36.
securities. But while Higgins J concluded[1] that the federal Parliament could "regulate the terms of admission into a field and of remaining therein, … it cannot make a law imposing a penalty for picking a turnip" in the field. This, as Higgins J acknowledged[2], was a fine distinction. It was to be given effect by seeking out "the true nature and character of the legislation in the particular instance under discussion … in order to ascertain the class of subject to which it really belongs"[3]. But the search was for a singular "nature and character"; it was assumed that a law can have no more than one character. (That a law can be one with respect to more than one head of power is now well established[4].)
82 This examination of Huddart Parker reveals several matters of present relevance. First, no one view of the meaning of s 51(xx) commanded the assent of even a majority of the Court. These differences of opinion deny that there was then any settled understanding, accepted by these framers of the Constitution, of what meaning or effect was to be given to s 51(xx). What was accepted, by at least the three founding members of the Court, were certain principles of constitutional construction, and in particular those principles which underpinned the reserved powers doctrine. Chief among those principles were first, the need to consider the Constitution "as a whole, and so as to give effect, as far as possible, to all its provisions"[5] and second, the drawing of a negative implication from the grant of a positive power, like s 51(i) and its grant of power with respect to trade and commerce with other countries, and among the States[6]. (More than faint echoes of these propositions were to be heard in the present matters in the plaintiffs' submissions concerning the relationship between s 51(xx) and s 51(xxxv).)
- ↑ (1909) 8 CLR 330 at 414.
- ↑ (1909) 8 CLR 330 at 414.
- ↑ (1909) 8 CLR 330 at 410, quoting Russell v The Queen (1882) 7 App Cas 829 at 839–840.
- ↑ See, for example, Fontana Films (1982) 150 CLR 169 at 192–194 per Stephen J.
- ↑ R v Barger (1908) 6 CLR 41 at 72, quoted in Huddart Parker (1909) 8 CLR 330 at 350 per Griffith CJ.
- ↑ Attorney-General for NSW v Brewery Employés Union of NSW ("the Union Label Case") (1908) 6 CLR 469 at 502–503, quoted in Huddart Parker (1909) 8 CLR 330 at 350–351 per Griffith CJ.
