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Working Paper 8: Legislative Powers

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Working Paper 8: Legislative Powers LAW REFORM COMMISSION NEW SOUTH WALES WORKING PAPER ON LEGISLATIVE POWERS x_ 2 PREFACE w ReforThLa e m Commissio constitutes ni y db the law Reform Commission Act, 1967. The Commissioners are - The Honourabl Justic. eMr e Reynolds, Chairman Mr. R.D. Conacher, Deputy Chairman Mr. C.R. Alien Professor D.G. Benjafield Mr. D. Gressier Mr. T.W. Waddell, Q.C. The Commission put t thisou s working e papeth n ri course of its work on statute law revision. In the first instanc Commissioe eth furnishins ni workine gth g Attorney-Generae papeth o t r l wits vieit ha o wt consideration by the Standing Committee of Commonwealth d Statan e Attorneys-General. The Commission is not committed to any of the proposals in the working paper. It is a survey of some long-standing problems and a set of suggestions r theifo r solution. Future events will determine whether e Commissioth n will procee mako t d e repora e th n o t natters discussed. The offices of the Commission are on the 16th level e Goodseloth f l Building, 8-12 Chifley Square, Sydney (Postcode 2000, telephone 258-7213). The Secretary of e Commisioth . R.JMr .s i n,Watt . Letters shoul e addresseb d d to him. 3 CONTENTS Page Preface 2 Contents 3 4 Tabl Casef o e s Table of Statutes 6 0 1 Summary Working Paper 16 Par tI Historica0 2 l Introduction Part II Sections 2 to 6 of the Statute 50 of Westminster A. Section 2 52 4 7 B. Sectio n3 8 8 0. Sectio n4 D. Section 5 93 Part III Proposal for United Kingdom Legislation 96 "New South Wales Bill 1972" 111 Appendi Colonia- xA l laws7 Validit11 186t yAc 5 Appendix B - Statute of Westminster 1931 121 7 12 Notes 4 TABL F OASEO E S Paragraph Note Aarons v. Rees (1898) 15 W.N. (N.S.W.) 88 L24 Ashbur Bill. yv s [18933 9 A.C33 . 115 A.G. (N.S.W.) v. Australian Agricultural 120 Co. (1934) 34 S.R. (N.S.W.) 571 A.G. (N.S.W.) v. Trethowan [1932] A.C. 526 90 217, 240 A.G. (Queensland) v. A.G. (Commonwealth) 76 (1915 0 C.L.R2 )8 14 . A.G. (Victoria . Mosev ) s [19073 7.1. 0 R13 . 124 Bonse a MacchiL . rv a (1969 3 A.L.J.R4 ) . 128 275 Bridie v. Eessina (1965) 66 S.R. (N.S.W) 124 446 British Columbia 31ect-ric Railwa Ltd. .yCo 165 v. The King [19463 A.C. 527 Broken Hill South Ltd. v. Commissioner of 119 Taxation (1936-1937 6 C.L.R5 )7 33 . Caruchet, In re (1899) 9 Q.L.J. 122 167 Olayton v. Heffron (1961) 61 S.R. 103 (N.S.W.) 768 Limite. CobCo b& . Krop dv p [19653 Qd.R. 124 285 Commonwealt Kreglinge. hv rFerna& u Ltd. 78 (1926 7 C.L.R3 ) 3 39 . Crof Dunph. tv y [193336 A.C15 . 112,113, 174 Ffrost v. Stevenson (1937) 58 C.L.R. 528 74 118, 234 Harris v. Davies (1885) 10 App.Cas. 279 124 Hazlewood v. "Webber (1934) 52 C.L.R. 268 124 Iskra, Ex parte (1963) 63 S.R. (N.S.W.) 115 214 538 Johnson v. Commissioner of Stamp Duties 120 [19563 A.C. 331 McCawley v. The King [19203 A.C. 691 95, 114 Macleo . A.Gdv . (N.S.W.) [18913 5 A.C45 . 112 167 Mitchel . Scalelv s (1907 5 C.L.R) 5 40 . 124 Munro v. Lombardo [19643 W.A.R. 63 167 . 5 Paragraph Note Myer Emporium Limited v. Commissioner of 121 Stamp Duties (1967 N.S.W.R2 ) 0 23 . Nadan v. The King [19263 A.C. 482 108 0'Sullivan- v. Dejneko (1963-1964 ) 110 181 C.L.R. 498 Peninsular & Oriental Steam Navigation Co. 151 v. Kingston [1903] A.C. 471 Permanent Trustee Co. (Canberra) Ltd. v. 181 Finlayson (1968 3 A.I.J.R4 ) 2 4 . R. v. Foster (1958-1959) 103 C.L.R. 256 154, 171, 232 . HildebrandRv . t [1964] Qd.R3 4 . 167, 196 McCarth. Rv . y (1873 4 A.J.R) 5 15 . 124 . MaraiRv . s [1902] A.C1 5 . 76 108 R. v. Whelan (1868) 5 W.W. & a'B. (L) 7 75 Scully, Re (1937) 32 Tas.L.R. 3 123 e Shi Th . LtdSwif p. Co v .S.S t& . 60 "Heranger" (1965 2 W.N8 ) . (N.S.W) . Pt.l0 54 , Taylo . A.Grv . (Queensland) (19173 2 ) 220 C.L.R7 45 . Thompson v. Commissioner of Stamp Duties 122 (1967 6 W.N8 ) . (N.S.W ) .Pt.2 7 24 , Trethowa . Pedenv n (1931 1 S.R3 ) . (N.S.W) . 103 183 Trustees Executor sAgenc& y Co.v. 113 Federal Commissioner of Taxation (1933) 49 C.L.R. 220 Union Steamshi f N.2o e . Th pCo Ltd . v . 77 Commonwealth (1925) 36 C.L.R. 130 Wallace Brother Commissione. sv f Incomro e 114 Tax, Bombay (1948) 75 I.A. 86 Welker v. Hewett (1969) 120 C.L.R. 503 123 231, 233 6 TABL STATUTEF EO S UNITED KINGDOM ACTS DatReferencd ean e Short Titl Subjecr o e t Paragraph Note 1 22 Settlemenf o t Will3 Ac 1 170& .t 2 01 2 c. I II 1782 22 Geo.III c.75 Colonial Leave of 71 Absence Act 1782 1823 4 Geo.IV c.96 New South Wales Act 171 1823 182 8Geo.I9 V c.83 Australian 2 Court t sAc 125, 1828 242 Vict6 184 & .25 Australia8 23 n Constit4 19 - c.76 utions Act 1842 1850 13 & 14 Vict. Australian Constit- 242 c.59 utions Act 1850 Soutw Vict9 Ne 1 h 185& .Wale 8 51 s Con- 8 19423 , c.54 stitution Act 1855 195 Vict6 2 186& . 5 2 Australian Constit6 19 - c.ll utions Act 1862 Vict9 2 & 186. 8 2 5 Colonial Laws Valid- 33,62- 125, c.63 ity Act 1865 104,186, 142 197 s.5 ("manner and 47,48, form") 88-91, 155,180, 181,182, 195 1874 37 & 38 Vict. Statute Law Revision 242 c.35 Act 1874 Vict4 5 189& . 3 05 Colonia0 6 l Court f so c.27 Admiralt 189t yAc 0 1894 56 & 57 Vict. Colonial Acts Con- 198 c.72 firmation Act 1894 Vict8 5 189& . 7 45 Merchant Shippin t 86,144gAc - c.60 . 1894 * 147,161 1900 63 & 64 Vict. Commonwealth of Aust- 8,15, 220, c-12 ralia Constitution Act 82,160 222 s.9 (Constitution of 159,178, 213, e Commonwealth)l8th 6 214, 237 4 Vict6 190& .3 6 0 Colonia7 23 l Stoc t 190Ac k 0 c.62 Date and Reference Short Title or Subject Paragraph Note 1907 7 Edw.VII c.7 Australian States Con- 189,199 142, stitutio 190t nAc 7 235, 242 1931 22 & 23 Geo.V Statute of Westminster 5,6,32, 223, 4 c. 1931 8 33,3522 , 39-61 2 s. 62-104, 183,184 s. 3 105-133, 173 4 s. 134-143, 197, 156,160, 218, 162,1674 22 , 171,172 s.5 144-147 s.6 59-61 ss.7-12 56,58 154, 197, 203 1936 1 Edw.VIII c.3 His Majesty's Declara- 141 221 tion of Abdication Act 1936 1937 1 Edw.VIII & Regency Act 1937 167 226 Geo.V1 I c.16 7 Geo.V 194& 36 I 7 Regenc16 t 194Ac y 3 c.42 1947 11 & 12 Geo.VI Ceylon Independence 194 c.7 Act 1947 1953 1 & 2 Eliz.II Royal Titles Act 1953 141 228 c.9 Eliz.I3 5 19522 & 32 I 7 Regenc16 t 195yAc 3 c.l 1957 5 & 6 Eliz.II Ghana Independence 194 c.6 Act 1957 Eliz.I9 196& 08 I Nigeri4 19 a Independence t I96Ac 0 c.55 Eliz.I0 1 196& 19 I Sierra Leon4 19 e Independ- c.16 enct 196Ac e1 Eliz.I0 1 196& 19 I Truste7 23 e Investments t 196Ac 1 c.62 Eliz.I1 1 196& 0 1I1 Tanganyik4 19 a Independ- • l c. enct 196Ac e 1 1962 10 & 11 Eliz.II Jamaica Independence 194 t 196Ac 2 c.40 1962 10 & 11 Eliz.II Trinidad and Tobago 194 c.54 Independenc t 196Ac e 2 8 DatReferencd ean e Short Title or Subject Paragraph Note Eliz.I1 1 196& 0 I21 Uganda Independenct eAc 194 c.57 1962 1963 c.54 Kenya Independence Act 194 1963 1964 c.46 Malawi Independenct eAc 194 1964 1964 c.86 Malta Independence Act 194 1964 - 1964 c.93 Gambia Independence Act 194 1964 1966 c.14 Guyana Independence Act 194 1966 1968 c. 8 Mauritius Independence 194 t 196Ac 8 1970 c.36 Merchant Shipping Act 212 1970 1970 c.50 Fiji Independence Act 194 1970 COMMONWEALTH ACTS Date and Reference Short Title Paragraph Note 1942 No. 56 Statut Westminstef eo r 4 53,515 9 Adoptio 194t nAc 2 1953 No. 32 Royal Style and Titles 228 Act 1953 1954 No6 .7 Cocos (Keeling) Islands 210 (Request and Consent) Act 1954 1957 No2 .10 Christmas Island 210 (Reques d Consentan t ) Act 1957 1963 No. 64 Crimes (Aircraft) Act 215 1963 9 NSW SOUTH WALES ACTS Reference Short Title Paragraph- Note 7 Vic1 . No1 .4 The Constitutiot nAc 195 1897 No.4 Interpretation Act, 1897- 115 215 1969 1900 No. 40 Grimes Act, 1900 215 1902 No. 32 Constitution Act, 1902 89,91, 217, 159,175, 220 176,181, 195 1969 No.
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