Pub Date : 2023-11-14DOI: 10.38127/uqlj.v42i3.8471
Jonathan Crowe
Section 6 of the Australia Acts 1986 provides that, when a State law concerns the ‘constitution, powers and procedure’ of the State Parliament, it must abide by any relevant ‘manner and form’ requirements in previous legislation. This provision is generally accepted as imposing a binding limitation on the sovereignty of State Parliaments. However, the reason why this section is binding on State Parliaments is disputed. This article begins by discussing the concept of sovereignty in philosophical terms, before turning to the history of sovereignty in Australia. It explores the role of the Australia Acts in the constitutional system, focusing on their implications for constitutive power in the States, then looks specifically at s 6 and its capacity to bind State Parliaments. I argue that attempts to explain the authority of s 6 by appealing to the United Kingdom or Commonwealth Australia Acts fail. The only satisfactory explanation appeals to the idea that the Australian Parliaments acting together have a special form of sovereignty that allows them to make certain kinds of constitutional changes. This conclusion has important implications for how constitutive power is understood in Australia today.
{"title":"Sovereignty under the Australian Constitution","authors":"Jonathan Crowe","doi":"10.38127/uqlj.v42i3.8471","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8471","url":null,"abstract":"Section 6 of the Australia Acts 1986 provides that, when a State law concerns the ‘constitution, powers and procedure’ of the State Parliament, it must abide by any relevant ‘manner and form’ requirements in previous legislation. This provision is generally accepted as imposing a binding limitation on the sovereignty of State Parliaments. However, the reason why this section is binding on State Parliaments is disputed. This article begins by discussing the concept of sovereignty in philosophical terms, before turning to the history of sovereignty in Australia. It explores the role of the Australia Acts in the constitutional system, focusing on their implications for constitutive power in the States, then looks specifically at s 6 and its capacity to bind State Parliaments. I argue that attempts to explain the authority of s 6 by appealing to the United Kingdom or Commonwealth Australia Acts fail. The only satisfactory explanation appeals to the idea that the Australian Parliaments acting together have a special form of sovereignty that allows them to make certain kinds of constitutional changes. This conclusion has important implications for how constitutive power is understood in Australia today.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"46 17","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134991897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-11DOI: 10.38127/uqlj.v42i3.8641
Sue Farran
In 2022, the Pacific-island State of Vanuatu declared a climate emergency. Though it is not the first nation to do so, the difference is that Vanuatu has been instrumental in getting the United Nations General Assembly ('UNGA’) to refer the issue of climate change to the International Court of Justice (‘ICJ’) for an Opinion. The intention to do this was first mooted by a civil organisation of young people: ‘The Pacific Island Students Fighting Climate Change’. The proposal gathered momentum with an alliance of civil society actors and subsequently other states supporting and co-sponsoring the resolution passed by UNGA. The Paris Agreement and Paris Rulebook are steps forward but need implementation. A legal framing of international obligations could advance this. While an ICJ opinion would have no legally binding effect, it could nevertheless be of some practical benefit in a context where there is increasing recognition of the link between existing human rights and the environment and growing demand — particularly by those most adversely affected — for translating promises into action. This article considers the imperatives behind this call to the ICJ, the potential challenges that may be raised before the Court, and the possible outcomes for this initiative.
{"title":"Vanuatu Leads Drive to Secure an Opinion from the International Court of Justice on State Responsibilities to Turn Words into Action on Climate Change","authors":"Sue Farran","doi":"10.38127/uqlj.v42i3.8641","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8641","url":null,"abstract":"In 2022, the Pacific-island State of Vanuatu declared a climate emergency. Though it is not the first nation to do so, the difference is that Vanuatu has been instrumental in getting the United Nations General Assembly ('UNGA’) to refer the issue of climate change to the International Court of Justice (‘ICJ’) for an Opinion. The intention to do this was first mooted by a civil organisation of young people: ‘The Pacific Island Students Fighting Climate Change’. The proposal gathered momentum with an alliance of civil society actors and subsequently other states supporting and co-sponsoring the resolution passed by UNGA. The Paris Agreement and Paris Rulebook are steps forward but need implementation. A legal framing of international obligations could advance this. While an ICJ opinion would have no legally binding effect, it could nevertheless be of some practical benefit in a context where there is increasing recognition of the link between existing human rights and the environment and growing demand — particularly by those most adversely affected — for translating promises into action. This article considers the imperatives behind this call to the ICJ, the potential challenges that may be raised before the Court, and the possible outcomes for this initiative.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"87 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139279966","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-11DOI: 10.38127/uqlj.v42i3.8643
Anthony Cassimatis
Foreword to Special Issue of the University of Queensland Law Journal celebrating the 20th anniversary of the Centre for Public, International and Comparative Law ('CPICL').
{"title":"Foreword to Special Issue","authors":"Anthony Cassimatis","doi":"10.38127/uqlj.v42i3.8643","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8643","url":null,"abstract":"Foreword to Special Issue of the University of Queensland Law Journal celebrating the 20th anniversary of the Centre for Public, International and Comparative Law ('CPICL').","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"126 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139280255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-06DOI: 10.38127/uqlj.v42i3.8437
Yvonne Breitwieser-Faria
Climate change has been the subject of much debate as a threat multiplier to international peace and security. The risk that climate change might adversely affect conflict situations has generally been accepted. Its role towards the exacerbation of risk factors for atrocity crimes has, however, received little attention to date. As the number of climate change litigation cases increases internationally, it raises questions as to the potential impact of climate litigation, not only vis-à-vis climate action, but also beyond. This article considers whether effective climate litigation may prevent conflict and atrocity crimes elsewhere. It concludes that, where climate litigation is successful in achieving accountability for the implementation or enforcement of States’ climate commitments, it may have an indirect impact on alleviating the outbreak of conflict and contributing towards the prevention of atrocity crimes.
{"title":"Indirect Impacts of Climate Change Litigation","authors":"Yvonne Breitwieser-Faria","doi":"10.38127/uqlj.v42i3.8437","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8437","url":null,"abstract":"Climate change has been the subject of much debate as a threat multiplier to international peace and security. The risk that climate change might adversely affect conflict situations has generally been accepted. Its role towards the exacerbation of risk factors for atrocity crimes has, however, received little attention to date. As the number of climate change litigation cases increases internationally, it raises questions as to the potential impact of climate litigation, not only vis-à-vis climate action, but also beyond. This article considers whether effective climate litigation may prevent conflict and atrocity crimes elsewhere. It concludes that, where climate litigation is successful in achieving accountability for the implementation or enforcement of States’ climate commitments, it may have an indirect impact on alleviating the outbreak of conflict and contributing towards the prevention of atrocity crimes.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"49 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135683893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-02DOI: 10.38127/uqlj.v42i2.7193
Ross P. Buckley, Natalia Jevglevskaja
Millions of Australians give their online banking credentials to third parties so as to gain access to financial products and services enabled by the analysis of the data in their bank accounts. Screen Scraping (‘SS’) has contributed significantly to the rise of the FinTech industry. While the risks SS entails are significant, nowhere has the practice been formally outlawed despite the availability of safer data transfer arrangements under Open Banking regimes. We examine approaches to SS in the EU, the UK, and Australia and argue the practice should be prohibited here. Such a ban would have two salutary effects. It would protect consumers in financial hardship who use payday loans and it would accelerate uptake of the Consumer Data Right.
{"title":"Screen Scraping in Australian Finance","authors":"Ross P. Buckley, Natalia Jevglevskaja","doi":"10.38127/uqlj.v42i2.7193","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7193","url":null,"abstract":"Millions of Australians give their online banking credentials to third parties so as to gain access to financial products and services enabled by the analysis of the data in their bank accounts. Screen Scraping (‘SS’) has contributed significantly to the rise of the FinTech industry. While the risks SS entails are significant, nowhere has the practice been formally outlawed despite the availability of safer data transfer arrangements under Open Banking regimes. We examine approaches to SS in the EU, the UK, and Australia and argue the practice should be prohibited here. Such a ban would have two salutary effects. It would protect consumers in financial hardship who use payday loans and it would accelerate uptake of the Consumer Data Right.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"2015 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135901275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-24DOI: 10.38127/uqlj.v42i2.7805
Giuseppe Carabetta, Paul Lorraine
Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flexibility that is needed for consultation to work, or impeding the employer’s prerogative to make decisions, it asserts that there is a need for a deeper legal underpinning, and more active obligations, to shift the concept away from the conflictual paradigm of consultation being ‘triggered’ towards a more collaborative and productive approach.
工作场所的重大变化需要协商，立法和法定文书规定了标准的协商义务。但是，这些规定对如何进行协商提供了最低限度的指导。咨询案例往往侧重于合规，除了说咨询需要有意义之外，几乎没有补充什么。在2021年建筑、林业、海事、矿业和能源联盟诉Mt Arthur Coal Pty Ltd案决定的基础上，本文考虑了咨询义务的参数可能或应该是什么。它表明，当局过分强调时间作为合规触发因素，而不是义务的实质内容，重大决定继续表明对义务的理解不足。本文认为，如何履行咨询义务需要明确的参数，这些参数需要来自成文法或法院的明确授权。在不限制协商工作所需的固有灵活性，也不妨碍雇主做出决定的特权的情况下，它断言需要更深入的法律基础和更积极的义务，将概念从“触发”协商的冲突范式转变为更具协作性和生产性的方法。
{"title":"Legal Parameters of the Employer's Duty to Consult","authors":"Giuseppe Carabetta, Paul Lorraine","doi":"10.38127/uqlj.v42i2.7805","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7805","url":null,"abstract":"Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flexibility that is needed for consultation to work, or impeding the employer’s prerogative to make decisions, it asserts that there is a need for a deeper legal underpinning, and more active obligations, to shift the concept away from the conflictual paradigm of consultation being ‘triggered’ towards a more collaborative and productive approach.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135926340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-24DOI: 10.38127/uqlj.v42i2.7525
Samuel White
This article explores the evolving landscape of foreign interference in domestic affairs, particularly in the context of ‘information operations’ facilitated by the internet. The primary focus of the article is on the lawful authority to respond to external information operations, and how this authority may be shaped by international law. Specifically, the article explores the royal prerogative in two manifestations — the war prerogative, and external affairs prerogative — as a potential source of authority. In doing so, the article employs an analytical framework by Winterton, distinguishing between the ‘breadth’ and ‘depth’ of constitutional executive power. The article acknowledges the limited case law and debates surrounding these prerogatives’ scope and triggers, and slight nuances between British and Australian jurisprudence. It discusses the relationship between the war prerogative and the existence of armed conflict and touches on how international law can support the exercise of the war prerogative through the ‘public policy test’. Drawing from international legal perspectives, the article references United Nations resolutions from 1976 and 1981 that emphasise the importance of domestic legal remedies against information operations. It stresses the duty of states to combat the dissemination of false or distorted news that interferes with other states’ internal affairs. In sum, the article concludes that, while countering IOs is a matter requiring domestic legal authority, international law can likely extend the ambit of the royal prerogative and should also, as a matter of public policy, apply to such campaigns.
{"title":"Rusty Weapons in a Digital Battlespace","authors":"Samuel White","doi":"10.38127/uqlj.v42i2.7525","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7525","url":null,"abstract":"This article explores the evolving landscape of foreign interference in domestic affairs, particularly in the context of ‘information operations’ facilitated by the internet. The primary focus of the article is on the lawful authority to respond to external information operations, and how this authority may be shaped by international law. Specifically, the article explores the royal prerogative in two manifestations — the war prerogative, and external affairs prerogative — as a potential source of authority. In doing so, the article employs an analytical framework by Winterton, distinguishing between the ‘breadth’ and ‘depth’ of constitutional executive power. The article acknowledges the limited case law and debates surrounding these prerogatives’ scope and triggers, and slight nuances between British and Australian jurisprudence. It discusses the relationship between the war prerogative and the existence of armed conflict and touches on how international law can support the exercise of the war prerogative through the ‘public policy test’. Drawing from international legal perspectives, the article references United Nations resolutions from 1976 and 1981 that emphasise the importance of domestic legal remedies against information operations. It stresses the duty of states to combat the dissemination of false or distorted news that interferes with other states’ internal affairs. In sum, the article concludes that, while countering IOs is a matter requiring domestic legal authority, international law can likely extend the ambit of the royal prerogative and should also, as a matter of public policy, apply to such campaigns.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135926337","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-11DOI: 10.38127/uqlj.v42i2.8179
Joachim Dietrich, Matthew Raj
Australians are some of the highest consumers of gambling products in the world and, per capita, their resultant losses may also be among the highest. This article considers the Australian legal regulatory landscapes that govern both sports (including Esports) gambling and, specifically, the advertising of sports gambling products. Although gambling in Australia is highly regulated, this article reveals significant gaps that create opportunities for gambling service providers to target consumers of sport (especially young people) to market their products and further embed gambling into sports culture. Ultimately, the article offers policy-based legal reforms to curb the enticement of young people into gambling. These reforms include introducing legislation banning the advertisement of gambling service providers: (1) on public roads, public transport and near schools; (2) after 8:30pm during breaks in live broadcast sporting events; (3) during highlights, replays or on-demand sporting events (including via internet streaming); and (4), via signage (including electronic signage), branding, or promotion as part of sponsoring a sporting event, club, or venue. In the light of the June 2023 Senate Committee Report on online gambling, the possibility of more wide-ranging reforms, including a ban on all advertisements of online gambling on sport, may even be achievable. That particular reform is one that we would support.
{"title":"Sports and Esports as Conduits for Gambling","authors":"Joachim Dietrich, Matthew Raj","doi":"10.38127/uqlj.v42i2.8179","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.8179","url":null,"abstract":"Australians are some of the highest consumers of gambling products in the world and, per capita, their resultant losses may also be among the highest. This article considers the Australian legal regulatory landscapes that govern both sports (including Esports) gambling and, specifically, the advertising of sports gambling products. Although gambling in Australia is highly regulated, this article reveals significant gaps that create opportunities for gambling service providers to target consumers of sport (especially young people) to market their products and further embed gambling into sports culture. Ultimately, the article offers policy-based legal reforms to curb the enticement of young people into gambling. These reforms include introducing legislation banning the advertisement of gambling service providers: (1) on public roads, public transport and near schools; (2) after 8:30pm during breaks in live broadcast sporting events; (3) during highlights, replays or on-demand sporting events (including via internet streaming); and (4), via signage (including electronic signage), branding, or promotion as part of sponsoring a sporting event, club, or venue. In the light of the June 2023 Senate Committee Report on online gambling, the possibility of more wide-ranging reforms, including a ban on all advertisements of online gambling on sport, may even be achievable. That particular reform is one that we would support.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135982509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-10DOI: 10.38127/uqlj.v42i2.7355
Kieran Pender
Open justice is an essential feature of the judiciary, in Australia and elsewhere. The principle has constitutional salience, as an element of judicial power in Chapter III of the Constitution. Yet open justice is not absolute. In recent years, the tension between open justice and national security has been a matter of public controversy in Australia, as a result of the Bernard Collaery, Witness K and Witness J prosecutions, which have all been shrouded in secrecy. Reconciling open justice with the confidentiality required to protect national security is a common challenge for many jurisdictions. This Article compares the Australian approach with the United Kingdom and Canada. It argues that Australian law and practice in relation to protecting open justice in the national security context is underdeveloped. Drawing on the British and Canadian experience, the Article proposes methods to better balance these competing interests in Australia, in a manner which would reflect emerging constitutional principles.
{"title":"Open Justice, Closed Courts and the Constitution","authors":"Kieran Pender","doi":"10.38127/uqlj.v42i2.7355","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7355","url":null,"abstract":"Open justice is an essential feature of the judiciary, in Australia and elsewhere. The principle has constitutional salience, as an element of judicial power in Chapter III of the Constitution. Yet open justice is not absolute. In recent years, the tension between open justice and national security has been a matter of public controversy in Australia, as a result of the Bernard Collaery, Witness K and Witness J prosecutions, which have all been shrouded in secrecy. Reconciling open justice with the confidentiality required to protect national security is a common challenge for many jurisdictions. This Article compares the Australian approach with the United Kingdom and Canada. It argues that Australian law and practice in relation to protecting open justice in the national security context is underdeveloped. Drawing on the British and Canadian experience, the Article proposes methods to better balance these competing interests in Australia, in a manner which would reflect emerging constitutional principles.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136071217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-01DOI: 10.38127/uqlj.v42i1.6679
I. Loveland
This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.
{"title":"'Embarrasing and Even Ridiculous'","authors":"I. Loveland","doi":"10.38127/uqlj.v42i1.6679","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.6679","url":null,"abstract":"This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41812531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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