² Howard, Australian Federal Constitutional Law (2nd ed. 1972) 27-45Google Scholar; Fajgenbaum, and Hanks, Australian Constitutional Law (1972) 491-503Google Scholar; Sawer, Australian Federalism in the Courts (1967) 138-142Google Scholar; Tammelo, “The Tests of Inconsistency Between Commonwealth and State Laws” (1957) 30 A.L.J. 496Google Scholar; Zelling, “Inconsistency Between Commonwealth and State Laws” (1948) 22 A.L.J. 45Google Scholar.

³ The Liquor Acts 1912-1914, ss. 183, 186 (Qld).

⁴ S. 172.

⁵ Commonwealth Electoral (War-time) Act 1917 (Cth). According to Sawer this was the only piece of legislation for which the Hughes Nationalist government was responsible, aside from routine financial measures: Sawer, Australian Federal Politics and Law 1901-1929 (1956) 134.Google Scholar

⁶ S. 14.

⁷ It is implicit in Howard, op. cit. 31-33, 35, that after the federal statute had been passed the Queensland government chose to hold the local option vote on the same date as the Senate election. However, this was not so, because by virtue of s. 172 of The Liquor Acts 1912-1914 (Qld) the local option vote had been required to be held on the same date as the Senate election before the federal statute was passed.

⁸ Knox C.J., Isaacs, Gavan Duffy, Powers, Rich and Stark’e JJ.

⁹ (1920) 28 C.L.R. 23, 29.

¹⁰ Id. 29-30.

¹¹ Id. 32. In the course of his judgment Isaacs J. had disposed of the contentions that s. 14 of the federal Act was ultra vires and that Daniell was estopped by her conduct from obtaining a remedy; id. 30-32. Incidentally, 28 C.L.R. contained two other Isaacs J. judgments which may be noted here—those in the Engineers’ Case, at 129, and in McArthur’s case, at 530. While his judgment in Daniell’s case is not as famous as his judgments in the other two cases, nevertheless it is similar to them in its benevolent attitude toward the federal government.

¹² See Atiyah, An Introduction to the Law of Contract (2nd ed. 1971) 215-219.Google Scholar

¹³ Howard, op. cit. 35, assumes that the federal statute (s. 14) was directed to the voters rather than the State electoral officials and accordingly he views it as imposing a penalty for voting. I do not believe this to be the correct interpretation of the words “no ... vote of the electors ... shall be taken ... “.

¹⁴ (1920) 28 C.L.R. 23, 33.

¹⁵ Ibid.

¹⁶ Sawer, Australian Federalism in the Courts (1967) 139.Google Scholar

¹⁷ See Howard, op. cit. 36-44.

¹⁸ In Clyde Engineering Co. Ltd v. Cowburn (1926) 37 C.L.R. 466.

¹⁹ (1920) 28 C.L.R. 23, 33-34.

²⁰ South Australia v. The Commonwealth (1942) 65 C.L.R. 373.

²¹ Id. 408. Latham C.J. has, incidentally, been described as “a veritable champion” of this viewpoint by Pannam, “Tortious Liability for Acts Performed under an Unconstitutional Statute” (1966) 5 Melbourne University Law Review 113, 128.Google Scholar His championship, however, pales to insignificance when compared to that of the Connecticut Supreme Court of Errors. That Court rendered some 1500 Connecticut statutes void ab initio at one stroke by ruling in State v. McCook (1929) 147 Atlantic Reporter 126 that Bills passed by the State’s General Assembly did not become laws unless signed by the Governor within three days of the final adjournment of the Assembly: see (1936) 45 Yale Law Journal 1533, 1534.

²² (1940) 308 U.S. 371.

²³ Id. 374.

²⁴ Dixon, “De Facto Officers” (1938) 1 Res Judicatae 285.Google Scholar

²⁵ Id. 285.

²⁶ Ibid.

²⁷ Field, The Effect of an Unconstitutional Statute (1935).Google Scholar

²⁸ (1938) 1 Res Judicatae 285, 285.

²⁹ Ibid.

³⁰ Ibid. On this topic see now Pannam, “Unconstitutional Statutes and De Facto Officers” (1966) 2 F.L.Rev. 37Google Scholar. For a recent case referring to the doctrine, see Adams v. Adams [1971] P. 188. The case involved an unsuccessful petition for a declaration of validity of a divorce granted by a Rhodesian judge appointed after the Unilateral Declaration of Independence.

³¹ James v. The Commonwealth (1939) 62 C.L.R. 339.

³² Id. 359-360. See generally Hogg, Liability of the Crown (1971) 76-77.Google Scholar

³³ Pannam, “The Recovery of Unconstitutional Taxes in Australia and the United States” (1964) 42 Texas Law Review 777Google Scholar. Latham C.J. did not participate in any cases involving attempts to recover money paid under unconstitutional taxing statutes, but his judgment in Werrin v. The Commonwealth (1938) 59 C.L.R. 150, especially at 159, suggests that he would have taken the same approach in them as is stated in the text, viz., to give effect to the statute unless the plaintiff could show compulsion. The suggestion implicit in Pannam’s article (at 791) that Werrin’s case did involve an unconstitutional taxing statute is incorrect. Also, the statement he there attributes to Latham CJ. (at 59 C.L.R. 157) was actually made by Starke J. (at 59 C.L.R. 163).

³⁴ (1959) 102 C.L.R. 108.

³⁵ Id. 117.

³⁶ Subject to the caveat in Pannam, op. cit. 800-803, that if the statute is found unconstitutional only by overruling a previous decision that it was constitutional, then it should not be considered void ab initio. Adherence to this rule, incidentally, would have led to a conclusion contrary to the one actually reached in Mason’s case, since the relevant legislation there had previously been upheld: (1959) 102 C.L.R. 108, 113.

³⁷ Supra pp. 69-70.

³⁸ (1975) 7 A.L.R. 593 (hereinafter cited as McKinlay’s case). The case is reviewed elsewhere in this Review: infra p. 242.

³⁹ Id. 614.

⁴⁰ Id. 629.

⁴¹ A similar sort of problem arose in America after its Civil War. The Supreme Court then upheld the validity of a number of statutes of Confederate legislatures e.g. U.S. v. Insurance Companies (1875) 89 U.S. 99. In that case Strong J., for the Court, said of the Georgian Confederate legislature at 101 “If not a Legislature of the State de jure, it was at least a Legislature de facto. It was the only law-making body which had any existence.” When during the 1960’s the American Supreme Court began to declare unconstitutional statutes creating federal, state and local government electoral boundaries because they did not give effect to the “one vote, one value” principle, the notion that an unconstitutional statute was necessarily void ab initio was so thoroughly discredited that no reference was even made in the cases to the effect of the decision on past legislative bodies.

⁴² (1938) 1 Res Judicatae 285.

⁴³ (1920) 28 C.L.R. 23, 35.

⁴⁴ (1873) L.R. 8 Q.B. 210.

⁴⁵ Id. 215. The same approach can be seen in e.g. the Commonwealth Electoral Act 1918-1975 (Cth) s. 194.

⁴⁶ (1868) 33 New Jersey Law Reports 195 (hereinafter cited as Mitchell’s case).

⁴⁷ Id. 199.

⁴⁸ The failure of Daniell’s application would obviously have satisfied Higgins J. Howard, op. cit. 32, is also critical of the result the Court reached.