Audit
97. The Parliament [may make laws with respect to] the receipt of
revenue and the expenditure of money on account of the Government of the
Commonwealth, and the review and audit of such receipt and expenditure.
[Edited; see Comment]
Trade and commerce includes navigation and State
railways
98. The power of the Parliament to make laws with respect to trade
and commerce extends to navigation and shipping, and to railways the property
of any State.
[Unaltered]
Commonwealth not to give preference
99. The Commonwealth shall not, by any law or regulation of trade,
commerce, or revenue, give preference to one State or any part thereof over
another State or any part thereof.
[Unaltered]
Nor abridge right to use water
100. The Commonwealth shall not, by any law or regulation of trade
or commerce, abridge the right of a State or of the residents therein to the
reasonable use of the waters of rivers for conservation or irrigation.
[Unaltered - but see a brief Comment]
[Sections 101-104 deleted; see Comment]
Taking over public debts of States
105. The Parliament may take over from the States their public debts
or a proportion thereof according to the respective numbers of their people as
shown by the latest statistics of the Commonwealth, and may convert, renew, or
consolidate such debts, or any part thereof; and the States shall indemnify the
Commonwealth in respect of the debts taken over, and thereafter the interest
payable in respect of the debts shall be... paid by the several States.
[Edited; see Comment]
Agreements with respect to State debts
105A. (1.) The Commonwealth may make agreements with the States with
respect to the public debts of the State, including--
(a) the taking over of such debts by the Commonwealth;
(b) the management of such debts;
(c) the payment of interest and the provision and management sinking funds in
respect of such debts;
(d) the consolidation, renewal, conversion, and redemption of such debts;
(e) the indemnification of the Commonwealth by the States in respect of debts
taken over by the Commonwealth; and
(f) the borrowing of money by the States or by the Commonwealth, or by the
Commonwealth for the States.
(3.) The Parliament may make laws for the carrying out by the parties thereto of any such agreement.
(4.) Any such agreement may be varied or rescinded by the parties thereto.
(5.) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.
(6.) The powers conferred by this section shall not be construed as being
limited in any way by the provisions of section one hundred and five of this
Constitution.
[Sub-section (2) deleted; see Comment]
97. Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned.It has been combined with para 51(xxxvi) in accordance with the example. It seems clear from the full text - and this is reflected in my edited version - that the Parliament could abolish the requirement for auditing if it wished to enact anything so improper. If the text is ever to be simplified it would be more appropriate if it said something like:
97. The Parliament may make laws with respect to the receipt of revenue and the expenditure of money on account of the Government of the Commonwealth. Such receipt and expenditure shall be subject to review and audit in accordance with laws made by the Parliament.This would at least imply that there should be some law for the audit of Commonwealth funds.
The section is notable for containing the only reference to a right of a State in the Constitution. When State politicians fulminate about "States' rights" they are really concerned with States' powers. These are mentioned significantly (and significantly limited) in the Constitution - see particularly section 107.
Inter-State Commission
101. There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.
Parliament may forbid preferences by State
102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.
Commissioners' appointment, tenure, and remuneration
103. The members of the Inter-State Commission--
(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.
Saving of certain rates
104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.
Despite the express reference to powers of "adjudication and administration", the High Court ruled in 1915 that the Commission could not be given significant judicial power, as its members did not have the guarantee of tenure referred to in section 72. The Commission was then abolished. It was revived again briefly by the Hawke government, but again allowed to lapse.
The sections appear now to be a dead letter. If Parliament wanted to create such a Commission, with its power of "adjudication" limited as above, it could do it in any case under the interstate trade and commerce power in para 51(i). The Parliament could probably not use the rulings of a non-section-101 Commission to pass laws about State railway charges under section 102, but railway freight rates are not the same matter of State vs State controversy that they were in the 1890s.
[Return to space left by Sections 101- 104]
