Interpreting the Constitution: A Politico-legal Essay"When, over thirty years ago, the Convention which framed a Federal Constitution for Australia was nearing the end of its labours, it yielded to the arguments of Mr. H.B. Higgins, the junior representative from the state of Victoria, and allowed to be inserted under the "Powers of the Parliament" the indefinite and far-reaching subsection (xxxv) dealing with industrial disputes. Every draftsman knows the dangers of inserting new provisions into the completed framework of an act, because of the difficulty of forecasting the exact effect these new provisions may work on portions of the act already embedded in their places and invested in the minds of their sponsors with settled meaning. Rarely, indeed, were the dangers better exemplified than they have been in this case. The insertion of the words has upset the whole basis on which the Federal scheme was devised - that basis being that there should be a distribution, with as close an approximation to definiteness as possible, of the total mass of governmental powers, between Federation and states. The possibilities were not realized at the time, but the position today almost demonstrably is, whether it is recognized or not, that Australians are living under a constitution which it was not intended to "ordain and establish", or, to put the same proposition in another way, that they are not living under the constitution which it was intended to establish."--Introduction, page 9. |
Contents
INTRODUCTORY | 9 |
THE FEDERAL SYSTEM | 18 |
INSTRUMENTALITIES OF GOVERNMENT | 30 |
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appear applied Arbitration Act Arbitration Court argument Australia Australian Constitution authority award Barton Baxter's bind the Crown Bootmakers Chief Justice common rule Commonwealth law Commonwealth Parliament Conciliation and Arbitration construed Convention Cowburn's Crown in right Deakin's decision declared disputes extending doctrine Dominion employers employes enactment Engineers exercise existence express expressly Federal Parliament functions Gavan Duffy grant Griffith C.J. H. B. Higgins Harbour Trust held Higgins High Court Imperial Parliament implied prohibition income tax inconsistency industrial disputes instrument intention interpretation invalid Isaacs and Rich joint judgment jurisdiction law-making learned judge legislative power legislature limits Lord matter meaning ment monwealth municipal O'Connor operation overruled Parlia parties Pedder pith and substance principle Privy Council provisions question Railway Servants reason regard Rich JJ rule in D'Emden Section 109 Section 51 xxxv South Wales Statute Sub-section xxxv taxation tion trade tribunal ultra vires Union valid Victoria wages words