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becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may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