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[1918] HCA 55
High Court of Australia
1918-07-01
Hodges J, Higgins J
Original judgment source is linked above.
on the business of dealing in bottles and old metals. I think that the H- ©. or 4.
'case was, in substance, decided by Hodges J. in Pope v. Franklin (1). 1°! Seas
'The very point was taken that it is not necessary to show that the Hexpy 'defendant carried on all the occupations usually carried on in a yen.
Solicitor for the appellant, D. C. Levy. Solicitors for the respondent, D. H. Herald & Son.
APPELLANT : ' AND "THE KING AND OTHERS =... _=Resroxpents. 4 ON APPEAL FROM THE SUPREME COURT OF Pa QUEENSLAND.
Constitutional Law - Queensland - Judge of Supreme Court - Appointment - Tenure ' - of office - Commission - Legistative power of Parliament - Judge ef Court of H.C. ov A. "Industrial Arbitration - Qualification - Barrister of five years' standing - 1918." Industrial Arbitration Act 1916 (Qd.) (7 Geo. V. No. 16), sec. 6 - Order in deli Council of bth June 1859, clauses 2, 14, 15, 16, 2 - New South Wales MELBOURNE, Constitution Act 1855.(18 & 19 Vict.c. 54), Sched. I., sec. 38 - Constitution Act Sept. 10, 11, 1867 (Qd.) (31 Viet. No. 38), secs. 2, 15, 16, 17 - Supreme Court Act 1867 (Qd-) 12, 27. Legislature would not cut down the usual life tenure of Supreme : Judges without express words. The opening words of sub-
'in the commission" ; and the time specified sufficiently negatives H- C. or A.
3 Edw. VII. No. 9, which prescribe five Judges as the ma: (sec. 3); and as they do not exclude the operation of the provi: of sec. 15 of the Constitution Act (or even the similar provisioi the Act 31 Vict. No. 23), the principle Zaxpressio unius eaclusio alteri applies, and a very strong presumption arises that these provisio were not to be excluded. It is hardly conceivable that the Pa
ment would not have expressly excluded the operation of sec.
if it had meant to exclude it. ' Moreover, if (as the relators contend) sec. 15 is a fundamental law
or altering it, it would seem to be our duty to construe sub-see, 6 if possible, so as to keep it within the powers of the fundament law - ut res magis valeat quam pereat (Macleod v. Attorney-Ge for New South Wales (1); D'Emden v. Pedder (2) ). :
If this construction of sec. 6 of the Industrial Act be accepted, other questions which were argued at great length need not
accepted - assume that sec. 6 intends a tenure limited to the of the appellant's office as President of the Industrial Court. question then arises, can the Queensland Parliament grant such a tenure in the face of the provisions of sec. 15 of the Constitution Act
Now, sec. 15 does not purport on its face to be a limitation of th powers of the Parliament, or a restraint on the action of the Parl ment. It prescribes that the commissions of the present Judges a of all future Judges "shall . . . continue and remain in full for during their good behaviour." If the Governor in Council filled vacancy on the Supreme Court Bench by issuing a commission f three years, this section would seem to override the commission a make the tenure a tenure "during good behaviour": for the com sion is extended of " present Judges" (if any) commissioned for or at will. But, under sec. 2 of the Constitution Act, the Parliament has power, within the Colony of Queensland, to make laws for peace, order and good government of the Colony 'in all cases whatsoever" ; there is no exception from this power as to sec. or as to any section of the Constitution Act except as to the constit tion of the Legislative Council (sec. 9) ; and it would seem, therefor
that sec. 15 can be altered or excluded from operation by an ordinary Act of the Parliament. There is no such provision in this Constitution Act, as there is in most Constitutions, excepting from the ordinary powers of legislation any of the provisions of the Constitution (unless sec. 9 makes an exception). It follows that if sec. 6 of the Industrial Act is to be read as meaning that the President of the Industrial Court, if appointed to the Supreme Court, is te have a tenure limited to the term of his presidency, that section is valid.
For this purpose, we may ignore the provisions of the Order in Council of 6th June 1859, made under the British Act, 18 & 19 Vict. ec. 54, conferring the first Constitution on Queensland. The clauses of that Order which related to the commissions, removal and salaries of the Judges (clauses 15 and 16) have been repealed as from the moment that the Constitution Act came into operation (31st December 1867), by the Queensland Act, 31 Vict. No. 39 (sec. 3); and the Constitution Act replaces these clauses, and others, in its own body. The Constitution Act purports in its recitals to be a consolidation of the laws relating to the Constitution of the Colony, and to be made under the authority of clause 22 of the Order in Council, which enabled the Parliament '' to make laws altering or repealing all or any of the provisions of this Order in Council in the same manner as any other laws for the good government of the Colony." The validity of the Constitution Act is not contested ; but it is an ordinary Act in the sense that there is nothing to prevent the Parliament from repealing (under sec. 2) secs. 15 and 16, or from excluding their operation for a particular case. There is no magic in the words "Constitution Act"; what the Parliament can do is a matter of construction of the relevant Acts in each case. Indeed, the Con- stitution Act appears to be net an organic law in the strict sense, but the creature of the only organic law - the Order in Council made under 18 & 19 Vict. c. 54. The Order in Council is, as it were, the electric wire which carried the British power to make laws; and the Constitution Act is merely one of the laws made under that power. No one denies Mr. Starke's proposition that the power which you propose to exercise must be in existence before you can exercise it. But it applies to provisions conferring power -
facultative provisions ; it does not apply to provisions of subst tive law such as sec. 15 of the Constitution Act, whereby commissio present and future, are made to "continue and remain in full fo during good behaviour." Such provisions of substantive law come under sec. 2 of the Constitution Act, which enables the Queenslan¢ Parliament to "make laws for the peace welfare and good govern- ment of the Colony in all cases whatsoever." I cannot see my way to accept the view that any law made under the Order in Couneil becomes the Order in Council - even if the law be called a Constitu- tion. If Parliament, in passing the Constitution Act, had desired to except sec. 15 from the general power to make laws contained in sec. 2, it could easily have said so.
These considerations lead me to the consideration of Cooper's Case (1), and of the dicta in that case of my learned colleagues (the dicta were admittedly unnecessary for the decision) to the effect that so long as a Constitution remains unaltered any enactm inconsistent with its provisions is invalid. When these dicta studied, it becomes apparent that they apply mainly to the p visions of clause 22 of the Order in Council. Under that claus the Parliament got power to make laws "altering or repealing' any of the provisions of the Order in Council; and the provisi of the Order must remain binding until they have been " altered o repealed." So, in the analogous case of a power of revocation and new appointment, the exercise of the power of revocation is a co! dition precedent to the exercise of the power of new appointm ment (3) ). But though this is the rule, it is always open (as th latter case establishes) to show an intention to revoke implied the appointment - as, for instance, by showing that the appoi ment in question referred to property which could only pass by exercise of both powers. It is all a question of construction, expressed or implied intention. However, in this Constitution of Queensland, there are no such words used as "alter or repei in relation to its provisions. The words are much wider (sec. 2
(1) 4 GLR., 1304. (2) 5D. M. & G., 775. (3) (1910) 2 Ch., 181.
secs. 15 and 16. It is quite true, as the Chief Justice stated at p.
_ ferred by sec. 22 of the Order in Council, the original powers so con- ferred would still have continued; but that follows from the fact that, in the repeal of the provisions of the Order in Council, clause _ 22 was expressly excepted from the repeal. There is nothing now _ binding the Queensland Parliament to a life tenure for the Judges ~ except sec. 15 of the Constitution Act (and sec. 9 of the Act 31 Vict. af No. 23); and any more recent Act of the Parliament creating an ~ exception from the rule of sec. 15 must, in my opinion, prevail. I a Bem therefore of opinion that the Parliament could, if it thought fit,
Colony in all cases whatsoever" ; and: these words do not exclude H. ©. or A.
1314, that if the Parliament had purported to limit the powers con- McCawxry
have stated, been repealed by the Queensland Act 31 Vict. No. and it no longer stands in the way of any Act of the Queensland Parliament on the subject of tenure of Judges. :
Gavan Durry J. Many interesting and important questions have been discussed in this case, but in my opinion the point at is may be determined by ascertaining the meaning of sec. 6 of the Industrial Arbitration Act of 1916 and of the commission which the Queensland Executive has purported to issue to the appellant un its provisions. The first paragraph of the section runs thus "Notwithstanding the provisions of any Act limiting the numbe of Judges of the Supreme Court, the Governor in Council may appoint the President or any Judge of the Court to be a Judg ' the Supreme Court." It is clear that these words do not mere
appointed, has a life tenure or not. If the words cited stood alone, T think we should be compelled to answer this question in affirmative, because sec. 9 of 31 Vict. No. 23 and sec. 15 of 31 Viet. No. 38 expressly provide that the commissions of Supreme Court J hes shall remain in full force during their good behaviour. EM
is <The President or ee Judge of aie Court, if so appointed as aforesaid, may exercise and sit in any jurisdiction of the Supreme
Supreme Court in addition to the rights, privileges, powers, jurisdiction conferred by this Act, and shall hold office as a Ju of the said Supreme Court during good behaviour, and be paid su
shall not be diminished or increased during his term of office as Judge of the Supreme Court or be less than the salary and allowances
of a Puisne Judge of the Supreme Court ; and upon such direction H. C. or A.
the said payments shall become a charge upon the Consolidated 19!*-
It will be observed that it is the President or Judge of the Court py, Kuno. who is to be appointed in the first paragraph, and it is the President or Judge who is to exercise the jurisdiction and to enjoy the rights, privileges, and powers of a Judge of the Supreme Court conferred by the second paragraph, and that the rights, privileges, powers, and jurisdiction so conferred are to be "in addition to the rights, privileges, powers, and jurisdiction conferred by this Act." The words of these paragraphs when taken together seem apt to confer on the appointee the rights, privileges, powers, and jurisdiction of a Supreme Court Judge to be exercised during his tenure of office as
an Industrial Judge and as complementary to his rights, privileges, powers, and jurisdiction as such Industrial Judge and not otherwise. The second paragraph proceeds to enact that the appointee shall hold office as a Judge of the said Supreme Court during good behaviour, and it is urged that these words plainly indicate a life tenure. If the section provided that the individual appointed a Judge of the Supreme Court should hold his office during good behaviour there would be much force in this argument, but it provides that the President or any Judge of the Court of Industrial Arbitration, if so appointed, shall hold his office as a Judge of the Supreme Court during good behaviour. And these words also are apt to confer on the President or Judge of the Court of Industrial Arbitration a tenure of the office of Judge of the Supreme Court so long, and so long only, as he remains the President or a Judge of the Court of Industrial Arbitration. The words 'during good behaviour" are used not to create a tenure, or define its extent, but to attach a condition to the prescribed tenure. They may properly be used to impose a condition with respect to any tenure, and they have been so used in various Acts of Parliament when it was desired to impose a condition on a tenure less than a life tenure.
For instance, the Queensland Statute 37 Vict. No. 5, by sec. 1,
enables the Governor in Council to appoint a person qualified to be a Judge of the Supreme Court to act temporarily in place of a Judge absent on leave, and by sec. 2 provides that every person so appointed
shall hold his commission during good behaviour ; and the Comm wealth Parliament in sec. 12 (1) of the Commonwealth Concil and Arbitration Act 1904 enacts that the President of the Comm« wealth Court of Conciliation and Arbitration shall be entitled to hold office during good behaviour for seven years. But the matter does not rest here: when we examine the language of the second paragraph of sec. 6 we find that part of it is unnecessary if the fi paragraph authorizes an appointment of what I may call an ordi Judge of the Supreme Court, and that the rest is inconsistent such a construction cf that paragraph. If par. 1 of sec. 6 cont plates the appointment of such a Judge, why is it necessary provide that the appointee '* may exercise and sit in any jurisdictic of the Supreme Court, and shall have in all respects and to all int and purposes the rights, privileges, powers, and jurisdiction of Judge of the Supreme Court," and why is it necessary to pro that he shall Mold office as a Judge of the said Supreme Court du good behaviour, when that is already provided by sec. 9 of 31 Vi No. 23 and sec. 15 of 31 Vict. No. 38, and why provide that he be paid such salary and allowances as the Governor in Council m direct, which shall not be diminished or increased during his term office as a Judge of the Supreme Court or be less than the salary
allowances of a Puisne Judge of the Supreme Court, when sec. 3 38 Vict. No. 3 provides that the salary of a Judge of the Supren Court shall be at the rate of £2,000 per annum, and sec. 10 of Vict. No. 23 and sec. 17 of 31 Vict. No. 38 provide that his sal shall in all time coming be paid and payable so Jong as his commis shall continue or remain in force? It is said that we shoul possible, so interpret sec. 6 as to give it validity, and that inasmu as sec. 15 of 31 Vict."No. 38 provides that Supreme Court Judgi shall have a life tenure, we should hold that sec. 6 confers such a tenure. This argument is based on the hypothesis that sec. 6 invalid if inconsistent with sec. 15 of 31 Vict. No. 38, an hypothe which I am not at present disposed to accept. It is further said th
38 if it had intended to exclude its operation. But this is not wh it has done with respect to sec. 3 of 38 Vict. No. 3. That sect fixes the salary of a Puisne Judge of the Supreme Court at £2.
per annum, and sec. 6 without making any reference to sec. 3 of 38 _ Vict. No. 3 fixes the salary of the new Judge at such sum as the Governor in Council may direct, not less than the salary of a Puisne Judge of the Supreme Court. In my opinion, a Judge of the Supreme Court, appointed under the provisions of sec. 6 of the Industrial Arbitration Act of 1916, holds his office only during the term of his office as the President or Judge of the Court of Industrial Arbitration. When the appellant received his commission as a Supreme Court Judge there were already in existence five Judges of
the Supreme Court, and there was no authority to appoint another Judge except under the provisions of sec. 6. If the Executive authorities had issued the commission to the appellant, appointing him to be a Judge of the Supreme Court during his occupation of 'the office of President of the Court of Industrial Arbitration, the
: question of the validity of sec. 6 must have been determined in these ; proceedings, but they have not done so. Apparently they were advised that the section authorized an appointment for life, and ee accordingly a commission was issued to the appellant which, after reciting the provisions of the Industrial Arbitration Act of 1916
' and a direction of the Governor in Council, proceeds to appoint the appellant forthwith to be a Judge of the Supreme Court of Queens- Jand - " To have, hold, exercise and enjoy the said office of Judge of Our Supreme Court of Queensland during good behaviour together
with the rights, powers, privileges, advantages and jurisdiction thereunto belonging or appertaining." These words are precisely appropriate in the appointment of a Judge' of the Supreme Court holding a life tenure during good behaviour under the provisions of Acts 31 Vict. No. 23 and 31 Vict. No. 38, and they were intended
by-laws - expressions used in the instrument shall, unless the contrary intention appears, have the same respective meanings as in the Act conferring the power."
The expression in the commission "' Judge of Our Supreme Court of Queensland during good behaviour" is said to mean Judge of Our Supreme Court during good behaviour and occupation of the office 7 as President of the Court of Industrial Arbitration, because that is _ the tenure which sec. 6 contemplates, but this is not enough unless. we can find some expression occurring both in the section and in the commission and denoting or connoting that tenure when occurring in the section. I can find no such expression. It is true that the phrases " Judge of the Supreme Court" and " during good behaviour " are to be found in sec. 6, but neither of these expressions there denotes or connotes a tenure during occupancy of the office o President of the Court of Industrial Arbitration. That tenure is attached to the office of a Judge of the Supreme Court appointed - under the section because of the existence of other words in the section and not because of any meaning there inherent in the expres: sions themselves. The expressions " Judge of the Supreme Court " and " during good behaviour " have precisely the same meaning in the section and in the commission, but the commission does not accord with the section because the section prescribes a tenure and attached to it a condition of good behaviour, while the commission omits to expressly prescribe any tenure and as a consequence of the - omission the law implies a life tenure to which the condition of good behaviour prescribed in the commission attaches. The result is" that, in my opinion, the commission is not authorized by law, and the appeal should be dismissed.
Powers J. I agree that any appointment of the President of the Court of Industrial Arbitration as a Judge of the Supreme Court under sub-sec. 6 of sec. 6 of the Industrial Arbitration Act of 1916 must, on the true construction of sec. 6 of that Act, be held to be an appointment of the President as President of the Court of Indus- trial Arbitration to be held by him only during the term of his office as President of that Court - not exceeding seven years - and not during good behaviour in the ordinary unqualified meaning of those words. The commission issued to the appellant was one "to have, hold, exercise and enjoy the said office of Judge of Our Supreme Court of Queensland during good behaviour together with all the rights,
Ee powers, privileges, advantages and jurisdiction thereunto belonging _ or appertaining." The commission, if it must be read as an appoint-
ment of a Supreme Court Judge for life "during good behaviour," _ is, in my opinion, invalid because the Industrial Arbitration Act of 1916
does not, on a proper construction of the Act, empower the Governor
es in Council to issue sucha commission. A commission in those words,
on the face of it, is wider than the Act (on the interpretation placed upon it by the Court) empowered the Governor in Council to issue.
_ The commission, however, expressly states that it was issued by virtue of the provisions of the Industrial Arbitration Act of 1916.
Sec. 124 of the Acts Shortening Act (Qd.) enacts that "' Where any
Act whenever passed confers powers to make, grant, or issue any
instrument - that is to say, any proclamation, Order in Council,
order, warrant, letters patent, commission, rules, regulations, or by-laws - expressions used-in the instrument shall, unless the contrary intention appears, have the same respective meanings as in the Act conferring the power."
The words used in the Act, so far as they apply to a Judge of the "Supreme Court, are "during good behaviour." The words used in
the commission appointing the President a Judge of the Supreme Court are " during good behaviour." The majority of the Court in
this case construe the words " during good behaviour" in sub-sec. 6 of sec. 6 of the Act to mean good behaviour during the term of the appellant's office as President of the Court of Industrial Arbitration - not exceeding seven years. Under the Acts Shortening Act referred to, it appears to me that, as the contrary intention does not appear i the commission, we are bound to give the same meaning to the words " during good behaviour" in the commission, as we give to the same words in the Act conferring the power.
For the above reasons I do not think the commission is invalid on the ground only that it contained the words "during good
behaviour." If the Act is valid, the commission is valid.
The respondents further contended that the appointment of the appellant as a Judge of the Industrial Court of Arbitration, and as a Judge of the Supreme Court of Queensland, was invalid because he was not "a barrister of not less than five years' standing" at the date of the appointment. The appellant had never practised as a
barrister. For the reasons mentioned by the learned Judges ; the Supreme Court in their judgment in this case, I hold that
within the meaning of the Industrial Arbitration Act of 1916 (Qd.). The next question to be considered is whether the commission is invalid as an appointment to the office of a Supreme Court Judge for any term less than " during good behaviour " only, on the ground that it is contrary to sec. 15 of the Constitution of Queensland 0 appoint a Judge of the Supreme Court except under a commission to continue in force "' during good behaviour" only. The majori of the Court has come to the conclusion that the commission in thi case is one inconsistent with the provisions of the Constitution as it stood before the Industrial Arbitration Act of 1916 was passed Four of the five Judges of the Supreme Court of Queensland held tha the provisions contained in the first two paragraphs of sub-sec. 6 0 f sec. 6 of the Industrial Arbitration Act of 1916 are inconsistent with the provisions of the Queensland Constitution as it stood when Act in question was passed, and that they are:therefore void and inoperative. The only difference of opinion between the members of this Court is whether the Industrial Arbitration Act of 1916, which is admittedly inconsistent with the Constitution, could be legally passed by Parliament before sec. 15 of the Constitution of Quee land was repealed or amended by an Act. In England the question to be considered could not arise, beca there is not any written Constitution. The power of Parliament is unlimited. The question could not well arise in connection with the Commonwealth Constitution, for the Constitution provides that. no amendment of it can become law until after both Houses of Parlia- ment pass a Bill containing the proposed amendment, and it is approved of by the electors qualified to vote for the election of the House of Representatives insthe manner and subject to the conditions set out in sec. 128. Any Act inconsistent with the Constitution, before amendment, is always held by this Court to be ultra vires. Queensland has a written Constitution also; but it is contended - after it has been in existence as a Constitution for fifty one years - that Acts inconsistent with it can be passed before any | amendment of the Constitution, just as freely as in England, wh
_ Parliament: in fact, that the Constitution can be ignored, as my . brother Higgins put it during the argument, as if it were a Dog Act.
Sec. 5 of the Colonial Laws Validity Act does allow the Queens- land Legislature to amend the Constitution Act of 1867, but if the contention of the appellant is right the Imperial Act has the effect of doing away with the colonial Constitutions as such, and allowing olonial legislatures to pass legislation without recognizing that there is an existing Constitution. The Industrial Arbitration Act of 1916 did not expressly purport to amend the Constitution. Sec. 6 starts with the following words: '' Notwithstanding the pro of any Act limiting the number of Judges of the Supreme Court, the Governor in Council may" &c. The Act limiting the
number of Judges at the time was an ordinary Supreme Court
4 Act, and was not contrary to any provision of the Constitution. It would be reasonable to suppose that if Parliament had intended 3 the Act to be an amendment of the Constitution, as well as of the Supreme Court Act, it would have added "or of the Constitution " ~ after the words " Judges of the Supreme Court."
My learned brothers who hold that the Industrial Arbitration Act of 1916 is inconsistent with the Constitution and therefore invalid, "and those who hold the opposite view, have given their reasons at Jength in support of their respective views. The question now raised came before this Court and was decided in 1907, in opinions expressed by four of the five Judges of this Court who then comprised the Full Court, in what is usually termed Cooper's Case. It is clear that the contentions raised in this case on this point were expressly raised in Cooper's Case. That will be seen by a reference to what appears in the report of the case (1). In that case it was decided by Griffith C.J, and Barton, O'Connor and Isaacs JJ. that "the power vested in a State legislature by its Constitution to enact constitutional alterations must be exercised by direct legislative _ provisions: So long as the Constitution remains unaltered any enactment inconsistent with its provisions is invalid." The same claim, exactly, was made by the respondent in C 'ooper's Case (2) that has been made by the appellant in this case, namely, that (1) 4, 1304. (2) 4 CLLR. at pp. 1308, 1310.
there is no written Constitution or other limitation to the powers of H. ©. or A.
"the Constitution Act 1867 was only a local Act; it substituted f the Imperial Order in Council, which was a fundamental law, enactment alterable by the ordinary course of legislation. : In enacting an Act which involves a necessary inconsistency with th Constitution . . . the Legislature must be taken to ha intended to make an alteration of the Constitution." The learned Chief Justice (1) set out the contention of the respondent. He said: "It was contended for the respondent that since the passing of this Act the provisions relating to the tenure of office of the Judges of the Supreme Court and their salaries depend entirely upon the Constitution Act of 1867, and that this Act, being an Act of the Queensland Legislature, was of no more effect than any other Act of that Legislature, and, consequently, that any restric- tions imposed or rights conferred by it might be disregarded or abrogated by any subsequent Act inconsistent with it, although not purporting to be an amendment of the Constitution, so that, if the Legislature thought fit by Statute to alter the tenure of office of existing Judges or to reduce their salaries, they could do so without first amending the Constitution." The learned Chief Justice also said (2) : - * In my opinion, therefore, the Legislature could not after the Act of 1867, any more than before, disregard the provisions of the Constitution as existing for the time being, so as to be able to pass a law inconsistent with them, without first altering the Constitution itself. That is to say, their power was no more plenary than it was before. The distinction between an authority to alter or extend the limits of their powers and an authority to disregard the existing limits is clear. I am, therefore, of opinion that the Income Tax Acts 1902-1904, if and so far as they were inconsistent with the then exist- ing Constitution, were wholly inoperative. . . . I think that, if the Legislature desires to pass a law inconsistent with the existing Constitution, it must first amend the Constitution. This would be done by a Bill for that purpose, to which the attention of the Legis- lature and the public would be called, and the passing of and assent - to which would obviously depend upon considerations very different from those applicable to an ordinary law passed in the exercise of the plenary powers of the Legislature under the existing Constitution.
(1) 4 GLR., at p. 1313. (2) 4C.LR., at pp. 1314-1315.
id for the time being has the force of an Act of the Imperial
pugnant to its provisions." Barton J. said (1): The legislation a body created by and acting under a written charter or constitu- on is valid only so far as it conforms to the authority conferred by hat instrument of government. Therefore attempted legislation, 'merely at variance with the charter or constitution, cannot be held an effective Jaw on the ground that the authority conferred by that 'instrument includes a power to alter or to repeal any part of it, if the legislation questioned has not been preceded by a good exercise of such power, that is, if the charter or constitution has not antecedently _ been so altered within the authority given by that document itself." 'The late Mr. Justice O'Connor said (2): 'I wish to express my _ entire concurrence on all grounds in the judgment of my learned brother the Chief Justice which I have had the opportunity of read- ing." The learned Judge also said': - ' The position generally 'may be thus stated. The Queensland Parliament may repeal or alter any portion of its Constitution, and when the repeal or altera- tion has taken effect, that portion is as if it had never been. But _ so long as it exists no Act conflicting with it can be passed. In other
That judgment was given in 1997, and has not been questioned ~ until this appeal; but in Bazter-v. Ah Way (3) Isaacs J. said :- - eet was suggested that Hodge v. The Queen (4) ought to be dis- ed because the Legislature of the Province of Ontario might lange its Constitution. But the power of the Legislature must depend upon the terms of the Constitution as it exists at the given
4C.L.R., at p. 1317. (3) 8 C.L.R., at p. 643. 40. (4) 9 App. Cas., 117.
Parliament extending to the Colony, and that it is the duty of the 3 uurt to inquire whether any Act passed by the State Legislature is
'or these reasons I am of opinion that the Constitution of Queens- H.C. or A. 1918.
moment. It is not a sound argument that, because a change migh be deliberately made by Parliament in a Constitution, therefore ordinary Act whatever may be passed, though in contravention constitutional provisions as they stand. The case of Cooper vy. Commissioner of Income Tax (1) is a clear authority against such a contention." The opinions expressed in Cooper's Case were not necessary for the actual decision in that case, and not therefore binding on the Court, but, as my brother Barton said in his judgment to-day (2), "they were not obiter dicta in the sense of expressions beyond the matters argued, for the Court heard full argument on the point, and q decided the matter with as much care and elaboration as if the point _ had been vital." I do not think that the opinions expressed by Griffith C.J. and Barton, O'Connor and Isaacs JJ. in Cooper's Case were wrong, or the opinions expressed by Isaacs J. in Baxter's Case (3); and J adopt them. The decision in Taylor's Case (4) was given after an Act had been passed expressly amending the Constitution, and does not govern the decision in this case. Isaacs J. said of the Act in question (5): "Tt was passed avowedly as an amendment of the Constitution by both Houses unanimously, and was reserved for His Majesty's assent." 5 I hold that the commission appointing the appellant as a Judge of - the Supreme Court is invalid because sub-sec. 6 of sec. 6 of the Industrial Arbitration Act of 1916 conferring the power to issue it is inconsistent with the provisions of the Queensland Constitution as it : stood when the Act in question was passed, and that sub-sec. 6 of | sec. 6 of the Act is therefore void and inoperative. : I think the appeal should be dismissed.
Solicitor for the appellant, W. F. Webb, Crown Solicitor for Queensland.
Solicitors for the respondents, G. Storer ; G. Waugh. B. L.
McCawLey
Tue Kie.