possibility of a clash between Dominion and Provincial legislative powers sec

Possibility of a clash between dominion and

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possibility of a clash between Dominion and Provincial legislative powers, sec. 7(3) was inserted in the Statute. As to Australia and New Zealand, the constituent Acts of those Dominions, referred to in sec. 8 of the Statute, indicate that it was not the case that the necessity for observance of the method of legislation was all that sec. 8 was 1952 (2) SA p434 intended to safeguard, for the constituent Acts did not confer plenary powers of legislation on the Parliament of each of the Dominions referred to. In the case of Australia in particular, if sec. 8 of the Statute had not been enacted, sec. 2(2) might have conferred the power of alteration of the constitution established by the Commonwealth of A Australia Constitution Act, 1900 (63 and 64 Vic. Ch. 12), sec. 9, on the Commonwealth Parliament, thus empowering it to terminate the federal system, as established by secs. 1 to 8, which sections were not alterable except by the Imperial Parliament. In addition, if sec. 2(2) of the Statute had applied to Australia without qualification, it might B have conceded plenary powers to the Commonwealth Parliament at the expense of the powers conferred on the States by the Constitution. Finally, if sec. 2(2) had applied without qualification it might also have conceded powers to the Commonwealth Parliament at the expense of those of the electorate in sec. 128 of the Constitution. But mere C preservation of the existing Constitution of Australia might well have been insufficient to safeguard the powers of the State Legislatures; see the Constitution, sec. 107; Halsbury, supra p. 105. It was this constitutional difficulty that sec. 9(1) was designed to prevent by prohibiting the Commonwealth Parliament from invading the D legislative competence of the States; see Wheare Statute of Westminster (4th ed., pp. 205 - 6). As to New Zealand, unlike Australia and Canada but like South Africa, New Zealand possesses a unitary constitution, but the difficulty in this case was that a doubt existed as to whether the New Zealand Parliament possessed any power at all in certain respects to E change the Constitution of the Dominion; see Halsbury, supra p. 69. Sec. 2(2), if sec. 8 had not been enacted, might have conferred such powers. The effect of sec. 8 was to withhold them. But sec. 8 in this context affects the substantive powers of a Dominion Parliament, not the method by which such Parliament functions and enacts law. The foregoing F analysis establishes that the 'saving sections' of the Statute of Westminster impose limitations on the positive powers of the Parliament of a Dominion, in the cases of Canada, Australia and New Zealand, which might otherwise have been conferred by sec. 2(2). They deal in no way G with the constitutional method of legislating by a Dominion Parliament. Only if the 'saving sections' could be shown to safeguard the constitutional method of legislation alone, could it be plausibly suggested that such method was intended to be affected by sec. 2(2) and hence to require a special and an express safeguard. But even if the 'saving
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