CLAUSE 128.—(Duty of a Ruler of a State as respects Federal subjects.) (Hansard, 27 May 1935)

§ The ATTORNEY-GENERAL
I beg to move, in page 79, line 13, at the end, to insert: by virtue of a law of the Federal Legislature which applies therein. The House may remember that we inserted in Clause 8 a new Sub-section providing for the continuance of the executive authority of the Ruler of a federated State with respect to matters 880 on which the Federal Legislature has power to make laws for that State, except in so far as the executive authority of the Federation becomes exercisable in the State to the exclusion of the executive authority of the Ruler by virtue of a Federal law. These three Amendments to Clause 128 hang together, but the first of them is really consequential upon that addition of Sub-section (2) to Clause 8. The Amendment to add the words: by virtue of a law of the Federal Legislature which applies therein, is to make it plain that the Federation cannot give directions to a State on the ground that the way in which its executive authority is being exercised impedes or prejudices the executive authority of the Federation, unless the matter in respect of which the impediment is said to occur relates to a specific Federal Act. To put it in another way, it is not to be within the power of the Federation to give a direction to a federated State on this ground of impediment merely because the subject-matter is one of the matters contained in the Federal Legislative List; there must be a specific Federal Act out of which the impediment is said to arise. The second Amendment is merely to make it plain that the Governor-General is to consider any representations which may be made by the Ruler, and I am sure the House will agree that that is common sense as well as justice. Lastly, the proviso which it is proposed to add is to make it plain that the Federal Government has a legal right to claim executive authority in the State. Therefore, the proviso is to the effect that, if any question arises under the Section, the question may, at the instance of either the Federation or the Ruler, be referred to the Federal Court for determination. That would enable the issue as to whether it is a matter in respect of which the Federation may give directions to be decided by the Federal Court.

§ Mr. ATTLEE
I do not quite see how the proviso fits in with Sub-section (2). There, if the Governor-General considers that the Ruler of a federated State has failed, he issues an order and tells him to get on with it. On the other hand, there seems to be a possibility of raising the matter in the Federal Court. Is that a challenge in the Federal Court to the 881 authority of the Governor-General? Suppose some matter arises and the Ruler fails to fulfil his obligations. After the Governor-General consults with the Ruler, is it then possible for the Ruler to take action in the Federal Court to determine as to whether there was jurisdiction or not to give such an order?

§ The ATTORNEY-GENERAL
Yes, I think so. The hon. Gentleman will see that Sub-section (2) hangs upon Subsection (1). First of all, it is provided that the executive authority of every Federated State shall be exercised in such a way as not to impede the executive authority of the Federation. Subsection (2) provides that if the Governor-General thinks that the Ruler of any Federated State is not carrying out his duty in this respect, he may give certain directions. The answer of the Federated State may be "You have no right to issue your directions, because this is not a matter which arises out of any specific Federal act. "Thereupon the Ruler, if he so pleases, may move the Federal Court to decide the issue in his favour.

§ Sir S. CRIPPS
The word "prejudice" in Sub-section (1)— as not to impede or prejudice the exercise"— was presumably intended to deal with anticipatory legislation. That is something a Ruler might do by legislation in his own State. He could impede some act already passed, or, if he contemplated that something might be done, he might prejudice the exercise of the executive authority of the Federated State so far as it was exercisable in the State before it was actually going to be exercised. With the additional words, supposing it is well known that the Legislature intends to pass a law on a certain subject matter, and supposing the Ruler, anticipating that, prejudices the action by passing legislation in his own State. I hear the right hon. and learned Gentleman say that it is not legislation. Legislation is what will set the executive action going, and if they contemplate certain legislation it will be well known that, if the Ruler can get in first, he can prejudice the executive action of the Federation. As an act of legislation would this allow that situation to be dealt with by the Clause as 882 now amended, or has, in fact, the effect of the word "prejudice" been cut down because it is only "by virtue of a law" already passed and which already applies, and not a question of the law which may very shortly be passed or applied?

§ The ATTORNEY-GENERAL
I should not like to accept the distinction which the hon. and learned Gentleman draws between "impede" and "prejudice," namely, that prejudice refers to something which is about to be done or is expected to be done. I should have thought that the meaning of the two words were that impediment might be actually obstruction, whereas prejudice might mean some action which puts the executive act of the Federation in a worse light and makes it less acceptable to the people for whom the authority is being exercised. My present impression is that the addition of the words to the first Sub-section does not in any way cut down the meaning of "prejudice "any more than it does the meaning of "impede." I confess that the point had not occurred to me. If I may perhaps in rather a quieter moment look and see if the Amendment in any way deprives the word of its meaning, I shall be very much obliged to the hon. and learned Gentleman for drawing my attention to it.