Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co: 1910

The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest respect, that the test is this, that if the court, on a consideration of the whole statute, and rejecting the parts held to be ultra vires, is unable to say that the legislature would have adopted the rest without them, the whole statute must be held invalid. With profound deference I venture to doubt the accuracy of this test. What a man would have done in a state of facts which never existed is a matter of mere speculation, which a man cannot certainly answer for himself, much less for another. I venture to think that a safer test is whether the statute with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it.’
Isaacs J said: ‘If good and bad provisions are wrapped up in the same word or expression, the whole must fall. Separation is there from the nature of the case impossible, and as it is imperative to eject the bad – and this can only be done by condemning the word or phrase which contains it – the good must share the same fate.’


Griffiths CJ, Isaacs J


(1910) 11 CLR 1




CitedThe Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
CitedIllinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .

Cited by:

CitedDirector of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
Lists of cited by and citing cases may be incomplete.


Updated: 10 May 2022; Ref: scu.259760