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‘Embarassing And Even Ridiculous’: The Short-lived Rise And Fall Of Chief Justice Pope Cooper’s ‘two Act Entrenchment’ Thesis In Early Twentieth Century Queensland

Loveland, I. ORCID: 0000-0001-9188-8217 (2022). ‘Embarassing And Even Ridiculous’: The Short-lived Rise And Fall Of Chief Justice Pope Cooper’s ‘two Act Entrenchment’ Thesis In Early Twentieth Century Queensland. University of Queensland Law Journal,

Abstract

This paper examines the brief lifespan (1907-1920) 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 Queensland’s Constitution Act 1867 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.

Publication Type: Article
Additional Information: This article has been accepted by The University of Queensland Law Journal.
Subjects: K Law > K Law (General)
Departments: The City Law School > Academic Programmes
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