McCawLey v Tue Kie.

McCawLey v Tue Kie. - [1918] HCA 55 - HCA 1918 case summary — Zoe

[21]

_ 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,

grant a tenure inferior to a life tenure, " notwithstanding the pro-
visions of sec. 15 of the Constitution Act"; as well as increase the number of Judges from five, "' notwithstanding the provisions of any Act limiting the number of Judges of the Supreme Court." If it is necessary to express an opinion as to the effect of the Colonial Laws Validity Act (28 & 29 Vict. c. 63), my view is that sec. 6 is thereby made valid, whatever its meaning, and even if it would be invalid but for that Act (so far as the powers flowing from the a Parliament are concerned). The British Act of 28 & 29 Viet. provides (sec. 5) that every colonial legislature shall have and be deemed at all times to have had" power to establish Courts : | to abolish and reconstitute the same and to alter the constitu- tion thereof, This Act, passed in 1865, validates the creation of the Supreme Court of Queensland in 1861, if the creation was not otherwise valid: and it provides that the Queensland Parliament _ may alter the constitution of that Court ; and I regard the tenure of the Judges as part of the constitution of the Court. Nor is the 4 Industrial Act, sec. 6, "repugnant," under sec. 2 of the British Act, My tot the provisions of any (existing) Act of Parliament extending to a the Colony, or to any (existing) order or regulation made under oa any s such Act of Parliament or having in the Colony the force or effect of such Act. Assuming. that sec. 6 would be repugnant to the Order in Council (sec. 15), it has, under sec. 2, merely to be read "subject to the Order in Council, and it is only void to the extent of the repugnancy. But sec. 15 of the Order in Council has, as I

[66]

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

[73]

"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.

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Parties