Cooper v Commissioner of Income Tax (Qld) [1907] HCA 27; (1907) 4 CLR 1304 (28 June 1907)

BARTON J. The legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government. Therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law 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. Hence an implied repeal is not within the power to alter or repeal, and is not valid because it is not an exercise of legislative power. It is only when the instrument is altered upon the authority collected from its own terms that it becomes the new charter or constitution, and the confinement of subsequent legislation within its altered bounds, be they narrowed or widened, becomes in tum a condition precedent to the validity of that legislation.

 

31 pages.

CHIEF JUSTICE V COMMISSIONER 1907

 


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