Responsible government in the Dominions: Responsible government in the Dominions

Responsible government in the Dominions (Vol. 2)

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Multivolume work

Identifikator:: 1896933912

Document type:: Multivolume work

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Place of publication:: Oxford

Publisher:: Clarendon Press

Year of publication:: 1912-

Collection:: Economics Books

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Volume

Identifikator:: 1896935052

URN:: urn:nbn:de:zbw-retromon-238139

Document type:: Volume

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Volume count:: Vol. 2

Place of publication:: Oxford

Publisher:: Clarendon Pr.

Year of publication:: 1912

Scope:: XI Seiten, Seiten 570-1100

Digitisation:: 2022

Collection:: Economics Books

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Chapter

Document type:: Multivolume work

Structure type:: Chapter

Title:: Part IV. The federations and the union // Chapter II. The commonwealth of Australia

Collection:: Economics Books

cap, 1] THE COMMONWEALTH OF AUSTRALIA 861 held that the proceedings must be of a judicial character and that the arbitrator must not legislate. With regard to the provisions of s. 38 of the Act relating to the common rule which purported to authorize the Court to declare that any conditions of employment determined by an award should be a common rule of an industry, and of s. 39, which provided that a state law or an award should yield to an award by a Court, he pointed out that the second was ultra vires, and with regard to the first, while not deciding, as it was annecessary for the purposes of the case, he assumed that the provisions objected to were ulira vires. But assuming that these provisions were ulira vires, he still thought that they were severable from the other provisions of the Act. It had been contended on the strength of decisions of the Supreme Court of the United States that if the Court, on a consideration of the whole statute and rejecting the part held to be ultra vires, were unable to say that the Legislature would have adopted the rest without them, the whole statute must be held invalid. But this test he thought inaccurate. What a man would have done in a state of fact which never existed was a matter of mere speculation, which a man could not certainly answer for himself, much less for another. The safer test was whether the statute with the invalid portions omitted would be substantially a different law as to the subject-matter dealt with by what remained from what it would be with the omitted portions forming part of it. On the whole he was unable to say that the Act, with the alleged invalid provisions omitted, was substantially so different a law as to what was left from what it would be with those provisions included that the Court would by sub- stantiating the validity of what was left be making a law which the Parliament did not make. He proceeded, there- fore, to uphold the validity of the determination in the actual case, subject to certain qualifications which are not material to the question at issue. Barton J.2 agreed that arbitration did not include a power * As decided in 10 C. L. R. 266. 11 C. L. R. 1, at pp. 34 seq. See also pp. 320-5.

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