State Immunity from Commonwealth Legislation: Assessing its Development and the Roles of Sections 106 and 107 of the Commonwealth Constitution

One difficulty for the States with a direct reliance on s 106 is the fact that the continuation of State constitutions in s 106 is said to be ‘subject to’ the Commonwealth Constitution. The heads of legislative power in s 51 are also conferred ‘subject to’ the Commonwealth Constitution but this poses a conundrum: Is s 51 subject to s 106 or is s 106 subject to s 51?

 

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 106

Saving of Constitutions

                   The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

 

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 107

Saving of Power of State Parliaments

                   Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

 

 

s106:107
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