'Embarrasing and Even Ridiculous': The Short-Lived Rise and Fall of Chief Justice Pope Cooper's Two Act Entrenchment Thesis in Early 20th Century Queensland

Abstract

This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.