict the Generality of the
residual foregoing Terms of this Section, it is hereby declared that
power (notwithstanding anything in this Act) the exclusive Legislative
Authority of the Parliament of Canada extends to all Matters
coming within the Classes of Subjects next hereinafter
enumerated; that is to say,
List of Federal
Powers
 101
Enumerated powers

 30 subjects – Section 91
 Examples-
 Ferries between a Province and any British or Foreign Country or between
Two Provinces.
 Currency and Coinage.
 Banking, Incorporation of Banks, and the Issue of Paper Money.
 Weights and Measures.
 Bills of Exchange and Promissory Notes.
 Including last entry 29- Such Classes of Subjects as are expressly excepted
in the Enumeration of the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces.
 102
Section 92, 92A & 93 - Exclusive Powers of Provincial
Legislatures

 Section 92- 15 enumerated subjects – exclusive power of provincial

legislatures
 Examples- The Incorporation of Companies with Provincial Objects, The
Solemnization of Marriage in the Province, Property and Civil Rights in the
Province etc.

 Section 92A- Laws respecting non-renewable natural resources, forestry

resources and electrical energy

 Section 93- Legislation respecting Education

 103
Concurrent powers

 Section 95 of the Act provided for two concurrent powers in

i. agriculture and
ii. immigration.

 The term “concurrent powers” here means that both levels of governments
are constitutionally permitted to legislate in these areas. In other words, it is
a shared area of jurisdiction in which the federal government and provinces
may both enact laws.
 104
The Supremacy Clause

 In the 1982 Act

 Section 52.(1)

 The Constitution of Canada is the supreme law of Canada, and

any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force
or effect.
 105
Procedure for Amending the Constitution of Canada

 1982 Constitution
 Section 38. (1) An amendment to the Constitution of Canada
may be made by proclamation issued by the Governor General
under the Great Seal of Canada where so authorized by
a. resolutions of the Senate and House of Commons; and
b. resolutions of the legislative assemblies of at least two-thirds
of the provinces that have, in the aggregate, according to the
then latest general census, at least fifty per cent of the
population of all the provinces.
 106
Judiciary and division of Powers

 Doctrine of Federal paramountcy

 Where there is an inconsistency between validly enacted but overlapping
provincial and federal legislation, the provincial legislation is inoperative to the
extent of the inconsistency.

 Claims in paramountcy may arise from two different forms of conflict:

i. Operational conflict between federal and provincial laws, such that dual
compliance is impossible.
ii. Where dual compliance is possible, but the provincial law is incompatible with
the purpose of federal legislation, thus frustrating a federal purpose.
 107

 Law Society of British Columbia v Mangat 2001

Court found an operational conflict between the provincial Law Society
Act prohibiting non-lawyers from appearing in front of a judge and the
federal Immigration Act which allowed non-lawyers to appear before the
immigration tribunal.

 Multiple Access v McCutcheon

In this case, both the provincial and federal governments had enacted virtually
identical Insider Trading legislation. The Court found that statutory duplication
does not invoke paramountcy as the court had the discretion to prevent double
penalties. Instead, paramountcy can only be invoked when the compliance with
one means the breach of the other.
FEDERALISM IN AUSTRALIA
 109

 Federalism was adopted, as a constitutional principle,

in Australia on 1 January 1901 – the date upon which the six
self-governing Australian Colonies of New South Wales,
Queensland, South Australia, Western Australia, Tasmania and
Victoria federated, formally constituting the Commonwealth of
Australia.

 The Australian colonies conducted a series of constitutional

conventions through the 1890s. These culminated in a draft
Constitution that was put to referendum in the individual
colonies, and eventually approved by the electors. It was then
passed into law by the Imperial Parliament in Britain.
 110

 It remains a federation of those six "original States"

under the Commonwealth of Australia
Constitution Act.

 Upon Federation, each of the colonies became States

and gave up certain powers and rights to the new
federal Government, and at the same time retained
their individual identities and substantial legislative
authority

 Nomenclature- Centre- Commonwealth of Australia;

States- states
 112
Distribution of Legislative powers

1. Exclusive powers of
4 Commonwealth

2. Concurrent Powers

1 2 3
444 3. Exclusive powers of
the States

4. Denied Powers
 113
1. Exclusive Powers of the
Commonwealth

Section 52

Section 90

Section 114

Section 115
 114
Section 52- Exclusive powers of the Parliament

 The Parliament shall, subject to this Constitution, have

exclusive power to make laws for the peace, order, and good
government of the Commonwealth with respect to:

i. the seat of government of the Commonwealth, and all

places acquired by the Commonwealth for public purposes;

ii. matters relating to any department of the public service

the control of which is by this Constitution transferred to
the Executive Government of the Commonwealth;

iii. other matters declared by this Constitution to be within

the exclusive power of the Parliament.
 115
Other Exclusive powers-Sections
90, 114 & 115
 Section 90- Exclusive power over customs, excise, and
bounties
On the imposition of uniform duties of customs the power of the
Parliament to impose duties of customs and of excise, and to grant
bounties on the production or export of goods, shall become
exclusive.

On the imposition of uniform duties of customs all laws of the

several States imposing duties of customs or of excise, or offering
bounties on the production or export of goods, shall cease to have
effect, but any grant of or agreement for any such bounty lawfully
made by or under the authority of the Government of any State
shall be taken to be good if made before 13/06/1898, and not
otherwise.
 116

 Section 114- States may not raise forces. Taxation of

property of Commonwealth or State
A State shall not, without the consent of the Parliament of the
Commonwealth, raise or maintain any naval or military force, or
impose any tax on property of any kind belonging to the
Commonwealth, nor shall the Commonwealth impose any tax on
property of any kind belonging to a State.

 115. States not to coin money

A State shall not coin money, nor make anything but gold and
silver coin a legal tender in payment of debts.
 117
2.Concurrent Powers- Section 51

 The Parliament shall, subject to this Constitution, have power to make laws for
the peace, order, and good government of the Commonwealth with respect to:
i. trade and commerce with other countries, and among the States;
ii. taxation; but so as not to discriminate between States or parts of States;
iii. bounties on the production or export of goods, but so that such bounties
shall be uniform throughout the Commonwealth;
iv. borrowing money on the public credit of the Commonwealth;
v. postal, telegraphic, telephonic, and other like services;
vi. the naval and military defence of the Commonwealth and of the several
States, and the control of the forces to execute and maintain the laws of the
Commonwealth;
vii. .
viii. .
ix. .
xxxix
 118

xxxiii. the acquisition, with the consent of a State, of any railways of the State on terms arranged
between the Commonwealth and the State;

xxxiv. railway construction and extension in any State with the consent of that State;

xxxv. conciliation and arbitration for the prevention and settlement of industrial disputes extending
beyond the limits of any one State;

xxxvii. matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of
any State or States, but so that the law shall extend only to States by whose Parliaments the
matter is referred, or which afterwards adopt the law;

xxxviii. the exercise within the Commonwealth, at the request or with the concurrence of the
Parliaments of all the States directly concerned, of any power which can at the establishment of
this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal
Council of Australia;
 119

 Entry xxxix- matters incidental to the execution

of any power vested by this Constitution in the
Parliament or in either House thereof, or in the
Government of the Commonwealth, or in the
Federal Judicature, or in any department or officer
of the Commonwealth.
 120
3. Powers of the States

106. Saving of Constitutions

 The Constitution of each State of the Commonwealth shall, subject
to this Constitution, continue as at the establishment of the
Commonwealth, or as at the admission or establishment of the
State, as the case may be, until altered in accordance with the
Constitution of the State.

107. Saving of power of State Parliaments

 Every power of the Parliament of a Colony which has become or
becomes a State, shall, unless it is by this Constitution exclusively
vested in the Parliament of the Commonwealth or withdrawn from
the Parliament of the State, continue as at the establishment of the
Commonwealth, or as at the admission or establishment of the
State, as the case may be.
 121

 Unlike the Commonwealth parliament whose legislative

power is limited to making “laws for the peace, order and
good government of the Commonwealth”, the State
legislatures have general and broader legislative power with
their constitutions providing for their power to make laws
relating to “peace, welfare and good government of the
State.” These legislative powers were retained under Sections
106 and 107 of the Constitution.
 122

Hence, the Commonwealth parliament has no power over such

subject matters as:
 Education
 Welfare
 Health
 Environment
 Mining
 Forestry
 Local government
 Farming
 Agriculture, etc.
 123
4. Denied powers

 Some Powers are denied to both, the Commonwealth

parliament and State Parliaments.
 Examples:
 Prohibition against impairing state trade, commerce and
intercourse (Section 92)

 Prohibition against impairing the implied freedom of political

communication (Australian Capital Television v Commonwealth
1992)

 Prohibition against impairing the institutional integrity of State

courts (Kable v Director of public prosecutions 1996)
 124
Inconsistency of laws- Section 109

 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.
 125
ENGINEER’s Case

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd

High Court of Australia- 31 August 1920.

 126
Background

1. Implied intergovernmental immunities

 In D’Emden v Pedder (1904) and

 Federated Amalgamated Government Railway and Tramway
Service Association v New South Wales traffic employees
Association (1906)

 In considering the respective powers of the Commonwealth and of the

States it is essential to bear in mind that each is, within the ambit of its
authority, a sovereign State, subject only to the restrictions imposed by
the Imperial connection and to the provisions of the Constitution, either
expressed or necessarily implied... a right of sovereignty subject to
extrinsic control is a contradiction in terms.[12]
 127

2. Doctrine of Reserved powers

 The reserved powers doctrine was a principle used in the

interpretation of the Constitution that emphasised the context
of the Constitution, drawing on principles of federalism, what
the court saw as the compact between the newly formed
Commonwealth and the former colonies, particularly the
compromises that informed the text of the constitution.

 The doctrine involved a restrictive approach to the

interpretation of the specific powers of the Federal Parliament to
preserve the powers that were intended to be left to the states.
 128
FACTS:

 A union of engineers commenced a claim in the Commonwealth

Court of Conciliation and Arbitration against Adelaide Steamship
Co Ltd for an award relating to 844 employers across Australia.

 The employers included three State governmental employers of

the State of Western Australia,

 The issue was whether a Commonwealth law made under

section 51(xxxv) of the Constitution, the “conciliation and
arbitration” power regarding industrial disputes, could authorise
the making of an award binding the three State employers.
 129
Held

 The High Court majority, led by Isaacs J, held that the Commonwealth could bind
the State governmental employers under the “conciliation and arbitration” power
in respect to industrial disputes.

 The laws of the Commonwealth and the States have full operation within the
subjects upon which they have power to legislate, subject to section 109 in the
event of inconsistency.

 Commonwealth laws could bind the States and State laws could bind the
Commonwealth.

 The Court rejected using American precedents of constitutional interpretation.

Rather, the Court adopted the settled rules of construction that gave primacy to
the text of the Constitution and anchored its interpretation to its express words
and meaning.

 This changed the course of constitutional interpretation and the views of

Australian federalism – the primacy of the Commonwealth over the States had
 130

Significance

 Sanctioned the expansion of Commonwealth legislative

powers for as long as it is ‘within the general scope of the
affirmative words which give the power, and if it violates no
express condition or restriction by which that power is limited’

 States, and persons, natural or artificial representing States,

when parties to industrial disputes in fact, are subject to
Commonwealth legislation under Sec 51 (xxxv) of the
Constitution, if such legislation, on its true construction,
applies to them.
.
 131
Consequences

 The Engineer’s expansive doctrine has been used

to:
 Allow the Commonwealth to regulate waterside
employment under the power of the
Commonwealth to legislate with respect to trade
and commerce with other countries [S 51(i)]
[Huddart Parker Ltd v Commonwealth 1931]
 Promote conservation goals [Murphyores Inc v
Commonwealth 1976]
 Regulate intrastate trade [Strickland v rocla
Concrete Pipes Ltd 1971] etc
 132

Bank of New South Wales v Commonwealth

1948

Latham CJ stated:
‘ if all laws passed by the Commonwealth parliament
imposing taxes of any kind were held to be valid,
then the taxation power alone would enable the
Commonwealth to pass laws upon any subject
whatever by imposing a tax upon specified acts
and omissions.’