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Constitutional Invalidity and Amendments to Acts

Published online by Cambridge University Press:  24 January 2025

Dennis Rose
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Type
Discussion Note
Information
Federal Law Review , Volume 10 , Issue 1 , March 1979 , pp. 93 - 97
Copyright
Copyright © 1979 The Australian National University

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Footnotes

I am grateful to Mr G. J. Lindell of the Australian National University Law School for comments on a draft of this Note and, in particular, for the reference to note 17. However, the responsibility for the views expressed herein is entirely mine.

References

1 (1977) 51 A.L.J.R. 328, referred to as “McKellar”.

2 L. Zines (ed.), 1977 referred to as Commentaries; the book went to press before commencement of the proceedings in McKellar.

3 (1958) 100 C.L.R. 246.

4 Op. cit. 199-200.

5 E.g., Lane, , The Australian Federal System (1972) 899 ff.Google Scholar

6 See the Commentaries, 198; of course, the alternative possibility of reforming the rules on standing should not be overlooked.

7 (1977) 8 F.L. Rev. 502, 505.

8 (1977) 51 A.L.J.R. 328; 337-338 per Gibbs J.; 341-342 per Stephen J.

9 Id. 344-345 per Jacobs J.; 350 per Aickin J.

10 Id. 342.

11 Id. 345.

12 Id. 332.

13 Id. 337.

14 Id. 341.

15 Op. cit. 505.

16 Beaumont v. Yeomans (1934) 34 S.R. (N.S.W.) 562; Mathieson v. Burton (1971) 124 C.L.R. 1. See also Samuels v. Songaila (1977) 16 S.A.S.R. 397.

17 (1945) 71 C.L.R. 29. Starke and Williams JJ., who also appear to have held the new sub-regulation to be wholly invalid, did not comment on the question whether the former reg. 79(3) continued in force (see 79-80 and 112-113). Latham C.J., who held the new sub-regulation to be valid in relation to Territorial services, appears to have thought that it wholly repealed the former sub-regulation (see 69).

18 Id. 73-74.

19 Id. 96.

20 See, for example, the legislation considered in Clyne (n. 3 supra)—the Income Tax Assessment Act 1945 (Cth), s. 11, and the associated Income Tax Act 1945 (Cth).

21 See Queensland v. The Commonwealth; Western Australia v. The Commonwealth (1977) 52 A.L.J.R. 100.

22 Op. cit. 505.

22a Commentaries, 200, n. 25.

23 Id. 202.

24 Loc. cit.

25 Sir Anthony Mason’s reference to the Royal Commissions Act 1912 (Cth) might suggest that the Privy Council was concerned only with the question whether that amending Act was valid. However, the legislation the validity of which was considered by the Privy Council was the “consolidated … Royal Commissions Act 1902-1912”: see (1913) 17 C.L.R. 644, 645–referred to later in the judgment as “the Royal Commissions Acts”. Moreover, the relevant references by Fullagar J. in Lockwood ((1954) 90 C.L.R. 177, 182) to “the Act” were to the whole Royal Commissions Act “as it stood in 1912”; Fullagar J. referred to “s. 1A”, i.e. s. lA of the 1902-1912 Act, not to any section of the 1912 Act. It should be noted that this approach–i.e. considering the whole Act as purportedly amended, and not just the amending Act– is consistent with the approach proposed in the Commentaries and inconsistent with the approach favoured by Sir Anthon Mason.

26 (1913) 17 C.L.R. 644.

27 (1954) 90 C.L.R. 177.