Attorney-General (WA) & Anor v Marquet [2003] HCATrans 259 (5 August 2003)

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Attorney-General (WA) & Anor v Marquet [2003] HCATrans 259 (5 August 2003)

Last Updated: 21 August 2003

[2003] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth Nos P114 and P115 of 2002

B e t w e e n -

ATTORNEY-GENERAL FOR WESTERN AUSTRALIA

First Applicant

STATE OF WESTERN AUSTRALIA

Second Applicant

and

LAURENCE BERNHARD MARQUET (Clerk of the Parliaments of Western Australia)

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 AUGUST 2003, AT 10.19 AM

Copyright in the High Court of Australia

__________________

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR D.F. JACKSON, QC, and MR R.M. MITCHELL, for the applicants. (instructed by Peter Apostolos Panegyres, Crown Solicitor for the State of Western Australia)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR B DHARMANANDA for the amici curiae. (instructed by Mallesons Stephen Jaques)

MR P.A. KEANE, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MR G.R. COOPER, the Attorney-General for the State of Queensland, intervening in support of the applicants. (instructed by C.W. Lohe, Crown Solicitor for the State of Queensland)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the Attorney-General for New South Wales, who intervenes. (instructed by Crown Solicitor for the State of New South Wales)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friend, MR G.M. AITKEN, for the Attorney-General for the Commonwealth, intervening partly in support of the applicants and partly in support of the amici curiae. I submit that we intervene as of right, but in the event that the Court were to be against me on that proposition, I seek leave to intervene. (instructed by Australian Government Solicitor)

GLEESON CJ: There is an application by Mr Ludlow to appear as amicus curiae and the application is dismissed.

There is a certificate from the Deputy Registrar saying that she holds a letter from Downings Legal, solicitors for the respondent in each of these matters, informing her that the respondent will not appear at the hearing and will abide by the decision of the Court, save as to costs. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, it is proposed I go first. May I indicate the way in which we would seek to divide the argument. Your Honours, as is apparent from the written submissions, the applications give rise to a number of distinct issues. May I indicate what they are.

The first is whether the Electoral Distribution Repeal Bill - and may I call it the Repeal Bill - was a Bill which in terms of section 13 of the Electoral Distribution Act 1947 was a Bill to amend this Act thus requiring an absolute majority in both Houses of the Parliament. Your Honours, I would emphasise the words “amend” and “this Act” in saying that. Section 13, to which I will come of course, is a provision in relatively exact but limited terms. In our submission, there is no reason to expand its meaning or its operation. Your Honours, the resolution of that question involves a number of sub-issues. May I come to them when dealing with the issue.

The second question is related to the first. It is whether a later Bill, the Electoral Amendment Bill, which I will call the Amendment Bill, similarly required absolute majorities for the same reason. The third and fourth questions, your Honours, concern whether section 13 was in force - if I could put it shortly for the moment - in any event. The third question thus arising is whether section 13 was not impliedly repealed by the enactment of section 4 of the Acts Amendment (Constitution) Act 1978 (WA). That is the issue, your Honours, that is referred to in our written submissions in paragraphs 35 to 46, and that is the issue with which it is proposed my learned friend the Solicitor-General will deal.

Your Honours, the fourth question is whether, in any event, section 13 binds later Parliaments. This involves, critically, the effect of section 6 of the Australia Acts. The fifth question is one raised by the amici and that is whether the prorogation of the Houses of Parliament meant that the Bills had lapsed. In dealing with those arguments, one does need to identify the context in which they arise. May I indicate, your Honours, as briefly as I can, the relevant legislative context.

Two of the constitutional enactments in Western Australia which are of importance are the Constitution Act 1889 and the Constitution Acts Amendment Act 1899. Could I come first to the 1889 Act. That Act provides in section 2(1) that there shall be two Houses in the Parliament, a Legislative Council and a Legislative Assembly.

KIRBY J: You have gone straight to the State Constitution Act.

MR JACKSON: Yes, your Honour.

KIRBY J: Is there any contextual provision in the Federal Constitution which we have to, as it were, keep in our mind as we look at the State Constitution?

MR JACKSON: Your Honour, one would look, no doubt, or keep in mind, section 106, perhaps section 107, and, of course, to the extent to which the Australia Act could be regarded as a constitutional instrument and as a law that - - -

KIRBY J: That is a big question as far as I am concerned.

MR JACKSON: Well, that, your Honour, may be. Could I just say, however, that it is both a law of the United Kingdom and the law of the Commonwealth passed pursuant to section 51(xxxviii) and in consequence would be a law which would - - -

KIRBY J: It has never yet been explained to me what the United Kingdom Parliament was doing intermeddling in our constitutional affairs in 1986.

MR JACKSON: Your Honour, I am not attempting to justify it; I am simply saying that as things stand at the moment, there are two laws, the Australia Acts - - -

KIRBY J: All the governments and all the Parliaments go along with this, but the people of Australia have not been consulted. Anyway, I have just expressed by view on that.

MR JACKSON: Your Honour, I will come to the provisions of it later, if I may say, rather than saying a little later. I was mentioning the West Australian Constitution Act 1889. It provides in section 2(1) that there are two Houses in the Parliament. It provides in section 2(2) that the Parliament consists of those two Houses and the sovereign.

Your Honours will note in passing, in relation to the same Act, that section 3 allows the Governor to do a number of things, including fixing the time and place for holding sessions of each House and to prorogue each House. If I could just pause to say this: if your Honours look at the last few lines of section 3, your Honours will see that it refers to proroguing each House, but to dissolving the Legislative Assembly and not the Legislative Council. That is because the members of the Council are appointed for fixed terms. I will come to the 1899 Act in a moment, your Honours, but that is provided for by the 1899 Act, that Council, in effect, goes on.

Your Honours will see, if I could come then to the 1899 Act, that it provides in section 5 that:

The Legislative Council shall consist of 34 elected members who shall be returned and sit for certain electoral regions as defined under section 6.

The regions return the number of members referred to in section 6(2) and section 6(3).

Your Honours, the members of the Legislative Council have a four-year term commencing on 22 May after an election. Your Honours will see that in section 8(2). They do not sit or vote before 22 May next, following their election as a member; that is section 8(3).

Now, your Honours, if I could turn then to the Legislative Assembly. By section 18(b), it has 57 members. Section 19, and particularly 19(b), refers to the fact that there are to be:

57 Electoral Districts thereafter, under the provisions of the Electoral Distribution Act 1947, each returning one member to serve in the Legislative Assembly.

The term of members of the Legislative Assembly is a maximum term of four years. That is provided for by section 4(1). Now, your Honours may - - -

HAYNE J: Sorry, which provision?

MR JACKSON: I am sorry, your Honour, 21(1). I think I may have said 24. Now, one sees from the two provisions to which I will come, namely sections 14 and 24, that the ordinary position is that matters arising for decision in either House are decided by a majority of members present and voting. Section 14 deals, in the first paragraph of section 14, the position in the Legislative Council and section 24, the position in the Legislative Assembly.

Now, your Honours, before I move from that Act could I just say one thing about it. If your Honours look at both section 6(1) and also section 19(b), your Honours will see references to the Electoral Distribution Act in connection with districts and regions. May I take your Honours now to the Electoral Distribution Act 1947. Your Honours will see from section 2A, page 3 of the pamphlet copy, that it provides that Western Australia, in subsection (1), is to be “divided into districts and regions”. That is to take place as soon as practicable after any one of the three events which are referred to in the section. May I indicate what they are. First of all, section 2A(1), the commencement of the Acts Amendment (Electoral Reform) Act 1987. Then section 2A(2) where the same division under the Act has applied for two successive Legislative Assembly elections, then one year after the polling day for the second such election is the trigger for the new division. Then subsection (3), the date of issue by the Governor of a proclamation directing a division. Your Honours, subsection (4) makes it apparent that the Houses of Parliament may require that such a proclamation be made. When a division is required pursuant to 2A(1), (2) or (3), the Commissioners - I will come to who they are in a moment, your Honours - are then to carry it out. That is provided for by section 3(1).

The succeeding provisions of section 3, particularly section 3(2), set out a procedure. May I summarise it in this way. It is a procedure for public notification inviting comments and suggestions, consideration of the comments and suggestions made, formulation and publication of the draft proposal, consideration of objections thereto, and, finally, division by the notification referred to in section 3(2)(f). May I take your Honours to that. Section 3(2)(f) is the last stage of the process. It provides for the division in the manner required by subsection (1). The Commissioners engaged on that task are the persons holding the offices referred to in section 2(1). The terms “district” and “region” are defined by section 1A, the second definition, but the definitions are expressed in a manner which requires reference to the Electoral Act 1907.

KIRBY J: Could I just ask, in practice, does the serving Chief Justice of the State fulfil the duties, as you understand it, of chairman?

MR JACKSON: Yes, your Honour.

KIRBY J: So he actually participates in the electoral redistribution?

MR JACKSON: Yes, your Honour, that is our understanding.

KIRBY J: That was a point raised by Mr Ludlow in his written submission. Anyway, do not go into that. It may exist in other States, but I have never heard of it before.

MR JACKSON: Could I just say this, judges of courts of the States have various functions cast upon them, sometimes for reasons which are part of constitutional history, sometimes for statutory reasons. Then, your Honours, it would only be if one really got to the area of incompatibility, that was discussed in Kable and has been raised unsuccessfully in other cases, that the - - -

GUMMOW J: It was Wilson, really.

MR JACKSON: Yes, your Honour.

KIRBY J: Wilson was a federal judge, of course.

MR JACKSON: Yes.

KIRBY J: But I am just thinking that often extremely politically sensitive decisions have to be made by electoral redistribution commissions. However, it is in the statute, so nobody is taking a point on it. We just should move on, I suppose.

MR JACKSON: The point I would be seeking to make, your Honour, is this, that one sees in the statute the parameters within which the Electoral Commissioners are to work expressed, and there are some discretions, some not.

GUMMOW J: Is there a probative clause protecting the operations of these people?

MR JACKSON: I do not think so, your Honour, no. Not in this Act, not in the Electoral Distribution Act. I am not conscious of one elsewhere.

GUMMOW J: But, as a matter of practice, are there challenges made sometimes to their decisions?

MR JACKSON: Your Honour, I would have to check on whether that is the fact. The position would be, of course, that by virtue of the procedure in section 3(2), that really provides the basis pursuant to which people might put proposals to the Commissioners, and objections and so on.

There has been no challenge, your Honour, I am instructed to any of the decisions of the Commissioners. I was going to say that the terms “district” and “region” are defined by section 1A but in a manner which requires reference to the Electoral Act 1907, in particular to subsection 4(1), and in a sense the definitions are descriptive but not especially illuminating in the sense that a district is an electoral district with each member of the Assembly and in relation to the Council means an electoral district that forms part of a region, “region” is defined as meaning “an electoral region for the election of members of the Council”.

GLEESON CJ: Is there a provision corresponding to section 13 of the 1947 Act in any of the other Acts to which you have taken us?

MR JACKSON: No, your Honour.

GLEESON CJ: Why was the 1947 Act selected as the repository of that provision?

MR JACKSON: It comes about, your Honour, because at an earlier point – I will take your Honour to the legislation a little later if I may – such a provision was put in a predecessor of that Act and it has kept going. I need to come to those Acts but I am dealing with the effect of the legislative history. In fact, may I just mention one thing in passing. It was said in Parliament when it was first introduced to derive from, as it were, the provisions of section 73 of the Constitution Act, but in fact it is a narrower provision. They referred to “alter or repeal”; this simply refers to “amend”.

Could I go back then to the Electoral Distribution Act. Your Honours will see that section 6 of it requires the Commissioners to:

(a) divide the Metropolitan Area into 34 districts; and

(b) divide the area comprising the remainder of the State into 23 districts.

The metropolitan area is defined in section 1A and it means essentially, to put it shortly, your Honours, the area of Perth and Rottnest Island.

GUMMOW J: In McGinty we had maps explaining all this.

MR JACKSON: Yes, your Honour. I do not have any maps today but a different point was being addressed in a sense.

GUMMOW J: I realise that.

MR JACKSON: Your Honours will see from section 6(2) there is a 15 per cent either way tolerance in numbers of electors per district. It is not a tolerance of 15 per cent either way across the whole State. In respect of the two groups of districts, the metropolitan area on the one hand and the remainder on the other, that is where the 15 per cent tolerance is applied.

Your Honour referred to McGinty – the effect of it was referred to at that point in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at pages 225 to 226. In your Honour Justice McHugh’s reasons your Honours will see in the middle of page 225 that he refers to section 19 of the 1899 Act and then four lines further down, section 6(1) of the 1947 Act, to which I have just been referring. At the last paragraph on the page he describes the effect of the apportionments, and that is that:

As at . . . 1987, 669,293 people, constituting 74 per cent of the total voters . . . were enrolled in the Metropolitan Area and 240,081, constituting 26 per cent . . . were enrolled for the remainder of the State.

Your Honours will see that developed through the next page, 226, through to about three-quarters of the way down the page.

KIRBY J: What follows from those passages?

MR JACKSON: Your Honour, what it demonstrates is the way in which disparities can arise because of the way in which it is arranged.

KIRBY J: Are there similar disparities in other States of the Commonwealth or, as far as you know, is this the only State now with such disparities?

MR JACKSON: I cannot give your Honour the detail of that now - I will endeavour to do so - but there have been significant variations in various State jurisdictions over the years. Your Honours would appreciate that the question of dealing with boundaries and numbers and shapes of electorates and things of that kind is a matter which has been in previous years something of an art form in some of the Australian jurisdictions, Superman-like leaps across rivers and things of that kind.

Could I come then to section 9 of that Act. Your Honours will see that it deals with regions and there are to be six regions, three of which – and this is paragraph (a) – are to amount to the metropolitan area. There are three others described in paragraphs (b), (c) and (d). The Commissioners are required to give consideration in their deliberations as to regions and districts to the matters referred to in section 7. At the conclusion of their deliberations, they published the notice that is referred to in section 3(2)(f) to which I have earlier taken the Court.

Now, your Honours, the effect of publication of the notice pursuant to section 3(2)(f) can be seen from section 11 and, to put it shortly, the districts and regions so decided upon apply to the general elections thereafter for each House, but not to by-elections before that time.

Your Honours, in dealing with the Act more generally, to put it shortly, the Act establishes the Commissioners to draw the boundaries of the districts and regions contemplated by the Act. The number of districts and regions is fixed by the 1899 Constitution Act, sections 6(1) and 19(b). The general location of the districts and regions in the broad sense is fixed by the Electoral Distribution Act.

The final provision of the Act is that which is of ultimate significance for the present purposes, namely section 13. Now, I will come to its terms in a little more detail later, but your Honours will see that it says:

13. It shall not be lawful to present to the Governor or her Majesty’s assent any Bill to amend this Act, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority –

in each House.

GLEESON CJ: I suppose the most obvious example of that would be a Bill to alter the number 15 in section (6) to 25?

MR JACKSON: Yes. Your Honours, could I just say though in relation to that, of course, the number of districts - one would not expect that to be done unless there was an amendment to the provision providing for the number of districts which is found in the Constitution Act.

GLEESON CJ: Section 6 is the only provision in the Act, is it not, that provides anything like equal representation? It is section 6 that controls the disparity between the number of voters in various districts.

MR JACKSON: What it does, your Honour, is to create a disparity and then provide for a 15 per cent equality in each of the two areas thus referred to.

GLEESON CJ: But if it were not there at all, what would the consequence be?

MR JACKSON: The consequence would be, your Honour, that there would be a provision made by the Constitution Act for there to be a number of districts. At some point, there would need to be legislation which dealt with how the districts were to be defined.

KIRBY J: Section 6 does not create equality, it creates inequality. It divides the population up into two, as it were, large electoral districts and then, irrespective of the numbers in the respective large districts, it divides the districts for electoral purposes up between them. There can be great disparities between the two large districts, as, indeed, I think there are.

MR JACKSON: Quite, your Honour. There is no question about that.

KIRBY J: That is the whole point of section 6, to secure inequality.

GLEESON CJ: And it could increase the inequality by altering the number 15 to the number 25.

MR JACKSON: Yes. Your Honour, what section 6 does is to say how there is to be division of the district to control it.

GUMMOW J: Now, an amendment of section 6 of the Amendment Act of 1899 and section 19 of the 1899 Amendment Act – is there any manner and form provision attaching to that?

MR JACKSON: No, I am going to come to that, your Honour, and, indeed - - -

GUMMOW J: Or would it be caught by 73 of the Constitution Act?

MR JACKSON: No. So, your Honours, the only possible manner and form provisions are section 73, on the one hand, and, on the other hand, section 13 of this Act. I should perhaps add one qualification, your Honour, I am reminded of: if one were to reduce the number of members of the Legislative Council, section 73 might apply.

Your Honours will see that section 13 is expressed as making it unlawful to present to the Governor for assent a Bill to amend this Act. May I come to the provisions which deal with presentation for assent. In the first place, your Honours will see in the 1889 Constitution Act provision being made by section 34 for the Houses of Parliament to make “Standing Rules and Orders” on a number of topics, the last of which there expressed is:

for the presentation of the same to the Governor for Her Majesty’s assent.

That is for Bills. Your Honours, that is a not uncommon provision in
State constitutions. One can see it, for example, in the Queensland Constitution Act 1867, section 8(1).

GUMMOW J: And section 36 of the Constitution Act is in other State constitutions.

MR JACKSON: Yes.

GUMMOW J: It used not to be in New South Wales. I do not know whether it is now.

MR JACKSON: Your Honours, the standing orders, which are relevant for present purposes, are found in volume 2 of the materials, behind tab 23. These standing rules and orders are joint standing rules of the two Houses. Your Honours will see that rule 3 says Bills are to be printed and:

the Clerk of the House in which the Bill shall have passed shall certify the passing thereof on such fair print –

The Bill is then to be printed, standing order 4. The Clerk of the Parliaments – if I could go over to standing order 10 at page 333 at the top, that is the “Clerk of the Legislative Council” who is to be “Clerk of the Parliaments”. Your Honours will then see, in standing order 6, that:

The 3 fair prints of all Bills –

are to –

be presented to His Excellency the Governor for Her Majesty’s assent, by the Clerk of the Parliaments.

So, your Honours, that is the provision for assent.

HAYNE J: So much necessarily follows from the definition of Parliament as the two Houses and the Crown.

MR JACKSON: Yes. That is the constitution of the Parliament.

HAYNE J: Yes.

GUMMOW J: Has Rule 7 been changed? Do they still send this third copy off to a British officer who no longer exists?

HAYNE J: He might be in the Pacific Islands division.

MR JACKSON: Your Honour, perhaps it is for the library; I do not know. Your Honours, could I come then to the Bills in question.

KIRBY J: Could I just ask, is the giving of Her Majesty’s assent by the Governor controlled by any provision in the 1889 Act, or is that controlled by the royal prerogative?

MR JACKSON: Well, it is not - if your Honour - - -

KIRBY J: In the Federal Constitution there are provisions, are there not, for reservation of certain Bills for the Queen’s assent by the Governor-General, and otherwise that the Governor-General can give the assent in the name of the Queen.

MR JACKSON: Your Honours will see in section 73(1) - that is the 1889 Act - that there is provision for reservation “by the Governor for the signification of Her Majesty’s pleasure thereon” of certain rules. Now, your Honours, in relation to that one does have the provision of the Australia Act.

CALLINAN J: Section 7, is it not?

MR JACKSON: Your Honours will see section 7, but also section 8 of it which says:

An Act of the Parliament of a State that has been assented to by the Governor of the State shall not . . . be not subject to disallowance –

a slightly different thing of course –

nor shall its operation be suspended pending the signification of Her Majesty’s pleasure thereon.

Your Honours, turning then to the two Bills in question, may I say this. Each Bill was passed by an absolute majority in the Legislative Assembly.

KIRBY J: What do you take “absolute majority” to mean exactly?

MR JACKSON: A majority of the persons who are members of the House, total number of members of a House.

KIRBY J: So that is half plus one.

MR JACKSON: Yes, your Honour. There may be a question - that seems to be right, to put it shortly, yes. I was going to say there may be a question about the role of the presiding officer in the Legislative Council.

KIRBY J: In any case, it got through the Lower House, the Assembly, with the absolute majority by that definition.

MR JACKSON: Yes, but, your Honour, in the Upper House in the Legislative Council there was a majority but not an absolute majority.

KIRBY J: What happened? Is that revealed by the evidence? Were there some people asleep or out in the corridors or missed the bell or were they just conveniently absent or - - -

MR JACKSON: Well, there are political parties, your Honour.

KIRBY J: It is a shame to introduce real politic into this subject.

MR JACKSON: And sometimes more than two. Those responsible for getting the Bill through in the Upper House are enough votes but not enough; enough on the one hand but not enough on the other. So it did not pass with an absolute majority.

KIRBY J: Did that mean that there were some members of the Council who were absent at the time of the vote?

MR JACKSON: Your Honour, I can check that but in any event - - -

KIRBY J: I am not of course asking for any evidence that was not proved in the courts below, Mr Jackson.

MR JACKSON: Your Honour, I will eschew that. May I just say in relation to it, I will check to see if the evidence covers that, but whether people are absent or not, if it was a majority but not - - -

GUMMOW J: Or abstained.

MR JACKSON: Or abstained, yes, your Honour. But the result was the same. I will come back to it, your Honours. There is a reference I think, I will give your Honours later.

Your Honours, the Repeal Bill completed its journey through the Houses of Parliament on 19 December 2001. It is referred to in our written submissions, paragraph 6. The Electoral Amendment Bill was a day later, completed its journey through the Houses on the 20 December. That is referred to in paragraph 8 of our submissions. Your Honours will see the position summarised in Chief Justice Malcolm’s reasons in paragraphs 10 and 11.

CALLINAN J: Mr Jackson, just going back, we could take account or take notice of what happened in the Houses pursuant to section 118 of the Constitution, could we not? It would be a matter of public record in the State of Western Australia.

MR JACKSON: Yes, your Honour. Your Honour, I am sorry, I did not quite hear what your Honour was saying.

CALLINAN J: We could have regard to what happened in each of the Houses pursuant to section 118 of the Constitution because what happened there would be a matter of public record of the State, would it not?

MR JACKSON: I think so, your Honour, yes. There is no reason why it would not be, one would think, if one is going to look at what the public records are, that would seem to be a fair starting point. There may be some circumstances in which there would be questions about the use to which it might be put. That might be a different question.

CALLINAN J: But we know what extensions there were and what the numbers were.

MR JACKSON: Yes. Your Honour, I do not know, in the end, that there is any great debate about what took place. What took place was simply, to put it shortly, that the Bills passed with the absolute majority in the Lower House and they passed them, but not with an absolute majority, in the Upper House.

KIRBY J: And nobody, except the absent Mr Ludlow, raises any point on the justiciability of the courts looking into these matters.

MR JACKSON: No, your Honour.

KIRBY J: Indeed, two of the judges specifically address this and Justice Wheeler agreed with them.

MR JACKSON: Yes. Your Honour, if the Court wants me to, I am happy to deal with that issue. The core question in that regard, of course, is that section 13 says “It shall not be lawful”. Now, that must mean, in our submission, that it is speaking about something which is either lawful or unlawful and that fundamentally - - -

KIRBY J: There is just one little thing in Mr Ludlow’s submission that troubled me just a little and that was the suggestion that may be the process in the Upper House had not been completed, that the President might have wanted to do or might have done something in the process, but I take it we can ignore that suggestion. The President of the Council might have had some residual function to perform.

MR JACKSON: Your Honour, with respect, it is not correct, in our submission, but there was - - -

KIRBY J: We can take it that it passed through both chambers and it was ready, in all other respects, to be presented to his Excellency, the Governor, except that the Clerk was concerned and then sought the declaration from the Supreme Court as to what his duty was under law.

MR JACKSON: The Clerk, in fact, deposed, your Honour, to the fact that the Bills had completed their passage or journey through the Houses. May I come first to the Repeal Bill which is in volume 1 of the application book, page 15. Your Honours will see that by section 2 - - -

KIRBY J: Which tab is this?

MR JACKSON: I am sorry, your Honour. There are two sets of books. It is in volume 1 of the joint application book. It commences at page 15, your Honour. That is the Bill. Your Honours will see that by section 2 at page 16 it was to come into operation on the day on which it received the Royal Assent. It is said in section 3:

The Electoral Distribution Act 1947 is repealed –

It did not say changed, altered, amended; it said “repealed”, that is gone. The Bill dealt also with other enactments and by section 4 it dealt with the provisions of the 1899 Constitution Act which referred to the Electoral Distribution Act.

May I invite your Honours, while looking at the Bill, to have also the 1899 Act. Now, your Honours will see that by section 4(1), it said:

The amendments in this section are to the Constitution Acts Amendment Act 1899.

Subsection (2), it said:

Section 5 is amended by deleting “as defined under section 6”.

And your Honours will see that that left section 6(1) of the 1899 Act saying:

The State shall be divided into 6 electoral regions –

Then, your Honours, section 4(3) of the Bill repealed section 6 of the 1899 Act. Then section 4(4) of the Bill repealed sections 18 and 19 of the 1899 Act and substituted in lieu a new section 18:

The Legislative Assembly shall consist of 57 elected members who shall be returned and sit for electoral districts.

Now, could we, with respect, note in passing that the amendments contemplated by section 4 are amendments to the 1899 Act. They are not amendments to the Electoral Distribution Act. The special majority required by section 13 of the Electoral Distribution Act was only in the case of an amendment to that Act; that is what it says.

Now, your Honours, the Bill, if I could turn to page 17, in sections 6, 7 and 8, deletes references in other Acts to the now repealed Electoral Distribution Act. I do not think it is necessary to take your Honours to any of those. It simply deletes references. The other task performed by the Bill is in the transitional provisions of section 5. It provides, in essence – and this is provided for by subsection (2) - that the existing distribution applies to by-elections before the next general election – that is sections 5(2)(a) and (b) - and then to representation in consequence of such by-elections – that is 5(2)(c)(i) and (ii) - and then to representation by the substituted persons provided for by sections 156C and 156D of the Evidence Act. Your Honours, I am sorry to put that in so Delphic a form, but it one goes to section 156C and 156D, it makes provision for, in some cases, there to be substitution of a member of the same political party as a member who is no longer serving. There is a separate issue in relation to the effect of the presence of section 5. May I come to that a little later.

Could I note in passing one matter which, in our submission, is of considerable importance and it is that there is absolutely nothing in the Bill to make its operation dependent on the enactment of other legislation. Your Honours, I mention that because the argument on behalf of the amici fastens on the need for some provision, some enactment, for definition of the regions and districts before there is another general election. Your Honours will see that in paragraphs 12 to 15 of their written submissions.

May I come back to that, your Honours, in a little more detail later, but all that appears, in our submission, is that no doubt some legislation would be required at some point in consequence of the Repeal Bill coming into operation in order to define “regions” and districts”. But there is nothing at all, in our submission, to demonstrate that the efficacy of the Repeal Bill was to depend on the successful enactment of the Amendment Bill or of any other Bill which might deal with those topics. It is perfectly possible that the Legislative Council might agree to the Repeal Bill with the majorities contemplated by section 13, but not to the Electoral Amendment Bill at all, simple majority or whatever majority.

HAYNE J: The amici put the issue in paragraph 1 of their submissions as being:

Whether:

(a)	the Electoral Distribution Repeal Bill 2001 (WA) (“the Repeal Bill”); or

(b)	the Electoral Amendment Bill 2001 (WA) (“the Amendment Bill”);

is “a Bill to amend this Act” –

Not whether the Repeal Bill and the Amendment Bill, read together, are to be understood as an amendment.

MR JACKSON: Your Honour, could I say, in terms of defining a question, that is probably correct, but, in relation to it, what we would submit is that one had a situation where there were two Bills before the Parliament. One can see that they had different passages through the Houses of Parliament, and in order to say in some way the Repeal Bill, its efficacy – if I could use a neutral term – was to be dependent on the passage of the Amendment Bill, or the passage of any other Bill that might be introduced, is one that, in our submission, cannot be sustained. One then has a situation that one is dealing simply with the effect of the Repeal Bill.

Your Honours, I mentioned a moment ago that it was perfectly possible that the Legislative Council might agree to a Repeal Bill, but not to the Amendment Bill at all, by any majority. One could easily have a situation where members holding the balance of power might well be happy to see the Electoral Boundaries Act repealed, but not happy with the new methods proposed in the amendments to the Electoral Act. They might, to take the simplest case, want no or different tolerances, or not to have any division-up of the State at all, thus resulting in a form of proportional representation. Could I, in that regard, refer your Honours to our observations on that issue in paragraph 28 of our written submissions. We simply refer to the fact that in some States there is no division of the State into electoral districts, at least, for the election to the Upper House.

GLEESON CJ: Would the enactment of the Repeal Bill and not of the Amendment Bill have left a workable electoral system?

MR JACKSON: Yes, it would, your Honour, but, as I said before, there would need at some point for there to be some definition of what the districts were to be, whether there were to continue to be districts.

GLEESON CJ: Why would there be need for that?

MR JACKSON: Well, your Honour, because of this. What you have is a situation where, if one assumes the Repeal Bill repeals the Electoral Distribution Act, one is still left with provisions in the Constitution Act which say there will be so many districts and there will be so many regions. The terms “districts” and “regions” are not further defined and all I was saying about it is that at some point, presumably before the next general election, there would have to be some legislation, whatever its form, that either eliminated districts and regions and substituted something else for them or made some provision for there to be a definition of the districts and regions. So some provision was appropriate, but it did not follow that it had to be the Amendment Act, or any particular Act at all.

HAYNE J: The existing divisions would not have continued? Had the Repeal Act been amended and nothing else been done, come next election would those existing divisions have operated?

MR JACKSON: Your Honour, it may be that by the continuing provisions of the Interpretation Act, that effect would have taken place, an issue that was not needed to be resolved, because what your Honour will see is that there was a new provision brought in dealing with the position of by-elections prior to there being a general election. Your Honour, no doubt there would have to be, in our submission, some definition of the situation.

GLEESON CJ: Did section 13 of the Act of 1947 apply to, to use a neutral term, an alteration of section 2?

MR JACKSON: Presumably it would, your Honour.

GLEESON CJ: Is it within the meaning of section 6 of the Australia Act 1986 a manner and form provision in that respect in relation to the constitution, et cetera, of the Parliament?

MR JACKSON: In our submission, it is not, your Honour. That is, what I described, as the fourth argument I am coming to.

GLEESON CJ: So that its application to section 2 would have to depend upon some other basis?

MR JACKSON: Yes. Your Honours, to put it shortly, what I have been seeking to say in the last minutes, what is there, in our submission, to show that Parliament intended that the operation of the Repeal Act – that is, its coming into force – was to be dependent on the coming into being of further legislation or, your Honours, what was there to suggest, in our submission, nothing, that the fact that further legislation would be needed at some point was to mean that the Repeal Act was not to take effect according to its terms.

Your Honours, for one Act to fall, as it were, with another, it does need to be clear that they are interdependent. That was adverted to by five Justices in Logan Downs Pty Ltd v Federal Commissioner of Taxation [1965] HCA 16; (1965) 112 CLR 177 at page 187. Your Honours will see the first new paragraph on page 187 where the argument was advanced that:

the various Acts here under consideration form a scheme.

Their Honours said of course they did in one sense. Then they went on, about halfway down the paragraph, to say:

Nevertheless, the invalidity of the Wool Industry Act would entail the invalidity of the Wool Tax Acts only if it were to appear from the Acts themselves that the latter were not intended to operate except in conjunction with the full operation of the former according to its terms. No such legislative intention appears.

And then your Honours will see the adoption of the comment from Justice Starke in South Australia v The Commonwealth, the first uniform tax case.

GUMMOW J: What their Honours did not take up in Logan Downs, I do not think, is a point that the Solicitor-General for the Commonwealth was nervous about. If you look at the argument at page183, the Solicitor-General is very anxious to put Moran’s Case on one side, the Privy Council’s judgment of Moran’s Case, and the Court put it to one side all right; they do not seem to mention it really.

MR JACKSON: Well, your Honour - - -

GUMMOW J: That is a case of the scheme, is it not? That is what the Privy Council said.

MR JACKSON: Yes, it was, and what was said in that case in the Privy Council simply seemed to say that you could take into account the scheme, but when one comes to look - or if one is talking about taking into account the fact that there was a scheme for at least some purposes, but you have to have a scheme and that is the thing. If one is going to say there is a scheme, you have to say what it is.

GUMMOW J: What does “scheme” mean in this field of discourse? Is it explained in Moran what they mean by “scheme”?

MR JACKSON: No, your Honour, it is not, except in words that really deal with the case itself. To put it shortly, they seem to say in that that one can look at the Acts together.

GUMMOW J: One can always do that.

MR JACKSON: Of course, your Honour, and that is really the point, in a sense, that is being made in the passage from Logan Downs, that you look at the Acts together. If you say one Act, because of something wrong – and one appreciates one is not talking about validity in quite the same sense here, but if one says this Act falls because another Act falls, one has to see that the toppling of the first is going to knock over the one beside it.

GLEESON CJ: Is there somewhere in the judgments in the Supreme Court of Western Australia or in the submissions where we can conveniently find analysis of what the electoral consequence would have been of enacting the Repeal Act and not enacting the Amendment Act?

MR JACKSON: Your Honour, the strongest one sees is really a statement – and I will give your Honours a reference in just a moment if I may – that there had to be something. Your Honour, we do not disagree with that. There had to be something.

HAYNE J: Well, you say there had to be something, that I can understand, but what sort of thing did there have to be? A definition of what the district was or how it was constituted?

MR JACKSON: Yes, your Honour. That is what there had to be at some point. The definition of the district, definition of regions. It could be done directly by statute. It could be done by other statutes. It could be done by appointing a Commissioner. It could be done a great number of ways. I am sorry, I do not mean to be diffusive in saying that, your Honour.

HAYNE J: No.

MR JACKSON: Or another course that could be followed would be to abolish that concept of regions and districts and to have something else. The point I am trying to make about it, your Honours, is that to say that the fate of the Amendment Act would in some way affect the fate of the Repeal Act, in the sense that the Repeal Act should be treated as not operating according to its own terms, is one which, in our submission, is quite wrong.

KIRBY J: Pretty obviously these were cognate Bills, were they not, and they were put to the Parliament in a sense as a package deal?

MR JACKSON: With respect, your Honour, no. They were introduced in the Legislative Assembly together in the extent to which that occurs. Thereafter they followed their own course. They were not dealt with at the same time. Of course people talked about them together.

KIRBY J: It just seems to defy political reality to say they could just take their own course, because they were obviously intended to fix up what to some might seem this disproportion in the electoral representation of the people of Western Australia. It was a package.

MR JACKSON: With respect, your Honour, it was a package consisting of two articles and one of them was the Repeal Bill. Now, your Honour, one is not talking about an Upper House that is under control of one party or the other, as is very commonly the case in Upper Houses in Australia now and has been for many years. It is perfectly intelligible that the Repeal Bill might go through but the other one not.

GUMMOW J: Anyway they did not safeguard it by amending clause 2. If it had said, “This Act comes into operation on the day on which” the other Bill was to become an Act – in other words their commencement was not linked.

MR JACKSON: No. In fact, your Honour, I will come to the Amendment Bill in a moment, but it was to come into force on a day to be fixed by proclamation whereas the Repeal Bill was to come into force on assent, which in the light of the - - -

GUMMOW J: Well, if it was a scheme, it was not a very well drawn scheme if it had that gap in it.

MR JACKSON: That is so, your Honour. It may have been a scheme, but not that scheme. Your Honour the Chief Justice or your Honour Justice Hayne asked me about what was said in the Full Court about this, about what would happen if the Repeal Bill was passed and the other one not. That is at paragraphs 273 and 274, I think, your Honours.

KIRBY J: Could you give the citation of the Western Australian report?

MR JACKSON: I am sorry, your Honour, it is [2002] WASCA 277; (2002) 26 WAR 201.

KIRBY J: Thank you.

GUMMOW J: For those in the Eastern States, it is in [2002] WASCA 277; 193 ALR 269.

MR JACKSON: Your Honour, it is also in the application book, of course. May I just simply give the paragraph numbers in relation to the reasons thereafter. Your Honours will see in paragraph 273, there it is set out what the existing situation was; then 274:

By contrast, cl 5 of the Repeal Bill would merely continue in force the existing division at the time of the repeal of the 1947 Act for the limited purposes and periods contemplated by cl 5(2), with no provision for any further redistribution . . . Without some further enactment, cl 5(2) would inevitably cease to have effect and an hiatus would result. There would then be no means to conduct a further general election.

HAYNE J: Now, do you accept that?

MR JACKSON: Well, your Honour, we accept that there needed to be some further legislation. What it was was not necessarily the Amendment Bill.

KIRBY J: But your point is, good or bad, that by dividing them, they each took their course through the Parliament and they either were both passed or one was passed or neither was passed. The division of them - it could have, I suppose, have been wrapped up in the Fair Representation of the People of Western Australia Bill and the first clause would be “amend the Electoral Distribution Act” and the second clause, “amend the Electoral Act” and all the other Acts that were involved. I mean, that could have been done that way, but it was not.

MR JACKSON: No, I mean, it could have been called a new electoral system for Western Australia. It seems a number of - - -

KIRBY J: Yes, we have got used to seeing these new short titles to sell legislation.

MR JACKSON: I do not know about short, with respect, your Honour. The point I am simply seeking to make is that the fact that there was a need for some legislation to be enacted after the Repeal Bill but before the next general election did not mean that the Repeal Bill was not to take effect according to its terms.

KIRBY J: I suppose we have to keep in mind that these are Bills that are dealing with the electoral process and that is a very, very political matter and that if you got one through, then there would be very great political pressure on those who had opposed the reform or the change to come to some sort of agreement so that the next election could be properly held.

MR JACKSON: Well, my learned friends in their written submissions transfer from the context in which it was used in Kartinyeri the observation of Justices Gummow and Hayne in that case that Parliament will act responsibly in the exercise of its powers. Now, your Honours, no doubt there would have to be some enactment by Parliament. Parliament will act with political compromise; it is the stuff of politics. Your Honours, they did not mean, however, that the Repeal Act would not take effect.

Your Honours, I mentioned the interdependence question. Could I give your Honours two other references a little earlier. One is the remarks of Chief Justice Latham, with whom Justices Rich and McTiernan agreed, in Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd in a case in this Court [1939] HCA 27; (1939) 61 CLR 735 at page 762 at about point 4.

Your Honours, I will not read out the paragraph but it is the second paragraph on the page and going through the whole of that paragraph. Could we refer also again to Chief Justice Latham in South Australia v The Commonwealth [1942] HCA 14; (1942) 65 CLR 373 at 411 in the first new paragraph on that page.

HAYNE J: In Moran what unified the several Acts was the single Collection Act or Assessment Act, was it? It was a series of Tax Acts and there was a single Assessment Act which applied. Is that where the scheme aspect comes in?

MR JACKSON: It came in also, your Honour, from the fact that there was to be legislation of Tasmania as well, that being that there was to be a payment to Tasmania of an amount which reflected the tax paid on flour consumed in that State and then the State was to distribute the additional grant, and the question which arose was whether there was a discrimination between States. Similar, if I may say so, rather difficult questions arose in consequence of Ha v New South Wales and the Commonwealth legislation and the distribution of moneys that came from the Commonwealth taxes imposed on tobacco.

HAYNE J: The scheme is apparently defined in Moran in the preamble to the to the Wheat Industry Assistance Act 1938, see 61 CLR at 740 in the argument of counsel for the defendant.

MR JACKSON: Yes. Your Honour, the scheme was referred to and there had been earlier discussions and consultations that there had been about it were also referred to, I think. It was clear that there was such a scheme, or an identification of what was the scheme, if I can put it that way.

Your Honours, could we say that in this case, in our submission, there is nothing on the face of the Repeal Act to connect it with the other Act. It is, in our submission, a clear case of a law intended to be freestanding. It gets rid of the Electoral Distribution Act. What comes after depends on parliamentary action. It might be what is in the Amendment Bill but it might not. Could I come then to the Amendment Bill. Your Honours will see that in volume 1 of the application book at page 76.

KIRBY J: Is this your second point, is it? You are on your second point, now?

MR JACKSON: No, I am sorry, your Honour, I have not come to amendment/repeal, really. I am indicating what the Acts did. I appreciate I have made a few observations and submissions on the way through.

KIRBY J: At some time I would like to know how many of the points you have to win on to succeed. You have to win on the prorogation point, because if you fail on that, we do not get to any of these issues, the Bill is gone.

MR JACKSON: Yes.

KIRBY J: You have to win all of the points?

MR JACKSON: Your Honour, so far as the prorogation point is concerned, we have to succeed on that – when I say I have to, we need to succeed on that. So far as the other points are concerned, if we were to succeed on the first point, then the first - - -

KIRBY J: That was Justice Wheeler’s point, was it not, the first point, the amend/repeal point?

MR JACKSON: Yes. Your Honour, if we succeed on that, we succeed and one does not need to go to the other points. If we succeed on the third point, the section 73 point, or on the Australia Acts point, again, we succeed because section 13 would not be operative.

Your Honours, could I come to the Amendment Bill which your Honours will see in volume 1 of the application book at page 76. It was to come into operation on a day fixed by proclamation. Your Honours will see that from section 2. Of course, it may never have been proclaimed and the fact that it was to come into operation at a time different from the Repeal Bill and at a time which may never have come into effect militates against the notion that the two Bills were interdependent in any legal sense.

It added, your Honours, by section 4, a new Part IIIA to the Electoral Act. Part IIIA contained provisions which were in some respects similar to but in other respects different from those which had obtained under the Electoral Distribution Act. May I indicate very briefly what the position was. The new section 16B provided that the provisions provided for the Electoral Distribution Commissioners, the provisions were similar. So too, in broad terms, were their functions - section 16H, section16 K. The circumstances in which the Commission was required to perform its functions were changed in one respect to make it more frequent. Could I refer to sections 16E through to 16G and your Honours will see section 16F which made it two years after polling day for each general election.

There were changes in the manner of determining the boundaries of districts, although the number of districts was unchanged. In that regard, your Honours, section 16I(1)(a), to put it shortly, provided that if a district has an area of less than 100 000 square kilometres, there was then a 10 per cent either way variation allowed. Then, in paragraph(b), if the district had an area of greater than 100 000 square kilometres, there was a greater variation permitted by reference to the formula set out in 16I(1)(b)(ii) and subsection (2). As to regions, section 16J was similar to the earlier legislation.

KIRBY J: What does the federal Electoral Act, the Commonwealth Electoral Act, provide? If you could give me a reference to that in due course, I would like to just see what the variance is.

MR JACKSON: Yes, I will get that, your Honour. Your Honour will appreciate there were two cases about it in previous years, I think McKinlay, and the name of the other one just eludes me for the moment.

KIRBY J: They are not being challenged in these proceedings?

MR JACKSON: No, and your Honour will appreciate in relation to the House of Representatives that provisions of the Commonwealth Constitution do provide a basic way of doing it as well as the provisions in relation to the Senate, which provide again for there to be, in the absence of anything else, election by each State.

Your Honours, can I also say, remaining with the Amendment Bill, that the previous Constitution Acts Amendment Act, that is the 1899 Act provisions as to the number of members of the Council per region, was altered.

Could I take your Honours to section 16D at page 78, “Each region will return 6 members”, and also to section 5 of the Bill at page 85. That resulted in 36 being the number of members of the Council. The amendments to the Electoral Act of course were not amendments that were amendments to the Electoral Distribution Act, nor were amendments to the Constitution Act.

GLEESON CJ: Where do we find in a convenient form a summary statement of the difference to the Western Australia electoral system that the enactment of these two Acts would bring about?

MR JACKSON: It appears, your Honour, in the reasons for judgment of Chief Justice Malcolm. I will give your Honour a reference in just a moment to that.

GLEESON CJ: Thank you.

MR JACKSON: Your Honour, it commences about paragraph 12.

GLEESON CJ: Thank you.

MR JACKSON: Your Honours, could I come to the question whether the Repeal Bill required an absolute majority in both Houses, and could I go to the terms of section 13 of the Electoral Distribution Act. Your Honours will see that the requirement for “the concurrence of an absolute majority” in each House exists if, but only if, the Bill is a Bill which possesses two related characteristics. One is that it is a Bill to amend and the other is to amend this Act. Three reasons have been advanced in support of the notion that the Repeal Bill, notwithstanding its terms as a repealing Bill, was, in fact, a Bill which fell within section 13, that is – and it was in fact – a Bill to amend the Electoral Distribution Act.

Your Honours, two of them derive from the reasons of the Full Court in that the Full Court recognised that in the normal use of language a Bill to repeal an Act would not be a Bill to amend it, but they said that the Repeal Bill was such a Bill because it had to be read with, perhaps treated with – it is a little difficult to find the exactly appropriate description, with respect – the Amendment Bill. When the two were read together, there was then, it was said, in substance, an amendment of the Electoral Distribution Act. Accordingly, an absolute majority was required, presumably for the Repeal Bill, perhaps for both.

The second basis adopted by the majority concerned the existence of the transitional provision in section 5 of the Repeal Bill. That was treated as itself effecting an amendment to the Electoral Distribution Act. Accordingly, the whole Bill required absolute majorities. The third basis, your Honours, is one that does not appear to have been adopted by the majority in the Full Court. It is advanced by the amici here. It is that “amend” in section 13 includes repeal. May I deal with that basis first.

Your Honours will note immediately about section 13 that it does not say “amend or repeal”, “change, amend or repeal” or “repeal”; it simply says “amend”. The concepts of amendment and repeal, your Honours, are well-known legal concepts. It is true, of course, that the repeal of provisions of an Act, with or without the substitution of provisions in lieu, can be regarded, for some purposes, as an amendment of the Act. But, your Honours, if I could go to our written submissions for a moment and, in particular, to page 4, paragraph 20. Whilst there is a lot that one can do to an Act which may amount to an amendment, minor or major surgery or enhancement, even a form of gender reassignment, if one likes, something has to be left. You do not have amendment if the patient is dead.

Your Honours, in our submission, in short, a Bill which has the effect that the underlying Act will not thereafter exist is not a Bill to amend this Act. It is, in our submission, ultimately of the essence of an amendment that it alters or modifies; it does not completely nullify. Could I give your Honours a couple of references in that regard. One is to Bennion, Statutory Interpretation, 4th edition (2002). Your Honours, there is a discussion in separate parts of “amendment” and “repeal”. Could I go to the core parts of each of the two parts. At page 238 - the work of course uses the section number:

Section 77. Meaning of ‘amendment’

To ‘amend’ an Act is to alter its legal meaning.

When one comes to “repeal” at page 251 - and your Honours will note the arrangement - they are different sections:

Repeal or Expiry of Acts

Section 85. Meaning of ‘repeal’

(1) To ‘repeal’ an Act is to cause it to cease to be a part of the corpus juris or body of law. To ‘repeal’ an enactment is to cause it to cease to be in law a part of the Act containing it.

The second sentence appears to refer to repeal of a provision as distinct from repeal of the enactment. Could we refer also, your Honours, to what was said in the New South Wales Full Court in Beaumont v Yeomans, [1934] NSWStRp 48; (1934) 34 SR (NSW) 562 at 569, commencing at about point 6. Your Honours will see it goes down to the bottom of the page, and about point 7 on the page:

I think that the principles above enunciated amount, in substance, to this, that, subject to the general provisions of the Interpretation Act, and to anything specially, or by necessary implication, otherwise provided, when the Legislature repeals an Act, or part of an Act, the presumption is that it intends that it shall no longer be operative; but that when it amends an Act the presumption is that it intends that it shall continue to be operative but, as from the date of the amendment, in its amended form.

Your Honours, I do not want to dwell on what seems, with respect, to be a fairly relatively obvious thing unduly, but what we would submit is that what we have put in paragraph 20 of our submissions is fundamentally correct. Repeal brings an end to an Act, amendment means that the Act is continued, albeit changed, perhaps much changed.

Your Honours, could we also note that as long ago as the 1889 Constitution Act one sees that “repeal” and “alteration” were treated as different concepts. Could I take your Honours in that regard to volume 1 of the materials volumes behind tab 7. Now, if I go to page 108 your Honours will see this is the Imperial legislation which provided, to put it shortly, for the West Australian Constitution. Your Honours will see in section 5 on that page that it used the expression:

It shall be lawful for the legislature for the time being of Western Australia to make laws altering or repealing any of the provisions of the scheduled Bill -

Then it used the expression “repealed or altered” again later in the section.

Also, your Honours, at page 115, behind the same tab when one came to the text of the scheduled Bill, you will see section 73:

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 - - -

KIRBY J: Which section was that, I am sorry?

MR JACKSON: Section 73, your Honour. It is page 115, behind tab 7.

KIRBY J: Your theory of the section makes section 13 a pretty toothless tiger, does it not? You can say they had a precedent in section 5 of the 1890 Constitution Act and they should have stuck to that if they wanted to do it and they did not and therefore, as this limits the powers of a Parliament, it will be not given a broad ambit but it really gives a very easy way to walk a team of Western Australian camels through, he says, the ends of the so-called “entrenching” clause.

MR JACKSON: Your Honour, could I come to that in a moment because I do intend to deal with that aspect of it. Could I just say one does see that there are two different concepts, amend and repeal. The Electoral Distribution Act was amended on a number of occasions. Your Honours can see the table at the end of it, and the Act applied to it. It is one thing to say we want to make this amendment or that amendment and do a bit of nip and tuck. It is another thing to say we get rid of the whole thing and we start again. Your Honour, the fact that to make adjustments you require a large majority is one thing, the fact that you do not to start again is another, but may I come back to it.

Your Honours, in legal usage it is common to see the terms “amend” and “repeal” used as distinct, although somewhat overlapping at times, concepts. Could I refer your Honours to the joint judgment of the Court in Deputy Commission of Taxation v Moorebank Pty Ltd [1988] HCA 29; (1988) 165 CLR 55, the bottom of page 62 and then going on to the top of the next page, speaking about section 64, the third line:

Its authority is that of an Act of the Parliament which can be expressly or impliedly amended or repealed, either wholly or in part, by a subsequent Act and whose application or operation to or with respect to cases falling within the provisions of a subsequent Act will be excluded –

et cetera. Your Honours, the notion of a difference between amendment and repeal can be seen also in the observations of members of the Court in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337. Could I refer your Honours to page 353 paragraph 9, Chief Justice Brennan and Justice McHugh, there is a reference to “indirect express amendment”, “partial repeal”; a quotation then from Justice Windeyer in Mathieson v Burton, the last three lines on the page:

an amendment which permanently reduces the ambit of the provisions of an Act involves a repeal of it in part.

And then your Honours will see in paragraph 10 on page 354 there is a discussion of the effect of the two pieces of legislation. At page357 paragraph 16:

The power to repeal a law may be exercised from time to time as the Parliament chooses.

Your Honours will then see – and they are more peripheral references I have to say – Justices Gummow and Hayne at page 375 - - -

KIRBY J: Paragraph 16, Justices Brennan and McHugh then go on to say:

The Parliament cannot bind itself or its successor Parliaments not to amend the laws it makes.

MR JACKSON: Yes, your Honour.

KIRBY J: It has slipped from repeal to amendment.

MR JACKSON: Your Honour is looking at paragraph 16?

KIRBY J: Yes.

MR JACKSON: Yes. Well, it is speaking there of amend and your Honour will see really that the first two sentences deal with repeal, the next sentence deals with amendment. The one your Honour referred to deals with amendment, the earlier - - -

KIRBY J: Yes.

GUMMOW J: Now, section 13 of the 1947 Act is drawn in such a way – it talks about “not be lawful to present . . . any Bill to amend”. That would not really embrace this notion of indirect express amendment, I do not think, would it?

MR JACKSON: It is difficult to see, with respect, your Honour, because – and this is a point I will come to in a moment. One really sees the issue arising at two points, or the application of the section arising at two points: one, that contemplated by the section, at the moment of potential presentation to the Governor for assent. Now, at that stage, it has to be considered whether the Bill is a Bill to amend the Electoral Distribution Act. Now, in the ordinary course of events, that would be seen by saying, “Does this Act contain a provision amending a provision of that Act?”

The other time at which it would arise is in Parliament, in each of the Houses in Parliament, and the question that would arise there is, “Is it a Bill which requires an absolute majority of the House?” So that, one has to look at it Bill by Bill really, your Honour.

GUMMOW J: Text by text really.

MR JACKSON: Text by text, in a sense, and that is really part of our submission. Whilst it is possible theoretically, in one sense, to say one is talking about that there can be an implied amendment, it seems, with respect, unlikely, in the light of the way in which one sees the proposition of section 13 expressed, that it was intended so to refer.

HAYNE J: You can find some echo of these problems in the way in which the Victorian Parliament has from time to time dealt with those provisions of the Supreme Court Act (Vic), which are entrenched, and you will find provisions adverting to those entrenching provisions in the oddest legislation – legislation dealing with land at Port Arlington, or something – which seems to have nothing to do with the jurisdiction of the Court, nonetheless will refer to the entrenching provision. So that it is not a problem that is unknown in parliamentary practice around this country.

MR JACKSON: No, your Honour, but the problem – sorry, I am speaking more hesitantly than I intended to. What I was seeking to say was this. It is a problem which arises – or an issue really which arises in the two contexts to which I referred. Now, the nature of the - - -

GUMMOW J: What has been put to you, I think, is that in Victoria they face up to it and the text indicates an awareness.

MR JACKSON: Yes, your Honour.

KIRBY J: I was going to ask you, following up Justice Hayne’s point, have you looked at the clause, the so-called entrenching clause, in Trethowan or Clayton v Heffron and the other cases that have come here, or Harris v The Minister, to other courts where they have referred to it? Do they say “repeal or amend”, or do they just say “amend”? It might be useful to see, because otherwise on your theory it is very easy to walk out of the so-called entrenching clause.

MR JACKSON: Your Honour, it is always easy to walk out but, in a sense, in our submission, unless there is the double entrenchment in the - - -

KIRBY J: If there is the double entrenchment, you have the nuisance of having to go to the people and get a referendum - - -

MR JACKSON: Yes. Well, that is one form of double entrenchment but - - -

KIRBY J: I am not asking for it now, but I would be grateful if you would have a look at the equivalent entrenching clauses in the Victorian Act Justice Hayne referred to and the Constitution Act (NSW) and so on because, on your theory, it is very easy to circumvent it if they only refer to “amend”.

GLEESON CJ: They do not. The Constitution Act (NSW) refers, I think, to “repeal or amend” and that is a very common formula in manner and form provisions, is it not, “repeal or amend”?

MR JACKSON: Yes, your Honour.

KIRBY J: That is in your favour, it would seem to me.

MR JACKSON: Yes, it is.

KIRBY J: The 1890 constitutional provision is in your favour because that was “repeal or amend”. For some reason Parliamentary Counsel, when section 13 was drawn, dropped “repeal”. If it is the usual formula and it has not been used here, then at least there is an arguable point of distinction that is being made.

MR JACKSON: Well, your Honour, one would expect that a law which was intended to prevent amendment or repeal would say it, because in speaking about amendment and repeal, one is not speaking about concepts that are bereft of some legal meaning and you - - -

KIRBY J: It is true, it is just that when you are looking at a clause which is intended to do an exceptional thing to a legislature of this country to entrench a provision, there is, as the majority said in the court below, at least an appearance of a purpose that is not going to be lightly circumvented and the theory that you propound is one way of circumventing it.

MR JACKSON: Can I just say, your Honour, that if one is looking at considerations of that kind, what one does have to bear in mind is that the effect of provisions like section 13 is to deprive from the Parliament of the day some of the legislative power that it would otherwise have to determine what is appropriate for the circumstances with which it, rather than its predecessors, has been concerned.

Now, your Honours, the provisions of clauses of this kind mean that the hand of the past is on the tiller of the day and there is no special reason, in our submission, why one should read them more widely than by reference to the words which the Parliament of that day which enacted them chose to use. So, your Honour, it goes both ways, with respect.

KIRBY J: What was the way around section 13 on the amici’s theory? Apart from conforming to its terms, how could you get rid of section 13 by amendment which included repeal? Did this have a double entrenchment? Was there a referendum provision to change it or not?

MR JACKSON: No, your Honour, this is it. Section 13 was it.

KIRBY J: That is it?

MR JACKSON: That is it. Their argument for any one of the three reasons that they say, for example, that the Repeal Bill is a Bill to amend the Act, they say that would have been effective if there had been an absolute majority in both Houses.

GLEESON CJ: Is section 128 of the Commonwealth Constitution a manner and form provision?

MR JACKSON: It depends, your Honour, on the purpose for which one is identifying manner and form. It is a - - -

GUMMOW J: It had two aspects, I suppose. Its original aspect, in a way, preserved the interests of the Imperial Parliament, as all these manner and form provisions did at one stage. That interested the Imperial Parliament and the Imperial Executive, I suppose I should say. It has long since gone. Section 128 also preserves the federal compact – considerations which are not present in section 13 of this 1947 Act.

MR JACKSON: Yes. Your Honour the Chief Justice, I do not mean to be facetious in saying it depends on the reason why one is asking the question in a sense. On one view a provision like section 128 goes beyond manner and form because it establishes another part of the legislating body. That may well come into manner, perhaps it comes into form, but, generally speaking, the addition of the electorate as part of the body voting upon something would, I think, be regarded as a provision dealing with the manner of passage of legislation.

GLEESON CJ: Would it have been regarded in 1910 as preventing the Imperial Parliament from repealing the Constitution?

MR JACKSON: Your Honour, it depends on regarded by whom, with respect. This Court, yes; the Privy Council, no. It is an interesting section 74 question, I suppose. Your Honours, if I might return to perhaps lesser currency. Could I return to Kartinyeri - - -

GUMMOW J: This is not your problem, I suppose, but what is it that attracts special consideration and tenderness of section 13? It does not seem to have any high purpose other than the fettering of the popular expression of will of the day.

MR JACKSON: That is so, your Honour. I suppose it is a provision which has some history. It is in a sense a remnant provision because there was more in the Electoral Distribution Act. I think it was Electoral Districts Act it was originally called.

GUMMOW J: Yes.

MR JACKSON: As parts of it have moved out, this remains at the door.

GLEESON CJ: When did the language of section 13 originate?

MR JACKSON: It is the Redistribution of Seats Act 1904, your Honour. I am going to come to that a little later, if I may, your Honour, and I will give your Honours then a reference to where it was adverted to in the Parliament. It was suggested, I think in the Legislative Council, and then that amendment was rejected by the Assembly. In the end the Assembly accepted it.

GUMMOW J: It just seems a curiosity that section 13 sits there in the 1947 Act but the basal provisions in Part I of the 1899 Act do not have any such provision attached to them.

MR JACKSON: Indeed, your Honour, and the reality is that the provision is - - -

GUMMOW J: It is just seems an accident, in a way.

MR JACKSON: The provisions that matter, as it were, are provisions to which in other Acts section 13 does not apply.

GUMMOW J: Yes.

MR JACKSON: Your Honours, can I just go to Kartinyeri at page 375 in the joint judgment of your Honours Justices Gummow and Hayne under the heading “Amendment and repeal”, paragraphs 66 and 67. Your Honours said in paragraph 67:

In ordinary usage (apart from any special statutory meaning) to amend a statute “is to alter its legal meaning”, in particular its territorial, temporal or personal dimension. An amendment may take the form of, or include, a repeal. Thus, if a section is deleted it can be said that it has been repealed whilst the statute itself has been amended.

That passage, in our submission, is not intended to suggested that a repeal of an Act in toto is an amendment of it. It is dealing with the case of a partial repeal. Your Honours went on at paragraph 68 as well. Your Honour Justice Kirby at page 421, paragraph 174 referred to Parliament:

may sometimes effect an implied repeal (or amendment) of an earlier one by dealing with a subject matter in a way which is irreconcilable, or inconsistent, with the provisions of an earlier Act.

Now, could we also give your Honours a reference, without taking your Honours to it, to what was said by Justice Gibbs in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at pages 19 to 22.

May I move then to a different aspect of this. My learned friends in the amici argument, in their written submissions in paragraph 20, place some reliance upon the definition of “amend” in the Interpretation Act 1984. I will take your Honours to the Act in just a moment, but the point which we would seek to make is that that definition to “replace, substitute, in whole or in part” is that - and the point we would seek to make is that if one looks at the Interpretation Act in toto, it seems clear enough that it is not intending to refer to cases where an Act has been repealed. The Interpretation Act distinguishes between “amendment” and “repeal”. Could I take your Honours to that Act, which is in the amici’s book of materials commencing at page 312.

KIRBY J: Which tab?

MR JACKSON: I am sorry. It is behind tab 24.

KIRBY J: Tab 24?

MR JACKSON: Yes. The last in the book, I think. Now, your Honours will see that there is a definition at page 312 of “amend”:

means replace, substitute, in whole or in part, add to or vary, and the doing of any 2 or more of such things simultaneously or by the same written law.

There is a definition of “repeal” - - -

KIRBY J: Those words “in whole” are against you.

MR JACKSON: Your Honour, could I just say if one looks at - the point I am seeking to make is this. If one looks at the Act as a whole, it seems plain enough that whilst “amend” is given a wide meaning, at the same time it is apparent enough, we would submit, that it is not referring to the repeal to enactments which have the result that the whole of an Act is gone. I said “repeal” was defined. That is at page 315:

“repeal” includes rescind, revoke, cancel, or delete.

GLEESON CJ: That definition of “amend” could only be against you if you were entitled somehow to treat the Repeal Act and the Amendment Act together because the Repeal Act does not in any respect, subject to the section 5 argument, replace, substitute, add to or vary the other written legislation.

MR JACKSON: No, it does not, your Honour. That is why we say it is completely freestanding. Could I take your Honours - and I will do so as quickly as I can - to a number of passages where the usage of “amended” and “repealed” is such that it makes it clear that “amended” is used in a sense to which I adverted earlier. Could I take your Honours to section 16, page 318. Your Honours will see in 16(1) and 16(2) it contemplates that when Acts are amended that the underlying Act, if I can put it that way, continues in being.

KIRBY J: I have a recollection - this is a bit like Last Year in Marienbad. I have a recollection we have been through this before in that the Solicitor was arguing, the Solicitor Mr Meadows. I may be wrong, but if he can remember where we went through this before I would be grateful. I know we did in Kartinyeri. Every one of these instances depends on its own context, but I just have a feeling I am revisiting something which we looked at within the last two years.

HAYNE J: We looked at it, I think, in connection with a workers compensation case relatively recently.

GUMMOW J: Dossett.

HAYNE J: Dossett is the name of the case. It is still reserved.

MR JACKSON: Your Honours, I was going to go then, if I may, to section 30, page 322, which speaks of Acts being “amended or repealed in the same session”. On the next page, 323, one sees the heading to Part V, “Repeal of written law”, and your Honours will see in section 33 concepts of repeal and amendment. Section 33 is a provision which has been in many such Acts. One sees sections 34 to 37, which deal with the effect of repeal and deal with repeal as a different concept. Then section 38(1) speaks of an Act which:

repeals an Act and substitutes other provisions –

and speaks of the continuing of subsidiary legislation. Then subsection (2) again uses the cacophony of “amended or repealed”.

To similar effect have been the Interpretation Act provisions at the time when section 13 came into force and also when its predecessors came into being. I will not take your Honours through them. May I give your Honours a reference to where you will find them. The Interpretation Act 1898 can be seen in volume 2 of the materials, at tab 21. It recognised that repeal and amendment were different things. In section 4(3) it used the expression “altered, amended, or repealed”. The term “altered” seems to have been a little more fashionable in the 19^th century - - -

GUMMOW J: But does this matter, given section 3 of the 1984 Act, which says it applies to every law whenever enacted?

MR JACKSON: Your Honour, the only reason for my referring to it is simply to say that if one looks at the provisions which preceded section 13, which were provisions in the same terms, at the time when those provisions came into being, amendment and repeal were recognised as different things. The provisions I was going to refer to your Honours were simply section 4(3), section 5 and section 18, and in the Interpretation Act 1948-1958, you will see that behind tab 22 in volume 2, the most relevant provisions being sections 2, 12, 13, 14, 15 - - -

KIRBY J: Which page is this, I am sorry?

MR JACKSON: I am sorry. It is behind tab 22 in volume 2 of the materials. Your Honours, I simply wanted to refer to the provisions which recognise difference between “amend” and “repeal”. If I could just give your Honours the numbers of the provisions: sections 2, 12, 13, 14, 15, 16 and 22.

May I move from that to another aspect of the argument, and it relates to the argument on behalf of the amici which is set out in paragraphs 16 to 21 of their written submissions. It is to the effect that “amend” includes “repeal” because there has to be some provision in relation to districts and regions, if the 1947 Act is replaced. Your Honours, I have said something about that already, but there is one aspect of it that I wanted to deal with particularly. It is the contention that the parliamentary history of the Acts preceding the 1947 Act indicates that “amend” includes “repeal”.

Now, your Honours, could I say that in the Full Court Justices Steytler and Parker, in their joint reasons, were very much taken, with respect, by the history. You will see that in paragraphs 190 to 200. The history is, with respect, in reality not very illuminating, or not very illuminating in saying that the words of the provision should have a meaning different from or larger than that which they would ordinarily convey. Now, the equivalent of section 13 was first section 6 of the Redistribution of Seats Act 1904. That is in volume 2 of the materials behind tab 11. That is the time when it was first introduced. You will see that it was section 6 of that Act. That Act was replaced – if I could use a neutral term at the moment – by the Redistribution of Seats Act 1911, which is behind tab 13 in the same volume.

GUMMOW J: Now, at the time of which we are speaking, 1904, was section 73(2) of the 1889 Constitution Act in its present form?

MR JACKSON: No, because, your Honour, that is the provision that came in at the time of the - - -

GUMMOW J: 78.

MR JACKSON: Yes, that is the provision – the introduction of that is the third question that my learned friend, the Solicitor-General, is dealing with. No, it was not - - -

GUMMOW J: So what was there in the Constitution Act of 1889, as it stood in 1904, which would constrain, I think, only what is now subsection (1)?

MR JACKSON: Yes, I think so, your Honour. I will find the copy; I think we have it in there. It appears in volume 1 of the materials behind tab 6. Section 73 contained the two provisos and the question in Western Australia v Wilsmore was whether those provisos, in particular, the second proviso, was freestanding in the sense, or whether they were provisos in relation to the operation of the power in the first sentence of section 73. Your Honours will see the language, “repeal or alter”, in the opening words of section 73. I said a moment ago that the 1904 Act - - -

GUMMOW J: There would be a question in 1904 as to whether the first proviso was engaged in any way?

MR JACKSON: Yes.

GUMMOW J: Well, changing the constitution.

MR JACKSON: Well, there is a question about it, your Honour, but could I just say – perhaps it would be convenient to do it early this afternoon, but I will take your Honours to what took place in the Parliament at the time of the introduction of that section, where, really, what seemed to be suggested about it was that it was a provision which was introduced to carry over – that perhaps overstates it – what was to be found in section 73.

GUMMOW J: What I am trying to find out is what was the source of the power in 1904 to put in a manner and form provision like that other than the Colonial Laws Validity Act, was it?

MR JACKSON: Yes, that or nothing, that is our submission.

KIRBY J: That is consistent with what this Court has said in Trethowan and Clayton v Heffron, I think, is it not?

MR JACKSON: Our submission is yes. Our learned friends would argue that the better analysis of Clayton v Heffron is that it does not depend on section 5 of the Colonial Laws Validity Act but simply on section 5, I think it was, of the New South Wales Constitution Act, the power to make laws.

KIRBY J: How can it give itself a higher power? It has to appeal either to the federal Constitution or to some Imperial Act which is said to still apply.

MR JACKSON: I might ask my learned friend to give your Honour the answer to that.

Your Honours, could I come to the 1911 Act, which is behind tab 13, and could I ask your Honours to hold as well the tab 11 which is the 1904 Act. The body of the 1911 Act was in the same terms for practical purposes as the 1904 Act. It included again section 6 at page 222. However, the schedules commencing at page 223 and going on to 224 provided for different districts. In view of those changes being effected by the same Act, it is perhaps unsurprising that a cautious view might have been taken that the 1911 Act should be treated in Parliament as an amendment of the 1904 Act because what you had was, whilst it said it repealed on the one hand, it also changed what had been the position before.

HAYNE J: Or was in some way – forgive me, I may be a furlong behind the pace – was section 73 of the 1889 Constitution Act engaged by that part of it which spoke of a change in the constitution of the Council or the Assembly. If you go to the 1889 Act, section 11 appearing at page 81 of the book of materials, volume 1, you find, for example, that:

The Legislative Assembly shall consist of . . . members, who shall be elected for the several electoral districts hereinafter named and defined.

And they are defined within that Act. Is that a part of the constitution of the Assembly?

MR JACKSON: I am sorry, may I have a moment to answer that. Your Honour will see that the 1904 Act, at page 187 in section 2 and also section 4 dealt with the question of electoral districts, and also section 5. That seems to have been a partial repeal of the Constitution Act provisions; it certainly changed those.

HAYNE J: But is the origin of section 6 found in the 1904 Act at page 183 simply an emphatic parliamentary statement about consequences then seem to follow from the overarching provision of section 73?

MR JACKSON: Your Honour, if one looks at what was said at the time it was introduced – said in Parliament, I mean – what was said to be the purpose of it was that now we are taking these things out of the Constitution Act, we need to have some provision like that in this Act. I will give your Honour a reference to it a little later – it is in the materials. In fact, I think it is behind tab 12, your Honour, page 213, where your Honour will see the genesis of it is in the third column from the left on page 213, behind tab 12:

Hon J. W. Hackett moved that the following be inserted as Clause 3 –

and then said:

It was almost a formal matter, and simply retained the power the Constitution gave at present to insist that any Bill that fundamentally altered the Constitution should be agreed to by a majority of both Houses.

Now, the remainder of the material behind that tab demonstrates that that was not accepted initially by the Legislative Assembly, and in the end the amendment was accepted. Your Honours will see page 214, the right column, three paragraphs up from the bottom:

Question negatived, the Council’s amendment not agreed to.

Then on page 215, the second column, third paragraph from the bottom:

Question thus negatived, the Council’s amendment insisted on.

Then at page 219, right column, about four paragraphs from the bottom:

Question put and passed, the Council’s amendment agreed to.

Now, your Honours, that is really, in a sense, as much as there is about it.

HAYNE J: But at this point of the examination of the history of the development of these provisions, it occurs to me that one might see them as provisions intended to preclude changing districts.

MR JACKSON: Well, your Honour, the description of their aim or purpose, whatever one chooses in that regard, rather varies from time to time because your Honour will appreciate that the Act in relation to which they operated was itself different from time to time - the content of the Acts, I mean. Now, you see in the 1904 Act, if I can just go back to that for a moment, behind tab 12, that you had an Act which in section 2 said the ten electoral provinces were to be designated by the names in the first schedule and were to have the electoral districts which were set out in the second schedule of the Act, which were defined in great detail. Then you had section 4 which provided for there to be electoral districts for the Assembly and each member to return one. Then the districts were, in section 5, set out in the second schedule.

When one came to the 1911 Act, behind tab 13, your Honours will see that whilst the text of it was the same, the boundaries were altered. The point I am seeking to make, your Honours, is that at this point this was the Act that defined the boundaries. So one could say in relation to that this was an issue the purpose of which was a rather weightier purpose than might later have been the case.

There was an earlier Act, the 1923 Act, which is behind tab 14, and that was one that provided for the appointment of three Electoral Commissioners, section 2, and created the obligation on them to do the necessary division. The 1923 Act did not contain a provision like section 13. You then see, your Honours, behind tab 15 an amendment of that.

KIRBY J: Just so that I can understand this, what are you going to seek to get out of this, except that the judges below regarded the history as an important point? What is the point?

MR JACKSON: Your Honour, really, I am simply seeking to give a rather lengthy answer, I am afraid, to Justice Hayne. What I was seeking to do, in another sense, was to say the judges in the Full Court place considerable weight upon what they describe as the legislative history. What we would seek to say about it is that, in relation to that, what you see is that it does not really tell you very much at all.

KIRBY J: Well, the judges in the majority took the view that you had to construe the statutory provisions in the modern manner to achieve their purpose, and that, if you construed them in the way you did, you can ride the camels through it. But you have, on the other hand, in your argument that you have to ultimately give meaning to the statute – you have to give meaning in a constitutional setting limiting Parliament, against the background of previous provisions that had “repeal” or “amend”, and that for that reason you should not give it an over-ample construction.

MR JACKSON: Yes, your Honour. What I was just going to say about the introduction of the two later enactments – the 1929 Act which is behind tab 16 – what your Honours will see from section 5 is that it appears to have effected only a partial repeal of the 1911 Act. In those circumstances, it is not very surprising that the view might be taken that it was, in reality, an amendment. I would refer also to section 3. When one came finally to the original form of the 1947 Act, which is behind tab 18, what your Honours will see is that it contained, of course, section 13, but, as appears from section 14, the repeal of the previous legislation was not immediate.

It did not take place until three months afterwards, and the view may have been taken that there was an amendment of the 1929 Act during that period of three months. The point we would seek to make, your Honours, is this, that there is not a very persuasive course of legislative history. The Bills from whose passage the history is said to be derived are not in the same terms as the Bills presently in question and they are, in a sense, equivocal. The other thing about it is that the precise issue did not arise. No one has ever pressed or put a side of the issue.

The other point we would make, your Honours, is that the terms that section 13 actually uses are narrower than those which preceded it and its predecessors. In that regard, could we go to the observations of Justice Wheeler - - -

HAYNE J: Just before you depart from that point, Mr Jackson, it seems to me that something that might be said to follow from the history you have just described is that in 1904, the provisions were divorced from the Constitution. At the time of that divorce, it was thought – apparently as an afterthought – there would be advantage in maintaining a manner and form provision, but once the separation from the Constitution occurred, the purpose to be achieved by the manner and form provision has perhaps to be understood in a different light.

MR JACKSON: In a number of different lights, your Honour, with the size of the arc diminishing, in our submission, with the passage of time and, in particular, when one comes to the state of the 1947 Act at the time of the Repeal Bill, one sees that the central features of the electoral system were ones dealt with by other enactments which themselves did not require the majority, to which section 13 did not apply.

GUMMOW J: Well, if the number of members have been reduced from 34 to 32 rather than increased from 34 to 36, 73(2) would have applied, would it not?

MR JACKSON: Yes, it would have, your Honour, and that is one of the minima provided for by section 73(3).

GUMMOW J: Yes.

MR JACKSON: I wanted to take your Honours for just a moment to what was said by Justice Wheeler at page 285 in the West Australian Reports, paragraph 357 and, after discussing the history of the provisions your Honours will see that she concluded:

If the amendment inserted into what became the 1904 Act was intended to maintain what had been the status quo then it must be interpreted against the understanding that the status quo involved entrenching provisions which either did not protect this subject matter at all, or where of a weak kind and were able to be avoided by legislation passed by ordinary majorities.

Your Honours will see that was discussed. It relates to her discussion commencing at paragraph 351.

GLEESON CJ: Is that a convenient time, Mr Jackson?

MR JACKSON: Yes, your Honour.

GLEESON CJ: Mr Jackson, over the adjournment, if there has not already been an agreement made between counsel dividing time, could you make such an agreement?

MR JACKSON: Your Honour, we expect to finish our argument at about 3.30 and we have endeavoured to convey that to our learned friends before we started today.

GLEESON CJ: What is the expectation of counsel collectively as to when this case will finish?

MR JACKSON: Well, your Honour, it will not finish today.

GLEESON CJ: No, obviously.

MR JACKSON: I will have to leave it to my learned friends a little, but I would have thought it would finish tomorrow about lunchtime.

GLEESON CJ: Thank you. We will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I before going on deal with a number of matters that were raised by your Honours this morning. First, your Honour Justice Kirby asked what the position was with the Commonwealth electoral distribution provisions. The position is this, your Honours. Section 66 of the Commonwealth Electoral Act 1918 provides for there to be a 3.5 per cent tolerance between electoral districts in any State or Territory one way or the other. It used to be a higher tolerance but that is the position now. The quota of course for determining the number of districts in each State is provided for by section 65. Those provisions relate to sections 24 to 29 of the Constitution.

The second thing, your Honours, was what is the position in relation to regional weighting of votes in the various States. The position, your Honours, is that Western Australia is the only State which continues to provide for regional weighting. The last other State to abolish it was Queensland with the enactment of the Electoral Districts Act 1991. That Act allowed for a 10 per cent variance in electorates with the exception being remote areas of greater than 100,000 kilometres, a provision somewhat similar to that proposed by the Amendment Act in this case.

The third thing, your Honours, was that I was asked the language of manner and form provisions in other jurisdictions and, in the time available, we have prepared a document which sets out a significant number of those. I do not think we have been able to find the more obscure ones that your Honour Justice Hayne referred to, but may we take the view that the document sets that out.

Finally, your Honours, the absence of a map was adverted to. Could we give your Honours copies of the extract showing only the maps from the Western Australian Electoral Commission’s results and statistics of the 2001 general election. It simply shows the map describing the regions.

Now, could I just mention one matter that was in connection with something that was said by your Honour Justice Hayne this morning. It may be that your Honour was of the view that the electoral districts were provided for by the 1889 Act, as of the time of the 1904 Redistribution of Seats Act. But the position was that they were in the 1889 Act, they were taken out in 1893 by the Act which appears behind tab 8 of the materials, and new provisions were made. In 1896, in the Act which appears behind tab 9, there were amendments to the 1889 and the 1893 Acts which varied the electoral districts and the 1899 Act, behind tab 10, in its original form, scheduled the electoral districts to it. Now, those provisions were repealed by the 1904 Act, and to arrive at a conclusion from that, after 1893, section 73 did not speak to provisions dealing with electoral districts.

Your Honours, may I come back to the aspects with which I was dealing before the Court adjourned. This is the last part of the argument that I want to put on the first aspect of the case against us, namely that if amendment should require an absolute majority, surely repeal should do so too. In our submission, that view is not correct. The Australian colonies and states of polities, in which, as I submitted earlier, as a matter of history there had been the most vigorous debates about what does or does not constitute malapportionment or gerrymander. There have been highly developed political skills in these areas and it is, in our submission, a perfectly intelligible political view for Parliament to say, as section 13 does, this Act prescribes the current system; no aspect of it may be varied, changed or altered except by absolute majorities. In other words, you cannot play around with it. If you want to get rid of the whole thing, that is a different matter. To start again with a clean slate is one thing; to be messing around or fiddling around with the existing position is another. We would refer too to what was said in relation to this subject by Justice Wheeler in paragraph 348 of the reasons.

But, your Honours, in the end the section says “amend” and “amend this Act” and it says no more. Your Honours, could we submit also that the argument based on the importance of the provisions of the 1947 Act is rather militated against by the considerations that we have summarised in our written submissions commencing at page 6, paragraphs 28 through to 33, and particularly paragraphs 31 and 32.

Could I come then, your Honours, to the second argument on this point, namely, that the two Bills should be read together. Your Honours, the Full Court appears to have accepted that a Bill to repeal an Act would not ordinarily be a Bill to amend it. That appears from the reasons of Justices Steytler and Parker at paragraphs 181 to 182 and in particular paragraph 182.

KIRBY J: Is this really a variation on the first argument that you have to look at the two Bills together to get the true quality of the Bill as an amendment or - - -

MR JACKSON: It is really a separate argument, your Honour. It is a separate argument put against us. It is really the principal basis on which the Full Court decided against us.

KIRBY J: So it really is a variation on the theme of the first argument?

MR JACKSON: Your Honour, it is dealing with the same subject matter, of course, but it is really saying that you have to treat the two Acts together. I mentioned the view. I should also have just given a reference then to Chief Justice Malcolm at paragraph 45 as well. The view adopted by the majority in the Full Court was that intended enactment by the Amendment Bill of the new Part IIIA of the Electoral Act meant that there was, in substance, amendment of the 1947 Act, notwithstanding that it was repealed.

Your Honours will see that referred to by Justices Steytler and Parker at paragraph 188. Could I say in relation to the second sentence of paragraph 188, commencing in the second line:

It is strongly indicative, in our view –

That sentence really seems, with respect, to say no more than that section 13 of the 1947 Act meant what it says, whatever that may be.

Could we refer also, your Honours, to paragraph 202, the conclusion essentially arrived at by their Honours. Now, in our submission there are very substantial objections to the adoption of the course of treating the two Bills together in this regard. Your Honours, some of those have been dealt with in passing in the argument already advanced. I will endeavour to put this as briefly as I can.

The first is that one is, after all, speaking about Bills, and the statutory question is whether a Bill is or was a Bill to amend an Act. One has to bear in mind that the issue will arise on two classes of occasions: on the one hand, in each House and, secondly, when the Bill is to be presented for assent.

Now, your Honours, if one takes a Bill in the form of the Repeal Bill, when it comes before each House the House presumably is to direct its attention to whether that Bill amends the Electoral Distribution Act. There may be no other Bill before that House or before either House. Your Honours, in our submission, one asks why is the House concerned with whether there is any other Bill in being or which may then or later be introduced to deal with the situation after the Bill with which the House is dealing has come into operation. The situation may be different if the operation of the Bill with which the House is concerned is expressed to be interdependent but, leaving aside that, the House is concerned with a particular Bill. Your Honours, in our submission, the necessary realities of Parliamentary procedure militate against that aggregated view.

The same situation, in our submission, obtains if one looks at the situation at the time specified in section 13, that is when the assent is sought. If the Bill would not of its own force amend the Act, why would it have a different operation by reason of another Bill?

Could we, in that regard, refer to what we say in our written submissions in paragraphs 23 to 25, and, in particular, in paragraph - perhaps, really, the whole of that, without repeating it. Could we also say, if one looks at what we put in paragraph 26 of our written submissions, no doubt one can say that one applies perhaps a substance test to determine whether a particular Bill would amend the Act, but one has to identify what is the substance one is looking for. The substance of what? The answer, in our submission, is whether it is a Bill to amend the Act.

Now, your Honours, could we also say that the difficulty of requiring that the Acts be read together could also be illustrated in this way. The Repeal Bill passed the Parliament on 19 December 2001. It did not contain any provision making its operation conditional upon the successful passage of any Bill, in particular, the Amendment Bill.

GUMMOW J: The answer given by the Full Court was that it would be unlawful to present a hyper-Bill.

MR JACKSON: Your Honour, that is, with respect, very difficult. If I could just say this, if one took the case of the Repeal Bill, you have the Repeal Bill passing Parliament in the ordinary way. It does not contain a provision which makes its operation conditional on any other Bill.

KIRBY J: I do not remember ever seeing such a provision. Does that ever exist in express terms? It is usually left to inference, is it not?

MR JACKSON: One is, “This Act is to be read with”, or, “This Act does not come into force until such another Act comes into force” – provisions of that kind. There are quite a few, your Honour.

KIRBY J: Does the second reading speech in support of the original introduction to the Assembly indicate that they are cognate Bills and not a great design of amendment? Or - - -

MR JACKSON: What it indicates, your Honour, is that the two Bills were introduced together. One is to repeal that Act and the other is to have a different system. No more, no less, really. If it be right that the Repeal Bill did not amend the 1947 Act, but repealed it, absolute majorities were not required for its passage and there was nothing to prevent assent being given to it after it had gone through the Parliament.

If assent had been given, the whole Act, including section 13, would go, and it would go because of the Interpretation Act provision as from the commencement of the day of assent. When the Electoral Amendment Bill completed its passage through the Houses of Parliament the next day, the requirement of section 13 would not exist. If one assumes, however, as was the fact, that assent had not yet been given to the Repeal Bill, the only feature which could change it from a Bill which did not require an absolute majority to a Bill which did was the existence, so it would be said, of another Bill, a Bill which was not passed with the majority it would require, on this hypothesis, to be effective.

The former Bill, in our submission – the Repeal Bill – would operate according to its own terms and not require the absolute majority. Now, in our submission, the contention that the Bills have to be read together should not succeed. Could I move, then, to the third argument, that concerns the transitional provision of section 5 of the Bill. In our submission, it is apparent that, as a matter of construction of the Repeal Bill, section 5 of it is not amending the 1947 Act.

What the Bill does is to repeal that Act in toto and then provide a new regime for the short future. Your Honours will see that the term “existing electoral distribution”, which is the critical term in section 5(2), is a defined term. It is defined by section 5(1) and your Honours will see it is defined to mean:

the division of the State into electoral districts and electoral regions for the election of members of the –

two Houses –

that was in effect immediately before the commencement of this Act.

GLEESON CJ: In effect pursuant to what?

MR JACKSON: In effect, your Honour, in being pursuant to really a combination of Acts - - -

GLEESON CJ: Including the 1947 Act?

MR JACKSON: Yes, because the 1947 Act was the Act that brought about the division of the areas, in effect, into districts and regions.

Your Honours, the words “was in effect” in the definition suggest, in our submission, an adoption for the future of something from the past. Section 5(2), in our submission, is making a new prescription in consequence of the repeal of the 1947 Act; it is not amending the 1947 Act. The reasons in this regard of the members of the Full Court, in our submission, should not be adopted. They can be seen at paragraph 51, Chief Justice Malcolm, and paragraphs 204 to 207 in Justices Steytler and Parker. Your Honours, our submission is that all that one sees from section 5 is that it adopts something that existed in the past or adopts something similar to what existed in the past and says, “That Act is repealed. For the future this will be the position”.

GLEESON CJ: Does the existing electoral distribution, as defined, include a scheme that involves that Commission?

MR JACKSON: It does not, your Honour, because the existing electoral distribution is the result of the activity of the previous Commission.

GLEESON CJ: So, is there any scope for the activity of the Commission during the transitional phase?

MR JACKSON: No, because it has gone. The position would be this: the Commission exists because of the 1947 Act. The result of its activities is brought about by section 3(2)(f) of that Act, that is, the division is the division into regions and districts. By the repeal of that Act the Commission goes, all the provisions go, but what had been the result of its activities or what was the result of its activities, that is, that “was in effect immediately before the commencement of this Act” is adopted for the future.

HAYNE J: How would that provision engage with operative provisions of the Electoral Act regulating, for example, the maintenance of rolls and the like?

MR JACKSON: Your Honour will see section 5(2) of the Bill, page 17. It continues that distribution in respect of, to put it shortly, by-elections. In relation to any other aspects of it, that is dealt with by the Electoral Act.

HAYNE J: Just so. The use of the defined term “existing electoral distribution” may carry with it much more apparent meaning than real meaning. When one tries to work out what is the operation that is being effected by 5(1), yes, it has a provision in 5(2) which deals with by-elections in substitutions and the like, but it seems to me there is still an electoral roll under the Electoral Act for each region, for each district, people are on that roll. By the Electoral Act I think they may be given a right to vote, are they not?

MR JACKSON: I think that is so, your Honour, yes.

HAYNE J: Indeed, I would have thought that much, perhaps all, of the machinery of elections is to be found within the Electoral Act.

MR JACKSON: Yes.

HAYNE J: Thus, I come back to a point which you have repelled with no little force, Mr Jackson. It is by no means apparent to me how the slate is wiped as clean as the Full Court would seem to suggest it was by the repeal effected by the Repeal Act. There is a lot of machinery left in the Electoral Act, apparently unaffected.

MR JACKSON: Your Honour, I was not repelling what your Honour was putting. I was - - -

HAYNE J: Not now you are not.

MR JACKSON: No, your Honour, no. What I was endeavouring to say was that for there to be for the future in respect of the next general election, something needed to be done in relation to providing for districts and regions thereafter. That is all, your Honour.

HAYNE J: It is there that I just do not follow the point. If nothing is to be made of it, so be it, but it is not apparent to me that you could not have held a general election if the Repeal Act were assented to, but if nothing is to be made of it, let me not delay you further.

MR JACKSON: Your Honour, I am sorry. May we think about it further, and if we wanted to say something more about it, perhaps endeavour to a little later.

Your Honours, could I come then to the second issue, in short, whether the Amendment Bill, did it itself require the absolute majorities. In that regard, I deal with the issue very briefly, your Honours. We rely essentially on what we have set out in paragraph 22 of our written submissions. If the Electoral Distribution Act remained in force at the time when the Amendment Bill came to be presented to the Governor for assent, then it may be treated as impliedly amending the Electoral Distribution Act. If, however, that Act were repealed at the time when the Electoral Amendment Act was presented for assent, there would be nothing to prevent the assent to it and the proclamation later if it was chosen so to do.

Your Honours, could I come then to what we have described as the fourth issue to which I adverted earlier and that is the one relating to the Australia Acts. It concerns the power of the Parliament of the State to bind its successors as contemplated by section 13 of the Electoral Distribution Act. In our submission, the effect of the Australia Acts is that the only way in which a State legislature may bind itself in respect of its future exercises of legislative power is pursuant to section 6 of those Acts.

GLEESON CJ: Does that mean that the provisions of the New South Wales Constitution Act entrenching the independence of the judiciary are ineffective?

MR JACKSON: Well, your Honour, the position in relation to those would be a question whether they related or could be described as relating to the constitution, powers and procedure of the Parliament.

GLEESON CJ: But how could that be? If you look at section 7B of the Constitution Act of 1902, which is the entrenching provision, and then go to Part 9, which is entrenched which deals with the judiciary, it simply says:

53 Removal from judicial office

(1) No holder of a judicial office can be removed from the office, except –

by the following of a certain procedure. How is that a law relating to the constitution, et cetera of the Parliament?

MR JACKSON: Well, it may not be. If that be so, your Honour, so be it, in our submission, but there are difficulties, we would submit, in taking the view that in the light of section 6 of the Australia Acts and bearing in mind, of course, your Honour, that section 6 is an Act of the Parliament of the Commonwealth, which would have the section 109 effect, that there can be a larger operation of the State laws. Now, what I mean by that, your Honour Justice Kirby asked about the power to enact provisions like that.

KIRBY J: I can follow the argument based on section 51(xxxviii) I think it is, but I have difficulty as at 1986 with the notion that the Parliament of the United Kingdom had any constitutional mandate to enact anything that affected the Constitution of the Commonwealth of Australia or its States or its people.

MR JACKSON: Your Honour, one thing of course was the Colonial Laws Validity Act.

KIRBY J: I realise that, but we passed beyond the statute of Westminster, we passed beyond the Second World War, we passed into the modern era, and the notion that the United Kingdom Parliament had any authority to enact any law in respect of the Commonwealth of Australia is one that, at least without argument, I find offensive, as at 1986. Now, it may be that you do not need the Imperial Act.

MR JACKSON: No, your Honour, because there is no reason why the Colonial Laws Validity Act could not fall within 51(xxxviii).

KIRBY J: Exactly. It may be that it is enough - of course it could be that it was done with better certainty or it could be that it was done for seemliness or it could be that it was done because the Queen was going to be in Canberra and she signed them all into force symbolically in some way, but it is still a matter that troubles me that the United Kingdom Parliament was doing anything in 1986 to concern itself in the Constitution of any part of the Commonwealth of Australia.

MR JACKSON: Your Honour, that may have the consequence that the enactment of it was in a sense officious. It may not mean that the ultimate result is not efficacious. One sees in relation to the powers of the State Parliaments, which of course did appear to be regulated by the Colonial Laws Validity Act until that point, that one now sees section 2 and section 6. Your Honours, we would submit that in the light of the presence of section 6 of that Act and of course section 2 the way in which a State may bind itself in respect of future exercises of legislative power is limited to the subjects dealt with by section 6.

GLEESON CJ: In the written submissions of the Solicitor-General for the Commonwealth in paragraph 29 an example is taken of a State Parliament seeking to entrench a requirement that dog owners have a dog licence. For the purpose of this problem what is the difference in quality between a provision that dog owners have to have a dog licence and a provision that judges can only be removed from office by a certain procedure?

MR JACKSON: Relevantly, none. I think the dog reference may come originally from Lord Birkenhead in McCawley v The King, but could I say, your Honours, we would, in relation to this aspect of it, essentially agree with the essence of the argument put by the Commonwealth in paragraphs 13 to 22 of their submissions in relation to the ability or the source of power to restrict future parliaments. Your Honours, essentially what we would seek to say is that whilst the power to legislate is wide, by section 6, there are some laws that are to be of no force and effect and they are laws respecting the constitution, powers and procedure of the Parliament unless they are made in a manner and form required by a law made by the Parliament of the State.

Your Honours, section 6 was adverted to in passing in a footnote in Yougarla v Western Australia [2001] HCA 47; (2001) 207 CLR 344 at 352, footnote (30), where your Honours will see in the second half of it:

nevertheless, the effect of section 6 of the Australia Act is that a State law respecting the constitution, powers or procedure of the State Parliament must comply with the manner and form requirements of a law made by that Parliament, such as section 73 –

The reference to McGinty is a reference to I think what was said by your Honour Justice Gummow in McGinty v Western Australia 186 CLR 295. Your Honour there, under the heading “Manner and form”, dealt with the previous provisions, and then said at page 296, in the first new paragraph:

any gap left by the repeal of section 5 of the 1865 Act . . . was then filled by section 6 –

which your Honour then set out. Your Honour went on to page 296 and 297, and at the top of page 297 said:

There is a conceptual difficulty, to my mind, with the legitimacy of a manner and form requirement which is inserted in a written constitution otherwise than by a law made with observance of that manner and form which is thereafter to apply, or by a law having paramount force.

Your Honour discussed Bribery Commissioner v Ranasinghe and then at the last few lines on page 297 expressed the view that:

This express treatment –

referring to sections 2(2) and 6 –

of the subject must leave no room for any greater operation which a principle derived from Ranasinghe might otherwise have had for any Parliament of an Australian State.

GUMMOW J: At page 295, the text of section 5 of the Colonial Laws Validity Act 1865 is set out. Now, that is obviously the ancestor of the present section 6. It was concerned in the first branch to expand with that proviso, but it is still only talking about legislatures. It would not encompass the other branches of government.

MR JACKSON: Yes, that is so, your Honour, but, in our submission, when one has provisions of the nature of section 2(2) and section 6, and when section 6 is speaking of the types of laws which may bind in the future, then, in our submission, it is appropriate to say that in the light of section 6 it is only laws which are laws respecting the constitution, powers or procedure of the Parliament that can be, in effect, laws which are entrenched.

GLEESON CJ: Well, we might need to hear from the Solicitor-General for New South Wales about some provisions of the Constitution Act (NSW) in this connection.

MR JACKSON: Yes.

GUMMOW J: It may be the Supreme Courts of the colonies at the time section 73 of the Constitution came into force, they had protected tenure, did they not?

MR JACKSON: I am sorry, section 73 of the?

GUMMOW J: The Federal Constitution. The Supreme Courts spoken of there were Supreme Courts of what became States with protected tenure for Supreme Court judges, were they?

MR JACKSON: Your Honour, I am not sure that is so, with respect. McCawley’s Case would suggest otherwise.

GUMMOW J: McCawley was in the Industrial Court, was it not?

MR JACKSON: But it was an amendment of the Act, effected amendment of the existing constitutional provision dealing with Supreme Court judges.

GUMMOW J: Yes.

GLEESON CJ: Part 9 of the Constitution Act (NSW) defines “judicial office” in respect of which tenure is entrenched to include the senior children’s magistrate.

MR JACKSON: Yes. In the Constitution Act 1889 (WA) in section 54 was, I think, a provision reflecting the norm at that point and that was that:

The Commissions of the present Judges . . . future Judges . . . remain in full force during their good behaviour, notwithstanding the demise of –

the Sovereign.

GUMMOW J: Yes, that is what I thought. I thought it was the same everywhere. I thought that was not a provision peculiar to Western Australia.

MR JACKSON: No. But, your Honour, it is not an entrenched provision.

GUMMOW J: No, but the question here is would the Supreme Court without that characteristic be the Supreme Court spoken of in section 73? That would be the question, but that is for another day, whatever arises.

MR JACKSON: Yes, your Honour. It is a question that has been around, if I can put it that way.

GUMMOW J: Yes.

MR JACKSON: The critical question, in our submission, is whether the Repeal Bill is a Bill that respects the constitution, powers or procedures of the Parliament. Your Honours, if one goes to the terms of the Repeal Bill, to which I have taken your Honours already, one needs to bear in mind that not all the provisions of that Bill could, on any view, attract a special majority - section 4, for example, dealing with the amendments to the Constitution Act.

So that the issue then is whether the repeal provisions which provide for the drawing of boundaries for electorates within a statutory framework elsewhere provided for is a law respecting the constitution of the Parliament. If one looks to see what is the constitution of the Parliament, in our submission, a very good starting place is the Constitution Act 1889 section 2(2) which says that:

The Parliament of Australia consists of the Queen and the Legislative Council and the Legislative Assembly.

None of that is altered by the repeal of the Electoral Distribution Act. It is true that the number of members of the Council will increase from 34 to 36 but that is not fixed by the Electoral Boundaries Act in any event. In our submission, the constitution of Parliament remains unchanged and if, contrary to that position, it is unchanged, such changes as occur take place by amendments which do not require the special majority.

Could we note that in this Court in Western Australia in Wilsmore [1982] HCA 19; (1982) 149 CLR 79 Justice Wilson at page 102, with Chief JusticeGibbs and Justice Mason agreeing, said at the bottom of the page:

In my opinion, the judgment of this Court in Clydesdale v Hughes is clear authority, unless and until it is reversed or departed from by this Court, for the proposition that a law which merely changes the qualifications of members of the Legislative Council does not effect a change in the constitution of that body within the meaning of s 73.

In our submission, a similar situation would obtain here. The views adopted by Justices Steytler and Parker at paragraph - - -

KIRBY J: Can I just ask, a possible problem with that view is that it is very unlikely that any amendment would be made that altered the constitution of the Parliament in the way in which you are suggesting. It comprises the two chambers plus the Queen. I suppose you can have extraordinary procedures as per section 128 of the Federal Constitution, then there is an additional step, but that is not the sort of constitution of Parliament that one would normally think the entrenched provision would be addressed to.

MR JACKSON: Your Honour, the Legislative Council in Queensland was abolished I think around the 1920s. There have been proposals to abolish Legislative Councils in a number of States, so it is not really an entirely unusual or surprising thing.

KIRBY J: I had not thought of that and that has been a live issue in Australia, more so than the question of the non-appointment of Governors. The abolition of Upper Houses has been a quite a common issue and, indeed, that is what Trethowan and other cases have been about.

MR JACKSON: Yes. I was going to refer to paragraph 267 of the joint judgment of Justices Steytler and Parker. Your Honours will see that they describe aspects of the Constitution in very broad terms but, as we say in our written submissions in paragraphs 48 to 51 and especially paragraph 49, those matters essentially are dealt with by laws other than the Electoral Boundaries Act. Could we refer also to paragraph 53 of our written submissions in that regard.

Your Honours, could I come then to the second way in which this part of the argument is put against us, namely, that the Repeal Bill is a law respecting the procedure of Parliament because it repeals a provision which requires a particular majority, the underlying hypothesis being that the law would not otherwise deal with the constitution or with the powers of the Parliament. Your Honours, that is an approach which would have considerable consequences.

GLEESON CJ: That is right, it would answer the Solicitor-General’s argument about the Dog Act, about the dog licences.

MR JACKSON: Yes, your Honour, I am afraid we have gone to the dogs too in paragraph 55 of our written submissions where we refer to the conclusions which would follow from that.

GLEESON CJ: Indeed, if that is right, any manner and form provision would be a provision about a procedure of Parliament, would it not?

MR JACKSON: Yes, and your Honours, it would have the consequence that notwithstanding that section 6 of the Australia Acts appears directed to allowing only a limited class of laws to be entrenched, any law might be treated as falling within the class simply by being a manner and form provision. The true position, in our submission, is that for section 13 to be a provision which is a section 6 manner and form provision, the other provisions of the Electoral Distribution Act, the provisions to which section 13 would apply, should themselves be provisions respecting the constitution, powers or procedure of the Parliament.

Your Honours, if we are correct in submitting, as we have already, that the other provisions of the Electoral Distribution Act do not go to those topics, then section 13 provides no barrier. In that regard, your Honours, we would agree with the contentions of the Commonwealth in their submissions at paragraphs 23 to 30, except for the last sentence of paragraph 30.

Your Honours, could I before moving on to the next issue say something in relation to our learned friend’s submissions concerning the Colonial Laws Validity Act, and this relates to paragraphs 42 to 53 of the submissions of my learned friend, Mr Gageler. They turn on a South Australian history and they turn on views expressed by the law officers in the United Kingdom and the validating legislation.

Now, your Honours, section 3 of the Electoral Act 1861 (SA) did not only provide for the division of – I am sorry. Your Honours will find that in the materials provided by the amici at pages 36 to 37. It did not provide merely for the division of the colony into electoral districts but it also provided for the number of members and for the fact that the House of Assembly was to be constituted by members elected from those districts. Your Honours, the section was concerned with much more than mere redistribution of electoral boundaries. It is in that context that one sees the view expressed by the law officers that the 1861 Act – and, your Honours, I am referring now to the their view expressed at page 95 of the amici material – that they expressed the view that the 1861 Act did make an alteration to the House of Assembly.

Your Honours, that opinion does not express the view that laws such as the Electoral Distribution Act or the provisions proposed by the Amendment Bill are to be characterised as laws respecting the constitution of the Parliament.

GLEESON CJ: Would a law to be effected “In future all members of the Legislative Council will be appointed by the Governor” be a law respecting the constitution of Parliament?

MR JACKSON: Your Honour, it probably would.

GLEESON CJ: Then why is not the law telling you how the elected members are elected be a law respecting the constitution of Parliament?

MR JACKSON: It probably would, your Honour, because underlying the concept of Parliament is the notion that at least one House is a House which is an elected House. If there was a provision that said all the members were to be appointed, that might be something that failed for the reason that it simply was not something there was any legislative power to effect. A different situation might obtain if there were to be an alteration of the Upper House to an appointed House or its abolition. So that is the first thing.

The second thing is that your Honour said why is not then the position the same in the case of the law that provides for their electoral distribution. Well, your Honour, that law does not in any way change the Houses of Parliament. It does not change the numbers of persons, the way in which they are elected. It simply defines the places for which they are to be elected.

GLEESON CJ: Well, it tells you how you get to be a member of the House.

MR JACKSON: Your Honour, one can accept that in the sense of saying that it says how the persons who are to be members, or the areas from which they are to be elected. That is all it says. Your Honour, the number has been decided elsewhere and it is simply a matter of drawing the boundaries at any one time. No doubt it is a question of degree but, in our submission, it is not part of the constitution.

Your Honours, could I just complete what I was saying in relation to those submissions. One sees also that the validating legislation, which is the 1863 Act – and the relevant part is quoted in paragraph 45 of our learned friend’s submissions – referred both to laws altering the constitution of the legislature or any branch and laws for the mode of appointing or electing members of the same. That is suggested, your Honour, a distinction between constitution and the matters to which your Honour the Chief Justice was just referring.

Could I come then, your Honours, to the question of prorogation. Your Honours, I am sorry this is taking a little longer than I had - - -

GUMMOW J: Interestingly enough, the 1863 Act, if one goes to 195 of the amici’s materials, it says:

All Laws . . . declaring or altering the Constitution . . . or of any Branch thereof, or the Mode of appointing or electing the Members - - -

MR JACKSON: Yes, it draws a distinction, your Honour, and that is the point I am seeking to make about it. If I could deal with prorogation, as is apparent from page 265 of the second application book, the top half of it, the Governor on 9 August 2002 prorogued the Houses of Parliament from that date until 13 August a few days later. At that time each Bill had completed its passage through each House of Parliament which had taken place on 19 and 20 December the previous year. Your Honours will see from page 265 that the instrument, the proclamation, that the prorogation was expressed to be pursuant to section 3 of the Constitution Act 1889 and, as we submitted earlier, a distinction is drawn in relation to dissolution in section 3 between the position of the two Houses.

If I could go, your Honours, to section 2 of the 1889 Act, your Honours will see that in section 2(3) it is provided that:

Every Bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to section 73, be presented to the Governor for assent -

So every Bill, after its passage through the Houses, is to be presented for assent. Section 2(3) does not support the proposition that prorogation would prevent later assent to a Bill which has passed through the Legislative Council and Legislative Assembly.

Your Honours, could I refer also to section 34 of that Act which empowers the making of standing rules and orders, joint as well as otherwise. The relevant standing rules and orders your Honours can see in volume 3 of the materials. Behind tab 18, the page number is 595Y, are the standing orders for the Legislative Council. Your Honours will see that in standing order 436, it is provided that:

Any Public Bill which lapses by reason of a prorogation before it has reached its final stage may be proceeded with in the next ensuing session –

Then if one goes to 437 on the next page, it speaks of:

Any Bill so restored to the Notice Paper shall thenceforth be proceeded with in both Houses as if its passage had not been interrupted by a prorogation; and, if finally passed, shall be presented to His Excellency the Governor for Her Majesty’s assent.

Now, those standing orders are inconsistent with the notion that one is speaking about Bills which lapse by reason of prorogation, being ones which have passed through the Parliament.

Your Honours, to the same effect, one can see, if one goes to the next tab 19, the Legislative Assembly position - - -

KIRBY J: Could you tell me – and I knew it once – what is the historical origin and purpose of prorogation? I mean, why bother? What was its origin in English history? Presumably it had something to do with the relationship between the Crown and Parliament, but - - -

MR JACKSON: Yes. Your Honour, may I come to that in just a moment? I am going to come to that, your Honour.

KIRBY J: Yes.

MR JACKSON: At page 569R your Honour will see standing orders 220:

A bill which has lapsed because of a prorogation before it has been passed –

and then your Honours will see on the next page, 220(5):

Any bill restored will be proceeded with as if its passage had not been interrupted by a prorogation.

Now, your Honours, those provisions, in our submission, make it apparent that a prorogation in Western Australia is not fatal to Bills which have been passed by both Houses. Those provisions are really the starting point in considering the effect of prorogation in Western Australia.

The critical question, namely whether prorogation means that Bills already passed by the two Houses cannot thereafter be assented to, does not really arise in the United Kingdom Parliament and the present position there can be seen from May’s Parliamentary Practice, 22nd edition (1997). In volume 3 of the materials, tab 5, page 430, there are three things, adjournment, prorogation and dissolution. Your Honours will see the heading on page 232 of the original on the left side, “Prorogation and adjournment” – this is the position in the United Kingdom – “prerogative act of the Crown”. Your Honours will see that discussed. What is put then under the heading “Effect of prorogation and adjournment respectively”:

The effect of a prorogation is at once to suspend all business, including committee proceedings, until Parliament shall be summoned again.

GUMMOW J: There is a debate, is there not, about committee proceedings in Australia?

MR JACKSON: Yes, your Honour, there is. In Australia there is a debate. One can see that in the materials in the Senate and House of Representatives Practice – they are in the book. Your Honours will see “Procedure of prorogation” then referred to and at the bottom of that page – it is really done by commissioners on behalf of the sovereign – and then it is said:

If there are any bills awaiting Royal Assent the commission authorizes it to be signified. In this case Royal Assent is pronounced before the reading of the Queen’s Speech.

Your Honours, that is what takes place. Before prorogation assent is, in the United Kingdom, given in the House by commissioners on behalf of the sovereign. Could I refer also, your Honours, to page 446 and 447 under the same tab. Your Honours will see the heading “Royal Assent”:

When bills, either public or private, or measures, have been finally agreed to by both Houses, they only await the Royal Assent to be declared to Parliament to give them . . . ‘the complement and perfection of a law’, and from that sanction they cannot be legally withheld.

Then, your Honours, that goes through to halfway down the next left page and the last paragraph above the heading “Proceedings on Royal Assent” deals with the position on prorogation.

Now, your Honours, one notes also that in the United Kingdom, because that is what happens, the issue that arises in a case like this does not arise there. Could I, in that regard, refer to two things: first of all, the extract from Anson’s Law and Custom of the Constitution, which appears behind tab 9 in the same volume, and, in particular, at page 476. At the page numbered 70 on the left, about halfway down, he says:

A dissolution brings the existence of Parliament to an end; a prorogation brings the session of Parliament to an end; an adjournment brings about a cessation of the business of one or other House for a period of hours, days, or weeks.

It is interesting to note that on page 71, the right-hand side, in the first new paragraph, he speaks about prorogation:

it ends the session of both Houses simultaneously, and terminates all pending business. A bill which has passed through some stages, but is not ripe for the royal assent at the date of prorogation, must begin at the earliest stage –

This is one of the few instances where one sees a position actually identified, that a Bill which has passed through some stages, but is not ripe for the royal assent, must begin again. The fact that the issue does not arise normally in England at all is adverted to by the Supreme Court of India in the decision of Purushothaman v State of Kerala [1962] AIR 694, which is behind tab 17 in volume 3. Could I refer particularly to page 570. Your Honours will see in the left column, his Honour says at item (4):

Let us first examine the argument that the bill which was pending the assent of the President at the time when the Legislative Assembly was dissolved has lapsed and so no further proceedings could have been validly taken in respect of it. In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words “prorogation” and “dissolution” have acquired the status of terms of art and their significance and consequence are well settled.

Could I pass down half a dozen lines to where his Honour says:

There is no doubt that, in England, in addition to bringing a session of Parliament to a close prorogation puts an end to all business which is pending consideration before either House at the time of such prorogation –

He then goes on to say, a little further down, what is said about the result of prorogation:

it is said a fortiori true about the result of dissolution.

Then in paragraph (5), on the right column, he says:

In this connection it would be relevant to see how Parliament is prorogued.

There is then a reference to May’s Parliamentary Practice, which is set out through the remainder of that column. There is the quotation, in the last half dozen lines, from Anson, to the same effect as that to which I referred earlier. Then, your Honours, at the top of the next page, the fourth line:

In other words, the procedure which appears to be invariably followed –

speaking about the United Kingdom –

in proroguing and dissolving the Houses shows that no bill pending royal assent is left outstanding at the time of prorogation or dissolution. That is why the question as to whether a bill which is pending assent lapses as a result of prorogation or dissolution does not normally arise in England.

KIRBY J: Does his Lordship go on to say that it is different in India?

MR JACKSON: He goes on, your Honour, to deal with the fact that there were in the end specific provisions dealing with the effect of dissolution. You will see those set out at I think page 572 in the right column, Article 196 of the Constitution.

Our learned friends place reliance on the dictum of Justice Gibbs in Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201 at page 238. In the last paragraph on page 238, your Honours will see that his Honour said:

At the time when the Constitution was enacted the effect of a prorogation was well recognized.

Your Honours will see the remainder of that paragraph over to the top of the next page. Could we say two things about that. The first is that your Honours will see that the quotation from Hatsell’s Precedents of Proceedings in the House of Commons uses the expression:

all Bills, or other proceedings, depending in either House of Parliament, in whatever state they are, are entirely put an end to –

et cetera. The second thing, your Honours, is in the last four lines on page 238 his Honour adverts to the fact that:

The rule is not immutable; it is competent for a legislature to provide by statute, or for a legislative chamber to provide by its standing orders, that after a prorogation consideration of a bill may be resumed –

et cetera. Your Honours, the English practice has not been adopted in this country. Could we refer in that regard first to Odgers’ Australian Senate Practice, which is in volume 3 of the materials, tab 1. At page 386, the penultimate paragraph, the last five or six lines:

The following actions by the Governor-General under the Constitution bring a session to an end –

Then there is a reference, amongst other things, to prorogation. Then, your Honours, at the bottom of page 387 in the last paragraph on the page, the question arises whether the Senate, of course, which does not come to an end, can continue:

to meet or exercise any of its powers after a prorogation or dissolution of the House –

Then your Honours will see at page 388 in the first new paragraph, he said:

In support of this view, it is to be noted that it has been held that the Governor-General may exercise legislative powers after a prorogation. On 1 December 1910 the Governor-General assented to bills which had been passed prior to a prorogation on 29 November 1910.

There is reference to an opinion of the then Solicitor-General of 23 May 1952. I rely on the current Solicitor-General to remind us which one it was.

GUMMOW J: The next one is Dr Griffith in 1984.

MR JACKSON: Then your Honours will see the opinion was:

I do incline to the view that the Constitution does not require that the Royal assent to Bills passed by both Houses be declared and given before the Parliament is prorogued.

And your Honours, page 390, commencing about halfway down the page, there is a reference to the position of committees and your Honours will see - I mention this by way of analogy – the paragraph commencing:

The minister observed that while committees of the House of Commons ceased to exist following prorogation, the situation in Australia required a different approach.

Saying:

Although we follow quite regularly the rulings and practices of the House of Commons where they appear to accord with the needs of our situation in Australia, each Parliament, of course, has its own way to make –

and so on. Your Honours, in the House of Representatives Practice, it is behind tab 2 - - -

KIRBY J: Could I go back to the question I asked. Is the theory behind this that the Parliament is summoned together by the monarch and adjournment of the Parliament, as we might call it in modern parlance, is not a matter for the Parliament alone, but requires the prorogation by the monarch and therefore that consequences attach historically to that act? Is that the origin of it?

MR JACKSON: Well, with respect, your Honour, not quite. Adjournments of the Houses of Parliament take place all the time when Parliament is sitting. Prorogation has the effect that the relevant House of Parliament which is prorogued does not sit until the date fixed again by the Sovereign or the Governor or Governor-General. Dissolution of the Parliament which takes place in England brings the whole Parliament to an end, but prorogation is simply a suspension of the sittings of the Parliament. It does not get rid of the persons in it or bring the Assembly to an end.

KIRBY J: What is it – except that the English are much more bound up - I mean, in May’s Practice they have the formula used by the clerk in Norman French of the giving of the assent or non-assent – is there anything inherent in a federal system or in our parliamentary practice, or is it simply developed in a less historical way and perhaps, one might say, in more practical ways? Is that what has happened out here, or is there some other reason why we are different?

MR JACKSON: One difference, your Honour, is that the Upper Houses, in the main, at least, cannot be dissolved, and so the Upper Houses continue. So there is not a dissolution of the Parliament, as there can be in England. Because the Upper Houses continue – and the issue would commonly arise acutely with the Senate – the question is to what extent can they carry on with their business at times when the actual sittings are suspended by prorogation. The effect of prorogation in relation to the particular question, namely, whether there can be assent given to a Bill that has passed right through after prorogation, is one that really does not arise in England, because of the practice they adopt.

GUMMOW J: The reason why the practice arose in England was that the Commons had managed to get some piece of legislation through, probably against the resistance of the King’s people, and get it through the Lords. The King then comes along, prorogues the Parliament and the Bill dies. So the result was, in modern times, you tied them down, you made them sign off before they prorogue. That is what May is talking about. None of that exists here.

MR JACKSON: No, it does not, your Honour. Even in England, there is that question that the passage from Anson refers to, the ones that lapse are the ones that have not completed their passage through the Houses. Now, the issue has not been necessary to decide. I was going to go back to page 398, behind tab 2. Under the heading “Effects of prorogation” it is said:

Prorogation of the Parliament has the following effects on the House of Representatives –

and then one notes the fifth bullet point:

Bills agreed to by both Houses during a session are in practice assented to prior to the signing of the prorogation proclamation. Bills however have been assented to after Parliament has been prorogued.

Then your Honours will see footnote 112. Your Honours, the standing orders of both the House of Representatives and the Senate reflect the notion that prorogation does not affect Bills which have passed through both Houses. Behind tab 3 in volume 3, at page 404, you will see standing order 264 of the House:

Any bill which lapses by reason of a prorogation before it has reached its final stage –

and to the same effect is page 407 in relation to the Senate, standing order 1361.

KIRBY J: One gets a bit of an impression, though, that the House of Representatives and the Senate, being new national legislative chambers, have had a more modern procedure than the chambers of the States which are the continuation of a colonial legislature that has rather more faithfully followed the English procedures. You are concentrating on this federal legislature but that is a new creature of the 20^th century.

MR JACKSON: No, your Honour, with respect, I was about to say this, that the practice in the State Parliaments also reflects the fact that assent may be given after prorogation. Now, volume 4 of the materials which is referred to in our written submissions in paragraph 69 contains a host of statutes from Western Australia, New South Wales and Tasmania.

KIRBY J: Which page is this?

MR JACKSON: I am sorry, your Honour, I was referring to paragraph 69 of our written submissions. What I was going to say was that volume 4 of the written materials contains a host of statutes of Western Australia, New South Wales and Tasmania which have been assented to after prorogation. Your Honours will see them summarised in footnotes 107, 108 and 109 and there are, to put it shortly, a very, very large number of them.

Your Honours, I will not attempt to go through them. What has been done in most cases has been simply to select the first page of them showing the date of assent, preceded, of course, by the prorogation. There is a very large number of them. If I could just give one example, if one goes to page 749 behind tab 25 you will see that prorogation took place on “27 November 1985” and then, your Honours, pages 752 through to 797 selecting - I think the first page in each case show the Acts that were assented to after prorogation. There are about 40 of them, in broad terms.

There are many other Acts in the two States to which I have referred. Your Honours, could I also say that your Honours spoke about the statutory forms. If one goes to the terms of the Constitution Act 1889, your Honours will see that section 2(3) says that:

Every Bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to section 73, be presented to the Governor for assent –

There is nothing in that provision to suggest that a Bill which has passed through both Houses then is one which would be affected by a - - -

GUMMOW J: It uses the words “by or in the name of” which would encompass reservation, would it not?

MR JACKSON: I am sorry, your Honour was looking at?

GUMMOW J: Section 2(3) of the 1889 Act:

be presented to the Governor for assent by or in the name of the Queen –

In other words, he may be sending it off to London.

MR JACKSON: Yes. We have referred in our written submissions, your Honours, to the fact that in those cases it obviously had to be after prorogation. I suppose it is possible to say that is a particular case but the general proposition, in our submission, is correct.

We would refer your Honours to the New Zealand decision of Simpson v Attorney-General [1955] NZLR 271, which, in our submission, supports our contention. That was a case where the House of Representatives in New Zealand had expired by effluxion of time, but it was held that assent could yet later be given.

GUMMOW J: They only had one chamber, I think.

MR JACKSON: At that stage I think, your Honour, yes. Your Honours will see the judge at first instance, who was Chief Justice Barrowclough, page 276, about line 17:

It seemed to be the plaintiff’s contention that as His Majesty’s Assent was communicated to the House of Representatives on October 12, 1946 – that is, on the day after it had expired – the enactments were null and void. I cannot agree with this contention. Though the Royal Assent is a necessary requisite to the passing of an Act, there is no requirement in New Zealand that that Assent must be given during the life of the Parliament that passed it.

About line 31:

I am satisfied that those Acts which were assented to on October 12, 1946, were validly passed, notwithstanding the fact that the House of Representatives, which had passed them, had ceased to exist –

which is a rather stronger one, we think, than prorogation. Your Honours, to the same effect at page 281, on appeal, Justices Stanton and Hutchison, commencing at about line 45, going through to the next page, about line 6 - I am sorry, your Honours. That is setting out, in effect, the argument. Your Honours will see then at page 283, about line 6:

This section states the courses open to the Governor-General on the presentation of a Bill to him for the Royal Assent –

They are set out, and then, about line 24:

The statute is silent as to how and when the Assent is to be given when the case falls within neither of the special cases just referred to.

In our opinion, s.56 may not be so read as to declare it unlawful for the Governor-General to give his unqualified Assent to a Bill one day after the House of Representatives has ceased to exist.

Your Honours will see Justice McGregor at page 285, in perhaps a form of dissent. At about line 47, he said:

It seems to me that it is well arguable that, to enable laws to be made, thee must be a valid functioning of the three separate parts of the General Assembly: and that each component part of such General Assembly is exercising a legislative function.

He said, at the top of the next page:

It is a matter of grave doubt as to whether such legislative power can be exercised –

when one of the components was not there.

KIRBY J: Mr Jackson, I have a recollection that some issue relating to a prorogation arose in the joint sitting case, Cormack v Cope.

MR JACKSON: Your Honour, Cormack v Cope - - -

KIRBY J: I do not ask you to deal with it now, but if you can just have a look and see if there is anything in - - -

MR JACKSON: Your Honour, the passage I referred to in Victoria v The Commonwealth is really, in a sense, the case after Cormack v Cope in which there is that discussion - - -

KIRBY J: That was where Sir Harry Gibbs’ comment was made.

MR JACKSON: Yes, your Honour, I think that is where one finds it, and perhaps also Justice Stephen. The other submissions I was going to make concerned - - -

GUMMOW J: The trouble with the New Zealand statement is that it does not work – that last passage of Justice McGregor – it will not work when read against sections 2 and 3 of the 1889 Act, will it? Because you prorogue the Council and the Assembly from time to time.

MR JACKSON: That is right, your Honour. You can prorogue both - - -

GUMMOW J: Yes, but you have not prorogued the Crown.

MR JACKSON: No, your Honour, no.

GUMMOW J: That is what he seems to be saying – that you do.

MR JACKSON: He had a grave doubt, your Honour - - -

GUMMOW J: Yes.

MR JACKSON: - - - that is a nice way to put it. Your Honours, could I just say, in relation to Mr Ludlow’s submissions, so far as justiciable issue is concerned, we would adopt what was said by the judges in the court
below. If your Honours want to hear us on that further, we would do so. Your Honour, those are the submissions I want to make.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court. Additionally, the applicants raise what is effectively a threshold question, and that is whether section 13 of the 1947 Act was impliedly repealed by section 2(3) of the 1889 Act, as inserted by section 4 of the Acts Amendment (Constitution) Act of 1978.

That Act can be found in volume 2 of our materials under tab 19, and in particular at page 297. Could I just mention in passing that the 1978 Constitution Act was passed with absolute majorities, as section 13 of the 1947 Act would purport to require. I might just note that Justice - - -

GUMMOW J: It was reserved too.

MR MEADOWS: It was, indeed, your Honour. That, of course, was prior to 1986.

GUMMOW J: Yes.

MR MEADOWS: Our submission is that section 2(3) is inconsistent with section 13, but it has impliedly repealed that section. The first thing to note about section 2(3) is that it deals with the same subject matter as section 13. It deals with presentation for assent. The subsection has two limbs to it. The first requires every Bill which has passed the Legislative Council and the Legislative Assembly to be presented to the Governor for assent. I would note that the expression “every Bill” imports that it is a provision which is to be universally applied. It is not what one might describe as a general provision so much as a universal provision. It is not expressed in terms of “a Bill” or “Bills which”; it is expressed in terms of “every Bill”.

The second limb requires that the assent be given to a Bill before it becomes law. The first limb is subject to an express exception, namely, section 73 of the Constitution Act, that is the 1899 Act.

GLEESON CJ: Is section 13 the only other manner and form provision in Western Australian legislation?

MR MEADOWS: That is the case, your Honour. We were down to the first limb of subsection (3). In our submission, it imposes a duty or obligation to present the Bill. This is recognised by the amici in their submissions at paragraph 30, where they acknowledge that the subsection imposes a duty. Again, in paragraph 34, where they acknowledge that the subsection compels the presentation, and this is to be contrasted with section 13 of the 1947 Act which contains a prohibition.

The members of the Full Court also acknowledged that subsection (3) imposed a duty. Chief Justice Malcolm at paragraph 59 spoke of the subsection requiring presentation and the respondent having a constitutional duty to present Bills albeit, in his view, ones that had been passed by the requisite majority. Justice Anderson agreed with Justices Steytler and Parker, as well as Justice Wheeler, on this issue at paragraph 93. Justices Steytler and Parker in paragraph 217 spoke of a requirement to present being created by the subsection.

GLEESON CJ: But it all depends on the meaning of the words “after its passage”, does it not?

MR MEADOWS: It does, your Honour, and I am going to come to that. Just if I could complete what I was saying, Justice Wheeler at paragraph 306 also recognised that the subsection could be construed as having that effect, but as your Honour the Chief Justice has observed, the critical question turns on the meaning of the word “passage” in the subsection. There are two critical questions, we would say. The first is whether the reference to “passage” in the subsection is to passage in a manner that will result in a valid law if the Bill is assented to and the second is, if the reference to passage in the subsection is simply to passage in the ordinary sense.

GLEESON CJ: Does it mean anything different from “after its due passage”?

MR MEADOWS: We would submit, your Honour, that the insertion of the word “due” really adds nothing.

GLEESON CJ: That is right. Yes, quite.

HAYNE J: “Passage” can have no ordinary sense, can it?

MR MEADOWS: No, it has to be certainly viewed in its context. I would accept that.

HAYNE J: “Passage” must mean a passage in accordance with law, including, for example, standing orders and the like.

MR MEADOWS: One of our contentions is, your Honour, that it is for Parliament to say when something has been passed and it either does that through legislation or through its standing orders.

GLEESON CJ: That sounds very close to the justiciability issue.

MR MEADOWS: Except that it is, we would submit, open to a court to look at whether or not a Bill has passed in the manner which the Parliament has deemed is required. Having reached that point then one has to look at the application of the statute which is applicable in this case. It is to be noted, we would submit, that section 13 does not deny that a Bill which has been approved without absolute majorities has passed the Legislative Council and Legislative Assembly. In its terms it recognises that it may have passed without an absolute majority. It simply provides that if the passage has not occurred with the concurrence of an absolute majority it is not lawful for the Bill to be presented for assent.

Now, all of the member of the Court acknowledged that the Bills in question had been passed by both Houses. That, of course, was stated by the respondent in the affidavits which were filed in the proceedings. These statements by the respondent are to be found in the application book at pages 11 and 15.

KIRBY J: But their affidavits cannot make it any more a passage than the law provides. I mean, they cannot lift it up to anything that it does not have in law. Just by saying it passed both chambers, that rather begs the question, did it pass it as the law required?

MR MEADOWS: But it is, as I said earlier, for the Parliament to decide when something has passed.

KIRBY J: But it then added the qualification subject to the right of the Court to have a look to see whether it has been passed in a way that Parliament has provided legislation be passed and, exceptionally, there is section 13.

MR MEADOWS: Yes.

GLEESON CJ: What would have happened if someone had objected to those paragraphs of the affidavit?

MR MEADOWS: We would have produced the minutes of the proceedings of the Houses.

GLEESON CJ: Yes, and you would have set about proving not that the legislation “passed” but that ex-members of the House voted in favour of it, or whatever the case may be.

MR MEADOWS: Except that the minutes of the proceedings of the House say that the Bill had passed or that it had been second read or that it had been third read and is therefore recorded in the minutes of the House that the Bill had passed. We do refer to the standing orders, if I could just go to that straight away. Standing order 276 and standing order 277 of the Legislative Council provide that in relation to a Bill to which section 73 of the 1889 Act applies and an absolute majority has not been obtained, that the Bill should be laid aside. If I take your Honours to volume 3 of the book of materials at pages 595W and X, and in particular 595X to the final lines of standing order 277 - - -

KIRBY J: Which tab is this?

MR MEADOWS: It is tab 18, your Honour.

KIRBY J: Which standing order?

MR MEADOWS: Standing order 277. The standing orders provide that:

the Bill shall forthwith be laid aside without the question put, and shall not be revived during the same session.

We would submit that this requirement of the standing orders recognises that if the Bill is not laid aside, it would have passed by reason of having achieved the support of a simple majority. In this particular instance, despite a motion by the Shadow Attorney-General in the Legislative Council, this did not occur because the President ruled that the standing order only applied to section 73 Bills and that this was not one of them. If one goes to the application book, volume 1, page 23, line 30, it can be seen that it is recorded that the result of the division, this is on the second reading:

ayes 14 and noes 13. Therefore, the Bill will be read a second time.

GLEESON CJ: Mr Solicitor, what was the origin of using this formula, “it shall not be lawful to present”, et cetera?

MR MEADOWS: It is to be found in section 73(1), or 73 as it originally was.

GLEESON CJ: Yes, I understand that, but I am looking at that section right now. What is the origin of the use in that section of this formula of making it unlawful to present a Bill for somebody’s assent as a manner and form provision?

MR MEADOWS: I am not sure I can answer that. Justice Wheeler in her judgment did suggest that it may have reflected the constitutional convention that the courts would not look at the proceedings of the Parliament and that it therefore attached to the giving of the assent.

KIRBY J: That came up in Trethowan, did it not?

MR MEADOWS: I think it may have as well, your Honour.

GLEESON CJ: I notice that section 7B of the Constitution Act (NSW) does not use the word “lawful” but it says a Bill that does certain things “shall not be presented to the Governor for Her Majesty’s assent until” something has happened.

MR MEADOWS: Yes. The passage that I was referring to in Justice Wheeler’s judgment is in paragraph 308 at the top of page 274 of the WAR. It is to be found about two-thirds of the way down the paragraph.

GLEESON CJ: I am just wondering why this pattern of legislation fastens on to the point of presentation or the act of presentation by an officer of the Parliament for assent as the point at which it bites.

MR MEADOWS: In line with what Justice Wheeler was saying, it would seem that she took the view that it was up to the Parliament to decide whether something had passed and it was at the point of presentation for assent that the question of whether there was a required majority could be taken into account.

KIRBY J: It sounds to me that her Honour is correct in that because traditionally courts were deferential to Parliament dealing with matters when it was in Parliament, but by the time it is purportedly past Parliament and before it goes to the Governor for the Queen’s assent, then intervention by the court at that stage does not involve inter-meddling in the activities within the four walls of Parliament, which traditionally courts have not wanted to do.

GLEESON CJ: Because they did not want Parliament to put them in gaol, a very practical reason for not inter-meddling with the proceedings of Parliament.

KIRBY J: All of this was developed before the federal constitutional obligations of ensuring that things passed according to law.

MR MEADOWS: Yes.

KIRBY J: But there might be a retaliation by the judiciary of putting other people in gaol if they endeavour to put us in gaol for contempt of the Court.

MR MEADOWS: Yes. If you have a look at the Parliamentary Privileges Act (WA), it is still contemplated that the Parliament will put people in gaol for certain misdemeanours, but that is beside the point.

KIRBY J: I do not think you should go there.

MR MEADOWS: No, I shall not. Anyway, as I was seeking to say, each of the members of the Full Court acknowledged that the Bills have passed both Houses. If I could just refer to Chief Justice Malcolm, paragraph 10; Justice Anderson, paragraph 80; Justices Steytler and Parker at paragraph 107, although, curiously, even though they said there that the Repeal Bill had completed its passage through the Legislative Assembly and the Legislative Council, they did say in paragraph 284 that they did not find:

it necessary to consider whether or not the Repeal Bill and the Amendment Bill have completed their “passage” through the Legislative Council - - -

GLEESON CJ: It is very easy to understand why members of the Supreme Court of Western Australia would choke upon the proposition that a provision like section 13 had been repealed by implication. It is a pretty funny way of going about repealing it, is it not?

MR MEADOWS: It is certainly not a direct repeal, I accept that, but the point is, your Honour, that subsection (3) requires the presentation for assent of Bill and section 13 prohibits the presentation of a Bill when it has not been passed by an absolute majority, so there is a direct clash between the two provisions. Importantly, there is an express exception in subsection (3) in relation to section 73 and none in relation to section 13. So, there is that contrariety between the two provisions with an expressed exception and, on the argument put by the Full Court, an unstated exception which has to apply in relation to section 13.

GLEESON CJ: There are two possibilities. One is that the West Australian Parliament decided to get rid of section 13 at the time, but not to mention that they were doing it and the other possibility is that they forgot about section 13.

MR MEADOWS: If they forgot about it, your Honour, we would say that is just too bad. If it was unwitting, if the effect of the two provisions is that they clash in the way in which we maintain then there is a repugnancy and the result is that section 13 goes.

GLEESON CJ: But the repugnancy can be resolved by giving the word “passage” in the new legislation a particular meaning which was given to it by the Full Court.

MR MEADOWS: With respect, only if one reads into that subsection words such as “duly passed” in whatever manner and form is required.

KIRBY J: That is not asking a lot to read in “due” or “lawful” or “proper” or “enacted”.

MR MEADOWS: If I could just refer to what Justice Wheeler said about this again, and this is at paragraph 309, and I say this acknowledging that she was able to see that section 13 could live with subsection (3) earlier in her judgment, but she said:

I note further that, as a matter of construction, a reading of “passed” in subsection (3) which reads it as meaning “passed by whatever special majority may be required”, does not sit easily with the express reference to section 73 in that subsection. On such a reading, the reference would be unnecessary. However, for the reasons which I have indicated, it is not necessary to attempt to read subsection (3) in this way.

I would adopt what Justice Wheeler says there, that if one was to read it in the way in which I have said, then the express exception of section 73 would not be required.

Also, may I refer to sections 14 and 24 of the 1899 Act, which has already been adverted to by my learned friend Mr Jackson, which provide for the manner in which questions before the Legislative Assembly and the Legislative Council are to be resolved and that this must include, in our submission, whether or not a Bill should pass the chamber.

So, in our submission, without taking your Honours to the authorities which are referred to in our submissions at paragraphs 35 through to 46, we would submit that we have here the kind of repugnancy that was recognised in Yougarla and also recognised in your Honour Justice Gummow’s judgment in Suata, so as to result in section 13 having been impliedly repealed.

KIRBY J: I assume there is nothing in the second reading speech about it?

MR MEADOWS: There is actually, your Honour, in an oblique kind of way – and this was referred to by the amici before the Full Court. There is nothing in the debates as such relating to the 1978 Act to suggest that it
would have an impact on section 13 and there is nothing in that Act which deals with electoral districts, but if you go to volume 2 of the materials, under tab 20, there is a somewhat cryptic reference at page 306 in the second column in the third paragraph:

The Bill will do no more than its terms indicate. It will not affect the question of re-distribution of electoral boundaries per se, or the inter-relationship of the two Houses.

At best, I would suggest that that observation is somewhat obtuse or equivocal - - -

GLEESON CJ: I thought you were suggesting it was somewhat acute.

MR MEADOWS: Well, it may well be, your Honour. I am certainly not planning to hang my hat on it, but it does suggest that there may have been some thought being given to what effect it may have had on electoral distribution. We must emphasise that when you have a provision such as that in subsection (3) where you have an express exception in relation to section 73, that is a very powerful indicator that there is no other provision which might prevail over the provision of subsection (3). If it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for Queensland.

MR KEANE: If the Court please, we would wish to make a brief oral submission in relation to the exercise of characterisation involved in applying the phrase “respecting the constitution, powers or procedures of the Parliament” which appears in section 6 of the Australia Acts and which replicates the proviso, section 5 of the Colonial Laws Validity Act 1865.

In making the submission, we would propose to do so, or if it is convenient to do so, by reference to the submissions made by our learned friends for the amici in paragraphs 42 to 53 of their submissions. We would ask your Honours to have them handy. If we can ask your Honours to go to paragraph 42, which is on page 10 of those submissions. Of course the exercise of characterisation is an exercise of characterising the Electoral Distribution Act or an Act for its amendment or, on one view, a repeal, but the exercise is to be performed for the purposes of section 6 of the Australia Act. Our learned friends for the amici in paragraph 42 make the point that:

The language of s 6 of the Australia Acts is drawn from s 5 of the Colonial Laws Validity Act . . . and is doubtless to be interpreted in accordance with the usage of the 1865 Act.

Now, with respect, there is no doubt significant force in that. We should say that the language and structure of the provisions are different. The differences are noted in the judgment of Justice Gummow in McGinty 186 CLR at 295 to 298. We do not need to take your Honours to them now. The point we wish to make though in relation to section 6 we make by reference to section 5 of the Colonial Laws Validity Act, and that is in relation to the function which it was intended to perform. That function was identified by Sir Owen Dixon in Attorney-General (NSW) v Trethowan 44 CLR at 429. If we could ask your Honours to look at the relevant passage at 429, commencing in the first paragraph on the page at about point 2 in the second sentence:

But it was a declared object of that Act to remove doubts respecting the powers of colonial legislatures and these questions depend upon considerations out of which such doubts arose. Upon the subjects with which it deals, the statement of the law contained in the Colonial Laws Validity Act was meant to be definitive, and a subject with which it deals is the constituent power of such legislatures and the manner in which that power shall be exercised.

Then after the quotation of the provision

This provision both confers power and describes the conditions to be observed in its exercise. It authorizes a representative legislature to make laws respecting its own constitution, its own powers and its own procedure.

Then his Honour goes on.

The point we wish to emphasise and which his Honour elaborates over the page to 430 in the paragraph that concludes at the bottom of that page is that these provisions are concerned to firstly confer a power. It is a conferral of a power by the paramount legislature on the legislatures which it has created to themselves make laws about themselves, to transmogrify themselves and to bind themselves in that regard as organs of State. Then, by the proviso it conditions, as Sir Owen Dixon said, the power. Now, section 6 is expressed in terms of limitation following very broad grants of power.

The point we wish to make though is that the purpose of the provisions being to authorise subordinate legislatures to make laws about themselves, it is obviously a special provision and, in our respectful submission, a narrow one. It is not the kind of provision that one would ordinarily have thought necessary to facilitate the making of laws by the subordinate legislature for the drawing of electoral boundaries or even for the prescription of qualifications on electors or, for that matter, even on the qualifications for election to Parliament of members of Parliament.

Now, having said that, we go to paragraph 44 of our learned friends’ outline where they refer to the May 1863 report of the law officers where they record the expression of the law officers’ opinion that:

the Electoral Act 1861 (SA).which altered the boundaries of, and the number of members returnable from, the electoral districts for the House of Assembly, effected an “alteration in the Constitution of the House of Assembly –

with respect, not a view, we submit, which defines a great deal of resonance today. Whether or not it found a great deal of resonance then, one can see in paragraph 45 the statute that the report led to.

Our learned friend, Mr Jackson, has already taken your Honours to this provision and it has already been noted by members of the Bench that the provision in question provided that:

All laws heretofore passed . . . with the Object of declaring or altering the Constitution of such Legislature, or of any Branch thereof, or the Mode of appointing or electing Members of the same, shall have and be deemed to have had . . . the same Force and Effect - - -

GLEESON CJ: Does not the constitution of a legislature mean how it comes to be constituted?

MR KEANE: Well, your Honour, it is possible that it can. On the other hand, it is possible that it can mean not the history of those acts anterior to the establishment or the filling of the seats and its component parts. It is possible it might mean that; it is possible it might mean something broader, as your Honour says. In our respectful submission, the process of characterisation ought to be a strict one.

GLEESON CJ: You seem to be starting off with an understandable 2003 assumption that legislatures are popularly elected, but that was not an assumption that was made in 1863, particularly in relation to colonial legislatures.

MR KEANE: And particularly Legislative Councils, it is true, your Honour.

KIRBY J: But does that matter if they are Constitution Acts that speak to us today and have to operate in today’s world? Do we impose upon them a purely historical interpretation?

MR KEANE: Well, your Honour, one thing - - -

KIRBY J: A contemporanea approach to construction of statutes has rather gone out of vogue. We now interpret ordinary statutes as they speak from time. Why should we not a fortiori do so with a constitutional event?

MR KEANE: Your Honour, on that footing, we would make the submission we make that laws in relation to the qualifications of electors, the qualifications of candidates, are one step removed from laws about the Parliament itself as a law-making organ.

GLEESON CJ: On that footing, why are we interested in the Constitution Act 1856 (SA), which is what you are arguing about?

MR KEANE: Because, your Honour, if one takes a view different from that which Justice Kirby has just put to me in relation to the approach contemporanea expositio and one looks at this provision in paragraph 45, one can say that if there is one thing that is clear from the muddle in South Australia, with the greatest respect, that produced the 1865 Act, it is that the Parliament that passed the 1865 Act was not, when it spoke of “laws respecting the constitution, powers, and procedure of” the Parliament, conflating the concepts that it had expressly identified in the 1863 Act.

GLEESON CJ: Well, that is the question. “Contemporanea expositio” means exposition of the meaning of an enactment at the time it was enacted. “Contemporary” means contemporary with the legislation.

MR KEANE: Yes.

GLEESON CJ: It does not mean modern.

MR KEANE: No, that is why, your Honour, the submission we are making seeks to accommodate both approaches – the modern approach to an appreciation of what is the proper subject matter of laws about the lawmaking organ itself - - -

KIRBY J: I was making the point that the contemporanea approach has had quite a lot of favour in the past but more recent pronouncements on it in a variety of contexts have been rather critical, given that Acts of Parliament of an ordinary kind are supposed to speak from time and time, and even more so, Constitutions.

MR KEANE: Quite, but, your Honour, even on the view that your Honour implicitly does not favour, with this statute one can tell that the Imperial Parliament in 1865 was distinctly not doing what is attributed to it in paragraph 53 of our learned friend’s submissions. It was distinctly not making a law in which it equated the mode of appointing or electing members with the constitution, powers or procedures of the Parliament.

GLEESON CJ: How long will you require to complete your submissions, Mr Solicitor?

MR KEANE: Your Honours, subject to saying that the approach we urge, that is the narrow one, conforms with Lord Birkenhead’s approach cited by Justice Wheeler at paragraph 321, that is to say that the Court should not be astute to see Parliaments of the past tying knots around Parliaments in the future, those are our submissions.

GLEESON CJ: Thank you. We will adjourn until 10.15, and the next case will be taken not before 2.15 tomorrow.

AT 4.23PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 AUGUST 2003