Talk:Reserved powers doctrine

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Basis of this Article from the Case Text

Below is a quote directly from the case which affirms the basis of this article

"Applying these principles to the present case, the matter stands thus:—Sec. 51 (XXXV.) is in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to industrial disputes in which States are concerned: but subject to any special provision to the contrary elsewhere in the Constitution. The respondents suggest only section 107 as containing by implication a provision to the contrary. The answer is that sec. 107 contains nothing which in any way either cuts down the meaning of the expression "industrial disputes" in sec. 51 (XXXV.) or exempts the Crown in right of a State, when party to an industrial dispute in fact, from the operation of Commonwealth legislation under sec. 51 (XXXV.). Sec. 107 continues the previously existing powers of every State Parliament to legislate with respect to[33] State exclusive powers and (2) State powers which are concurrent with Commonwealth powers. But it is a fundamental and fatal error to read sec. 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in sec. 51, as that grant is reasonably construed, unless that reservation is as explicitly stated. The effect of State legislation, though fully within the powers preserved by sec. 107, may in a given case depend on sec. 109. However valid and binding on the people of the State where no relevant Commonwealth legislation exists, the moment it encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way. This is the true foundation of the doctrine stated in D'Emden v. Pedder[34] in the so-called rule quoted, which is after all only a paraphrase of sec. 109 of the Constitution. The supremacy thus established by express words of the Constitution has been recognized by the Privy Council without express provision in the case of the Canadian Constitution (see. e.g., La Compagnie Hydraulique v. Continental Heat and Light Co.[35]). The doctrine of "implied prohibition" finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters, but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of sec. 109. That section, which says "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid," gives supremacy, not to any particular class of Commonwealth Acts but to every Commonwealth Act, over not merely State Acts passed under concurrent powers but all State Acts, though passed under an exclusive power, if any provisions of the two conflict; as they may—if they do not, then ???adit quæstio."

158.70.145.156 (talk) 16:52, 19 January 2010 (UTC)