Report No. 60

13.13A. History of Australian provision.-

This section was first inserted in the (Australian) Acts Interpretation Act in 1930. The provision was described at the time as being one "mainly directed against the doctrine of inseverability".

It was explained, in the course of the second reading speech in the Senate, as follows:-

"Where a measure deals with a subject as to which legislative power is divided between the Commonwealth and the States, and the line of demarcation between the respective powers of the Commonwealth and the States has not been completely laid down, it has been found necessary, in certain cases such as the Navigation Act, to make provision, in terms similar to those appearing in clause 23 of this Bill, to declare the intention of the legislature not to exceed its powers and to secure the application of the Bill up to the limit of those powers and no further. Such a provision, it is considered, protects the Act in which it appears from being declared wildly invalid where any portion of it would, but for this provision, have been capable of an unconstitutional construction."

"The High Court (of Australia) held in 1910 that where the valid and invalid provisions of an Act are inseparable or 'wrapped up in the same word or expression', the whole must fall.1

"The argument of inseparability was in 1921 used against the Navigation Act in Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth, 29 CLR 357. The fact that the Act contained a provision which is now proposed made common to Commonwealth legislation was the reason given why the argument failed, and accordingly, certain sections of the Act were declared to remain effective to the constitutional limit decided by the court."

1. (a) Bootmakers case, 11 CLR 1 (54, 55);

(b) Owners of S.S. Kalibia v. Wilson, 11 CLR 689 (713).