“尴尬甚至荒谬”

I. Loveland
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摘要

本文考察了“两法案”巩固的短暂寿命(1907–20年),这是20世纪初在昆士兰出现的一个奇怪的宪法理念。其起源于昆士兰当时的首席大法官Pope Cooper提出的一个论点,他是刑事诉讼的被告,因为他拒绝为自己的司法工资缴纳所得税。这一论点是,1867年《宪法法》(Qld)是一种“基本”或“有机”法律,不能通过普通方式通过的立法来改变,但只能通过两法案立法程序来改变,在两法案立法过程中,立法机构在第1法案中明确授权自己修改相关条款,颁布了相关变更。这篇文章认为,这一观点在帝国或殖民地立法中都没有文本基础,没有支持性的司法权威,在昆士兰的立法实践中也没有先例,曾多次得到昆士兰最高法院和澳大利亚高等法院的支持,之后在麦考利诉国王案中被枢密院以完全没有根据为由驳回;但驳回了为枢密院随后批准这一主张奠定基础的条款(在Trethowan诉新南威尔士州总检察长一案中),即澳大利亚的州立法机构确实拥有立法权限,可以制定司法上可强制执行的巩固措施,以防止某些法律通过普通立法程序颁布。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
'Embarrasing and Even Ridiculous'
This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.
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