CONSTITUTIONAL REFORM AND THE INTRODUCTORY CLAUSE OF SECTION 91: RESIDUAL AND EMERGENCY LAW-MAKING AUTHORITY

Abstract

This article surveys the controversy surrounding residual and emergency law-making powers under the POGG authority of section 91 of the B.N.A. Act, focussing on four sources of difficulty for commentators: the failure to recognize a parallel power in the provincial provision on local and private matters; the search for meaning in the phrase “peace, order and good government”; the failure to recognize the historical scope of power under property and civil rights and the significant allocation to the provinces; and assumptions that there should be one true test to rely on the power. The author then considers important cases in the area and propositions for reform.