Page 908 - Week 03 - Thursday, 14 March 1991
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Forbes C.J. clearly indicated the difference between constitutional laws and legislative laws ... "Adopting the distinction here drawn, by the Judges in England, between such laws as are of a general and fundamental kind, upon which the constitutional Government, and social rights of the community depend, and such as are of a political and local nature, calculated to suit the exigencies of particular times and places, and admitting of a deviation without affecting the general laws of the Empire.".
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... the Chief Justice indicated that legislative laws must be reasonable and not repugnant to the constitution, "Let me not, however, be mistaken; the laws of England are our birthright where they apply to our condition, and can be administered to us with advantage; but where they are inapplicable they are not in force ... and general consent and usage of the Colony at large or the local Legislature, both being alike subordinate to the great and sovereign principle that our local laws and usages must be reasonable in themselves and not repugnant to the general laws of the parent country".
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It appears quite clearly that the early judges of Colonial Australia considered that the people had fundamental constitutional rights, that the courts could declare an Act of Parliament void, that the laws of the legislature must be reasonable and not inconsistent with the Constitution and that fundamental documents such as the Magna Charta, Bill of Rights and Habeas Corpus Act composed parts of the Constitution.
That was the position of the law in the mid-19th century, as will be shown, there is nothing to prevent the Judges of the 20th century from taking the same position.
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It was the re-assertion of legal positivism which had the greatest influence on the development of law in England and eventually in Australia. Whereas the people of England through the Bill of Rights of 1688 had declared once and for all an end to legal positivism in the form of the King's Prerogative, various academics in the 19th century revived the concept in the form of the Parliament's Prerogative or as it is better known, the "Sovereign Parliament".
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