Fundamental Common Law Principles as Limitations Upon Legislative Power

Oxford University Commonwealth Law Journal, Vol. 9, No. 1, pp. 47-71, 2009

Sydney Law School Research Paper No. 10/29

24 Pages Posted: 3 Mar 2010

See all articles by Anne Twomey

Anne Twomey

The University of Sydney - Faculty of Law

Date Written: February 25, 2010

Abstract

The House of Lords' decision in the Bancoult case raised important issues concerning the effectiveness of fundamental common law principles as a limitation upon legislative power. This article considers the origins, cogency and current status of the notion that fundamental common law principles can act as a limitation on (a) the legislative powers of Parliament; (b) foreign laws that may otherwise continue to operate in conquered or ceded colonies; (c) the prerogative power of the Crown to legislate for colonies; and (d) the legislative powers of colonial legislatures. It then analyses the application of the Colonial Laws Validity Act 1865 upon Orders in Council made with respect to former colonies and current British Overseas Territories where such orders could otherwise be regarded as repugnant to fundamental common law principles. It also considers whether the Colonial Laws Validity Act, by terminating the application of the common law doctrine of repugnancy to Orders in Council made with respect to a colony, has the effect of immunising such orders from judicial review.

Keywords: Crown, colonies, executive power, prerogative power, repugnancy, Colonial Laws Validity Act, fundamental common law principles, judicial review

JEL Classification: K10, K30

Suggested Citation

Twomey, Anne, Fundamental Common Law Principles as Limitations Upon Legislative Power (February 25, 2010). Oxford University Commonwealth Law Journal, Vol. 9, No. 1, pp. 47-71, 2009, Sydney Law School Research Paper No. 10/29, Available at SSRN: https://ssrn.com/abstract=1559543

Anne Twomey (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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