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High Court of Australia Transcripts |
Perth No P60 of 2000
B e t w e e n -
CROW YOUGARLA, BILLY THOMAS, MONTY HALE, NORTON WILLIAMS AND FRANK FRENCH
Appellants
and
THE STATE OF WESTERN AUSTRALIA
First Respondent
THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Second Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 27 MARCH 2001, AT 10.17 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, DR S.C. CHURCHES and MR P.W. JOHNSTON, for the appellants. (instructed by Dwyer Durack)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friends, MR G.R. DONALDSON and MR J.A. THOMSON, on behalf of the first and second respondents. (instructed by the Crown Solicitor for the State of Western Australia)
MR H.C. BURMESTER, QC: May it please the Court, I appear with MR G.M.AITKEN, for the Attorney-General for the Commonwealth, intervening. (instructed by the Attorney-General of the Commonwealth)
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, the central question, of course, is whether the West Australian Aborigines Acts of 1897 and 1905, which purported to repeal section 70 of the West Australian Constitution Act, were enacted in accordance with the requirements of enactments of the United Kingdom of 1842 and 1850 for the government of the then Australian colonies. But, your Honours, to state the question in that way leaves inherent within it, or following from it, two other issues, and they are: were the requirements of the 1842 and 1850 Acts applicable to the two Western Australian enactments in question, and, secondly, if they were, and if their provisions were not complied with, does it matter? Your Honours, the course which I propose to take, subject of course to the Court, in these submissions, is first to go to the constitutional provisions in Western Australia, then to the relevant provisions of the 1842 and 1850 Acts, and, thirdly, to the question whether non-compliance matters.
The respondents, your Honours, raise a section 106 issue of the Commonwealth Constitution. May I deal with that in response and, as your Honours would have seen, we propose to adopt the submissions made on behalf of the Commonwealth in that regard. Could I come to the Western Australian constitutional provisions.
CALLINAN J: What about the question of standing? Is that still a live question?
MR JACKSON: Not, your Honours, as we would understand the issue before the Court now. It may be later, of course, but that is - - -
CALLINAN J: Why do you say it may be later?
MR JACKSON: I am sorry. What I mean by that is that the matters to be dealt with before the Court on this occasion were the subject of some directions by your Honour Justice Gummow, and in consequence of that the issue with which the Court is concerned is whether there was compliance, to put it shortly, the manner and form provisions, and the section 106 issue raised by my learned friend. Your Honours, could I just say before going to the provisions that your Honours will see there is a number of books. The two to which I will be referring are the blue, briefly, and also to the green book.
GUMMOW J: That reminds me, Mr Jackson, in the green book at page 226, there is set out the text of the Imperial statute, the Australian States Constitution Act 1907. There is some reference to this statute in your footnote 12. One question that perhaps arises is: what is the significance for these "manner and form" arguments of section 2 of the 1907 Act? It does not seem to be raised against you, but it does seem to be in there somewhere.
MR JACKSON: Your Honour, can I just say in relation to it two things. The first is that this aspect I think will at some point perhaps be raised by my learned friend, I suspect. The second thing is of course that this aspect of the case is one that has been already decided in our favour in the courts below and really is a question of construction in a sense of that Act without going further. Your Honours will see that the operative part of section 2(1) - and I am looking at page 228 of the green volume - is that it refers to:
Any Act passed by the Legislature of any such State, and assented to in the name of His Majesty by the Governor -
which is not the case of either of these two enactments -
and not disallowed by His Majesty before the passing of this Act, shall, notwithstanding that the Bill . . . was not reserved -
although it should have been -
and notwithstanding that it ought to have been . . . laid before both Houses of Parliament -
et cetera. But the condition of operation, if I can put it that way, of the provision is that the Bill is one to which the Governor should not have assented but did. In this case of course, that does not apply because these are cases where there was not an assent by the Governor, and the assent that there was was an assent by Her Majesty.
GLEESON CJ: You mean that that section was intended to deal with statutes that should have been but were not reserved?
MR JACKSON: Yes. That is an issue that presently has been decided in our favour. May I turn now to the first of the three aspects with which I seek to deal. That is the relevant Western Australian constitutional provisions. Could I commence by going first to, in effect, the setting in which the 1889 Constitution came into being. That is conveniently summarised in the blue volume at page 4 in the decision of Mr Justice Owen in some earlier proceedings. Your Honours will see at page 4 under the heading "Legislative and Factual Background", he sets out some matters which are germane.
The passage to which I wanted to take your Honours commences at about line 14 on page 4 and goes through to page 5, about line 17. Your Honours will see particularly at about line 20 on page 4 that there had been the Swan River Act 1829 which was to make provision for the government of the settlements in Western Australia. Your Honours will then see that some 13 years after the Swan River Act 1829 , there was legislation in relation to the government of New South Wales.
I will take your Honour's to it in just a moment, but that Act, the 1842 Act, is the Act some provisions of which or provisions of which were applied to Western Australia. Your Honours, that Act, and if I may call it for brevity - its short name seems to vary a little - the Australian Colonies Act 1842. It is at page 156 of the green volume. Could I say, your Honours, in relation to this, and also the 1850 Act, that the green volume contains the relevant provisions extracted. We have given to the Court copies of the Acts in full if your Honours need them.
Your Honours will see that that Act was one, as the title says at the top of page 156:
for the Government of New South Wales and Van Diemen's Land.
It did not apply to Western Australia, but many of its provisions were picked up by the 1850 Act, the Australian Colonies Government Act, which appears at page 159.
Your Honours will see at page 159 in the preamble that there is a reference to the earlier Act and then, if one goes to page 160, what your Honours will see is that section 12 of that Act applied to Western Australia, when there would be representative, as distinct from responsible, government, the provisions of the 1842 Act. Could I indicate to your Honours the relevant provisions of section 12. Your Honours will see that in the first few lines it referred to:
all the Provisions herein contained concerning the Qualification and Disqualification of Electors in New South Wales -
and there is a long list of other items. Two thirds of the way through, about 10 lines from the bottom:
and the Reservation of Bills for the Signification of Her Majesty's Pleasure thereon.....Instructions.....to the Governor.....Disallowance of Bills by Her Majesty, shall apply to and be in force in the Colony of Victoria, and in each of the said Colonies of Van Diemen's Land, South Australia and Western Australia, in which a Legislative Council shall be established under this Act, as if all such Provisions were here repeated -
Your Honours, could I pause to say that - - -
GLEESON CJ: What are the provisions of the Act that you would look to, to see whether a Legislative Council has been established under this Act?
MR JACKSON: Well, your Honour, the provision is section 9 of the Act, which is not extracted. Section 9 of that Act allowed for the establishment of a two-thirds elected, one-third nominated Legislative Council and it allowed it to be established in each of the colonies referred to in section 12.
GLEESON CJ: Is it common ground that the Legislative Council of Western Australia was established under this Act?
MR JACKSON: Your Honour, I think there is no doubt - no, I do not think that is in dispute at all, but it did not occur at the time when this Act was enacted, it occurred in 1870.
GLEESON CJ: Quite, but it is common ground that the establishment, when it did occur, was an establishment under this Act.
MR JACKSON: Yes, your Honour. Your Honours will see that there was in force, of course, in 1870 at the time when the Legislative Council was established in Western Australia, section 5 of the Colonial Laws Validity Act 1865 , which is at page 166 of the green volume, and the terms of section 5 gave to a Colonial legislature:
Power to make laws respecting the Constitution, Powers and Procedure of such Legislature -
subject, of course, to manner and form requirements of section 5 made apparent. That is page 166 of the green volume.
Now, your Honours, in 1889 the West Australian Legislative Council passed the Bill for the Western Australian Constitution and that Bill your Honours can see in a number of places, but the place to which I am going to take your Honours is where it appears as the First Schedule to the Imperial enactment, which is the Western Australian Constitution Act 1890 which authorised, to put it shortly, that Constitution. Now, your Honours, the Imperial Act to which I just referred commences at page 168 of the green volumes. Your Honours will see that it contains, as a First Schedule - and this commences at page 170 - the Bill for the Constitution.
The First Schedule, your Honours, goes through to page 191 and if I could just indicate where it comes to an end. It comes to an end immediately above the heading "Second Schedule" on page 191 and, your Honours, the term "Second Schedule" is part of the Imperial enactment and what follows on the rest of that page.
Could I just say, your Honours, that of those enactments that are referred to in the Second Schedule, the first is the 1842 Act. The third is the 1850 Act. The Act in the middle is one - we have given your Honours copies of it - it does not affect the present case.
Now, your Honours, the Constitution itself had to be reserved because it established a bicameral elected, or ultimately elected, legislature and it had to be reserved because of section 32 of the 1850 Act which your Honours will see at page 161 and your Honours will see in section 32 - if I could indicate to your Honours the words that are germane for present purposes - section 32 at page 161 in the second line:
it shall be lawful for the Governor and Legislative Council . . . and for the Governors and Legislative Councils of . . . Western Australia respectively, after the Establishment of Legislative Councils therein under this Act, from Time to Time -
and then, your Honours, for the next four lines it deals with altering the provisions of those legislative councils themselves and then it goes on:
or to establish in the said Colonies respectively, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist respectively of such Members to be appointed or elected respectively by such Persons and in such Manner as by such Act or Acts shall be determined, and to vest in such Council and House of Representatives or other separate Legislative Houses the Powers and Functions of the Legislative Council -
Then your Honours will see in the proviso the requirement for there to be reservation. Now, your Honours, one can see the reservation of that enactment, or the Bill, at page 184, and immediately above the Schedule A, and the Governor's signature:
I reserve this Bill for the signification of Her Majesty's pleasure thereon.
Now, your Honours, if I could go then to the Constitution Act. The purpose of my going to it is to demonstrate that it set up a new constitutional charter dealing with legislative, executive and judicial power for Western Australia, and to show your Honours that it covered the subject matters that otherwise might be covered by the provisions of the 1842 and 1850 Acts. The purpose of doing that is to seek to demonstrate that what in the end was picked up by the provisions of proviso (a) to section 2 of the covering Act that implemented the Western Australia Constitution, was the manner and form for reservation provided for by the earlier enactments.
HAYNE J: That is to pick up manner and form about reservation for what Bills?
MR JACKSON: For Bills that were required to be reserved by the Western Australia Constitution, by section 73.
HAYNE J: Reservation for Bills being the Bills specified in the 1889 Constitution?
MR JACKSON: Yes, your Honour. Now, your Honours will see, if I can go to page 170, that the Act, two-thirds of the way down the page, is expressed to be an Act to confer a Constitution on Western Australia and the preamble refers to, amongst other things, section 32 of the 1850 Act. Then your Honours will see that the Act is divided up into a number of parts and your Honours will see the division in section 1 at page 171 and Part I, which is contained in sections 2 through to 36, establishes the two houses of the Parliament and deals with their - - -
GLEESON CJ: This is Western Australian legislation?
MR JACKSON: Yes, your Honour. This is the Bill for the West Australian Constitution that was reserved, and then, your Honours will see that in section 1 of the covering Imperial Act, which is at page 168, it was provided for in section 1 that it was lawful for the Queen to assent to the Bill, notwithstanding anything contained in the 1842 and 1850 Acts, to put it shortly.
Your Honours, could I just say, if one looks through the terms of Part I, sections 2 to 37, there is first the general legislative power expressed in familiar terms in section 2, then, your Honours - and I will not take your Honours through the provisions - your Honours will see the provision summarised shortly in the side notes, and included amongst those provisions is section 28, at page 175. Section 28, in the second paragraph of it, refers to there being:
five principal executive offices of the Government liable to be vacated on political grounds - - -
and the next paragraph says the offices:
shall be such five offices as shall be designated and declared by the Governor in council -
et cetera. Your Honours, the provision for elections to the lower House was dealt with by Part II, in sections 37 to 41. They commence at page 177, and your Honours will see the qualifications and so on there set out. So far as the upper House was concerned, the Constitution Act, by section 7, provided - that is at page 171 - had provided that the existing Legislative Council was to continue, in effect, until Part III of the Act came into force. Your Honours will see, then, Part III commencing at page 178, and it provided, to put it shortly, that there was to be an elected upper House, once six years had elapsed, or the non-Aboriginal population had reached 60,000 persons, whichever first occurred. Section 42.
Part IV, your Honours, at page 180, dealt with the judiciary, their removal, and securing their salaries, and Part V, commencing at page 180, dealt with the laws to be in force. Could I just mention in passing, your Honours, particularly section 59. Section 59 allowed the legislature to levy duties of customs, but the duties were to be equal. Your Honours, one then goes to the financial provisions, which are set out in Part VI. Your Honours, in relation to the financial provisions, I need to take your Honours a little more specifically to some of them.
Your Honours will see that section 64 established a consolidated revenue fund, and then, your Honours, the appropriations which were contemplated by that provision, were, as your Honours will see in the last two lines, to be "subject to the charges herein-after mentioned." Your Honours, could I mention in passing - and I will seek to demonstrate this in a moment - that it seems apparent enough that the charges, to which reference is there made, include not only those specifically named as charges, but also the specific appropriations charged upon consolidated revenue by the later provisions of the Act, including section 70.
Now, there is a charge by that name, your Honours will see in section 65, and that is the cost, charges, and expenses incident to the collection and management of it. One then sees in section 68 the provision providing for the need for there to be warrants in respect to expenditure.
One then comes, your Honours, to a number of specific items. The first is section 69, which says that there is to be payable up to [sterling]9,850 "in every year" - your Honours will see the phrase used and it recurs - "in every year . . . for defraying the expenses" in Schedule B. Schedule B is at page 191, and it is the top of that page. What your Honours will see is it is that provision which deals with the salary of the Governor, salaries of the judges, and for the Ministers.
Now, your Honours, if I could just pass over section 70 for the moment and I will come back to it shortly, and go, instead, to section71. Section 71 secured the position of some persons who might lose office on political grounds by the operation of the Act, and their situation was secured by that provision. Your Honours will see that they are the persons who are referred to Schedule D, again, at page 191.
Now, could I come back then, your Honours, to section 70. I will not read it out, but may I invite your Honours to note several features about it. The first is that by its terms [sterling]5,000, which is referred to in Schedule C at page 191, was payable to the welfare of the Aboriginal natives, et cetera. That sum was to be issued to the Aborigines Protection Board, a body to which I will return in a moment. The expenditure was to be by that board, and your Honours will notice the expression "under the sole control of the Governor". Again, I will return to that, your Honours.
The next feature is that once gross annual revenues exceeded [sterling]500,000, the annual sum was to be one per cent of the gross and also the board was to be entitled to - this is the last paragraph section 70 - be entitled to retain unexpended balances in any year.
Your Honours, I said I would come back to two of the matters to which I have just referred. The first was that section 70 uses the term "Governor" and says "the sole control of the Governor". It does not say "Governor in Council". The fact that there is a distinction can be seen from section 75, the definition provision, and your Honours will see that "Governor" and "Governor in Council" are separately defined. So the Governor is acting as administrator in relation to section 70, as the person administering under his sole control. The second thing is your Honours will see again from section 75 that the "Aborigines Protection Board" is a term which is defined.
The then existing one might have been replaced, but it had to be replaced by another board and, your Honours, could I just say that the provisions for the appointment of that board are to be found, your Honours, in section 3 of the Aborigines Protection Act 1886 , which is in the green volume at page 347.
GLEESON CJ: Why did you say it had to be replaced with another board?
MR JACKSON: I am sorry, your Honour. If it were to be replaced, it had to be replaced by a board. That is because, your Honour, of the definition of "Aboriginal Protection Board". Your Honours will see it says:
the Board established under "The Aborigines Protection Act, 1886," or any Board with similar functions -
KIRBY J: What would happen if there were no board or if the board went out of existence or if the Parliament did not create a board, how could the Court cure that default?
MR JACKSON: Well, your Honour, could I just say that in relation to section 70, Parliament could change section 70, but it had to be by the mechanism of section 73. I will come to section 73 in a moment, your Honour, but it went a little beyond just saying bills which amend or repeal, it also said, bills which interfere with the operation of section 70, so that there were - - -
KIRBY J: I suppose maybe the constitutional answer would be that, subject to the manner and form requirements, any provision of a Western Australian Act which purported to abolish the board would be invalid because the Constitution envisages that there will be such a board.
MR JACKSON: Yes. Your Honour all one is speaking about at the moment is the terms of the enactments that were purportedly passed in 1897 and 1905 at a time before, for example, the 1907 Australian States Constitution Act came into force and, of course, the effect of the Australia Acts.
GLEESON CJ: But, subject to any requirements of manner and form, the Constitution was just an enactment of the Western Australian legislature and could be itself amended by the Western Australian legislature.
MR JACKSON: Yes, it was, your Honour, and as your Honour puts it, of course, subject to any requirements of manner and form, the requirements of manner and form were not just internal ones; they were, in our submission, provided for by the provisions of the Imperial enactments picked up by section 2 of the covering Act.
Your Honours, could I just say if one looks at the way in which the constitutional structure existed in terms of that enactment, it was unusual your Honours; unusual in the sense that, in respect of an area of governmental concern, and I use that term broadly, of course, the Governor was to act on his own initiative, he had full executive power and the board was not subject to the ordinary ministerial control that would exist in respect of other aspects of government.
GLEESON CJ: What was the population of Western Australia at this time?
MR JACKSON: I am told 40,000 in 1890, your Honour. Your Honours, what I was going to say was that the withdrawal by section 70 of an area of activity from the colonial government was reinforced by the provisions of section 73.
Could I take your Honours to that provision. It is at page 183. Your Honours will see that section 73, in addition to the provisions of section 2 which gave the general legislative power, said in its opening words that:
The Legislature of the colony shall have full power and authority from time to time by any Act to repeal or alter any of the provisions of this Act -
and it then contained two provisos. It is the second that is presently material, but may I indicate where they are. The first commences in the third line of section 73 and goes on to about the eighth or ninth line and the effect of it was that it was not lawful to present Bills to the Governor for Her Majesty's assent which brought about changes in the Constitution of either House unless the second and third readings had been passed by an absolute majority of the whole number of the House.
Now, your Honours, the second was, and your Honours will see the proviso that every Bill which was to accelerate in time the elective Legislative Council - that is about halfway through the section - and it went on to say:
and every Bill which shall interfere with the operation of -
and your Honours will see the various provisions. The first is section 69 and that is the Schedule B expenses for the Governor and the judges. Section 70 is the provision for the amount for the Aboriginal natives and the third was section 71 which was the amount provided for by the schedule for those who might lose office on political grounds, and section 72 was the provision in relation to probably effectively paying debentures and so on.
Then, your Honours, it also provided for the section itself, section 73. Any Bill which interfered with the operation of any of those provisions was to:
be reserved by the Governor for the signification of Her Majesty's pleasure thereon.
We would accept, of course, that if all that was required was royal assent by the sovereign rather than by the Governor, then the assent was given to the 1897 and 1905 Acts. But, your Honours, that gives rise to the question of the correctness of the assumption underlying that. Was that all that was required? When I say "assent" I mean simply the fact of assent.
GLEESON CJ: I am just trying at the moment to relate section 73 to section 2(a) of the covering Act.
MR JACKSON: Yes. May I come to that, your Honour, because I am about to move to that area now. One starts, in effect, with section 76 of the Bill and your Honours will see that at the bottom of page 183 which said that the provisions of the Western Australian Bill:
shall have no force or effect until so much and such parts of the following Acts of the Parliament of the United Kingdom -
and there were the 1842 and the 1850 Acts. Then one goes over to the top of the next page:
as severally relate to the colony of Western Australia, and are repugnant to this Act, shall have been repealed.
Now, your Honours, the repeal contemplated by section 76, one can see at page 168, and your Honours will see, if I could go first of all to the second recital on that page, which recites section 76, and then one goes to section 2 itself. I should perhaps say, if one goes to section 1, your Honours will see it provides that it is:
lawful for Her Majesty by Order in Council to assent to the scheduled Bill, notwithstanding anything contained in any of the Acts mentioned in the Second Schedule -
which are the 1842 and 1850 Acts. Your Honours will then see in section 2 that it provided that:
From the day of the proclamation of this Act in the colony of Western Australia so much and such parts of the several Acts mentioned in the Second Schedule to this Act as relate to the colony of Western Australia and are repugnant to the scheduled Bill shall be repealed.
Now, your Honours, could I just pause at that point to say this. The Western Australian Constitution Bill dealt fully, in our submission, with the legislature and its powers and with the executive and judicial arms of government, as it was, perhaps to use a jargon expression, a charter for government. Prior to its enactment, those matters had been provided for by the 1842 Act as applied by the 1850 Act. Your Honours, without going back to the terms of the legislation, each legislation deals extensively with the same topics and, in our submission, that is sufficient for there to be repugnancy of the kind there referred to.
Your Honours, may I give your Honours some references in relation to repugnancy. We have given them in our written submissions, but I just wanted to, in effect, add one. If I could refer your Honours to Union Steamship of New Zealand Co Ltd v The Commonwealth [1925] HCA 23; (1925) 36 CLR 130 at 148, Justice Isaacs. I wanted to refer particularly to the last paragraph on page 148 and about six or seven lines from the bottom his Honour said:
I refer to what is there set out at length, and merely reaffirm the conclusion that "repugnancy" is equivalent to inconsistency or contrariety.
Your Honours, there is a passage in the reasons for judgment of Justice Mason in University of Wollongong v Metwally (1984) 158 CLR 447 at 463, a passage which was adopted by two members of the Court in Northern Territory of Australia v GPAO. What your Honours will see at page 463 in the last paragraph on the page, his Honour referring to:
Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem -
which he then proceeds to discuss. Then at the top of the next page in the first new paragraph, in the second sentence it says:
Generally speaking, "inconsistency" and "repugnancy" are interchangeable terms -
I said there was a reference to that in GPAO, that is [1999] HCA 8; 196 CLR 553 at pages 579 to 580, paragraph 51. Your Honour the Chief Justice and Justice Gummow.
Now, your Honours, the point that I would seek to make about it is that one had a situation where, under the Western Australian Constitution, provision was made for the institutions of government for legislative power and so on. Previously that had been dealt with by the 1842 Act as applied by the 1850 Act. Your Honours, what we would seek to say about it is that, prima facie, the provisions of the new Constitution were provisions which were repugnant with the provisions of those enactments.
I will seek to demonstrate that a little more precisely in relation to some of the provisions in a moment, but what we would seek to say about it is this, that when one looks at the opening words in the opening part of section 2 and the covering Act at page 168 of the green volume, one sees it is repealing the 1842 and 1850 Acts. It is then that one then sees what are the provisions of those enactments that are retained. One sees that from the terms of the proviso. Just before going to that, one sees also section 5 of the covering Act which is at page 169. It is a provision rather like section 5 of the Colonial Laws Validity Act. It says:
It shall be lawful for the legislature . . . of Western Australia to make laws altering or repealing any of the provisions of the scheduled Bill in the same manner as any other laws . . . subject, however, to the conditions imposed by the scheduled Bill on the alteration of the provisions thereof -
and so on.
GUMMOW J: Section 5 says "subject, however, to the conditions imposed by the scheduled Bill". Any conditions imposed by the 1850 or the 1842 Acts are gone by - - -
MR JACKSON: Yes, your Honour, subject of course to section 2.
GUMMOW J: Yes, exactly.
MR JACKSON: What section 5 does is to say the legislative power of Western Australia extends to altering the provisions of the new Constitution Act 1870 . It must be done subject to the conditions imposed by the Bill, relevantly section 73. Section 73 contains, again so far as presently relevant, the requirement for reservation. The content of the concept of reservation is one that, in our submission, comes from the provisions of the 1842 and 1850 Acts, otherwise relevantly moribund but picked up by proviso (a) to section 2.
HAYNE J: What part of proviso (a) effects that result?
MR JACKSON: Your Honour, if one goes to (a), there is a number of provisions that are referred to. Your Honours will see that the proviso in 2(a) says that the provisions of the 1842 and 1850 Acts which relate to, to put it shortly, four things were to apply to Bills to be passed by the new legislature. If I could take your Honours to the fifth line of the proviso, they are the provisions of those laws which relate to these things:
the giving or withholding of Her Majesty's assent to Bills, and the reservation of Bills for the signification of Her Majesty's pleasure thereon, and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid, and the disallowance of Bills by Her Majesty, shall apply -
it is perhaps not clear whether the last two items are one or two -
shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and by any other -
substitute bodies. So they are the provisions that are picked up.
GLEESON CJ: I am not sure whether it is a handicap not to have the whole of the 1850 statute for this purpose, but I notice that section 33 of the 1850 Act, which is on page 161, appears to answer the description in 2(a) of the covering Act of 1890.
MR JACKSON: Yes. Your Honour, the provisions of section 33, it picks up two laws. The first of them is the 1842, I think it is, Act. The second is an enactment, a copy of which your Honours have, and it is an Act called the - an Act to explain and amend the Act for the government of New South Wales and Van Diemen's Land.
GLEESON CJ: If you assume that the side note to section 32 is a reasonably accurate summary of the provisions of section 32, then section 32 of the 1850 Act is about alterations to the Constitution of the Legislative Council.
MR JACKSON: Yes, your Honour.
GLEESON CJ: Which is a subject that seems to have been, to some extent, overtaken by events by the creation of a bicameral legislature. What, if any, significance does that have for the operation of 2(a)?
MR JACKSON: Well, it is this significance, in our submission, your Honour, that what one saw in section 32 of that Act was a combination of two things. One was that the first part of it, in effect, set out a number of types of Bills which had to be reserved for the royal assent. The second part of it was that it provided for a procedure. In relation to the first of those - and I will come back in just a moment if I may, your Honour - that is really, as your Honour has put to me, spent, in a sense. But as to the second of them, it is not spent.
The machinery or procedure, whatever one chooses to call it, or the manner and form, is it applicable, and it is apparent enough, your Honours, from the statutes of the time - by that I mean the Imperial statutes of the time - that it was considered that section 32 did remain applicable once the Western Australia Constitution Act had been passed.
GLEESON CJ: Well, it is not spent, is it? It is capable of continuing to apply in relation to one of the two chambers.
MR JACKSON: Well, with respect, your Honour, no, because what one had was - it really has two parts in the first part, if I can put it that way, your Honour. Your Honours will see what it is speaking of is the Legislative Council, which was to be a Legislative Council which was the sole chamber, and that was to be a Legislative Council which was to be partly elected, partly nominated. Now, your Honours, that is the first part. Your Honours, that had gone, because that was one that was, in effect, as your Honours will see from the remaining part of that section, really the interim provision for representative government which was to precede what is in the second part of it.
GLEESON CJ: What was the difference between the two chambers or the method of election of the two chambers under the new Constitution, 1889?
MR JACKSON: There are two, perhap, three stages, your Honour, but can I simply deal with the two. The later stage was that it was to be a representative body - that is after six years or the population reaching a certain level. Prior to that, your Honour, it was to be a body which was - perhaps I need to go to the provision. You will see at page 171 that there was to be a Legislative Council, in section 3, and then your Honours will see, in section 6, that the Legislative Council was to be a body appointed by the Governor. So it was an appointed body, your Honour. After that, the situation which obtained was that when Part III came into operation - that is section 42, page 178 - then, your Honours, there could be the establishment of the 15 elected members. That is section 45.
HAYNE J: Can I go back to the proviso (a) a moment?
MR JACKSON: Yes, your Honour.
HAYNE J: In form it seems to be that the provisions of certain identified Acts, Acts identified as relating to certain subject matters, "shall apply to Bills to be passed" et cetera. What are the Bills to be passed that are the subject of this application?
MR JACKSON: Of the section 2(a), your Honour?
HAYNE J: Yes.
MR JACKSON: Your Honour, the Bills to which it applies are Bills which, first of all, are any Bill - I need to qualify that, in a way. If one looks at the question of the giving or withholding of assent, that would cover any Bill. If one is looking at the provision dealing with reservation of Bills, they are the Bills covered by section 73. It is a provision, your Honour, which has a distributive operation.
HAYNE J: That is to say, you read, do you, "shall apply to Bills to be passed" et cetera as finding its relevant content by identification of Bills from the 1889 Constitution, not from the 5 & 6 Vict or 13 & 14 Vict?
MR JACKSON: Yes, your Honour. Can I seek to elaborate on that, your Honour? What we would say is that what you have provided for by the West Australian Constitution is Bills which, broadly speaking, fall into two classes. There are those that are ordinary Bills, that can be assented to by the Governor; there are those that have to be assented to - have to be reserved for the royal assent. In relation to, in effect, the ordinary Bills, one has provisions of the earlier enactments which relate to the giving and withholding of Her Majesty's assent. There are provisions for the reservation of Bills, how they are to be dealt with, and, to put it shortly, your Honours, the provisions of those earlier Acts apply to the extent to which the Bills fall within one or other category.
GLEESON CJ: Is that another way of saying that you read section 2(a) of the covering Act as applying, to the provisions of section 73 of the Constitution, the procedures concerning reservation contained, for example, in section 32 of the 1850 Act?
MR JACKSON: Yes.
MR JACKSON: Yes.
GLEESON CJ: And it is in section 73 of the Constitution rather than in section 32 of the 1850 Act that we find the identification of the Bills in respect of which those procedures have to be followed.
MR JACKSON: Yes, your Honour.
GAUDRON J: And do you read it as requiring observance of the separate procedures required by both Acts?
MR JACKSON: Yes. Well, your Honour, they are separate, but cumulative in a sense. One relates to proclamation; the other lay on the table in the Houses of Parliament in Westminster.
GLEESON CJ: Well now, this is the point of departure between your argument and the reasoning of Justice Ipp in the Western Australian Court, is that right?
MR JACKSON: Yes, what his Honour did was to say the later of the two Acts was valid; he did not need to look at the position of the earlier one, although I think he opined to the view it was valid anyway.
GLEESON CJ: It said the later of the two Acts was valid, because it complied with section 73 and section 32 did not address it because it was not a Bill for one of the purposes referred to in section 32.
MR JACKSON: Yes, and your Honour, that is in one sense the essence of the case, of course, because we need to demonstrate that both of the enactments were enactments which did not satisfy the manner and form of both 1895 and 1905.
HAYNE J: Now proviso (a), and its reference to the provisions, for example, of 5 & 6 Vict which relate to reservation, if you go to 5 & 6 Vict and identify the provision relating to reservation, that provision contains within itself the identification of the Bills which are to be reserved.
MR JACKSON: If one looks at it by itself, your Honour, yes.
HAYNE J: So does it follow that your contention is that proviso (a) is to be understood as not applying those parts of the provisions of 5 & 6 Vict, which specified the classes of Bills that were to be reserved?
MR JACKSON: Yes, your Honour, and may I say why.
HAYNE J: Please.
MR JACKSON: Why we say that is because one reads (a) with the earlier provisions of 2 and what 2 has done has been to repeal the provisions of the 1842 Act, which are repugnant to its own provisions or to the provisions of the new Constitution. The point we would seek to make - and I will go to this in just a moment if I may - is that if one looks at the possible subject matters to which those provisions applied, they are ones which have become irrelevant or are inconsistent with the new Constitution, should be taken to be repealed, leaving then only the procedural things and the procedural provisions are the ones that are picked up, if I could use that expression, by the terms of the proviso.
Your Honours, could I seek to go to develop that now. If I could go first to the 1842 Act to section 31, which is at page 157, your Honours will see that section 31, as is apparent from the opening part of it, is speaking of a situation or a governmental structure involving a Governor and a Legislative Council. The first part of section 31 does appear to be picked up by section 2(a), that is the Governor's power to reserve.
Then one goes on, your Honours, to about halfway down the paragraph to a line with a semicolon in the middle, and then it goes on to list a number of subjects of legislation which that Act says require reservation. Your Honours will see it is the passage commencing:
and all Bills altering or affecting the . . . Districts -
et cetera, and it goes down to the third line from the bottom of that page. Your Honours, what is apparent from the terms of those provisions in so far as they deal with the Legislative Council, members of the Council and so on, that they concern, first of all, the type of governmental structure which predates the bicameral legislature; it is speaking of a partly elected, partly nominated legislature, one which I think had provisioned for two-thirds elections, one-third nomination. So the first thing about it, your Honours, is those provisions are dealing with a different type of legislature from the one contemplated by the West Australian Constitution.
The second thing is that the West Australian Constitution made specific provision itself for the manner of alteration of the constitution of Legislative Assembly and Legislative Council; that is dealt with by section 73, the power to do so. The opening words, of course, of section 73 of the West Australian Constitution have to be read in the context of the elaborate provisions - section 73 is page 183 - of that Constitution dealing with the constitution of the Legislative Assembly and Legislative Council there in Parts I, II and III.
If I could go back then to section 31 at page 157, your Honours will see that the next item in section 31 is the question of altering the salary of the Governor, and that subject is also dealt with specifically in the West Australian Constitution. It is dealt with by section 69, in the green volume at page 182, by Schedule B at page 191, and by section 73 at page 183. So it is a subject that is fully dealt with by the Constitution.
Then the provision relating to judges' salaries, your Honours will see at the bottom of page 157, was something that had never applied in Western Australia in the first place. That is so because of section 13 of the 1850 Act, which your Honours will see at the bottom of page 160. In the fuller copy we have given your Honours the full provision appears. The second thing about it was that, in any event, that topic was specifically dealt with by the West Australian Constitution, and that is by the same provisions as dealt with the Governor's salary.
Now, your Honours, as to the last item, the subject of duties of customs, that is something that was dealt with by sections 59 and 60 of the Constitution which your Honours will see at page 180 and page 181, and such limitations as there were to be on the imposition of customs duties had been overtaken by the provision that is referred to in section 59, and that is the Imperial enactment of the Australian Colonies Duties Act 1863, which provided some restrictions on or some regulation of the colonial powers in relation to customs. Your Honours, if one looks at that section - - -
HAYNE J: And disposed of the requirement to reserve?
MR JACKSON: It did not deal with it specifically, your Honour.
HAYNE J: What do you say then was the status of an obligation to reserve immediately before the 1889 Act and immediately after the 1889 Constitution came into force?
MR JACKSON: Well, your Honour, may I check again the provisions of the Customs Act, which I do not have a copy of at the moment, but the provision - and, your Honour, I hesitate - was slightly complicated by an earlier Act that came to pass. Can I give your Honour an answer to that a little later. But assuming that it was a provision that required reservation because of the provisions of section 31, once one had the Western Australian Constitution come into force, one saw that the subject matter was something that was covered by the West Australian Constitution, covered by in the sense of sections 59, 60 and 73. I am sorry, your Honour, section 73 specifically did not deal with the question of customs, I should have said.
The point I am trying to make about it is that when one sees in the enactment of the Constitution that that subject is specifically dealt with, when one sees that it is excluded from the area of matters that have to be reserved and when one sees that the covering Act is one which says that the provisions of the 1842 Act are repealed to the extent to which they are repugnant, then a requirement for reservation provided for by one but not by the other, in our submission, is one that one would treat, when one is looking at the subject matter, as one of repugnancy.
GLEESON CJ: Mr Jackson, what is the difference between the procedures concerning reservations set up by the 1842 Act and the procedures set up by the 1850 Act?
MR JACKSON: The difference, your Honour, is really the specific addition as a legislated-for matter of the requirement that there be - and this is the matter your Honours will see at page 161 - a copy of the Bill laid before both Houses of Parliament for 30 days.
GLEESON CJ: That is in the 1850 one.
MR JACKSON: Yes.
KIRBY J: What is the theory of the addition of that requirement?
MR JACKSON: Well, your Honour, the theory behind it was, no doubt, that it was something that was able to be considered much the same way as tabling of regulations, I expect, to be considered, if desired, by members of the Houses of Parliament.
GLEESON CJ: It would have a practical effect on who could lobby against it.
MR JACKSON: Yes.
HAYNE J: And it would relate to matters of Imperial concern, would it not, since the laying as in Westminster?
MR JACKSON: Yes, your Honour, that - - -
GLEESON CJ: But I am wondering why section 2(a) referred at all to the 1842 Act; why it did not just rest with the 1850 Act.
MR JACKSON: Your Honour, in a sense it could have, but what one had, the 1850 Act was an Act which picked up itself - I have used that expression excessively - which took over and brought into itself, in effect, provisions of the 1842 Act. That would seem to be why, your Honour.
HAYNE J: But the 1842 Act extended to Governors' instruction matters, did it not?
MR JACKSON: Yes.
HAYNE J: Thus far you have not, I think, adverted to the fact that the list of matters, which under section 31 of the 1842 Act had to be reserved, may not necessarily have been exhaustive, may it, in that Governor instruction matters might, in addition to those specifically listed, have had to be reserved?
MR JACKSON: I do not think, with respect, I intended to exclude those.
HAYNE J: I am not suggesting you did.
MR JACKSON: What I was seeking to say about section 31 was that it had some life after the Constitution came into effect. One has to see what was picked up and what was not repugnant to the new Constitution. What I was seeking to say was that if one looked at section 31, page 157, where one sees the identified types of Bills that are referred to there in the second half of it, it is in relation to those that we would submit there was an area of repugnancy and the provisions were ones which did not apply, leaving of course the requirements otherwise existing that one sees then in sections 32 and 33 and in particular the provision in section 33 at page 158 which was not complied with in this case, that the assent that was given was not signified by a proclamation as provided for by the earlier parts of section 33.
HAYNE J: But were the provisions of section 31 that contemplated the possibility of reservation in accordance with Governors' instructions repugnant to the 1889 Constitution?
MR JACKSON: No, your Honour.
GLEESON CJ: But if you limit the content of 2(a) to matters of procedure as distinct from matters of procedure relating to Bills of a certain kind, is there not an inconsistency between the 1842 Act and the 1850 Act evidenced, for example, by the requirement of the 1842 Act to publish something in the government Gazette?
MR JACKSON: I am sorry, between 1842 and 1850?
GLEESON CJ: The procedures relating to reservation in the 1842 Act included the procedure in section 33(3) on page 158 of publishing in a certain way the fact of assent, is that right?
MR JACKSON: Yes, your Honour, proclamation.
GLEESON CJ: And it was that procedure that was not followed in relation to I think the earlier of the Acts with which we are concerned. But the court in Western Australia held that it did not matter because in relation to the second of the Acts - I think it is the 1905 Act - with which we are concerned, they followed the procedure required by the 1850 Act so long as you did not treat that procedure as freestanding. In other words, the procedures established by the 1842 Act were not the same as the procedures established by the 1850 Act, were they?
MR JACKSON: There was a specific reference to the time for which it had to lie on the table.
GLEESON CJ: Now, once you accept that the procedures relating to reservation under the 1842 Act were different from the procedures relating to reservation under the 1850 Act, it only makes sense to require both Acts to be complied with, as 2(a) does, if you relate those procedures to the content of certain kinds of legislation, does it not?
MR JACKSON: Well, your Honour, there are a couple of assumptions in what your Honour has put to me, of course, and may I come back to those. So far as an answer to your Honour's question, does one have to have some content, does one have to be able to identify the Bills, the answer is yes, but the place where one finds identification is section 73 of the Western Australia Constitution; they are the Bills, they are the ones that have to be reserved.
GLEESON CJ: Well, if a Bill is within section 73, does section 2(a) mean that you have to publish the fact of assent in the government Gazette or do you not?
MR JACKSON: Well, one has to follow one of the methods of proclamation provided for by the 1842 Act.
GLEESON CJ: Well, the method of proclamation provided for by the 1842 Act or the method of proceeding in relation to assent provided for by the 1842 Act is, in that respect, different from the method provided for by the 1850 Act. Which one do you have to follow?
MR JACKSON: Your Honour refers to them being different. The only difference really, in our submission, is the addition of a requirement, not a difference really. The additional requirement is that the Bill - it is now provided in addition to what there was before - has to be laid before both houses of the Westminster Parliament for a particular specified time; it is something - - -
GLEESON CJ: But is there not an additional requirement under the 1842 Act concerning publication of the fact of accent, that you do not find in the 1850 Act?
MR JACKSON: Your Honour, the 1850 Act adopts the 1842 Act. Perhaps I am talking about a different thing from your Honour, but I do not really think there is the difference.
GLEESON CJ: I see. So all the 1852 Act did in relation to the procedures relating to accent was to add an additional procedure?
MR JACKSON: Yes. Because, what your Honour will see is that the 1842 Act related to New South Wales and Van Diemen's Land or related to New South Wales I think actually, and then the provisions of the 1850 Act adopted the provisions of the 1842 Act. Then one sees - - -
GAUDRON J: Where does it do that, could I ask?
MR JACKSON: Yes, your Honour. Section 12 - - -
CALLINAN J: Page 160.
MR JACKSON: Yes, your Honour. Your Honour will see towards the last 5 or 6 lines of that paragraph, and I think I referred your Honours earlier to a part of that, about 10 lines from the bottom of it, which said specifically:
the Reservation of Bills for the Signification of Her Majesty's Pleasure thereon -
GUMMOW J: When was the Western Australian Legislative Council established?
MR JACKSON: , your Honour.
GUMMOW J: 1870, I thought so, but we have not got that instrument, have we?
MR JACKSON: No, we have not, your Honour. I will endeavour to get your Honour a copy. I think it is an Order in Council.
GUMMOW J: It is an Order in Council under the 1850 Act, is it not?
MR JACKSON: Yes.
GLEESON CJ: Could I just come back again to a question of the bicameral legislature after 1889, 1890? I would like to understand a little better than I do the difference between the upper House and the lower House. After a certain period of time the upper House ceased to be appointed and became an elected chamber consisting of 15 members, but was that the only difference?
MR JACKSON: Your Honour, I think the answer is yes. The manner of determining the composition of it changed.
GLEESON CJ: There were no different qualifications for voting or for membership, for example?
MR JACKSON: Your Honour, there was not, of course, a provision for voting but there was a qualification for membership of the upper House. Your Honours will see that, for example, in, originally, page 171 section 6. There was a disqualification in the penultimate paragraph. Then your Honour will see section 10, there had to be five people present in the Legislative Council. Then at section 18 there was the particular type of qualification. It was an age, nationality and property qualification. They had to take an oath or an affirmation or make a declaration - I am sorry, section 19.
GLEESON CJ: After they began to be elected, the only difference between the upper House and the lower House was that it was smaller.
MR JACKSON: Yes.
GLEESON CJ: There used to be a time, in some parts of Australia, where, if I may use an old-fashioned word, the quality of the membership of the Houses was thought to be different.
MR JACKSON: Yes. Your Honour, it is difficult to respond to that without expressing a particular view of it.
GLEESON CJ: I am not thinking of what Lyndon Johnson said about the American Congress, but there were no property qualifications, for example?
MR JACKSON: Well, your Honour, the property qualification before it became elective is the one your Honour will see at the bottom in section 18. That was you had to have "an estate of freehold" in "the value of five hundred pounds" or "of the yearly value of fifty pounds" and have had it for a year before you became a member. Your Honour, that, I think, remained the same after Part III came into force.
GLEESON CJ: Does paragraph (b) of section 2 throw any light on the meaning of (a)?
MR JACKSON: Your Honour, it does in a sense. Your Honour will see that what it does is to say that until the first writs come for the new Legislative Assembly, for the new structure, the old one remains. Now, what that means, of course, is that it is a recognition in one sense that the provisions of the 1842 and 1850 Acts dealing with those topics would have been otherwise repealed because of repugnancy by section 2, but I do not think I can take that part of it any further. That is what it seems to do.
Your Honours, what we would seek to say, then, about section 31 of the 1842 Act is that what was picked up by section 2(a) were the provisions which dealt with disallowance, reservation and so on, in effect, with the law-making process, as distinct from the subject matters involved.
Your Honours, could I then go to the 1850 Act and your Honours will see, first of all, that section 12, which is at page 160, is dealing with the situation which is to apply when representative government, as distinct from responsible government, was established in Western Australia. Then, your Honours, one goes from there to section 32 and section 32 contains, in effect, two parts. The first - - -
GUMMOW J: Does it not really start with 33? Section 33 picks up so much of the 1842 Act as deals with reservation or signification, and that then takes us back to section - - -
MR JACKSON: Sections 31 to 33.
GUMMOW J: - - - 31 to 33, which you have just dealt with this. Then does section 32 of the 1850 Act not add something more to this, it adds a distinct notion, does it not, of tabling?
MR JACKSON: Yes, your Honour. Your Honours, there is no doubt it adds specifically a requirement, non-compliance with which, when it was not specifically provided for, had been thought might possibly give rise to invalidity.
GUMMOW J: Yes, but that separate requirement, tabling, seems to be perceived as something distinct from "reservation for pleasure"? Just looking at 32 and 33 of the 1850 Act.
MR JACKSON: Well, your Honour, I suppose it is a question of how one describes it. I will accept it is an additional requirement to what was there before.
GUMMOW J: But then that tabling requirement is not picked up in 2(a), is it, of the 1890 Imperial Act?
MR JACKSON: Well, it is, in our submission, your Honour.
GUMMOW J: That is the question, I suppose.
MR JACKSON: That is the issue, and, your Honour, what I was going to seek to deal with now was to say that it is one of the provisions of the 1850 Act which, to use the words of 2(a), it is provision which relates to "the reservation of Bills".
GLEESON CJ: But if you endeavour to work out the relationship between 32 and 33 of the 1850 Act, 33 would operate on its own to import the requirements of the 1842 Act in relation to the matter of reservation, would it not?
MR JACKSON: Yes.
GLEESON CJ: But what 32 does is to add an additional requirement, that is to say, the requirement of tabling, but in relation to certain kinds of Bill.
MR JACKSON: Well, your Honour, what section 32 does in its original form is that. Your Honour, I accept that. What we would seek to say is that if one looks at the content of section 32, it does two things: first of all, is to identify some classes of Bills; and, secondly, to add something to the procedure.
What one sees, however, is that the provision in relation to the classes of Bills is one which deals with subjects which are already dealt with by the West Australian Constitution and, therefore, there is a question of repugnancy, but the repugnancy is one which is qualified by the provisions of section 2(a), and section 2(a) picks up the procedural part of it but not the subject matter.
GUMMOW J: Yes, but I think what it may come to is that the Colonial Office lost some battle in 1850 because tabling went in, and they bided their time. By 1890, they arranged matters, with section 2(a), so that tabling was not preserved. Is that not what it is about, really? It is a British - - -
KIRBY J: That would be one historical interpretation. The other historical interpretation would be, initially, when the colony was being governed, essentially by the Governor and a few hand-picked, then the executive could be trusted and any local law-making institution trusted. Once you allowed locals to take a part in the local government, the Imperial authorities were then concerned that they might go haywire with Imperial interests and therefore inserted the added requirement of tabling, so that the legislature could have it. But, by 1890, the Imperial interest had to be released to the locals, because, by that time, they were effectively governing themselves and were on the brink of federal constitutional arrangements. I mean, we have to see these provisions in the historical context by which self-government was being enhanced within the colony, moving towards federation.
MR JACKSON: Yes, indeed, your Honour, but one sees them also in circumstances where Western Australia was, I think, the last of the then colonies to achieve responsible government. But, as your Honours will see from the terms of the Constitution, the question, for example, of the position of the Aboriginal inhabitants of the colony was something that was not, in terms of the Constitution, to be dealt with by the executive government of the colony established in that way. That was excluded, and laws that altered the situation were ones that had to be the subject of the special assent. So your Honour is right to say, of course, one is moving at the time, there were the stirrings of federation, at least in the eastern States, and, no doubt, there was some movement towards it by people in the west, but it did not seem to hold quite the same attraction.
GLEESON CJ: When was gold discovered in the west?
MR JACKSON: 1893, I think, your Honour. An enthusiasm for - - -
GLEESON CJ: There was a big movement of voters. There was a big pro-federation movement to the west, when they found gold there.
MR JACKSON: Yes, your Honour. One stills hears comments from the west about the extent to which they support Australia and - - -
GUMMOW J: You see, one of the effects, as Justice Gaudron reminds me, is that the 1850 Act was applying to colonies other than Western Australia; it was applying in New South Wales. Just assume that someone like Mr Wentworth wanted to achieve a situation whereby he could agitate Westminster. He would have achieved that through section 32. In other words, sectional interests in the colonies could have got into Westminster, by section 32, whereas they could not have got very far, perhaps, with the Colonial Office.
MR JACKSON: Well, indeed, your Honour. Could I just say if one goes really over to the next page, at page 162, this question was not an entirely new one because what your Honours will see the 1862 Act was one which, referring to the 1859 Act - I am looking at the first few lines of the recital - said, "Whereas by an Act . . . it was enacted that it should be lawful for the governors" to establish responsible government to put it shortly. Then at the bottom of the last four lines:
provided always, that every Bill which should be passed by the Council in any of the said Colonies for any of such Purposes should be reserved for the Signification of Her Majesty's pleasure thereon, and that a Copy of such Bill should be laid before both Houses of Parliament for the Space of Thirty Days.
About half a dozen lines further on:
And whereas Doubts have been entertained whether some Acts so passed may not be invalid -
and you will then see section 1 that said:
Every Act passed for the Purposes mentioned -
et cetera -
shall been deemed to be and to have been from the Date of such Assent as valid and effectual for all Purposes whatever as if the same Act has been reserved . . . as if it had been duly laid before both Houses of Parliament, and as if Her Majesty's Assent had been duly given - - -
GUMMOW J: That is a precedent for 1907 - - -
MR JACKSON: Yes, indeed.
HAYNE J: And such Acts were very common, were they not, in the late nineteenth century not simply to Australian colonial affairs, but more generally?
MR JACKSON: Yes. Yes, they were, your Honour, partly because no doubt there was always likely to be a doubt about the interface and characterisation of laws and matters of that kind.
KIRBY J: When the 1850 Act was enacted were there cognate Bills or Acts in the British statute book relating, say, to the Natal Province or the other provinces of the Empire or was this something peculiar and special to the Australian colonies?
MR JACKSON: This was Australia, your Honour.
KIRBY J: I realise the Act is, but I wonder if it was part of some general movement in Whitehall for - - -
MR JACKSON: Your Honour, we understand not because it was a position dealing with what was to happen with the Australian colonies.
Your Honours, if I could just go then to page 161, section 32 of the 1850 Act, your Honours will see that it deals in subject matter with two subjects. The first is it is:
lawful for the Governor and Legislative Council of . . . Western Australia . . . to alter the Provisions or Laws for the time being in force under this Act, or otherwise, concerning the Election of members -
et cetera, to that council. That is the first part of it, and that is the responsible government, Executive Council.
The second part, then is:
or to establish in the said Colonies respectively, instead of the Legislative Council, a Council and a House of Representatives -
et cetera, and that goes through to the start of the proviso. Now, in relation to that, that, of course, had been done and the whole of the starting part of the provision was spent when the Constitution came in.
Your Honours, all those subjects, in any event, were dealt with by the Constitution which supplanted them, and the Constitution was the Bill which, when enacted, created the new legislature. So the first part of section 32 on the coming into being of the new Constitution dealt with a subject matter which was no longer in existence.
But, your Honours, the second part of our submission was picked up by section 2(a). It provided a procedure, as part of the procedure for reservation of Bills and, your Honours, that that was the intention, in our submission, one can see from the Statute Law Revision Act (No 2) 1893, which your Honours will see at page 192.
GLEESON CJ: Your are assuming, are you not, in your argument that 2(a) was aimed at picking up section 32 of the 1850 Act. Is a possible point of view that what 2(a) was really aimed at was picking up 33?
MR JACKSON: Your Honour, I was not saying 32 exclusively; it could have picked up 33, of course.
GLEESON CJ: But 2(a) would have useful work to do, would it not, if it picked up 33 of the 1850 Act, but not 32?
MR JACKSON: Your Honour, it would have useful work to do, but it would not be working to its full capacity. What I mean by that, your Honours, is that the terms of section 2(a) are apt to pick up the provisions which fall within it and section 32 was a provision which was within the subject matter contemplated by the words of 2(a).
GLEESON CJ: If you simply treated those marginal notes as a fair reflection of the substance of the provisions, the language of 2(a) looks as though it relates to the marginal note alongside 33 rather than the marginal note alongside 32.
MR JACKSON: Your Honour is looking at page 168?
GLEESON CJ: Yes.
MR JACKSON: Well, your Honour, all it deals with are that provisions are repealed; it simply refers to the repeal of certain provisions which undoubtedly occurred and your Honour will see that from the terms of section 2 and the Second Schedule of the Act, the provisions of the 1850 Act were repealed, except to the extent they were picked up by section 2(a).
GAUDRON J: And 2(a) in terms defines the provisions as those "which relate to the giving or withholding of Her Majesty's assent".
MR JACKSON: And I go a little further, your Honour; they fall to several classes, "which relate to the giving or withholding of Her Majesty's assent".
GAUDRON J: But relevantly for the present purposes.
MR JACKSON: And the reservation, your Honour, of Bills:
and the reservation of Bills for the signification of Her Majesty's pleasure thereon -
GUMMOW J: "and the instructions"
MR JACKSON: Yes, your Honour.
GUMMOW J: That is it.
MR JACKSON: So they are the provisions which are picked up.
GAUDRON J: Yes, but it does not necessarily, if you see section 32 as dealing with two separate issues, namely reservation and tabling, section 2(a) of the covering Act of 1850 does not purport to pick up, or does not in terms say it is picking up, the tabling provisions.
MR JACKSON: Well, your Honour, it would, because it would be a provision which would relate to the giving of assent. It would relate to it, your Honour, because what it does do is to say that a copy of the Bill shall be laid before both Houses of Parliament for the specified time at least before the pleasure shall be signified. So it is a restraint upon the giving of the pleasure, upon the expression of "Her Majesty's assent".
So, your Honours, it does fall within that description in our submission. Your Honours, I was going to take your Honours to the Statute Law Revision (No 2) Act, 1893, which is at page 192. Now, your Honours, I need to go to three provisions of this. The first is section 1, which is at page 192. It says that:
The enactments described in the First Schedule to this Act are hereby repealed, subject to the provisions of this Act and subject to the exceptions -
et cetera. Now, your Honours, one then goes to page 198 and one sees that at the bottom of the page one of the provisions that is repealed is, your Honours will see, section 32 of the 1850 Act, in the last two lines, the whole section, so far as it relates to Victoria and Western Australia. So that the provision - if I could just put it this way for the moment, your Honours, I have not been to the third part yet - of section 1 works on the assumption that section 32 does apply to Western Australia, or does relate to Western Australia.
Your Honours, it militates against the view that section 32 was a provision not picked up by section 2(a) of the covering Act to the Constitution. But the qualification to the repeal is seen at page 193 and it is the third proviso that appears on that page, commencing at line 9 on page 193. It says:
the repeal by this Act of any enactment or schedule shall not affect any enactment in which such enactment or schedule has been applied, incorporated, or referred to.
Now, your Honours, that is not, of course, a very dramatic provision but the point I am seeking to make about it is simply this, that one sees that section 32 was treated as a provision which was applicable, to the extent to which it could be applicable, to the Western Australian Constitution.
KIRBY J: What was that reservation on page 193?
MR JACKSON: Well, your Honour, what it says is, in effect, the law which had application to Western Australia is repealed but, in effect, so it is not longer a law on the United Kingdom statute book, I suppose, is the first thing. The second part about it is though, that its operation remains because of its incorporation by the provision of the other Act, that being the Western Australia Constitution Act, the covering Act.
GLEESON CJ: Mr Jackson, in relation to the 1905 Aborigines Act 1896 , with which we are concerned, it is the non-compliance with section 32 that is the key to your attachment, is it not?
MR JACKSON: Yes.
GLEESON CJ: Section 32 is an empowering section. It is a section conferring power to alter the constitution of the Legislative Councils and that confirmative power is qualified by a proviso. The entire weight of your argument is thrown, is it not, on the qualification of a power which is a power that has nothing to do with Aborigines?
MR JACKSON: Well, your Honour, undoubtedly we rely upon the provision. But, of course, one is not speaking about other provision in its original form, and one is not speaking about the provision in its original form because of the operation upon it of the two parts of section 2 of the later Imperial Act, the Act covering the Constitution.
What that does, your Honour, and this, no doubt, is the matter in issue in the proceedings, but what that does is to say that those parts of the 1850 Act that are repugnant to the 1890 Constitution are repealed. Now, it says that on the one hand. On the other hand it says those parts of the 1850 Act which fall within certain descriptions apply.
GLEESON CJ: But the proviso to section 32 was never capable of being a freestanding provision, was it? You cannot, as it were, say the power in 32 has gone because it is repugnant to the later legislation, but the qualification to the power, which is to be found in the proviso, is now a freestanding provision which is picked up by 2(a).
MR JACKSON: Your Honour, it is, with respect, possible. One is talking about a situation where it is a later enactment adopting provisions of an earlier one and it is a question of construction of the effect of the two enactments together. Your Honour, we have dealt with this issue in our written submissions. Could I give your Honours the reference to that? Your Honour, it is paragraph 31 of our written submissions. I will not take your Honours to the cases now but I refer particularly to paragraph 31 of our submissions, page 10, and that is that the effect of the adoption of particular provisions of an earlier Act may be to vary them, others may remain unaltered.
HAYNE J: Does the 1842 Act, so far as presently relevant, do any more than say that Bills on certain subjects shall be reserved?
MR JACKSON: It does a little more than that in the sense that it says how a reserved Bill is to become law and it has, for example, the proclamation provision.
HAYNE J: The 42 Act?
MR JACKSON: Yes, your Honour. You see that in page 158 in section 33, which is the provision that it has to be signified in a particular way. Your Honour will see that in the - - -
HAYNE J: Yes. So that the relevant application that you say is derived from proviso (a) is not that Bills on certain subjects shall be reserved and proclaimed but simply that Bills which are reserved shall be proclaimed.
MR JACKSON: Yes, your Honour.
HAYNE J: And similarly in respect of the 1850 Act, Bills which are reserved shall be tabled.
MR JACKSON: Yes.
McHUGH J: Mr Jackson, why is not a possible view of the interrelationship between the 1850 Act and the 1890 Act that 73 covers the same ground as 32 but with the qualification that 73 does not require any tabling, so that 32 is repealed by section 2 of the covering Act and the reference to reservations is really a reference to section 33 of the 1850 Act?
MR JACKSON: Undoubtedly that is one of the possible views, but what we would seek to say about it is that if one takes the steps that your Honour took, one sees that section 73 is the provision that says that Bills which fall into these classes require reservation. One then goes to section 2 and asks: what is repugnant to these provisions? One sees that, for example, a limitation of the nature in the first part of section 32 would be repugnant. One then sees what is picked up by paragraph (a) and the proviso to 32, as well as 33, of course, is something which fits within the description. That is the way in which we would seek to put that.
McHUGH J: Is it legitimate to read this legislation on the basis that the Western Australian legislature has passed the 1890 Act and that the covering Act is the addition of the British Parliament?
MR JACKSON: Yes, it is, your Honour. One sees that not every aspect - - -
GUMMOW J: They were worried about the Attorney-General's pension, were they not?
MR JACKSON: Yes, they were, your Honour. I was just going to the end provisions of the Constitution itself. One sees at the bottom of page 183 that section 76 was the provision that said, "The foregoing provisions . . . have no force or effect until", et cetera. One then sees the Act coming into force - that is page 168. Then one sees in the succeeding sections of the covering Act that, first of all, there is the authority given, then there is the provision about repugnancy. There is the specific provision in section 3 about who is to have the management and control of the wastelands of the Crown in Western Australia and so on.
One then sees the view taken that there is the need in section 5 to give a specific power of alteration subject to the manner and form provisions. Then one goes to section 6 where there is a reservation of the power to separate Western Australia into a number of States. What one sees is, of course, that what was adopted was the proposal, but the proposal is surrounded by the provisions of the United Kingdom legislature and those which it chose.
May I move then to the third aspect with which I seek to deal. I will endeavour to do so briefly. That is the effect of non-compliance. The effect of non-compliance with provisions of the kind presently in question was referred to by Justice Dixon in Attorney-General for New South Wales v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 432. His Honour there in the second half of page 432 is referring to section 5 of the Colonial Laws Validity Act and your Honours will see at about point 6 on the page he goes on to say:
But the law governing the reservation of Bills and the laying of copies before the Houses of the Imperial Parliament were matters prominently in view when sec 5 was framed. It is evident that these matters are included within the proviso, and that, if and in so far as the law for the time being in force purported to make them imperative, a law could not be said to have passed unless they were fulfilled.
He goes on to elaborate upon that in the succeeding sentences, but could I refer particularly to the last sentence on page 432 where his Honour says:
The more natural the wider and the more generally accepted meaning includes within the proviso all the conditions which -
and could I invite your Honours to note the words -
the Imperial Parliament or that of the self-governing State or Colony may see fit to prescribe as essential to the enactment of a valid law.
Could I refer your Honours also to the other two, to Justice Rich at page 419. It is a passage commencing about point 4 on the page:
In my opinion the proviso to sec 5 relates to the entire process of turning a proposed law into a legislative enactment and was intended to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making.
Justice Starke, at page 424 - - -
KIRBY J: Those comments would seem to contradict the suggestion that this is a non-justiciable matter.
MR JACKSON: Indeed, your Honour, yes, directly against it, your Honour. On page 424 - - -
McHUGH J: But what is the name of that case from Hong Kong?
MR JACKSON: Rediffusion.
McHUGH J: Rediffusion Limited?
MR JACKSON: Yes, your Honour.
GUMMOW J: About copyright. It is about the Hong Kong Copyright Ordinance.
MR JACKSON: Yes, your Honour, the - - -
McHUGH J: Did they not take a wider, more liberal view?
MR JACKSON: Well, your Honour, could I say this, that the proposition I am putting, I submit, is not affected by Rediffusion. Rediffusion has been referred to in a number of the cases in this Court. I was going to take your Honours to two further observations about it after this. One is in Victoria v The Commonwealth, the Petroleum and Minerals Authority Case, and the other is in a decision about section 73 in Western Australia v Wilsmore and it is in, I think, Victoria v The Commonwealth that Rediffusion is referred to.
Your Honours, page 424, the top of the page, his Honour said:
Ordinarily, a law is made when it has been passed in accordance with the regular procedure of the legislative body, and has received the royal assent. But the "manner and form" whose observance is required by the proviso to sec 5 of the Colonial Laws Validity Act is the method prescribed -
Your Honours will see -
by the Imperial Act or colonial law for the making -
et cetera.
Your Honours, I was going to go then briefly to what was said in Victoria v The Commonwealth [1975] HCA 54; (1975) 135 CLR 81, particularly to Justice Gibbs at page 163.
GUMMOW J: Can we just go back to the Colonial Laws Validity Act for a minute, Mr Jackson, which is being discussed by Sir Owen Dixon and the other Judges in Trethowen, is it not, section 5. It appears at page 166. That, significantly, does use the phrase "in such manner and form" which is a comprehensive expression, and it might be significant that such a comprehensive expression was not used in section 2(a). It was broken up, and it think it is put against you, broken up and some bits left out.
MR JACKSON: Well, your Honour, a reason why may well be that the equivalent of section 5 is found in section 5 of the covering Act and your Honour will see that at page 169 and a rather, perhaps, wider expression is used than "manner and form", may be by "conditions". In the fourth line:
subject, however to the conditions imposed by the scheduled Bill on the alteration of the provisions -
so it is one provision, and then one sees the particular parts of the otherwise repealed enactments which are then picked up by section 2(a). So, your Honour, no doubt it is not exactly the same, but if one adds together the two provisions they, in a sense, speak more broadly; in a sense, speak more particularly.
Your Honours, I was going to refer to Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81, and to Justice Gibbs at page 163. It is a passage, your Honours, which really commences at the top of the page and goes through to page 165. Your Honours, the point we would particularly seek to make commences at page 163, about point 3 on the page, "A law so enacted", and he is speaking about:
enacted by a different method which the Constitution permits to be used only if certain conditions are satisfied. A law so enacted will be valid only if the conditions are satisfied, and the courts have jurisdiction to declare the invalidity of any such law if there has been a failure to satisfy those conditions. The principle that the courts may not examine the way in which the law-making process has been performed has no application where a legislature is established under or governed by an instrument which prescribes that laws of a certain kind may only be passed if the legislature is constituted by or exercises its functions in a particular manner -
I do not intend to read the whole passage, of course, but could we invite your Honours to read the passage going through to halfway down page 164? Your Honours, could we also give references to other passages in the same case? Pages 118 to 119, Chief Justice Barwick, and your Honours will see at page 118, almost towards the bottom of the page, the penultimate paragraph, his Honour refers to Rediffusion and to the earlier decision in Cormack v Cope. At page 180, the decision of Justice Stephen, and your Honours will see the last paragraph on the page dealing with the question of justiciability, and pages 181 to 183 Justice Mason, commencing the second paragraph of his reasons.
Your Honours, the third reference I wanted to give was to the Court's decision in Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79. The principal reasons, your Honours, were those of Justice Wilson. Could I go to page 96? In the paragraph commencing about point 3 on the page, his Honour said:
It is common ground that the first proviso to s 73 -
and your Honours will appreciate that the first proviso was one that said there had to be a majority of both Houses to achieve particular alterations:
In cases to which it applies, its observance is an essential condition precedent to the validity of the law in question.
He said that it would have been difficult in the light of the well-known cases to which he refers to contend otherwise:
The Solicitor-General somewhat wistfully invited the Court to reconsider the matter in the hope that it might relegate the proviso to the ineffectual category of a procedural direction, non-compliance with which would have no effect on the validity of the legislation. I decline the invitation, for the same reason that he declined to argue the proposition. It is clearly untenable.
Your Honours, it goes on through the remainder of that paragraph, and we would submit that the observations made there by his Honour, which were agreed in by other members of the Court, are mutatis mutandis applicable to the present case.
Your Honours, could I finally say that the constitutional legislation of the day, in our submission, did recognise the need for compliance with provisions of this kind. I have taken your Honours already to the Australian Colonies Government Act of 1862, at page 162 of the green book. Could I refer also to the Colonial Laws Validity Act itself, section 6, at page 166?
Your Honours will see that section 6 dealt with there being certificates being prima facie evidence that Bills that have been properly dealt with did not prevent there being evidence to show that the prima facie inference was incorrect and, your Honours, the Bill that appears at page 200 of the green volume - - -
KIRBY J: That does not seem to be specific to tabling, does it?
MR JACKSON: No, it is not, your Honour. It deals, in effect, with all the stages. Then, at page 200, an 1894 enactment which deals with cases where the Bill doubts - and this is the second paragraph of the preamble - where:
doubts have arisen as to the validity of some of the Acts so passed because they were not reserved for the signification of Her Majesty's pleasure -
and then the Act is said to apply section 2(2) to Western Australia. I do not mean to convey these deal with the precise point. All I am seeking to say, your Honours, is that the provisions of these enactments demonstrate that non-compliance with the requirements for assent was treated as something likely to go to validity of the enactment. Your Honours, those are the submissions - - -
GUMMOW J: There is also the Act at page 206, Colonial Acts Confirmation Act 1901.
MR JACKSON: Yes, that is so, your Honour, and your Honours will see that the Acts of the colony of Western Australia were referred to at page 207. Could I refer your Honours to section 1 of that. I think it is a phrase that recurs in the others, "Her Majesty's assent as if it had been duly given".
KIRBY J: On your theory of the constitutional arrangements in Western Australia and assuming that you will succeed in your arguments, what is the manner and form or what is the method by which the law could now be changed? Surely, we would not have to go back to the Imperial Parliament?
MR JACKSON: No. Your Honour, the position now is really governed by the Australia Act, one would think, I think by section 6.
KIRBY J: This is the Commonwealth Australia Act?
MR JACKSON: Any of them, your Honour. I am sorry. I do not mean that in a frivolous way, your Honour, but - - -
KIRBY J: I have to say that I have real concerns about what business it was of the United Kingdom Parliament to be enacting a law in respect of Australia which had the effect, at least on one view, of bypassing the constitutional arrangements for the reform of section 74.
MR JACKSON: Yes.
KIRBY J: However, I am just asking how, on your theory, this could be undone if your view of the legislative or the manner and form requirements is correct?
MR JACKSON: Your Honour, from the Australian States Constitution Act of 1907, after that it seems likely that in terms of that enactment there was power in the Western Australian Parliament without reservation of the law to make some amendment. Now, your Honours, we do not, I think, suggest that as a matter of pure State legislative power, either by virtue of that or perhaps by virtue of the Australia Acts, that there is not power today to make some amendment to section 70 and to repeal the provision.
Your Honours will have seen that we do not make the large claim of money in respect of past years or anything of that kind, but in order to achieve that there are, of course, two questions, one legal and one not. The non-legal question, no doubt, is the political question of whether steps of that time would be taken and, if so, what measures there might be in lieu of them. The legal question which might arise would be whether the circumstances of the repeal were such as to attract or not attract one of the provisions of the Racial Discrimination Act.
No doubt, your Honours, there would be a question of whether the repeal of this provision would be a provision which, absent special measures, was something which had some similarities to the provisions which were held to be invalid in Mabo (No 1). Your Honours, those are our submissions. May I say one thing, I did not deal with section 106. That is an issue raised by our learned friends. May I deal with that in response.
GLEESON CJ: Yes. Yes, Mr Solicitor.
MR MEADOWS: May it please the Court, our primary submission is that the combined effect of section 5 of the covering Act and section 73 of the Constitution, prescribe the manner and form requirements that were required to be complied with in order to repeal section 70 of the Constitution and that, in fact, section 2(a) of the covering Act does not, in fact, come into play in relation to such repeal.
GUMMOW J: Now, what work would be done by the first of those phrases which relate to the "giving or withholding of Her Majesty's assent to Bills"?
MR MEADOWS: Well, in our submission, section 2(a) still had work to do and that Bills which fell within the purposes which were identified in section 32 of the 1850 Act or, indeed, within section 31 of the 1842 Act, would have to comply with the manner and form requirements to be found in those sections or in section 33 in the case of the 1842 Act. Indeed, that was the way in which these provisions were construed at the relevant time and I propose - - -
GUMMOW J: Yes, I was going to ask you about that. There were some statutes post the 1890 Constitution Act, some later pieces of legislation which were tabled, I think.
MR MEADOWS: They were, and they are referred to in our submissions. If I could just identify them in footnote 24 at page 7. They were the Constitution Acts Amendment Act, the Constitution Acts Amendment Act 1899 , the Electoral Act 1899 and the Electoral Act 1904 , but I will come to that shortly. If I could just return to our primary submission. If one goes to section 5 of the - - -
GUMMOW J: Sorry, Mr Solicitor, it is a little elliptical what you say in paragraph 21, because it assumes a content to what the proviso you are talking about required. Have we got any indication as to the actual mechanics with those Acts at footnote 24, that is to say, tabling as well as reservation?
MR MEADOWS: I am not quite sure I am following what your Honour says.
GUMMOW J: I want to know whether those Acts in your footnote 24 were tabled.
MR MEADOWS: They were, your Honour.
GUMMOW J: How do we know that?'
MR MEADOWS: It is in the papers. Perhaps I should take the Court to that now.
GUMMOW J: Could you give us an example from the papers?
MR MEADOWS: If I could ask your Honours to take the orange book of supplementary papers and if I could take you to - - -
GUMMOW J: 369?
MR MEADOWS: Yes.
GUMMOW J: It appears at page 70 on the second column.
MR MEADOWS: No, back, your Honour. Where I wanted to take the Court was, in fact, to pages 237 to 247 to begin with. At pages 237 to 247 you will find an opinion of the law officers of the day, Webster and Finlay, regarding whether it was a requirement that the 1897 Constitution Acts Amendment Act 1890 , which dealt with electoral matters, was required to be tabled. You can see at the top of page 252 the law officers say that:
Until the passing of the -
Constitution Act -
Western Australia was governed by a Legislative Council to which the provisions of -
the 1852 Act applied -
so that any Bill relating to the matters specified in that section had to be reserved for Her Majesty's assent, and laid before Parliament.
It then goes on to describe the effect of the 1892 Act and to cite in the final paragraph on that page:
The question however arises whether the portion of section 32 which provides that a copy shall be laid before Parliament for thirty days is comprised in this re-enactment. We think it is. Although this portion of section 32 is not expressly mentioned the words of section 2 of the Act of 1890 cover all provision which relate to the reservation of Bills for Her Majesty's pleasure, and one of these is, that copy of the Bill shall be laid before Parliament for thirty days before Her Majesty's pleasure shall be signified.
You will notice in the previous preceding paragraph that reference was made to the fact that the Bill in question was for one of the matters specified in section 32 of the 1850 Act. You will also note that the law officers saw that the effect of proviso (a) of section 2 was to re-enact the provisions of section 32 of the 1850 Act, and, indeed, sections 31 and 33 of the 1842 Act so that they applied to all bills to be passed by the Legislative Council and the Legislative Assembly.
GLEESON CJ: But it is interesting to note that they seem to have regarded 2(a) as aimed, at least primarily, at sections 12 and 33.
MR MEADOWS: Yes, your Honour. There is no reference here to the provisions of section 73 because the Bill in question had no bearing on the provisions of section 73. So this is an Act which dealt with matters outside of section 73.
If I could then take you to the orange book at pages - - -
GUMMOW J: I am sorry, Mr Solicitor, just looking at page 252, they say:
Although this portion of section 32 is not expressly mentioned the words of section 2 of the Act of 1890 cover all provisions which relate tot he reservation of Bills for Her Majesty's pleasure, and one of these -
Do we get any clue as to what the others might be?
MR MEADOWS: We are talking about the ones in section 32.
GUMMOW J: What, they are saying go back and read section 32, are they?
MR MEADOWS: They are, your Honour.
GLEESON CJ: And sections 12 and 33.
MR MEADOWS: Yes, your Honour.
GLEESON CJ: And they read section 32, as appears from lines 4, 5 and 6 on page 252, including the proviso in section 32, as relating to Bills of a certain kind.
MR MEADOWS: Exactly, your Honour. If we go back into the body of the advice, we will see that the issue here was whether this Act, which dealt with electoral matters affecting the Legislative Council and the Legislative Assembly, had to be laid before the UK Parliament.
GLEESON CJ: Section 32 is a section that confers a power to enact legislation of a certain kind.
MR MEADOWS: Yes, I appreciate that.
GLEESON CJ: The proviso is a qualification on that power.
MR MEADOWS: It is.
GLEESON CJ: That is not inconsistent with the way these people are approaching it, is it?
MR MEADOWS: I would agree, your Honour. Of course, if one goes to the proviso in section 32, which is at page 161, the qualification that your Honour refers to relates to a Bill "for any of such Purposes" and not just to any Bill that might require reservation, but a Bill that was required to be reserved when it related to "any of such Purposes".
If I could just return to some of the historical background and take your Honours to pages 388 to 403 of the orange book. There are a number of notes there of memoranda and correspondence relating to this particular legislation, some of which relates to the internal workings of the Colonial Office and others in terms of correspondence. If I could take your Honours to pages 404 through to 406, you will see a transcription of the various notes that I have referred to between pages 388 to 403 and you will note that in the second paragraph there it is recorded:
I have consulted the L.O. of the Crown on the point raised by yr. A.G. -
that is the Western Australian Attorney-General -
as to whether it was necessary that the Bill shd. be laid before both houses of Parlt. for 30 days at least before H.M's pleasure thereon was signified . . . and have received from them a report to the effect that the repeal of the 13 & 14 Vict -
which is the 1850 Act -
sec 32 as regards W. Austr. by the Statute Law Revisions (No 2) Act '93 is immaterial as the repeal does not affect any enactment in wh. the repealed Act has been applied.
It goes on to say that it was necessary to lay the Bills before Parliament if your Honours go to the paragraph at the bottom of that page.
CALLINAN J: See the words "so that any Bill relating to the matters specified in that sec", at about point 3?
MR MEADOWS: Yes, your Honour. If I could take you then forward in time to the 1897 Aborigines Act 1899 , which was the first of the Acts which is the subject of this case and to January 1898 and again, to the orange book, pages 375 to 385. Again, your Honours will find memoranda relating to Western Australia. These extracts, incidentally, in the main came from the book relating to Western Australia which was maintained by the Colonial Office and there is a transcription of these provisions at pages 386 to 387 and your Honours will note that in respect of the 1897 Act, the 1897 Aborigines Act, which provided for the repeal of section 70, there is a memorandum to the effect that:
This Bill does not require to be laid before Parlt. I submit dft to Council Office with dft. O. in C.
At the bottom of that page there is a note saying:
Send the Act to the Council Office as proposed -
and so on. Then at page 387 your Honours will see that the Clerk of the Council was being sent a draft Order in Council relating to the "signification of H.M.'s pleasure" so that a decision was taken and you will note that this was 12 months after the receipt of the law officer's opinion that the 1897 Act was not required to be laid before the UK Parliament.
If I could then move forward in time to March 1899, and to the provisions of the Electoral Act and the Constitution Acts Amendment Act 1905 of the same year. Then I take your Honours to page 410. Your Honours will see there that there are two columns taken from the records of the UK Parliament and if you look at the first of those columns, halfway down the page, you will see that:
Mr Secretary Chamberlain presented, pursuant to the directions of an Act of Parliament, - Copy of the Constitution Acts Amendment Act, 1899 (No XIX), of Western Australia -
which again dealt with various electoral matters -
Copy of the Electoral Act, 1899 (No XX), of Western Australia.
Ordered, That the said Papers do lie upon the Table; and be printed.
GLEESON CJ: Now, was this upon the theory, not that it required to be tabled because it dealt with the election of members generally, but because it dealt with the constitution of the upper House?
MR MEADOWS: No, your Honour, because the effect of the law officer's opinion was that the proviso 2(a) applied the provisions of section 32 of the 1850 Act and section 31 of the 1842 Act to legislative measures of the kind referred to - - -
GLEESON CJ: In section 32?
MR MEADOWS: Yes, to both Houses.
GLEESON CJ: So that seems to be certainly not a literal construction. They did not say, "The purposes referred to in section 32 must now be read as the purposes described in section 32". They seemed to adopt an intermediate position. They said the requirement of tabling only applies to Bills for the purposes referred to in section 32, but the purposes referred to in section 32 must now be understood as purposes relating to the legislature, rather than purposes relating to the Legislative Council.
MR MEADOWS: Yes, but that seems to be the way in which it is approached, and that, I would suggest, has been derived from the final words of proviso 2(a), which say that the provisions of the two Acts:
shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and by any other legislative body or bodies which may at any time hereafter be substituted for the said Legislative Council and Assembly.
So they saw that as meaning that those purposes would now be applicable to legislation of both of the Houses of the Western Australian Legislature.
GLEESON CJ: So they read 2(a) and 32 together, but not so as to treat tabling as a freestanding requirement applicable to all Bills that were reserved for the royal assent but as a requirement relating to reservation for the royal assent of Bills concerning the legislature.
MR MEADOWS: Yes, Bills for the purposes identified in section 32 but in relation to both the Legislative Council and the Legislative Assembly.
HAYNE J: What was the general nature of the change that was to be made by the 1899 Constitution Amendment Act?
MR MEADOWS: Well, that is to be found as part of the legislation that is applicable in Western Australia. The Constitution Acts Amendment Act of 1899 contains a number of provisions relating to the legislature of Western Australia, to the electoral areas, divisions, some of which is now to be found in our Electoral Act. Perhaps the best things I could do would be to get your Honours a copy of that.
GUMMOW J: It does not seem to be in the green Book.
MR MEADOWS: It is not, your Honour. But it clearly dealt with matters which - - -
GUMMOW J: It is discussed to some extent in Wilsmore, is it not?
MR MEADOWS: It is, your Honour. What was done by virtue of that Act was to take out of the Constitution Act certain provisions which, if they had remained in the Constitution Act, would have required ongoing reservation and other procedural requirements derived from section 73.
HAYNE J: That is, did it deal with the powers and functions of one or other of the two Houses?
MR MEADOWS: Yes, your Honour, as I remember.
GUMMOW J: Yes, it is discussed in 149 CLR 93, last paragraph of 93 then over to 94.
HAYNE J: But trying to relate it then to section 32 of the 1850 Act, can it be seen as an Act vesting in the two new chambers powers and functions of the Legislative Council for which the two new chambers were substituted? If it is, then that seems to fall within the purview of section 32.
MR MEADOWS: Yes, that is my understanding, your Honour, and perhaps by direct reference to it after lunch I could point to that.
HAYNE J: Yes.
MR MEADOWS: If I could then proceed further ahead in history to February and March of 1904 and take your Honours to page 411 - - -
GUMMOW J: I should have said at page 95 of 149 CLR. It says of the 1899 Act that it dealt with:
the qualification of electors of members of the Legislative Council is that which is prescribed by section seventeen of that Act as the qualification for electors of members of the Legislative Assembly.
MR MEADOWS: Yes, your Honour, all of which fall within the purposes in section 32. I am taking your Honours now to the orange book again, pages 411 to 414, where you see that there are two reserved Bills, Electoral Bill and Redistribution of Seats Bill and you will see a note there - this is a Colonial Office note:
I presume these Bills do not require to be laid before Parliament before assent. If not, to Council Office as usual.
And then there is a note to the effect:
I'm afraid that the Electoral Bill falls within the 1850 Act as a Bill altering the laws concerning the qualifications of electors and must therefore be laid before Parliament. The redistribution Bill being reserved under the 1842 Act does not require to be laid.
And then at page 412 you will see:
Will you please lay the Electoral Bill before Parliament and return to me as soon as possible.
GLEESON CJ: Do we have an opinion on the subject of the necessity to lay the Aborigines Act before Parliament?
MR MEADOWS: No, but there is reference in the papers here to the issue being considered and reference to the law officer's opinion of 8 February to which I took your Honours at the outset as meaning that it did not require to be laid within Parliament. Perhaps if I could take your Honours to that after - - -
GLEESON CJ: All right. We will adjourn now until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.24 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR MEADOWS: May it please the Court. Before the luncheon adjournment, I agreed to provide to the Court a copy of the 1899 Constitution Acts Amendment Act, which I have made available to the Court. You can see there that section 7 and 8 deal with the qualification of members, sections 15, 17 and 26 with the qualification of electors, sections 28 and 30 deal with the disqualification of electors and sections 33 and 39 deal with the effect of electors being disqualified. We would suggest that all of these relate to the purpose referred to in section 32, relating to the qualification of electors and elected members. I was about to take the Court to - or before I do this, could I just say, your Honour Justice Hayne, that we have been unable to locate the Order in Council of 1870 in the library here, so could we undertake to provide a copy of that to the Court?
I was going to take the Court to the matters relating to the 1905 Act which, by way of background, was necessary because of a referral of the 1897 Aborigines Act 1842 to the law officers for advice as to whether or not it should have been proclaimed in the manner required by section 33 of the 1842 Act and the law officers provided advice that the 1842 Act did require that that Act be proclaimed in accordance with those requirements. The opinion of the law officers is to be found at pages 224 to 226 of the yellow book.
GLEESON CJ: What numbers were they, Mr Solicitor?
MR MEADOWS: Pages 224 to 226 of the yellow book.
GLEESON CJ: Thank you.
MR MEADOWS: If I could simply - I am sorry, I have misled the Court, it is actually page 226 and following of the yellow book. At page 227 the law officer said:
1. That in our opinion the provisions of the -
Act -
section 33, as to the signification of the Royal Assent to reserved Bills apply to Bills passed by the present Legislature of Western Australia. No significance can be attached to the omission of the words "and the Bills so reserved" from section 2(a) of -
the covering Act -
especially as the prior words of the section only repeal the prior Acts so far as they are repugnant to the scheduled Bill in which there is nothing affecting the reservation.
They opined that the Act was legally invalid. That is at page 227, your Honour.
GLEESON CJ: Thank you.
MR MEADOWS: So, as a result of that the legislature of Western Australia was asked to enact further legislation validating the repeal of section 70 and the other provisions of the Aborigines Act 1905 .
So, if I could now go to page 142 of the yellow book your Honours will find there a dispatch from Governor Bedford referring to the fact that he had informed Mr Lyon Weiss, who had raised the issue of the validity of the law officer's opinion and this was in response to a letter from the Colonial Secretary, which is at page 139, advising the Governor, Governor Bedford, of the law officer's opinion.
Then, if you go to 143 there is a report from the Acting Attorney-General for Western Australia of the day referring to the 1905 Act and saying that it had been passed and it was - - -
KIRBY J: It is interesting to note that the Governor said, "I doubt very much that these were intended to apply in a case to a self-governing State." Maybe he was on to something.
MR MEADOWS: Yes, in 1905 it is hardly surprising, your Honour. We then move to the consideration of the Aborigines Act, and you will find this dealt with at pages 145 right through to 156. You will note that on each of these pages there is a tab identifying where the transcription of the particular page is, and you will see at 145 it refers you to the transcription at page 150. There you will see that when the Act was received, the summary was prepared, and there is a reference further down to Dr Roth's report. Then if one moves further forward to - - -
GLEESON CJ: The relevant transcription is a page 160, is it not?
MR MEADOWS: Yes, except that - - -
GLEESON CJ: Who is "JSR"?
MR MEADOWS: That is Mr Risley, who was a colonial office legal assistant. Before you get to 160, your Honour, could I take you to 157, and this is a reference to what appears at the bottom page 155. You will see there is a note from Mr Dale if the Colonial Office to Mr Risley:
Please see Lord Elgin's minute in 6893, & O. in C. of 26 Feb. 1897.
I conclude that the Bill must be laid before both Houses of Parlt. for 30 days?
Now, the Order in Council of 26 February 1897 was a reference to the Constitutions Act Amendment Act 1896 which you may remember was the subject of the law officers' opinion of 8 February 1897, which was the first law officers' opinion to which I referred the Court.
If you then go to 160, you will see that there is a minute from Mr Risley to Mr Cox where he says:
The O in C of 26 Feb 1897 was not the O in C assenting to the Aborigines Act 1897 . There were 2 W. Australian Reserved Bills about the same period which must not be confused - (Their full titles are very similar).
And then he refers to:
1/18 of 1896 (The Constitution Act Amendment Act 1896 ) assented to by O in C of 26 Feb 1897.
This Bill being within the scope of 13 & 14 Vict. c.59 secs 32 & 33 was, as the O in C shows, laid before Parliament. Rightly so.
2/5 of 1897 (The Aborigines Act 1897 ) assented to by O in C of 3 Feb 1898
This Bill, as the O in C shows, was not laid before Parlt., and there was no reason why it should have been. It does not fall within 13 & 14 Vict. c59, secs 32 & 33 and sec 73 of the W. Australia Constitution Act (sched to 53 & 54 Vict. c26) only requires it to be reserved - not to be laid before Parlt.
I put up the above Acts and Os in C with the pp. The present Bill shd. of course be treated in the same way as 2/supra.
GLEESON CJ: Why does it not fall within section 33?
MR MEADOWS: Of the 1850 Act?
GLEESON CJ: Yes.
MR MEADOWS: Because it was not for one of the purposes prescribed in section 32.
GLEESON CJ: I had not noticed that section 33 was limited to Bills that fell within 32.
MR MEADOWS: I think, your Honour, that the answer to it is in the use of the words "so reserved under the Provisions of this Act" at the end of section 33.
GLEESON CJ: But that is a reference back to the word "reserved" in the previous line, is it not? I am not suggesting that this point would alter the outcome of the case; it is just shaking my confidence in "JSR".
MR MEADOWS: Yes.
HAYNE J: He may not be sound, Mr Solicitor.
MR MEADOWS: The only explanation I can offer, your Honour, is that section 2(a) was said to pick up both sections 32 and 33, and that is why there is a reference to it, but it seems to me that it may well have been superfluous to the subject matter of the advice.
Yes, we do deal with this issue in paragraph 14 of our written submissions, I am reminded. If one goes to paragraph 15 - so just to complete the picture here, can I take your Honours then to page 162 where there is a transcription of the note, which you can find at page 161, where Mr Cox to Mr Risley says, "I agree. At once." The only other place where I have heard that expression used is in "Yes Minister", but apparently it was in popular usage back in the 1890s. Then, in the pages that follow, at 163 through to 166, we see the paperwork dealing with the Order in Council. The transcription of all of that is at page 167 where it is apparent that it went forward as an Order in Council in respect of legislation that was not laid before the UK Parliament.
If it please your Honours, these matters were not unique to Western Australia. We have provided to the Court a book of additional materials and we have there, as the index shows, provided copies of the Constitution Acts of New South Wales, Victoria, Queensland, South Australia and Tasmania, and we also have some extracts from Quick and Garran's Annotated Constitution of the Australian Commonwealth, which deal with the State Constitutions.
HAYNE J: Mr Solicitor, has anyone on your side looked beyond Australia and come up with a negative search, or is this simply the fruits of a search for Australian material that stands in like case?
MR MEADOWS: I think it is fair to say that we have not looked beyond Australia in any depth, at least - - -
HAYNE J: Because I suspect, but do not know, that the kind of problem that is presented by these provisions may be replicated in other places in the Empire.
MR MEADOWS: I am sure you are right, your Honour.
HAYNE J: If that is so, I do not know whether there is some light to be shed on the problem. Tarrant's book seems not to assist much - the law relating to colonies - and I do not know whether any of Birriedale Keith's innumerable works deals with it.
MR MEADOWS: We have certainly had regard to some of his works, but we really have not been able to ascertain something which is directly in point.
HAYNE J: In particular, a tabling provision.
MR MEADOWS: Yes. We have certainly been anxious to find such a provision, and we found one in New South Wales and we found one in Victoria, we would submit, which I was about to take your Honours to. But certainly, we could undertake to do some further research, but as far as I am aware - - -
GUMMOW J: Yes, Cape of Good Hope, Natal, Newfoundland, would be three possibilities, I suspect.
MR MEADOWS: Yes, and Malta, even.
GUMMOW J: Yes.
MR MEADOWS: There is a reference to an opinion relating to Malta amongst some of the papers that I have seen.
GUMMOW J: There is a later case called Sammut v Strickland about problems in Malta.
MR MEADOWS: Yes. And one of the matters I am going to hand up to the Court shortly refers to an opinion in relation to the right of the Crown to disallow ordinances from Malta, but it is not directly in point, of course. Can I take your Honours to the New South Wales Constitution? You will see that section 2(a) of the covering Act of Western Australia has its genesis in the Constitution Act of New South Wales. That is the Act of 1853.
GUMMOW J: 1855, is it not?
MR MEADOWS: I beg your pardon, your Honour?
GUMMOW J: New South Wales Constitution?
MR MEADOWS: Yes, your Honour, which is the first tab in that book.
GUMMOW J: 1855.
MR MEADOWS: I think it was actually passed in 1853 but it did not get the assent until - it was passed by the New South Wales Council in 1853.
GUMMOW J: Yes, it had to go over.
MR MEADOWS: Yes.
GUMMOW J: Yes.
MR MEADOWS: And it had to have a covering Act for it because it was thought to be beyond the scope of the 1850 Act.
GUMMOW J: Yes.
MR MEADOWS: In the covering Act to that Act, in section 2 of it, your Honours will see that:
From the Day of Proclamation . . . so much and such Parts of the several Acts of Parliament mentioned in the Schedule (2) of this Act as severally relate to the said Colony of New South Wales, and are repugnant to the said reserved Bill, amended as aforesaid, shall be repealed -
So that is almost in the same terms and if your Honours go to Schedule (2), your Honours will find that that makes reference to - the fourth of the Acts referred to is the 1842 Act and the last of the Acts referred to is the 1850 Act and then, similar to - - -
KIRBY J: There was no equivalent provision in any other colony in relation to Aboriginal funding?
MR MEADOWS: Not that we are aware of, your Honour, no.
KIRBY J: Why was Western Australia singled out for this? A need felt in the Colonial Office?
MR MEADOWS: I suspect that that is so. There were certainly some concerns about the welfare of Aboriginal people in Western Australia at the time and this was reflected in section 70 of the Constitution. I think it is fair to say that the Western Australian legislature and Executive Government were on trial, in effect, and once the Executive Government of the United Kingdom was satisfied that the Western Australia Executive and legislators could be trusted, so to speak, that they should be given the full plenary power to deal with these matters. Your Honours will see that there is a proviso in section 2 referring to the 1850 and 1842 Acts and it says that the provisions of those Acts:
as relates to the Constitution, Appointment, and Powers of the Legislative Council of the said Colony of New South Wales shall continue in force until the First Writs shall have issued for the Election of Members to serve in the House of Assembly -
et cetera, but then one needs to go to section 3, which reflects the proviso in section 2 of the Western Australia Act where it says that the 1842 and the 1850 Acts, or the provisions of them, relating to:
the giving and withholding of Her Majesty's Assent to Bills, and the Reservation of Bills for the Signification of Her Majesty's Pleasure thereon . . . shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the said reserved Bills and this Act, and by any other Legislative Body or Bodies which may at any Time hereafter be substituted for the present Legislative Council and Assembly.
So you have, in effect, the same provisions applying in New South Wales. If you look at section 4, it is in the same terms as section 5 of the Western Australian covering Act relating to reservation.
There is, so far as we can see, only one provision which specifically refers to the reservation of Bills and that is section 36. The significant thing about section 36 is that it would not seem to be for one of the purposes in section 32 of the 1850 Act or section 31 of the 1842 Act, because it related to a Bill concerning the Legislative Council which was:
to provide for the Nomination or Election of another Legislative Council, to consist respectively of such Members to be appointed or elected respectively by such Person or Persons and in such Manner, as by such Act or Acts shall be determined -
so they were apparently looking at the history of it. There seemed to be a concern that there was to be a substitute Legislative Council created and that this provision was put in there for this purpose. But the interesting thing about this particular provision is that it went on to provide that this could only be done if the Bill in question had been passed by a two-thirds majority of the members, and there is a particular proviso which says:
that every Bill which shall be so passed for any of such Purposes shall be reserved for the Signification of Her Majesty's Pleasure thereon, and a Copy of such Bill shall be laid before both Houses of the Imperial Parliament for the Period of Thirty Days at the least before Her Majesty's Pleasure thereon shall be signified.
This, we would say, supports our submission and certainly supports the view which was taken by the law officers that where you had something which did not fall within the provisions of the 1850 Act, it was necessary to make some specific provision for it. Here, not only was there a requirement of reservation, as one finds in section 73 of the Western Australian Act, but also a requirement to lay it on the table of the Houses of Parliament.
If one goes back to clause 4 of the covering Act, we would submit that that makes it clear that what was required to be done with Bills reserved was that which was stipulated in the Constitution itself and in this particular instance in section 36. I should mention in passing that this provision was repealed in 1857 by Act No 10 of 1857 of the New South Wales Parliament and it was gazetted on 20 October 1857.
Coming back to what we have been saying, if section 3 of the covering Act is to be given any work - that is the covering Act of New South Wales - it is the work which was identified by the law officers in relation to Western Australia; that is, that where you had a Bill for one of the purposes in section 32 of the 1850 Act, then the provisions of that Act come into play.
If I might then turn to Victoria, which is the next of the Constitutions. Your Honours will see that in section 2 of the covering Act the same provision appears about the Acts that are referred to in Schedule (2). The first of the provisos relates to the continued effect of those Acts in relation to the constitution, appointment and powers of the Legislative Council. Then in section 3 we find the same provision.
HAYNE J: This Act is a companion to the New South Wales Constitution that we earlier looked at?
MR MEADOWS: Yes, your Honour. They were proclaimed on the same day. Once again, section 4 deals with reserved Bills. Could I then take your Honours to section 60 of the Victorian Constitution Act, which is closely comparable to the first part of section 73 in that it required certain Bills to be passed by an absolute majority. Then it went on to provide that:
every Bill which shall be so passed shall be reserved for the Signification of Her Majesty's Pleasure thereon.
If your Honours go to the schedule annexed marked D, you can see that that refers to similar matters to that appearing in the schedules to the Western Australian Constitution. So there was a specific reservation requirement in respect of those matters and we would submit that none of them, except in respect of the Governor's salary, would have fallen within either the provisions of the 1842 Act or the 1850 Act. If they did, we would submit that this provision substituted for those provisions the requirements as stipulated in that section.
If I could then point to section 61, dealing with the power to alter the Electoral Act 1850 , you will see that there is provision there that the legislature may:
alter the Qualifications of Electors and Members of the Legislative Council and Legislative Assembly -
and so on, and yet there is no provision there relating to the reservation of any Bill for that purpose. But, consistent with what we have been submitting, that section would clearly be picked up by the 1850 Act, section 32, which would have brought into play section 3 of the covering Act.
So you have a very similar situation, we would say, to that which prevailed in Western Australia, that you have a specific condition in relation to the matters referred to in section 60, which simply required reservation and other provisions which would have enlivened the provisions of the 1850 Act and section 32 in particular.
McHUGH J: Mr Solicitor, have you looked at the Governor's instructions of various additions about tabled. Perhaps my memory is playing tricks on me, but I once had to do a lot of work on the constitutional history of New South Wales and I thought that there was more than section 36 of the 1855 Act.
MR MEADOWS: Well, you could easily have Bills being reserved under the Governor's - - -
McHUGH J: Yes, I appreciate that, but I am talking about the tabling aspect of it.
MR MEADOWS: Certainly in our fairly brief review of the Act, we could not see any other requirements for tabling in the Constitution Act itself, other than section 36, but, as we say, in our submission, other Bills amending provisions of that Act could well have been picked up by the 1850 Act.
GLEESON CJ: As I understand the point you are making, correct me if I am wrong, there is a very well understood difference and an important possible difference between a need to reserve Bills for royal assent and a need, in the case of some particular Bills which were reserved for royal assent, to table them in the Imperial Parliament before that assent was given.
MR MEADOWS: Yes, your Honour.
GLEESON CJ: And that is what you are seeking to demonstrate by this?
MR MEADOWS: Yes, I am. The history of it would suggest that it was related to matters which were seen to affect the Empire, if you like. Anyway, your Honours, consistent with what we have been submitting, could I direct your attention to two further opinions of the law officers, and these are to be found in O'Connell and Riordan's book. The first is No 51, which I will not go to in detail, but it does refer to the application of the 1842 and 1850 Acts. If you look at the third paragraph on page 41, you will see reference to that, and also reference to section 36 in the fifth paragraph, and the opinion reported upon is that the Act in question, the Act of 1893, ought to have been "reserved for the signification of Her Majesty's pleasure".
But, more importantly, could I take your Honours to opinion No 183, which dealt specifically with the need to comply with the provisions of section 32 of the 1850 Act in New South Wales, Victoria and Western Australia. Without dwelling on it, could I just take your Honours to the final page where the report sets out, in paragraph 2, that in the opinion of the law officers:
it would not be necessary to reserve any of the three classes of Acts specified in the 32nd section of the -
Act -
when passed by Legislatures which have been set up in supersession of the original Councils existing under that Act unless the Act - whether local or Imperial - constituting such Legislature had provided for such reservation. Such reservation is now provided for in the case of:
(a) New South Wales, by section 3 . . .
(b) Victoria, by section 3 -
and in the case of Western Australia, if you go down to paragraph 3:
In the case of Western Australia all three classes of Bills referred to in section 32 . . . when passed by the present Legislatures must be reserved under the section 2(a) of the -
1890 Act. That is the covering Act.
Could I now then return to where I began by going back to our primary submission, and that is that the combined effect of section 5 and section 73 is that all that the two Acts required was reservation. That was the case in respect of the 1897 Act and the 1905 Act, notwithstanding the opinion of the law officers in relation to the 1897 Act.
We set out our primary contentions at paragraph 10 of our submissions. We say that what section 5 does is to mandate the conditions which must be fulfilled in order for there to be an alteration to the scheduled Bill. It requires that one must look to the Bill itself in order to ascertain those conditions, and that directs one to section 73, and that simply requires that a Bill which would repeal section 70 should be "reserved . . . for the signification of Her Majesty's pleasure", and no more.
If we are wrong in that, then we would say that in our construction of section 2(a), a Bill to repeal section 70 is not a Bill which falls within any of the purposes identified in section 31 of the 1842 Act, which would have required proclamation or other publication as required by section 33 of the 1842 Act, nor would it fall within the purposes identified in section 32 of the 1850 Act, and, therefore, be required to comply with the provisions of section 32 of that Act.
GLEESON CJ: Whether it is right or wrong, I believe I understand the second aspect of those submissions, but what effect does the first part of that submission give to section 2(a) of the covering Act?
MR MEADOWS: Section 2(a) applies to the other Bills of the kind that we have identified, a Bill to amend the qualifications of electors or members of the Legislative Council or Assembly. It has plenty of work to do.
GLEESON CJ: That would not fall within section 5?
MR MEADOWS: No, your Honour, because the only provision in the Constitution that refers to reservation is section 73, and it identifies the Bills that are required to be reserved. None of those Bills, apart from a Bill relating to the Governor, would have been required to be dealt with in accordance with either the 1842 or 1850 Act.
We say that the effect of section 73 is to say that notwithstanding what the 1842 Act might have said about the Governor, it superseded those requirements and that section 73 was the relevant provision relating to reservation of such a Bill, or such a Bill would not have been reserved pursuant to the 1842 Act, it would have been reserved pursuant to section 73. Now, each of the members of the Full Court were of the view that because an Act or a Bill to repeal section 70 did not fall within the purposes in section 32, it was not required to be tabled, and, if I - - -
GUMMOW J: They did not deal with what has just been described as the second position, did they?
MR MEADOWS: No. They did refer to it as our primary submission. Justice Ipp dealt with it and did not agree with our submission about section 5 and section 73. The relevant passages are set out in footnote 29 of our written submissions and I will not take your Honours to them.
Could I just touch on the proclamation issue in relation to the 1897 Act and simply refer the Court to our submissions at paragraphs 11 through to 13, where we set out our submissions as to why it was not necessary for that Act to be proclaimed in accordance with the requirements of section 33 of the 1842 Act, and that is because the Bill in question was not one which was required to be reserved pursuant to section 31 of the 1842 Act. We say that the words "which shall be so reserved", which are to be found in section 33, necessarily refer one back to section 31, so that it must be a Bill reserved under that section in order for section 33 to become applicable, whereas the Bill to repeal section 70 of the WA Constitution was not such a Bill. That view was accepted by Justice Anderson in the Full Court at paragraphs 99 to 102 of his judgment.
On the issue of tabling, can I direct the Court's attention to our submissions in paragraphs 23 through to 29. Your Honours will note in the passages referred to in footnote 29 that their Honours took some comfort from the views that had been expressed by the law officers in their various opinions.
Can I now turn, very briefly, to the question of the imperative nature of these provisions. Could I begin by referring to what was said by Justice Dixon in Trethowan's Case, in particular at page 433.
KIRBY J: What issue are you now addressing?
MR MEADOWS: This is the question of whether the manner and form requirements were imperative or mandatory, if you like. This is in the alternative to our earlier submissions. At page 433, and perhaps beginning at the foot of page 432, referring to manner and form requirements, he said:
The more natural, the wider and the more generally accepted meaning includes within the proviso all the conditions which the Imperial Parliament or that of the self-governing State or Colony may see fit to prescribe as essential to the enactment of a valid law.
Could I also refer to Clayton v Heffron [1960] HCA 92; 105 CLR 214 and the passage which we have extracted in paragraph 33, which is from the judgment of Chief Justice Dixon, Justices McTiernan, Taylor and Windeyer, at page 246, where their Honours said:
In the same way the words relating to the joint sitting of members of the Houses import an intention that the Governor shall then exercise the authority to convene a joint sitting of members. But it is an entirely different thing to find in the direction an intention that a departure from the procedure shall spell invalidity in the statute when it is passed approved and assented to. In this case there are two matters with which we are dealing: the legislative power and the procedure for its exercise. The principles of the common law distinguished sharply between invalid attempts to exercise a legislative power and departures from the prescribed course for its exercise which may not or do not bring invalidity as a necessary consequence. In the end the distinction must be governed by the intention expressed by the legislature conferring the power and prescribing the steps to be taken in the course of its exercise.
GAUDRON J: Well, at least, so far as the 1842 Act is concerned, there could be no doubt about the intention, could there?
MR MEADOWS: We do have a bit of a problem with that, to be quite candid, your Honour, but certainly in respect of the 1905 Act, it was proclaimed in accordance with those requirements, so it is not a problem for that particular section. The other passage to which I could make brief reference is at page 235, but I will not take your Honours to it.
GAUDRON J: But how can that be reconciled with what was said in Trethowan? We are talking about clear limits on the exercise of the legislative power really, are we not?
MR MEADOWS: Yes, we are, but it needs to be something which is essential to the enactment of a valid law, as Justice Dixon said in that passage from Trethowan, and we would submit that - - -
GAUDRON J: But why would it not be? I mean, it is a covering clause to the Constitution. Assume we get to this point, why would you think other than that is essential?
MR MEADOWS: We would submit that it is not an essential requirement for the enactment of a valid law because - - -
GAUDRON J: Why not?
MR MEADOWS: The essential requirements are the passage through the two houses and the royal assent.
GAUDRON J: Which shall not be given, on one view at least, unless the matter is being tabled in the Parliament. So what we are really talking about is whether there has ultimately been an assent as required by the covering clause. If there has not been an assent as required by the covering clause, surely there is not an enactment? Nobody else has assented.
MR MEADOWS: There has been an assent as required.
GAUDRON J: No, no. If you take the view that the tabling requirements relate to the giving of the assent, then they would seem to condition the giving of assent.
MR MEADOWS: What the section requires is:
hat every Bill which shall be so passed by -
the legislature -
in any of the Colonies for any of such Purposes shall be reserved for the Signification of Her Majesty's Pleasure thereon, and a Copy of such Bills shall be laid before both Houses of the Imperial Parliament for the period of Thirty Days at the least before Her Majesty's Pleasure thereon shall be signified.
GAUDRON J: Yes.
MR MEADOWS: Now we would submit that that latter requirement is not essential for the validity of the Act.
GAUDRON J: What I am suggesting to you, Mr Solicitor, is that that is not the question. The question is whether it is essential to the giving of assent so that you would treat the assent as not having been given, in which event there would be no law, as it were.
MR MEADOWS: Of course, that flies in the face of the fact that the assent was given and - - -
KIRBY J: But it was given on a procedural assumption that has not been fulfilled. I asked Mr Jackson earlier what was the theory behind it and the theory propounded is that the requirement of tabling was in order that there should be an opportunity to, as it were, agitate and inform the royal assent, whether it should be given or withheld. If you do not table, then a provision which Parliament has taken the trouble to add is not complied with, and it has not been added just for a humour, it has been added for a purpose to inform the assent one way or the other.
MR MEADOWS: Yes, I understand your Honour's point, but I would rhetorically ask, what could the United Kingdom Parliament have done that they could not have withheld the Bill from going to the sovereign for assent or - - -
HAYNE J: Could it not? Could it not have - - -
MR MEADOWS: It could have advised that the assent not be given, but it could not have withheld the Bill.
KIRBY J: It could have had a humble message to the sovereign.
MR MEADOWS: Yes.
KIRBY J: It could have had a resolution of the House, it could have created a great political storm which would have made it extremely awkward even for Her Imperial Majesty to give her assent. I think that is the whole point.
McHUGH J: It is impossible to think that if the House had resolved that consent not be given, that Her Majesty would not have acted upon the advice of the Prime Minister.
HAYNE J: Bearing in mind that the assent is given by Order in Council.
MR MEADOWS: I appreciate that and I would have to assent to all of those propositions.
HAYNE J: What does the Council say to Her?
MR MEADOWS: Yes, but the only point I was seeking to make was that they could not have held it back from being presented for the assent. Whether or not it was going to be given was another issue.
GUMMOW J: Someone gets hold of the Lord President of the Council and says, "When is the next meeting of the Privy Council?". I mean, it all becomes very practical, it just would not get on the list of business.
MR MEADOWS: I am sure, I am sure that is right, your Honour, although I think - - -
HAYNE J: There is reference to the next council being when the next batch of sheriffs are to be made, I think.
MR MEADOWS: Yes, I saw that. The only point I would make is that convention does demand that any Bill that has been passed by the legislature must be at least placed before the sovereign.
KIRBY J: I think we have to put ourselves back into the realities of that time. At that time the Empire was at its apogee and what was happening in one small State ex-colony was not something that they would have quaked at the idea of disapproving. They would have expressed their opinion in the House of Commons and done it robustly.
MR MEADOWS: Yes, I am sure that is so.
KIRBY J: You have to act on the premise that they added this procedural norm for a purpose and you cannot act on the premise that the Parliament added the procedural norm for no purpose whatever.
MR MEADOWS: I do accept that, but our proposition is that that premise was not one which was essential to the validity of the Act.
GAUDRON J: The law officers I think took a different opinion, did they not?
MR MEADOWS: Certainly in regard to - - -
GAUDRON J: Is there anything in their opinions to indicate why they took that view or whether they considered this interesting proposition that it was not essential to validity?
MR MEADOWS: No, there is not and it is hardly surprising, I would think, in the context. But one has to look at these issues from the standpoint of the Western Australian legislature and Executive Government as well, that all it could do - - -
GAUDRON J: And the people.
MR MEADOWS: Yes, quite so, particularly after 1901. They really had no say over it once it got to London and into the Colonial Office.
GAUDRON J: That was the same for many, many years, was it not?
MR MEADOWS: Quite so, your Honour.
GAUDRON J: But that hardly is to the point until one or other of the Australia Acts or both took effect. That was always the case. Many a piece of State legislation just withered and died between 1901 and 1985.
MR MEADOWS: I appreciate that, your Honour. This brings me simply and very shortly to our submission regarding justiciability. Our submission is that here where you have an Act which has received the royal assent, that questions about whether or not it was tabled and whether that was of moment are not justiciable. Our submissions on that are to be found in paragraphs 42 to 44. I do not propose to develop those submissions.
KIRBY J: It is pretty hard to reconcile that with the passage which we were read this morning from Justice Dixon and also with what has been constantly done in this Court, the joint sittings case up to Egan v Willis. In Australia the habit of mind is to require that the courts will uphold the requirements that Parliament itself has accepted or that Constitutions impose on Parliament. It is the rule of law, otherwise it is not really an Act.
MR MEADOWS: Clayton v Heffron was an example of what we are talking about, your Honour, that where you had something which was not an essential requirement, it was said to be not justiciable.
KIRBY J: Is there any referendum requirement at all in the Western Australian Constitution now or not?
MR MEADOWS: There is now, your Honour, yes.
KIRBY J: Is that limited to the composition of the Parliament?
MR MEADOWS: It, first of all, deals with the Governor. It deals with legislation affecting the Legislative Council, reducing the number of members in the Legislative Council, and other matters which do not spring to mind immediately.
KIRBY J: Just give me the reference.
MR MEADOWS: It is at page 276 of the green volume and if one goes to 281, your Honours will see the addition to section 73 of a subsection (2), (3), (4), (5) and (6), which impose a referendum requirement in respect of certain Bills. Could I now just deal very briefly with our submissions relating to section 106 of the Commonwealth Constitution and to our proposition that upon the coming into force of the Commonwealth Constitution, that the source of the WA Parliament's legislative power was to be found, not in the covering Act, but in section 106 of the Constitution.
KIRBY J: What do you say is the meaning of "Constitution" in section 106, given that your own volume omits Tasmania?
MR MEADOWS: I do not think it does, your Honour.
KIRBY J: I think that the little volume you handed up of additional materials had materials from every State but not Tasmania.
MR MEADOWS: Tab 5 is Tasmania, your Honour.
KIRBY J: But these are Imperial Acts, are they not?
MR MEADOWS: Yes, well, Tasmania's position was different from Western Australia in that its Constitution is derived from the 1850 Act. So it does not have a covering Act and one has to go to the 1850 Act in some respects to discern the scope of the legislative power of the legislature in Tasmania. Our submission is that in the context of Western Australia, it is quite clear that when section 106 speaks in terms of the Constitution being "altered in accordance with the Constitution of the State", it is referring to the Constitution Act 1897 , as at 1901, which is the Bill scheduled to the covering Act, as amended, up to that date.
GUMMOW J: Why is that so?
MR MEADOWS: We say it is just a matter of statutory construction, to begin with. It talks about the Constitution of the State.
GUMMOW J: Yes. There is plenty of authority in this Court, is there not, some of which are mentioned in McGinty, perhaps?
MR MEADOWS: We refer to the passage in McGinty of - - -
GUMMOW J: Yes, but you just do not find one statute headed "Constitution". It is an agglomeration of things.
MR MEADOWS: That is, of course, the proposition which the Commonwealth puts in its submissions.
GUMMOW J: Yes, that is right. Yes, and all the authorities are collected by Mr Burmester.
MR MEADOWS: Yes.
GUMMOW J: That is right. Except do you not have to push against all of that?
MR MEADOWS: Well, we do, but what we say is that as at the coming into force of section 106, the covering Act had not further part to play. It was supplanted by section 106. Section 106 provided that the way in which the Constitution could be altered was in accordance with that Constitution, that is, the State Constitution, which does provide some manner and form requirements in respect of amendments to the Constitution as set out in section 73. Our submission is that as from 1901 you only looked to section 73 in order to find the manner and form requirements applicable in Western Australia.
GUMMOW J: But 106 seems to be designed to preserve a situation, does it not, not to change it? Preserve a State situation from what otherwise might have been some encroachments by the exercise of federal legislative power.
MR MEADOWS: But it makes no reference to any Imperial statutes.
GUMMOW J: No.
MR MEADOWS: It simply refers to the State Constitution, and the proposition, as I say, is quite simple from our point of view, and that is that after 1901 the States were independent of the UK Parliament in terms of the way in which its Constitution could be altered.
GUMMOW J: Well, you have to read 106 as impliedly repealing some of these earlier Imperial Acts, do you not, as an Imperial Act itself?
MR MEADOWS: Yes. The word we have used is "supplanted", but it is the same effect we would suggest.
KIRBY J: Is it supplanting those provisions of the Colonial Laws Validity Act, which forbade disobedience to manner and form requirements?
MR MEADOWS: No, with respect, it is not necessary to say that because what we would say is that as of 1901 the manner and form requirement which was mandated by the Constitution was that which is to be found in section 106, which takes you through to section 73.
KIRBY J: So that is part of the State Constitution?
MR MEADOWS: No, it is not, your Honour. It is simply an Imperial Act applying in Australia at the time.
CALLINAN J: Well, what would happen? Could section 73 be then amended?
MR MEADOWS: If the manner and form requirements in section 73 were observed.
CALLINAN J: Why would it be necessary then to comply with the manner and form requirements?
MR MEADOWS: Well, because section 106 says it can be altered in accordance with the Constitution and not otherwise, I would suggest.
KIRBY J: If your theory is right and Constitution means - for "Constitution" read effectively "Constitution and", then that excludes the Colonial Law Validity Act, which was the whole source of the control that this Court upheld in Trethowan.
MR MEADOWS: But in Trethowan all that - and, again Clayton v Heffron, if it is analysed, all that the effect of section 5 of the Colonial Laws Validity Act was, was to direct you to the manner and form provisions in the New South Wales Constitution.
KIRBY J: No, but the reason it was required to be in accordance with the Constitution of the State was because the Constitution of the State picked up something outside its own Act and gained its authority and requirements from the Imperial Act.
MR MEADOWS: Our submission would be this, your Honour, that the Constitution of New South Wales which was under consideration in both those cases, spoke for itself, and that any reference to section 5 of the Colonial Laws Validity Act simply confirmed that it was those provisions which had to be adhered to. But they in themselves provided for that. It was not necessary to look to section 5 of the Colonial Laws Validity Act, but if you did, we would say it simply took you to section 106, and once again - it is a somewhat circular argument - it gets you back to the requirements of the Constitution itself.
HAYNE J: But the point comes down to, does it not, that the relevant rule of recognition of what is or is not a valid law was: you begin with section 106 of the Constitution; that itself was scheduled to an Imperial Act; you say that we read 106 as providing, in effect, that thereafter the only relevant rule of recognition in the former colonies now States is within the scheduled Acts to each of the Imperial Acts that created the colonial Constitutions.
MR MEADOWS: In terms of the alteration of the Constitution, yes.
GUMMOW J: A similar sort of argument that succeeded in the Queensland Case you will remember, goes to the relationship between sections 73 and 74 of the Constitution - these with the Privy Council - and the Privy Council legislation of 1833. And it was said that Chapter III was the only way in which you could get federal questions to the Privy Council, and to that extent, the 1833 Act was diminished. But that is the only occasion I can think of where this sort of argument has worked - and one can see the sense of it there, but it is a little difficult with section 106.
MR MEADOWS: I was going to say that if you look at what the Privy Council said in McCawley in that well-known - it is certainly not inconsistent with what the Privy Council said in McCawley, in that well-known passage at page 706, where the Privy Council said, at about point 2:
It was not the policy of the Imperial Legislature at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures.
GUMMOW J: This is Lord Birkenhead in jury mode, really.
HAYNE J: I thought that was the whole purpose of the 1842 and 1850 Acts, was it not? It is to control the nascent power of the colonial legislature.
MR MEADOWS: But he is talking here in 1920, and we are talking about what happened in 1901, and what I am suggesting is that, consistent with what he said here, by 1901, where the States were part of the Federation, and their Constitutions were given force by virtue of section 106, that any manner and form requirement which might have been imposed by the Imperial legislature was superseded by the provisions of section 106.
KIRBY J: Is there not a textual problem for you though? Section 106, if one took it in isolation and one accepted that the ex-colonies had become States of the new Commonwealth, then there would be a lot running for your argument, I think, speaking for myself, but this is one section of the Constitution that takes our minds back undoubtedly to 1901, because it says as at the admission of the State or as at the establishment of the Commonwealth. So as at the establishment of the Commonwealth takes us back to what the Constitution was in 1901 and the fact of the matter is that taking that reference point, the Constitutions of a number of the colonies that became States were Imperial Acts and some of those Imperial Acts were not the entire picture of the Constitution.
Your construction, one would have thought, would have either scheduled the Constitution Acts or referred to the Constitution Act, but the fact that you are locked into those Constitutions as at the establishment of the Commonwealth rather tells against your argument, I think.
MR MEADOWS: Well, it is necessary for us to contend that the covering Act is not part of the Constitution of the State as at 1901 and our submission is that, what is the Constitution of the State is that which is found in the scheduled Bill as amended at that time.
GUMMOW J: Justice Gaudron has reminded me, what did you say about Caltex Oil v XL Petroleum 105 CLR 72, where another one of these arguments, this time about State appeals to the Privy Council in non-federal matters? It did not get very far. Again the question was the interrelation of the Constitution as an Imperial Act in the 1833 Imperial Act.
MR MEADOWS: Yes, I understand, your Honour.
GUMMOW J: It just seems to me you have got to run into the Colonial Laws Validity Act, as Justice Kirby says.
MR MEADOWS: For a start, the Colonial Laws Validity Act does not have any application to a Bill to repeal section 70, because it is certainly not - - -
GAUDRON J: No, but why would you treat the covering clauses, which import the 1842 and 1850 Act, as different from the Colonial Laws Validity Act, particularly when they are the covering clauses to the Constitution?
MR MEADOWS: But the Colonial Laws Validity Act does not mandate any manner and form provisions itself, but it does say which manner and form provisions are to be complied with, and those are ones which deal with the constitution, powers and procedure of the legislature.
KIRBY J: Yes, but they became a tremendously important control on the State Constitution and you cannot have it both ways. You cannot say, well, you are not to pick up the covering clauses for the Constitution, but you are to pick up the Imperial Colonial Laws Validity Act, for its control that it undoubtedly operated from its passage until it is said that it went out the door with the Australia Acts. I mean, you cannot pick and choose which Imperial provisions are part of the State's constitutional law. The history of almost a century establishes that the Colonial Laws Validity Act was a very important aspect of the State constitutional law.
MR MEADOWS: I am not denying that, but what I am saying the Colonial Laws Validity Act does as at 1901 is to direct you to section 106.
KIRBY J: So you have a different theory for Trethowan. In this Court everyone got it wrong?
MR MEADOWS: No. As I said - - -
KIRBY J: They should have said that the reason why the New South Wales Parliament could not change its provision was because of section 106, which no one mentioned.
MR MEADOWS: They did mention section 106, maybe not in Trethowan but certainly in Clayton v Heffron.
KIRBY J: But Trethowan rests on the Colonial Laws Validity Act.
MR MEADOWS: Certainly.
KIRBY J: And that was perhaps in tune with the humours of that time, looking back on it.
MR MEADOWS: It was a constitutional assumption, I would suggest, that may have prevailed at the time but I would seek to challenge that assumption and to suggest that as at 1901 the relevant provision to look to - even if you looked at the Colonial Laws Validity Act, it would get you back to section 106.
HAYNE J: But that is to suggest that the position of the former colonies, now States, was identical with the quite remarkably different provision that obtained in respect of the Commonwealth Constitution. The Commonwealth Constitution was remarkably different because it was wholly self-contained about its alteration with 128, but other former colonies, self-governing colonies, stood very much apart from that arrangement. There were things that had to go back to Imperial authorities.
MR MEADOWS: I understand that, your Honour, but what we say has happened by virtue of the Commonwealth Constitution was that section 106 stepped in and supplanted those provisions.
KIRBY J: You have a theory of transmogrification. You say at the moment of Federation they were no longer colonies. The Colonial Laws Validity Act in effect did not any longer apply to them. They were States of the Commonwealth, they had a different personality, a different national and international personality, and any controls that then applied were those which had applied at the beginning of the Constitution by virtue of the Colonial Laws Validity Act but thereafter applied by virtue of section 106.
MR MEADOWS: Yes, but that does not mean I am denying the continued operation of section 5 of the Colonial Laws Validity Act.
KIRBY J: I think your better argument, if I can say so, is for you to say that transmogrification by force of section 106, the former provisions of the Imperial law become part of Australia's constitutional law under section 106 and they are imported as part of our constitutional law by virtue of our Constitution and to the extent that this Court and everyone else thought that they were by force of Imperial legislation, they were just locked into a mind-set which had no application after 1901.
MR MEADOWS: I think that is very largely the effect of what I am saying, your Honour.
HAYNE J: It stands in contrast with what Keith wrote in 1909 in "Responsible Government in the Dominions", particularly at pages 88 and 89 and thereabouts, where Keith drew a sharp distinction between the Constitutions of Newfoundland, Cape of Good Hope, Natal, possibly even, he said, Tasmania, the Constitutions of the Transvaal, the Orange River Colony and the other Australian States.
MR MEADOWS: I am conscious of that, your Honour, and it is inconsistent with what Quick and Garran say in the passages that we have annexed to our materials. But that is a necessary consequence of my submission and, as I said earlier, a lot of that writing was based on an assumption which we say should not have been allowed to prevail.
KIRBY J: Could I just ask you, Mr Solicitor, does it matter in the long run, because whether its source is the Colonial Laws Validity Act or section 106 of the Constitution transmogrifying that Act into a federal Constitution norm of Australia, you still have to comply with the manner and form because, after, 106 picked it up and it becomes, in an ambulatory way, part of section 106, you still have to do so.
MR MEADOWS: We say that the only thing that was left was section 73 and the covering Act no longer had application.
GLEESON CJ: What about the covering Act of the Commonwealth Constitution? What made the Commonwealth Constitution binding on the courts, judges and people of every State except covering clause 5?
MR MEADOWS: In our submission, even though the covering Act might say that, the Constitution itself has that effect and it was something which reflected the will of the people and that it had been approved a referendum in each of the - - -
GLEESON CJ: Does covering clause 5, that is to say section 5 of the Commonwealth of Australia Constitution Act of the Imperial Parliament, have any continuing effect?
MR MEADOWS: Not in terms of having statutory force, but it does at least provide some understanding or background to the Constitution itself.
KIRBY J: What is it doing in my copy of the Constitution if it has no effect?
GLEESON CJ: And if it has effect, could it be amended?
MR MEADOWS: Could it be amended?
GLEESON CJ: Yes.
MR MEADOWS: Well, that, in itself, is an interesting question which - - -
KIRBY J: It could, perhaps, so far as the United Kingdom was concerned, but there would be some who would contest that it would have anything to do with Australia.
MR MEADOWS: Yes, well, at the time of the republic referendum there were moves afoot as to how the covering Act could be amended.
GLEESON CJ: Then is section 128 a manner and form provision?
MR MEADOWS: Is it?
GLEESON CJ: Yes.
MR MEADOWS: Well, yes, obviously it is, your Honour. I do not think I can take these submissions any further.
GLEESON CJ: Thank you, Mr Solicitor. Mr Burmester, is this the appropriate time for you to - how long do you expect to require for your submissions, Mr Burmester?
MR BURMESTER: Probably only 10 minutes, your Honour.
GLEESON CJ: What about you in reply, Mr Jackson?
MR JACKSON: About 15 minutes.
GLEESON CJ: Yes, Mr Burmester. We will endeavour to finish today.
MR BURMESTER: Yes, your Honour. The Attorney-General makes no submission on the instruction of the 1842 and 1850 Acts and whether they did or did not apply in relation to the repeal of section 70 of the Western Australia Constitution. The Attorney-General's submissions, as is clear from the written submissions already filed, are confined to section 106 of the Constitution and its possible effect on the issue before this Court. In the contentions of the Attorney-General, section 106 did not remove the restrictions, if otherwise applicable, by reason that they were not contained in the Western Australia Constitution Act itself. Hence, on this issue, the Attorney-General rejects the submissions of the respondents.
Now, your Honours, there are really only two points that I would particularly wish to emphasise and which are made more fully in the written submissions. Firstly, in our submission, the word "Constitution" in section 106 cannot literally mean only the Constitution Act itself of the various States. In our submission, that would be an artificial construction, it would be to elevate form over substance. It is not appropriate, in our submission, to consider the Western Australian position in isolation from the position that operates in other States and we have pointed out the implications that a construction of "Constitution" as only meaning the Constitution Act itself might have in relation to Tasmania, which had slightly different constitutional arrangements. So, in our submission, one - - -
KIRBY J: I take the force of that submission. I think if we were looking at the Constitution, we have to look at all the States. But the problem with your theory is that it is very open-ended. It does not have an easy referent, does it? I mean - - -
MR BURMESTER: Well, your Honour, it does not enable you to look for a particular statute and say, "If something appears in that, then that answers the definition of "Constitution". But we submit that - - -
KIRBY J: Do you include constitutional conventions of the States, constitutional practices, the Charter of Justice?
MR BURMESTER: The Charter of Justice, your Honour, may well be included. We are not, I think, talking about non-statutory conventions. But we would submit that the appropriate test, if one needs a set of words, is essentially the words of Justice Evatt in the Stuart-Robertson Case [1932] HCA 33; (1932) 47 CLR 482 at 491, which is referred to in paragraph 18 of our submissions. He suggested that the criteria essentially were those provisions, wherever found, which define and describe the fundamental framework and scheme of the State system of government. So there may be provisions in a Constitution Act which nothing to do with the fundamental framework of government, although the fact that they appear there may suggest that they do. But there may well be provisions elsewhere in the statute book which, nevertheless, can be described as fundamental to the framework and system of government.
KIRBY J: Can you give us a clue as to any other - apart from the Charter of Justice, is there anything else - is the notion that, say, Magna Carta is picked up, or that the Bill of Rights of 1688 is picked up?
MR BURMESTER: Well, your Honour, the only examples we have, which I will give your Honours a reference to, essentially concern the courts as essential parts of the framework of government. There may be some provisions elsewhere, but, in our submission, that test suggested by Justice Evatt nicely encapsulates the criteria, the fundamental framework and scheme of the State system of government. It does not suggest one just imports Bills of Rights, Magna Carta, which may go to individual liberties, as opposed to the framework of government, which we would say was the critical element.
KIRBY J: The framework of government will perhaps import, on this theory, all sorts of notions of, as it were, the whole history of English Constitution law that preceded Federation, all those great statutes of the English Parliament, of general application.
MR BURMESTER: Well, your Honour, that is the point, some of them may not have relevance to the Australian situation.
KIRBY J: It is a very open-ended formula.
MR BURMESTER: But, your Honour, if we confine it to the framework and scheme of government, we are not seeking to talk about fundamental laws or some criteria like that. We are seeking to focus on the framework and structure of the system of government and, hence, this Court in cases like Tracey and Australian Education Union, which are referred to in paragraphs 9 and 10 of our written submissions, have seized on the establishment of State Supreme Courts as forming part of the necessary constitution of the States within the meaning of section 106.
If I could give one further reference to your Honour Justice Gummow, in the Kable decision[1996] HCA 24; , (1996) 189 CLR 51 at pages 140 to 141. In our submission that is a reflection of the appropriate approach. One cannot adopt a simple artificial approach of saying if it not in a Constitution Act of a particular State, then it cannot form part of the Constitution for section 106. We would say the authorities such as those I have just mentioned indicated that that is not the appropriate test.
KIRBY J: What is the danger that the Commonwealth sees in taking the view that it means the Constitution Act, because most of them do refer to the judiciary in one way or another, and the Constitution itself assumes an integrated judiciary? It refers to State Supreme Courts and it refers to appeals to this Court and, therefore, we should not be too worried about the possibility that the judiciary will somehow fall off the side of the planet.
MR BURMESTER: Your Honour, it does seem that interpreting "Constitution" in this way would be a convenient way in which to bring in the court systems of the States into the fabric of the Constitution and, in our submission, that is, in fact, what this Court has done in, particularly, Kable and Re Tracey. It is not that the Commonwealth is, in putting forward this test, seeking to articulate a broad, open-ended definition of "Constitution" which would pick up all the fundamental or significant laws that might have been seen as part of the broader British constitutional fabric.
KIRBY J: It may be inherent in your proposition.
MR BURMESTER: We are simply saying that to confine it to the Constitution Act is overly artificial and does not provide an adequate test. Your Honours, the second point I was going to mention briefly is simply that the purpose of section 106 contended for by the learned Solicitor, in our view, is contrary to the historical evidence. In his submission, he would contend that section 106 in some way severed or removed the Imperial fetters that might be in Acts like the 1842 and 1850 Acts. In our submission, that would be to fly in the face of the drafting history in relation to section 106, and we have referred to that in paragraphs 14 to 16 of our written submissions, where a specific set of words designed to achieve precisely that was defeated on a number of occasions.
So, in our submission, to seek to construe section 106 in the way contended for, to cut off things like the Colonial Laws Validity Act or to apply the Colonial Laws Validity Act to be brought in in some other roundabout way, would be to give section 106 a purpose it was not intended to have. In our submission, the purpose of section 106 is well expressed by Chief Justice Brennan in the McGinty Case [1996] HCA 48; (1996) 186 CLR 140 at 170 to 171. If I could perhaps just briefly take the Court to that, in fact, starting on page 171. At the middle of the page, Chief Justice Brennan sets out section 106 and says:
This section has a dual operation. Its first operation is to prescribe what the new elements of the Federal polity - the States - shall be.
And then at the bottom of the page he says:
Secondly, s 106 conferred on the respective States substantially the Constitutions of the antecedent Colonies. The same Constitutions as had been conferred on the Colonies prior to 1 January 1901 were continued as the Constitutions of the respective States thereafter, subject to such modifications as were effected by the Commonwealth of Australia Constitution Act 1900 (Imp) and the Commonwealth Constitution.
He then quotes from Chief Justice Barwick in New South Wales v The Commonwealth and then, about the middle of the page:
Although the States owe their existence to the Commonwealth Constitution and although their respective Constitutions in 1901 were conferred by operation of s 106 - - -
GLEESON CJ: Just before you pass over Chief Justice Barwick's passage there, it says:
provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed including the power of alteration of those constitutions.
That, I presume, means including the power, including any limitations on the power of alteration.
MR BURMESTER: That is the way I would read it, your Honour, and I think that is the way Chief Justice Brennan was reading it, as he goes on there.
KIRBY J: Is that word "conferred" - should that be "confirmed"? The third line under the quote.
MR BURMESTER: It may be. Maybe it should have been "confirmed", your Honour. I am not sure.
GLEESON CJ: No, it is a repetition of the word that appears in line 1 on that page.
MR BURMESTER: But it could be "conferred." He is saying the purpose of section 106 was to, as it were, confer these Constitutions on the States, but the Constitutions that were conferred were the Constitutions as in force prior to 1 January. So I think, perhaps, "conferred" is the right word.
GLEESON CJ: He said it in line 1.
MR BURMESTER: Yes, "as had been conferred on the Colonies." As he says what has been conferred is - - -
KIRBY J: It does not make sense to me.
MR BURMESTER:
the powers vested in the respective State legislatures were subject not only to the other provisions of the Constitution but also to the limitations which had been imposed on the powers of the antecedent colonial legislatures.
He refers to section 107.
GLEESON CJ: At first blush it looks like something that might assist the Solicitor-General for Western Australia's argument, but it is that qualification.
MR BURMESTER: It is that qualification.
GLEESON CJ: Another way of expressing it is to say they took their Constitutions as they found them.
MR BURMESTER: That is correct, your Honour. That seems to me what he is saying, and it is borne out by the last few words in that particular paragraph. He says:
their general legislative and constituent powers then remained amenable to affection by laws enacted by the United Kingdom Parliament.
And he refers to Southern Centre of Theosophy.
That amenability to affection by Imperial legislation was removed only by the enactment of the Australia Act.
So, in our submission, section 106 cannot be construed as in 1901 having removed any fetters, if they existed, imposed in Imperial legislation.
KIRBY J: Is the theory there that it was only stopped in 1986 because the Imperial Parliament said it would stop it or that it had stopped it? I, myself, cannot see what the Australia Acts has had to do with it. By 1986 the Imperial Parliament was no longer an Imperial Parliament, and had long since lost any power to legislate. Indeed, in the Statute of Westminster it was so declared back in the thirties.
MR BURMESTER: It is a legislature in relation to the Commonwealth, your Honour, in the Statute of Westminster, and it was extended, on one view, to the States. At this stage of the - - -
GUMMOW J: They were never within the Statute of Westminster.
McHUGH J: They were reserved from it. They were excepted. The States were excepted.
GUMMOW J: They did not want to be. Took quite a time for the Commonwealth to want to be, too.
KIRBY J: When was the last time that the United Kingdom Parliament legislated in respect of States, leave aside the Australia Acts.
MR BURMESTER: Your Honour, that, I cannot answer off the top of my head but there may well have been things like Merchant Shipping Acts and others passed in the early 1900s that did extend to the States.
McHUGH J: There was also a copyright - - -
MR BURMESTER: And I think copyright was another area, the Copyright Act about 1911, that was clearly extended to the States.
GAUDRON J: It was not so much whether they continued to legislate the States, it was whether their provisions like the Colonial Laws Validity Act continued to operate, with respect. It was not so much a question of current legislation as the effect of their own past legislation which, on one theory at least, only they could repeal.
GUMMOW J: And the 1907 Australian States Constitution Act, what could be snuck into the instructions for governors, that was all preserved, was it not?
MR BURMESTER: Yes, that is correct, your Honour. So there are instances of Imperial Acts continuing to operate and possibly new Imperial Acts but, in our submission, certainly section 106 cannot remove that and your Honour Justice Kirby, at this stage of proceedings, I can, I hope, avoid having to provide definitive advances on possible effects of the Australia Act. We have left that for a possible - another day.
KIRBY J: Yes, we will save that pleasure for another day.
MR BURMESTER: I am saving that up, your Honour. If the Court pleases.
GLEESON CJ: Thank you, Mr Burmester. Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, in relation to section 106, may I say two things? First, we adopt, as our written submissions indicate, the submissions made on behalf of the Commonwealth. The second thing, of course, is simply this. That if one looks at the terms of section 106 and 107, because 107 deals with the powers of the legislatures of the former colonies, what they are expressed to do is to continue as they were at the establishment of the Commonwealth. There is no suggestion that the powers are augmented but they are continued as they were at the establishment of the Commonwealth.
KIRBY J: That is why I put to the Solicitor that, at least on his theory, one possible view is that it did change the foundation of the State's Constitution, but it does not help him, because it is very difficult to say you pick up the Constitution, but not the covering provision.
MR JACKSON: Well, your Honour, the baby did not grow large at the time of Federation.
KIRBY J: Yes, but the baby became a different baby, it became someone else's baby, it became our baby; it was no longer the Imperial baby.
MR JACKSON: Quite, your Honour, but at the same time it was the same one with a different parentage perhaps, but - your Honours, anyway, perhaps I have slipped into the baby mode. Your Honours, the point I would seek to make about it is simply the one speaking about continuation as distinct from augmentation.
Your Honours, could I turn then to section 32 of the 1850 Act and to the argument that was advanced by our learned friends in the course of their submissions, and one of those arguments was that section 32 became applicable to, to put it shortly, the new situation; that is, not to the bodies which had existed before, the Legislative Council, but to the new Legislative Assembly and Legislative Council - to the new ones. Your Honours, that, in our submission, seems rather unlikely if one bears in mind the terms of section 32, on the one hand, and the new constitutional provision of section 73, on the other, because if one goes to section 73 of the Constitution, your Honours will see that it did not require reservation at all in respect of Bills which repealed or altered any of the provisions of the Constitution.
In particular, the only requirement in respect of Bills for any change in the Constitution of the Legislative Assembly or Legislative Council was that there was the requirement that there be the absolute majority which is referred to in the first proviso in section 73. So that it is difficult, in our submission, to see how the opening words of section 32 could fail to be repugnant to a provision - I will put it that way - which did not require there to be any reservation at all.
There would also be difficulties in applying section 32 in a kind of converted form to the amendments to the Legislative Council and Legislative Assembly because of the provisions of section 5 of the covering Act itself. What section 5 said - that is at page 169 of the green volume - is that it was lawful for the legislature to make laws altering or repealing subject simply to the conditions contained in the Bill. The conditions to which reference is made there are the conditions in section 73 which said nothing about reservation.
So that there is a difficulty, in our submission, in saying one simply can convert the old Legislative Council in section 32 and treat it as the law officers said, treat it as being the Legislative Council and Legislative Assembly, because to do so was to add requirements which were not provided for at all by the provisions of the enactment.
Your Honours, if one goes then to the law officers' opinion, to which reference was made earlier, in the orange volume at page 252, which commences relevantly at page 251 about line 16, your Honours will see, in our submission, that the terms of the opinion do not refer at all to section 5 of the Constitution Act, nor do they refer to the terms of section 73 of the Constitution itself. If one goes to page 252 about line 20, where they say:
Although this portion of section 32 is not expressly mentioned the words of section 2 of the Act of 1890 cover all provisions which relate to the reservation of Bills for Her Majesty's pleasure, and one of these is -
set out. Our submission is that that part of the opinion, if one extracts it, is correct in isolation. If, however, one goes to the top of page 252 or goes further up, your Honours, and looks at about line 14, I should have said, when it speaks of there being a "re-enactment of the provisions of sec. 32 as well", that does not take into account the fact that the re-enactment would be entirely inconsistent with the provisions of section 5 and section 73. I think I referred in our earlier submissions to the terms of paragraph 31 of our written submissions where we set out some cases dealing with the circumstances in which the operation of an earlier enactment can be altered when provisions of a later one pick it up.
Could I mention also the law officers' opinion No 183 that our learned friends referred to. It is in a loose form. If one goes to the actual opinion at page 50, the three points we would seek to make are these: first of all, that in paragraph 1 it is right to say, in our submission, that section 32 only applied in its original form to Bills passed by the original Legislative Councils. That is correct, in our submission. If one goes then to paragraph 3 of the opinion where it says:
In the case of Western Australia, all three classes of Bills referred to in section 32, when passed by the present Legislatures, must be reserved under section 2(a).
Then, for the reasons I submitted earlier, we would submit that is not correct. But perhaps any suggestion of absolute certainty of practice or a view about what the situation is is removed by paragraph 4 on the next page, page 51, dealing with the supplementary questions, where they speak of the very confused condition of the existing legislation.
Could I deal with another aspect and that concerns the applied operation of section 31 of the 1842 Act. In 1894 there was an earlier attempt to repeal section 70.
We refer to that in our written submissions at page 6, footnote 9, and that failed because the Bill had become stale. Your Honours will see that referred to in the yellow volume at page 122. It is a communication to the Governor by the Secretary of State to the colonies, and your Honours will see in paragraph 2 that it was said they had overlooked the fact that by section 33 of the 1842 Act the Bill had lapsed because the assent had not "been signified within two years", et cetera.
Now, your Honours, the requirement for that time limitation is to be found in section 33 of the 1842 Act which, as your Honours have seen, is at page 158 of the green volume towards the end of section 32. Your Honours, one notices, of course, that if one goes back to, for example, section 31 of that Act, which sets out a list of laws which were required to be reserved, then there is, of course, no reference in it to a law of the kind which would be - I am sorry, I will start again, your Honours. There is no reference at all in it to a law of the kind which a law endeavouring to repeal section 70 would be.
The only point we are seeking to make about it, your Honours, is this, that it is plain enough that in the application of the provisions of the Constitution, section 73 and section 70 and the provisions picked up by section 2(a) of the covering Act that the provisions of section 70 were treated as ones to which the 1842 Act would apply because what was required was reservation and because the provisions of the 1842 Act dealt with reservation, even though it was not one of the types of law referred to in it.
Your Honours, the same view was taken by the law officers in 1905 in relation to the earlier 1897 Act. Your Honours will see that in the yellow volume at page 226. Your Honours, if I could go to page 227, what your Honours will see is that in paragraph 1 of the report at the bottom of the page it said that the provisions of section 33:
as to the signification of the Royal Assent to reserved Bills apply to Bills passed by the present Legislature of Western Australia.
Then, your Honours, in paragraph 2:
We do not think the Aborigines Act, 1898 is legally valid as the assent of Her Majesty has not been signified in accordance with the terms of 5 and 6 Victoria, c. 76, section 33. The proclamation under section 13 of the Aborigines Act -
was not the right type of proclamation. So it was plain in our submission that section 33 was treated as the provision which became applicable because it was one which dealt with the reservation of Bills.
Your Honours, could I say one other thing about turning to section 33 of the 1850 Act? Our learned friends advanced the argument that section 33 applied only to the Bills that were referred to in section 32 of the 1850 Act. It is at page 161 of the green volume.
It is sometimes tempting, your Honours, in relation to older forms of enactment to treat the word "provided also" as being something in the nature of a proviso, but your Honours will see, if one looks at section 33, that it uses the double form, it says, "Provided always, and be it enacted, That", and that is a provision that one sees in various other enactments and also in this enactment itself. So it is, in our submission, intended to operate as an enactment in its own right.
Your Honours, there are two other matters with which I wish to deal. The first can be seen in the yellow volume at page 217. A question was asked about the position of the interest of members of the House of Commons or members of the United Kingdom Parliament, and your Honours will see at page 217, in the right column, that Mr Bayley asked a question in reference to:
the fact that an Act had been passed by the Legislature of Western Australia abolishing the Aborigines' Protection Board -
and at the end of the question:
will he state when he proposes to call the attention of the House to the proposed supercession of Article 70 -
he said:
The correspondence referred to . . . was laid before Parliament in February, 1897, and elicited no expression of opinion adverse to -
it, and the Act had received the royal assent. Your Honours, it does not take the matter very far, but what your Honours will see is that it was a topic which was actually raised by a member of the House of Commons.
Your Honours, the last matter to which I wish to advert concerned a question your Honour Justice Hayne asked me and that is about the customs laws. The only provision for reservation, your Honour, in relation to the customs laws seems to have been section 31 of the 1842 Act. There was then the Australian Colonies Customs Duties Act - I am sorry, it is referred to in section 60 of the Western Australian Constitution, but it gave specific power - - -
GUMMOW J: This is the 1873 Act?
MR JACKSON: Yes, your Honour, I am sorry. Your Honours should have a copy of that which we have given. It allowed the legislature of any of the Australian colonies to make laws with respect to the remission or imposition of duties on the importation of articles, et cetera, from any other of the colonies or the produce or manufacture of or imported from New Zealand. That was to be for the purpose of carrying into effect any agreement between any two or more of the colonies.
Your Honours will see that referred to in section 60 of the Western Australia Constitution Act and also there is a legislative power to impose customs duties in section 59 of the Western Australian Constitution Act. That is in the green volume at page 180. No specific provision is made for reservation of those Bills and, to put it shortly, your Honours, the position, in our submission, would be that prior to he Western Australian Constitution it may well have been the case, because of the operation of section 31 of the 1842 Act, that there had to be reservation in respect of a Customs Bill. After the Constitution came into being there did not have to be.
In relation to laying on the table, the yellow volume at page 9 in the right column deals with Sir John's Forrest's observation that the Bill would have to be - dealing with the Aborigines Act, at the top of that page in the right column, expressed the view that:
the Bill would have to be laid on the table -
in the House of Commons:
for a certain prescribed time.
Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. We will reserve our decision in this matter.
AT 4.23 PM THE MATTER WAS ADJOURNED
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