The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-08-07
The judicial and Executive Features
of the Australian Constitution.

Inc judicial ana Executive Features
of the Australian Constitution.
We lately pointed out that the Australian
Federal Constitution. which, having been
adopted by South Australia Now South
Wales, Victoria, and Tasmania, will become
operative in four colonies, as soon as it Is
embodied in an Act OF the British Par
lament, has omitted to provide GER
tain safeguards for State rights which
are furnished In our own Federal or
ganic law. Tho shortcomings to which
We referred were, first, the neglect
to make the equal representation OF the
States in the Senate immutable, and, sec
ondly, the failure to invest the Senate
with powers truly and permanently equal
to those OF the House OF Representa-
tives. The powers OF tho Australian Sem
ate will not be equal, since 1t will be
able only to delay, and not to prevent,
the enactment OF law. II the House Of
Representatives. shall twice pass a bill to
which the Senate declines to agree, thc Par
lament may be dissolved. and if, after the
dissolution. no agreement shall be reached,
the bill may be passed by majority OF the
two houses in joint session. 1t Is obvious
Senate. instead Of resembling the Senate of
the United States, will he what the English
Radicals desire to make the House Of
Lords that Is to say. n body possessed OF
only n suspensory veto, moro brake upon
the wheels Of Legislation.
II Is not on these grounds nlone that the
Australian Constitution should he scanned
with misgiving by those Australians who
desire to conserve the rights OF the smaller
constituent States. and who have wished
the new Commonwealth to emhodv the
principle not ~ unitlration hut Of f"dern-
ton, A unifying tendency. which is likely
to- prove Irresistible, may hc detected in
the provisions relating to tho Federal Judi
ciary and to the Federal Executive. The
trainers of the judiciary clauses OF the
Australian Federal Constitution seem TO
have aimed to steer n mddl" course be-
tween the prccedents supplied by the Do
minlon OF Canada on the one hand and by
the United Stat"s upon the other.
In the Dominion, the Judges, not only Of
the Supreme Court at Ottawa, hut also the
Judges Of the superior courts in all the
provinces, arc appointed by the general
Government, the only restriction being
that in the case OF Quebec tho Judges
must he selected from the bar OF that
province Tho Supreme Court at ottawa
is tho final court OF appeal from all
tho courts OF law in the various PROV
inccs. That Ia to say, In the Dominion
there Is no distinction between State and
Federal courts; all the courts arc Federal.
We scarcely need to point out thnt, In
the United States, the two kinds Of tri-
bunnls are sharply Disseminated. An ap-
peal lies from the decisions Of our State
courts to the United States Supreme Court
only when the Interpretation OF our Fed
eral Constitution or OF our Federal laws,
or Of treaties Ia involved.
Now, the Australian Constitution does
not attempt to abolish the local judicial
system OF the several colonies. 1t creates,
however, n High Court OF Australia, con-
ssting 0f n Chief Justice and not loss
than two Judges. This tribunal is to have
original jurisdiction in few designated
matters Of Federal concern. Had the au-
thorS ~ the Australian Constitution
stopped there, simply adding right Of
appeal from the State courts in cases in
volv.nE the Interpretation OF the Federal
organic law or of Federal statutes, they
! would have, practically, reproduced thH
Federal Judiciary system OF the United
| States, Thi, they did not do however; on
! tn" contrary, they have made the High
| Court OF Australia court OF appeal in all
cases from the supreme courts ot the
several colonies. 1t is evident that il,
! in tn" tim" Of JOHN MARSHALL, our United
States supreme Court had possessed the
! power OF reviewing and annulling tho tie
| cisi"ns of state courts in ali cases, the
| Union would have been transformed long
! ago from Federal into unified republic.
| Not even tn" buiwnrhs, which perhaps
| might hayo been inccs-antiy erected by
| Federal Legislation. would hnvo nvaicd to
withstand the centraliaiuG momentum do
rived from the tremendous powers that
| would have been exercised in the cnso sup
| posed by our Federal judiciary
Under tho Australian Constitution, tho
unifying tendency impattod by the powers
intrustcd to the Federal Judiciary will en-
| counter no seriOIs obstruction from the
Federal Legislature. Tho tendency TO ccn-
! tralization is no less deeply mbcdded in
| the Parliament itsolf and in its relation TO
| the Executive. We mentioned on n previous
occasion that zach OF tho constituent States
Ia to have six Senators as to tho House
Of Representatives wherein representa-
ton is proport'oaed to population, tho
members will DO distributed as fol-