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Twomey on Common Law Principles as Limitations on Legislative Power in the Commonwealth

By Lawrence Solum

Anne Twomey (University of Sydney - Faculty of Law) has posted Fundamental Common Law Principles as Limitations Upon Legislative Power (Oxford University Commonwealth Law Journal, Vol. 9, No. 1, pp. 47-71, 2009) on SSRN. Here is the 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.

Full post as published by Legal Theory Blog on March 04, 2010 (boomark / email).