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By Gregory Taylor

In this paintings Dr. Taylor surveys the federal international locations of the area and asks how they divide strength one of the constituent devices of the federation. In so doing, he considers not just the formal constitutional textual content, yet, way more importantly, the case legislations that has grown up round it because the Courts improve methods to analyzing provisions for the distribution of powers. this permits conclusions to be drawn in regards to the effectiveness of assorted structural and interpretative techniques to the distribution of powers inside federations.

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Characterisation in Federations: Six Countries Compared

During this paintings Dr. Taylor surveys the federal nations of the area and asks how they divide strength one of the constituent devices of the federation. In so doing, he considers not just the formal constitutional textual content, yet, way more importantly, the case legislation that has grown up round it because the Courts strengthen methods to analyzing provisions for the distribution of powers.

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The most substantial grant of provincial power is in fact s92(13). C. ^^ There are only four concurrent powers: 'the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy' (s 92A (2); concurrent by virtue of s 92A (3)), old age pensions and disability benefits (s 94A), and agriculture and immigration into a province (s 95).

Text and doctrine 31 British Judges, was until 1949^^ the supreme Court of appeal for Canada even on constitutional issues - in Citizens Insurance Co, of Canada v. ParsonsP The case concerned the validity of a statute of the province of Ontario relating to the conditions attached to contracts of insurance against fire. It was argued unsuccessfully that this came within the federal trade and commerce power. In deciding the case, their Lordships of the Privy Council pointed out the falsity in Sir John MacDonald's claim to 'have avoided all conflict of jurisdiction and authority' by indicating that the existence of two lists with overlapping subject-matters required careful reconciliation of the granted powers when determining their scope: Take as one instance the subject 'marriage and divorce', contained in the enumeration of subjects in s 91; it is evident that solemnisation of marriage would come within this general description; yet 'solemnisation of marriage in the province' is enumerated among the classes of subjects in s 92, and no-one can doubt, notwithstanding the general language of s 91, that this subject is still within the exclusive authority of the legislatures of the provinces.

46. BlackshieldWilliams, Australian Constitutional Law, pp. 696f. It may be that the position is different here depending on whether the incidental aspect of a non-purposive power or a purposive power is involved: Leask v. Commonwealth (1996) 187 CLR 579, 605f, 624. However, the author's view, for the reasons given in the text, is that proportionality can be an important factor in the area of incidental power as a guide to sufficiency of connexion: Leask at 593, 616, 617, 635. d. The excq)tion that disproves the rule 25 disproportion between means and ends may well result in invalidity.

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