Attorney-General (WA) & Anor v Marquet [2003] HCATrans 260 (6 August 2003)

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Attorney-General (WA) & Anor v Marquet [2003] HCATrans 260 (6 August 2003)

Last Updated: 7 August 2003

[2003] HCATrans 260

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 WEDNESDAY, 6 AUGUST 2003, AT 10.19 AM

(Continued from 5/8/03)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, in our written submissions, we deal with two matters, the Australia Act and the question of prorogation. May I say something shortly about both of those – very shortly in the case of the second one. Before considering the construction of section 6 of the Australia Act, we would make the submission that section 6 is the only restriction on State legislative power so far as manner and form is concerned, and necessarily involved in that submission is the proposition that there is no room for the operation of a common law principle seemingly set down in the decision in Bribery Commissioner v Ranasinghe [1964] UKPC 1; [1965] AC 172.

KIRBY J: Which of the Australia Acts on offer do you say is the source of the restriction of the legislative competence of the Parliament of the State you represent?

MR SEXTON: Probably, they need to be taken together, your Honour, in terms of the question of power.

KIRBY J: But what was the Parliament of the United Kingdom doing making a law for New South Wales in 1986?

MR SEXTON: Your Honour, there can be some argument about this - - -

KIRBY J: There certainly can.

MR SEXTON: - - - about this question, but one of those arguments is what limitations there may have been on the powers of the Australian Parliament to legislate - - -

KIRBY J: Now, that is a different question. Under our Constitution, the people of Australia agreed that our Parliament, the Federal Parliament, could, under section 51(xxxviii), enact certain matters with the co-operation of the Parliaments of the States, and I can understand that argument. But you are contending that a foreign Parliament has had some power, in 1986, to affect the constitutional powers of the Parliament of the State of the Commonwealth of Australia. That is what I find very difficult to accept.

MR SEXTON: Your Honour, that question can be analysed in a number of ways, and I imagine it was in the early 1980s, but the reality - - -

KIRBY J: I am talking about it in 2003. I am looking at a statute of a foreign Parliament purporting to intermeddle in our constitutional affairs. Is it enough for your purposes to rely on the Federal Act of the Commonwealth of Australia?

MR SEXTON: Your Honour, it is enough to rely on either or both of the statutes, in the sense - - -

GUMMOW J: Did we not say in Sue v Hill that one relies on the Federal Act?

MR SEXTON: They are both in the same terms, so it is - - -

KIRBY J: Yes, they are, but I want to get clear what law I am supposed to be applying here. If it is enough for your purposes to rely on the Federal Act, though you to other listeners contend that this foreign Parliament’s Act may have some parallel efficacy, then let us move on. If there is some need on your part for your argument to rely on the Act of a foreign Parliament, I need to be convinced.

MR SEXTON: I do not think it is necessary, your Honour.

GLEESON CJ: Is there some shyness about section 51(xxxviii)?

MR SEXTON: Not from our part, your Honour.

GUMMOW J: Why do you keep saying you rely on both?

MR SEXTON: Your Honour, there have been arguments as to that question.

GUMMOW J: Do you disagree with what we said in Sue v Hill? I do not care about arguments somewhere else. Do you disagree with what we said in Sue v Hill?

MR SEXTON: No, we do not disagree with it, your Honour. We are happy to rely upon the Act of the Australian - - -

GLEESON CJ: We actually said in Sue v Hill, did we not, that section 51(xxxviii) sustains the Commonwealth legislation?

MR SEXTON: We are happy to adopt that.

KIRBY J: Let us therefore move on.

CALLINAN J: Why, in any event, can you not regard the combination of the legislation as a final constitutional settlement, giving an assurance of full validity? I must say, I do not see any problem with that and I do not see that as being in conflict with Sue v Hill.

MR SEXTON: Your Honour, that was, I imagine, the thinking in 1986.

CALLINAN J: With the concurrence of everybody.

KIRBY J: You have to address us all, so that for those who are of the other view, you say you rely on them both. For those who are of the Australian view and look at the Constitution, you say 51(xxxviii) is enough, and you let us sort out the difference. Is that the position?

MR SEXTON: It is the position, your Honour; we are happy with that.

GLEESON CJ: If section 6 of the Australia Act 1986 is the only basis for a manner and form provision, what would be the basis for a federal manner and form provision?

GUMMOW J: This is really for the Solicitor-General, I think. The Commonwealth says there is none.

MR SEXTON: It is not easy to see a specific provision that would give rise to that power, your Honour. There are, of course, provisions in the Constitution that - - -

GUMMOW J: But in saying that, the Commonwealth Solicitor-General has to take on board the Flags Amendment Act (No 2) 1998 which seems to entrench Commonwealth legislation.

MR SEXTON: Of course, section 57 is perhaps in one sense has aspect of manner and form, but it is not otherwise easy to see in the Constitution how that would operate.

GLEESON CJ: Are you rejecting Ranasinghe?

MR SEXTON: Yes, your Honour.

GLEESON CJ: Just because of section 6 or because there is something wrong with it apart from section 6?

MR SEXTON: For both reasons, your Honour. We would say that for the reasons that Justice Gummow gave in McGinty that it cannot exist consistently with section 6 but, in addition, we would say that there is a problem conceptually about the decision. It is not necessary, really, to say the second of those perhaps in this case.

GUMMOW J: It seems to turn on the phrase, “peace, order, and good government”. It seems to say it is for the peace, order, and good government of Parliament No 1 to fetter the future, but it is not for the peace, order, and good government of Parliament No 2 to undo the fetter. It just does not make sense to me.

MR SEXTON: One problem about the decision, we would say, your Honour, is that it would be equally applicable to the United Kingdom Parliament. Now, Justice Dixon in Clayton v Heffron actually discusses this question in the context of the United Kingdom Parliament, but does not really resolve it as to whether parliamentary supremacy is an ultimate answer to this question.

GLEESON CJ: Now, where does this leave section 7B of the Constitution Act (NSW) in its application to Part 9 of that Act? Which is a matter in effect of which you will not be surprised to understand I am interested.

MR SEXTON: I realised your Honour was interested. Can I just say before I answer your Honour – because I wanted to move to that question of the construction of section 6. I will not say any more about Ranasinghe, except to say that because my learned friend, Mr Gageler, relies on Ranasinghe and also relies on Clayton v Heffron, we would say that the provision in Clayton v Heffron – section 5B of the Constitution Act (NSW) - was not a manner and form provision. It is in fact an enabling provision, and that case does not support - - -

GUMMOW J: Anyhow, there was no attempt in Clayton v Heffron to legislate 5B away, to repeal it, was there?

MR SEXTON: No.

GUMMOW J: The debate was about what it meant.

MR SEXTON: Yes.

GUMMOW J: And whether it had been complied with.

MR SEXTON: Yes. So we say it does not support that proposition that he puts forward.

KIRBY J: Could you remind me of what Ranasinghe says? It is some time since I looked at it.

MR SEXTON: Your Honour, the proposition was that the - - -

KIRBY J: What is the common law principle you referred to?

MR SEXTON: That the legislation in question, which was an Order in Council establishing the Constitution of what was then called Ceylon, was able to make a provision as to how it could be later amended and that that would be binding on later Parliaments.

KIRBY J: The United Kingdom Parliament in the Human Rights Act has purported to make provisions concerning the way in which subsequent statutes which conflict with the Human Rights Act are to be interpreted and dealt with in that country, so that they seem to be modifying their own views of the sovereignty of Parliament - - -

MR SEXTON: Well, that still leaves open the question of whether that interpretive provision could be repealed or changed.

KIRBY J: It is not only interpretive, though, I think. It has certain procedural consequences as well.

GLEESON CJ: It is relevant to their relations with Europe, I think, at the moment.

MR SEXTON: Subject to the question the Chief Justice raises, of course, because the United Kingdom Parliament may now effectively have some restraints because of the European Treaty.

GUMMOW J: And their relations with Scotland, too.

MR SEXTON: Yes.

KIRBY J: Are you aware of any writing on the so-called entrenchment of the Human Rights Act 1998 in the United Kingdom?

MR SEXTON: Not on that aspect of it.

KIRBY J: Because, in some ways, their position might be analogous to States – although the State is a creature of our Constitution, the Federal Constitution of the Commonwealth of Australia.

MR SEXTON: Now, I was just distracted from the Chief Justice’s question about section 7B of the Constitution Act (NSW). Your Honour, a number of the matters that are sought to be entrenched both by section 7A and section 7B, about which there could obviously be an argument as to whether they relate to the Constitution powers and procedures within the terms of section 6 of the Australia Act. So that would be an argument, and that would be true of Part 9 in relation to judicial officers.

GLEESON CJ: Nobody suggests, do they, that all manner and form provisions relate to Constitution powers and procedures because they relate to procedure?

MR SEXTON: I am not sure. There is, I think, some speculation in some of the academic articles as to whether a manner and form provision, by definition, relates to the powers of the Parliament, and therefore no manner and form provision, in a sense, can ever be changed, except in the manner and form that it provides.

GLEESON CJ: Well, by definition, it relates to procedure, because that is what manner and form provisions are about.

MR SEXTON: Yes.

KIRBY J: One judge of the Full Court took that view.

MR SEXTON: Yes.

KIRBY J: A single member of the Full Court.

MR SEXTON: So we would not accept that proposition, your Honours. There is obviously an argument about a number of those matters in the Constitution Act (NSW), including Part 9. I should say, however, your Honour, that, whether it is entrenched or not, Part 9 has most recently been followed, as your Honour will be aware – the Compensation Court in New South Wales will be abolished as of 1 January 2004 and the judges will take up commissions as judges of the District Court.

KIRBY J: I am sorry, I did not understand that. It is going to be changed, is it? Is the Constitution Act (NSW) going to be changed?

MR SEXTON: No, but what Part 9 provides, amongst other things, your Honour, is that if a court is abolished, the judges are to be offered a judicial position of equivalence, and that is what - - -

KIRBY J: That is right, yes.

GUMMOW J: Section 56 of the Constitution Act (NSW) requires that.

MR SEXTON: Yes.

KIRBY J: That is a live question because of the proposed abolition of the Compensation Court of New South Wales.

MR SEXTON: That is right – well, the judges will become judges of the District Court. One has already and the others will follow shortly.

KIRBY J: With their seniority preserved?

MR SEXTON: With their judicial term – the period on the Compensation Court will be counted for those purposes. It may be that when they join the District Court they will join that court.

KIRBY J: Perhaps we should not get too deeply into that. That might come here one day, unless you preserve their seniority.

MR SEXTON: Yes.

GLEESON CJ: What the Privy Council said in Ranasinghe[1965] AC at 197, which I understand you to controvert, is:

that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign - - -

MR SEXTON: In our submission, your Honour, that really - - -

GUMMOW J: It is just assertion.

MR SEXTON: - - -raises a question rather than answers it, amongst other things, the question of whether the provision could be repealed and then the second Parliament could, as it were, proceed from there or whether in fact the Privy Council was intending to say that that was not an option either and that it could be, as it were, a freestanding binding provision in relation to later Parliaments.

KIRBY J: Perhaps their Lordships were seeing the world through the prism of an Imperial Parliament and the rest.

MR SEXTON: Well, except that what they say would be equally applicable to the Imperial Parliament and there do not seem to be any other decisions – there is a South African decision – which otherwise pick up this proposition in Ranasinghe. Can I just add on that question a reference from Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214, where Justice Menzies said at 273:

Where the Colonial Laws Validity Act does not apply to the making of a constitutional amendment, then the power of the Parliament of the State is free from any fetter –

and he went on to talk about this particular provision, suggesting, we would say, that he saw that provision of the Colonial Laws Validity Act as being the only fetter upon the powers of State Parliaments, insofar as manner and form is concerned.

KIRBY J: Can I take you back just for a moment – if you have finished this line of argument – to the power in section 51(xxxviii)? It talks of:

the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned –

and query what “directly” means, but that does not seem to arise here –

of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom -

Now, is the power with which we are concerned here a power that can only be exercised by the Parliament of the United Kingdom? Does the entrenchment not involve the joint activity of the United Kingdom Parliament in the Colonial Laws Validity Act and the State Parliament in the Act of entrenchment? I suppose the real issue is whether 51(xxxviii) is enough to support section 6, and that is a sort of attempt at a modernised version of the Colonial Laws Validity Act, so that is probably the answer to my question.

MR SEXTON: I think that is so, your Honour.

GUMMOW J: The advantage of the Commonwealth Act is that section 109 of the Constitution is then attracted. Do you say, well, this is covering the field of entrenchment accordingly?

MR SEXTON: That is what we say, your Honour, that is right.

KIRBY J: There may be another advantage, that it is the only conceivable or arguable source of valid law-making power.

MR SEXTON: It is an argument of necessity, your Honour. On that question of construction, can I just say this briefly, in relation to the current case. It is our submission that the relevant Western Australian legislation, the Electoral Amendment Bill 2001, is not, we would say, legislation respecting the Constitution powers or procedures of the Parliament of Western Australia. Now, putting it shortly, we say that because the legislation, really, in our submission, concerns electoral machinery. It is true that the end of that process is an election that determines the identity of the members of the Parliament, but, in our submission, the structure of the Parliament remains as it was before the Bill.

HAYNE J: What do you encompass by the word “structure”? Simply a bicameral House?

MR SEXTON: It certainly includes that, your Honour. It may not be confined to that.

HAYNE J: What are the limits?

MR SEXTON: There needs to be, at least, we would say in relation to one House, a representational element – perhaps in both, now. There could be room for argument. Until relatively recently, of course, some Upper Houses – at least in New South Wales, the Upper House was entirely appointed.

GLEESON CJ: Your argument may be right, but it is inconsistent, is it not, with the notion that there is some concept of representative democracy that informs or is related to the meaning of the Constitution of Parliament?

MR SEXTON: Well, your Honour, we accept the representational aspect in relation to a State Parliament.

GLEESON CJ: I thought the legislation with which we are concerned in this case was advanced upon the basis that it went closer to reflecting the ideal of representative democracy.

MR SEXTON: That may be so, your Honour.

GLEESON CJ: Not a mere matter of electoral machinery.

MR SEXTON: Your Honour, it is machinery in the sense that it has to do with the various quotas for electorates and of course the value, if that is the right word, of individual votes within that system, but both before and after the Bill both Houses are still elected by the electors of Western Australia. Quite how they are apportioned between the various electorates and quite what numbers go from one electorate to another is what the legislation deals with.

GLEESON CJ: But the point of legal principle would not be any different, would it, if this was a move in the opposite direction, which is what I was putting yesterday? In point of principle it would not be different if what the Amending Act proposed was the alternation of the number 15 to 25.

MR SEXTON: That is right, your Honour, yes. There may be changes that of course would affect what we would call the structure of the Parliament. For example, if one House was reduced to a handful of members, even if perhaps still elected generally, those might be matters for more argument, but we would say that this legislation does not fall within any of those categories that would be described as the constitution of the legislature.

Your Honours, in relation to that, may I simply refer to one case which is Taylor v Attorney-General of Queensland [1917] HCA 45; (1917) 23 CLR 457. There is not, as your Honours would appreciate, a great deal of material on this particular question. Justice Barton said at 468 at about point 6:

I take the constitution of the legislature, as the term is here used –

he is talking about section 5 of the Colonial Laws Validity Act –

to mean the composition, form or nature of the House of legislature –

it is to be noted there that he seems to use those three words as referring to the same notion, “composition, form or nature”, so that when he talks about composition, we would say it is with reference to form or nature –

where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the representative character of the legislature within the meaning of the Act.

That passage, in our submission, supports the proposition that this form of legislation – that is the Western Australian Electoral Amendment Bill – would not be legislation dealing with the composition, form or nature of the Western Australian legislature.

GUMMOW J: What expression was the Court construing in Taylor?

MR SEXTON: The Constitution in section 5, your Honour; essentially the same terminology. I will not read them to your Honours, but similar comments by Justice Isaacs at 474, Justice Gavan Duffy at 477, with Justice Rich and Justice Powers at 481, in some ways either specifically or implicitly adopting what Justice Barton said.

Your Honours, one other matter that we point to, given the sparseness of the material on this issue, is the Australian States Constitution Act 1907, a statute of the Imperial Parliament. Copies were given to your Honours, but the material is conveniently set out in our written submissions at paragraph 3.14 and following.

GUMMOW J: Is this repealed by the Australia Act? I think they forgot about it. I think we mentioned this in Yougarla maybe.

MR SEXTON: It does not seem to be there, your Honour.

GUMMOW J: It is inconsistent with provisions in the Australia Act.

MR SEXTON: Yes, your Honour.

GUMMOW J: It might insofar as it is some sort of - - -

MR SEXTON: We only refer to it, your Honours, on this question of the construction of the term “constitution” as in constitution of the legislature. As your Honours would be aware, section 1(1) of the Act provided that laws that altered the constitution of a State legislature were to be reserved for the Royal Assent. Section 1(2) then provided that for the purposes of the legislation, a Bill of a colonial legislature was not to be treated as a Bill altering the constitution of that legislature by reason only that it:

(a) creates, alters, or affects any province, district, or town, or division of a province, district, or town, which returns one or more members to either House of the Legislature; or

(b) fixes or alters the number of members to be elected for any such province, district, or town, or division of a province, district, or town; or

(c) increases or decreases the total number of elective members of either House of the Legislature; or

(d) concerns the election of the elective members of the Legislature, or either House thereof, or the qualifications of electors or elective members.

So, in our submission, what this indicates is that a distinction was made between legislation that affected the constitution of the legislature and legislation that dealt with what could be broadly described as electoral machinery provisions.

GLEESON CJ: Could I ask you a question about that part of section 6 which refers to a law respecting the powers of the Parliament of a State. The Parliament of a State cannot make laws adding to or subtracting from its own powers, can it?

KIRBY J: Extraterritorial legislation.

MR SEXTON: Well, assuming that that is one of its powers, your Honour, in terms of its power to legislate for peace, order and good government, it cannot increase that power.

GLEESON CJ: Or diminish it.

MR SEXTON: Or diminish it, yes.

GLEESON CJ: So that that suggests, does it not, that a law respecting the powers of the Parliament would be a law as to the way the Parliament would exercise its powers? Can you give me an example of what you say would be a law respecting the powers of a State Parliament made by a State Parliament?

MR SEXTON: One law, for example, your Honour, might be section 5B of the Constitution Act (NSW) deals with, for example, referendums in terms of after disagreements between the – or failure to pass by the Legislative Council.

GUMMOW J: The reference to the Australian States Constitution Act which your junior cannot find is in Sue v Hill [1999] HCA 30; 199 CLR 462 at 494, paragraph 72. It does seem as if the 1907 Act has gone.

MR SEXTON: Thank you, your Honour.

HAYNE J: As to questions of the powers of a Parliament and legislation cast in those terms, the negative of that is found in section 85(4) of the Constitution Act 1975 (Vic) which provides that:

This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.

That is the Supreme Court. But other provisions are by inference treated as in some respect limiting the powers of the Parliament to confine or remove the jurisdiction of the court.

MR SEXTON: This case, we would say, though, your Honour, is about the question of the constitution of the legislature and whether the legislation affects that in this particular instance rather than its powers or procedures.

Your Honours, finally on that question, we have quoted a passage in our submissions from Mr Churchill who introduced the Bill into the House of Commons on 12 June 1907 and I will just read one passage from that, where he said that:

The Committee –

by which I assume he meant the House was in committee –

would see that, as time went on, changes of a kind which were not really fundamental to the constitution of the Colonies were made in the ordinary expansion of their electoral position. There was a Bill affecting the alteration of the franchise, and the system of election, and these purely local measures had come to be withheld as if they were affecting the constitution of the State. This caused a great deal of inconvenience and difficulty . . . There would still be certain fundamental Bills which would necessarily be referred home, such as Bills altering the constitution of the legislature in either House –

So, in our submission, it is drawing that distinction between - - -

GUMMOW J: But the Imperial authorities had got fed up.....with dealing with these colonial Acts.

MR SEXTON: I am sure they were.

GUMMOW J: One can understand why.

MR SEXTON: I am sure they were not interested in electoral redistributions in - - -

KIRBY J: His complaint is of the immense amount of time and trouble for the whole of the self-governing States. It was so much easier to rule India.

MR SEXTON: Well, your Honour, it is not often we have an opportunity to quote Mr Churchill in this Court. Now, can I finish with that, except for one matter - - -

GUMMOW J: That is significant, though, because this is 1907 and the clause we are talking about, now found in the 1947 Act, is in 1904. So it does give some idea of what was in play, as it were.

MR SEXTON: Yes, we say it is a distinction that people had in their minds at that time.

GUMMOW J: Yes.

MR SEXTON: One final point in relation to section 6 is that we have said it is a provision that ought to be construed strictly, particularly at this period of time, whatever construction might have been appropriate in earlier periods when the same wording was in section 5 of the Colonial Laws Validity Act – although even section 5 of the Colonial Laws Validity Act was, of course, in its own way, an enabling or an emancipatory provision, designed to spell out the powers of those legislatures to which it was relevant. But we do say that this is a question for strict construction, because any manner and form provision is a derogation from the plenary legislative power of – in this case – State legislatures.

Your Honours, on the second question of prorogation, can I say, very briefly, that even if it be assumed that this reflected a British rule of practice, or more, this was not so in relation to the Australian States, for a number of reasons: one, that it was inconsistent with the time-consuming rules regarding reservation; two, that there was no suggestion of this in the Colonial Laws Validity Act or the Australian States’ Constitution Act, although they both dealt with the question of reservation; three, that it was inconsistent with parliamentary practice applied throughout Australia – and my learned friend, Mr Jackson, has taken your Honours to a variety of examples of that.

I note that, in that context, it could never have been a rule in New South Wales, because of section A and section 7B of the Constitution Act, which provide for a Bill to be presented for assent, not only after prorogation, but seemingly after dissolution of the Parliament, if necessary. To a similar effect, perhaps, is section 8A of the Constitution Act (NSW), which states that:

Except as otherwise provided by this Act, every Bill:

(a) shall be presented to the Governor for Her Majesty’s assent after its passage through the Legislative Council and the Legislative Assembly, and

(b) shall become an Act of the Legislature when it is assented to by the Governor –

So, in our submission, the question of prorogation would not present a problem in this particular case. Unless there is anything specific, your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Solicitor. As between you and the Solicitor for the Commonwealth, Mr Gageler, is there an agreed order - - -

MR GAGELER: Yes, your Honour.

GLEESON CJ: Go ahead.

MR GAGELER: Your Honours, can I deal first and fairly briefly with implied repeal, correctly identified by the Solicitor-General for Western Australia as a threshold issue. It is a threshold issue because the argument for the applicant is that section 13 of the 1947 Act no longer exists. It was, it is said, repealed in 1978, with the enactment of section 2(3) of the 1889 Act, not deliberately, but inadvertently and despite the reference in the second reading speech for the 1978 Act – applicant’s materials volume 2, tab 20, page 306 – that this Act would not affect electoral distribution. The short answer to the argument is that given by Justices Steytler and Parker at paragraph 237, and the answer is that the word “passage” means due, proper or lawful passage, that is, passage such as will result, upon assent, in a valid Act.

If that construction of section 2(3) is accepted, then there is no conflict between section 2(3) and section 13 of the 1947 Act. Indeed, the provisions work in perfect harmony. If a Bill to amend the 1947 Act is passed by both Houses in the manner provided by section 13, then section 2(3) requires that Bill to be presented to the Governor for assent. If a Bill to amend the 1947 Act is not passed by both Houses in the manner provided by section 13, then section 2(3) has no application and the prohibition in section 13 itself applies.

KIRBY J: How does that fit with the express mention of section 73?

MR GAGELER: Your Honour, that is quite easily dealt with. The express mention of section 73 ought not be interpreted as saying what is being preserved is some special manner of passage through the House in section 73 but not in section 13, because if one looks at section 73, what it does, in addition to regulating the manner of passage through the House, is to impose two conditions that on any view modify or qualify the requirement in section 2(3) that a Bill be presented to the Governor for assent after its passage through the Houses. The two conditions your Honours will see, the first in the concluding words of section 73(1), that certain Bills:

shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon.

That provision, your Honours might note, has now been eliminated by section 9(2) of the Australia Acts but it was there in 1978. The second, your Honours, in section 73(2)(g) there is a provision that the Bills to which 73(2) applies, after passage through the two Houses, are to be “approved by the electors” before presentation. So those true qualifications, the requirement in section 2(3) that a Bill be presented to the Governor after passage through both Houses. Your Honours might note that the construction of - - -

KIRBY J: Let me just get it clear. The point you are making is that each of those are steps that follow passage and therefore they do not touch upon the express mention of passage being, in your submission, due or lawful passage whilst in the chambers of Parliament.

MR GAGELER: Exactly. The duty or requirement of section 2(3) is to do something after passage. Those two conditions, at least certainly the second of them, impose a qualification to that requirement to do something immediately after passage. The second of them certainly inserts another step.

Your Honours, that construction of section 2(3) is, in our submission, strongly supported – we would say compelled – by the principle of harmonious construction, to which we refer in paragraph 33 of our submissions. It is equally supported, in our submission, by the context. If your Honours look at section 2(3), your Honours will see that it was introduced together with and follows immediately after section 2(2), section 2(2) defining the Parliament of Western Australia to include the Queen, and section 2(3) then in substance defining the role of the Governor as the Queen’s representative in the workings of Parliament, that is in the enactment of legislation, a role that expressly, in the words of section 2(3), cuts in after the passage of a Bill through both Houses.

Your Honours might note that the requirement for a Bill to be presented for assent after passage, made a statutory requirement by section 2(3), was recognised before the enactment of section 2(3) in any event as a constitutional convention. That is noted in Justice Selway’s book, in the applicant’s materials, volume 2, tab 27, page 342, footnote 26.

So the section, your Honours, take as its starting point passage through both Houses. It simply does not seek to address how passage through the Houses is to be determined. That is dealt with by other provisions, in the usual case, sections 14 and 24 of the 1899 Act, and in special cases by section 13 of the 1947 Act and section 73(1) and section 73(2)(f) of the 1889 Act.

KIRBY J: There is a third argument, I think, harmonious construction context, but also, thirdly, in matters of public law there are countless cases in this Court and other courts that say that where an a conduct or action is referred to it means lawful conduct on the part of the officeholder concerned. I am thinking of the theory of invalidity of acts of public officers.

MR GAGELER: Yes, we would invoke that principle as well and, indeed, the - - -

KIRBY J: It cannot just mean any old thing done by a public officer. It has to be done in a proper constitutional and lawful way.

MR GAGELER: Exactly, and that point, may I say, is reinforced when one has regard to this provision. We would say simply making statutory the pre-existing convention which, of course, would only apply where the action was lawful.

Your Honours, can I move then to a much larger topic, that is the construction of section 13 of the 1947 Act. What the cases collected by Justices Steytler and Parker at paragraphs 175 to 180 of their judgment make clear, in our submission, is that there is no rigid dichotomy between amendment and repeal. Amendment can for a particular purpose take - - -

GUMMOW J: It seems to me – I understand entirely what you are saying, but one has to keep one’s eye on the whole phrase in section 13.

MR GAGELER: “Bill to amend”?

GUMMOW J: Yes.

MR GAGELER: Definitely, yes. I am going to make quite something of that, your Honour.

GUMMOW J: These cases are not talking about that expression.

MR GAGELER: No, but what - - -

GUMMOW J: They are talking about questions that arose in various other contexts.

MR GAGELER: Your Honour, the phrase I will invoke very strongly in my favour, but it is an argument I need to develop. The point where I was starting, your Honour, is simply this.

GUMMOW J: It seems to be not the right point.

MR GAGELER: Your Honour, it is a very preliminary point and I think it is not controversial. Your Honour, the next sentence that I was going to say was, it all depends on the context.

GUMMOW J: I do not think reading Beaumont v Yeomans from here until dawn is going to assist me in construing section 13.

MR GAGELER: Absolutely, and that is why I did not take your Honour to it. I drew one principle, that is the meaning turns on the context, and what I want to go to, your Honour – and I will need to do this in just some little detail – is two aspects of the context of section 13. One is the subject matter of the 1947 Act – I will deal with that relatively briefly – but secondly – and this is a point that I will need to develop at some little length – the legislative history. Can I deal with the subject matter first, and somewhat briefly.

The subject matter of the 1947 Act, your Honours, is neither freestanding nor optional. Since the establishment of representative government in Western Australia, there always has been a law about electoral distribution, and while the Parliament of Western Australia remains a Parliament, there always will be a law about electoral distribution. So what Justices Steytler and Parker said at - - -

HAYNE J: What are you encompassing by that expression, “electoral distribution”?

MR GAGELER: A law that defines the constituencies of members of each House of Parliament.

GUMMOW J: When you say, “define” – provides for the definition by others?

MR GAGELER: Defines or provides a mechanism for the definition of.

GUMMOW J: That is right.

MR GAGELER: That is exactly, your Honour - - -

GUMMOW J: That was not the initial situation. They used to draw the boundaries in the schedules to the actual legislation.

HAYNE J: Or to the Constitution.

MR GAGELER: I will deal - - -

GUMMOW J: And put it in the Constitution. It was just - - -

MR GAGELER: I will deal with all that, your Honour. That is the second point of context – the history. I will deal with it.

GUMMOW J: I am just worried about this word “define”, that is all.

MR GAGELER: Your Honour, there are two ways of defining.

GUMMOW J: You have to take the packaging off it, I think.

MR GAGELER: Perhaps it does not matter very much, but there are two ways of defining. One is you define in the legislation; the other way is you provide a mechanism for bringing about a definition that is then given legislative force. In our submission, for relevant purposes, there is no distinction between the two. But, your Honour, I will deal with that when I come to deal with the history.

CALLINAN J: Mr Gageler, section 7 of the Constitution, which defines the electorate for senators, is an indication of the first method, but it looks entirely different from the second.

MR GAGELER: The second, if your Honour will look further – I cannot remember the section, but the one dealing with the House of Representatives provides for the second.

CALLINAN J: That is right, section 24 - - -

MR GAGELER: Both of them we would describe as constituting provisions.

CALLINAN J: The other observation you can make about Parts II and III is that they really go into quite elaborate detail, as matters of constitutional imperative, with respect to the election of members, qualifications and the division of the country into electorates, in both ways that you have referred to.

MR GAGELER: Yes, your Honour.

GUMMOW J: But a second way you have referred to is what is being talked about in section 29 of the Constitution, is it not? “The Parliament otherwise provides”.

MR GAGELER: Yes. It is otherwise provided on the subject matter, your Honour, but my point is that the subject matter, which I define broadly as “electoral distribution”, in the way that I have already stated - - -

GUMMOW J: The determination of divisions.

CALLINAN J: Yes, but the divisions have to de determined so that you produce the result which section 24 prescribes, that you have approximately twice as many members of the House of Representatives as there are senators. I think that assists you.

MR GAGELER: It does, your Honour, yes. There are rules by which the determination has to - - -

CALLINAN J: Quite strict rules. The area of flexibility is not so very great.

MR GAGELER: True.

CALLINAN J: And when there is a debate as to what a Constitution should contain or does contain – that is, as to the matters that are fit for constitutional statement – then the Australian Constitution is a clear indication that the area that you are talking about is fit for constitutional inclusion.

MR GAGELER: Yes, your Honour, we would agree with that. Where I was seeking to get to here was really to reinforce the statement of Justices Steytler and Parker, at paragraph 187 of their judgment, that the 1947 Act was enacted in the expectation that there must always be legislation on that topic. If that is right, then what it means is that repeal can never conceivably, at least in reality - - -

GUMMOW J: When you say “must”, you are positing a duty of what obligation enforceable by whom? Their Honours do not explain.

MR GAGELER: No, your Honour, I am not doing that at all. What I am postulating is that, in the minds of the legislators, it would have been inconceivable at any time from 1890 onwards that there would not be an electoral law in force and that there would not continue to be an electoral law in force into the future. Indeed, your Honours, it is very difficult to perceive of a representative legislature – to use the nineteenth century term - or a Parliament – to use the current term – that does not have a law about how electoral districts or electoral regions are to be defined. Perhaps it is possible, but it is inconceivable to me and, in our submission, it would have been inconceivable to those enacting this legislation at any time.

GUMMOW J: The problem is, I think you are saying, there is no failsafe mechanism here. There is in the Federal Constitution. If the Parliament had never provided there, it was still stipulated.

MR GAGELER: Your Honour, that may be so, but one does not interpret any of these provisions by reference to hypothetical extremes. In our submission, to act on the basis that there always was and always will be legislation on the topic of electoral distribution is what must have been happening at all relevant times from 1890. If that is right, then what it means is that repeal can never be an end in itself. Repeal will always be a part of the process of replacement, a prelude to re-enactment.

GUMMOW J: Exactly – in a political sense or in a normative sense which is enforceable by the courts.

MR GAGELER: Ultimately, your Honour, this goes to the construction of the words. The perceptions of those enacting the legislation is relevant to the construction of the words, without need of an enforceable duty.

KIRBY J: The words have to be construed against a fairly long history where, in provisions of this kind, including in Western Australia, “amend” and “repeal” appeared together.

MR GAGELER: Your Honour, I will come to the history.

KIRBY J: For some reason, parliamentary counsel left out “repeal”.

MR GAGELER: There is a very good explanation for that, but I will come to that.

CALLINAN J: Mr Gageler, the fact of the Amendment Act itself, the attempt to enact it, is a very clear indication of the essentiality of the provisions which are contained in the 1947 Act. Indeed, some of them are effectively reproduced.

MR GAGELER: Yes.

KIRBY J: It may be essential, but the question is why was it not provided for separately? That is the issue we have to resolve.

MR GAGELER: Your Honour, I am coming to that. Can I illustrate this first point, which is simply that there will always need to be legislation on this topic, by taking your Honours - - -

GUMMOW J: When you say “always need to be”, I have to understand what you mean by that. Who perceives this, the legislators? Of course they do. They are going to do something about it and there will be some political compromise, I suppose.

MR GAGELER: Yes, your Honour.

GUMMOW J: Is that the level at which we are looking at it?

MR GAGELER: It is within the constitutional context.

GUMMOW J: Now, what does that mean?

MR GAGELER: That means that there is a representative legislature in Western Australia which becomes the Parliament of Western Australia which has always been and which on one view, by virtue of provisions of the Commonwealth Constitution, must always continue to be a representative legislature.

HAYNE J: The representative characteristic of the legislature is not to be found in the Electoral Distribution Act. I would have thought it is to be found in the Electoral Act which gives everyone the right to be enrolled and to vote.

MR GAGELER: Yes.

HAYNE J: You do not find that in the Distribution Act, do you?

MR GAGELER: Over the years it has been found in different places.

HAYNE J: Just so and, thus, when you fasten upon the Distribution Act and say, “Oh, there must always be a Distribution Act” - - -

MR GAGELER: No, your Honour, I did not seek to say that. I said there must - - -

HAYNE J: Then what is your proposition?

MR GAGELER: That there must always be legislation on the topic of electoral distribution. That is, if one takes the subject matter of the 1947 Act, which your Honours will see has been teased out into a number of different Acts over the years, if one takes the subject matter, it has always existed and the 1947 Act, your Honours could be comfortably assured, was enacted upon the supposition that it would always continue to exist.

HAYNE J: If there is an imperative, part, perhaps all, of that command comes from the existence of the Electoral Act.

MR GAGELER: Not entirely, but, your Honour, can I tease this out in the history?

HAYNE J: Yes.

MR GAGELER: What I wanted to illustrate was, if your Honours were to turn to the Repeal Bill itself, volume 1 of the joint application book, page 14, the debate has focused very much on the effect of clause 3 which is the repeal provision, but your Honours might note that the Bill as a whole does very much more. In clause 4(2) and (3) it amends the 1889 Act by deleting the concluding words of section 5 and repealing section 6. So all one has in the 1889 Act in section 5 now is that:

The Legislative Council shall consist of 34 elected members who shall be returned and sit for electoral regions –

The question that immediately raises and which is left unanswered is, how are those electoral regions to be ascertained or determined? If one moves then on to section 4(4), it repeals sections 18 and 19 of the 1899 Act. It inserts in their place a new section 18 which is there set out. The question that raises but leaves unanswered is, how are the electoral districts to which it refers to be determined? Then if one goes on to the transitional provision, what it does in clause 5 is tell us that the existing system of electoral distribution continues until the next election. The question it raises is, what happens then?

GLEESON CJ: I am not suggesting this is right or wrong because I have not thought it through, but are you going so far as to contend that you could never simply repeal the Electoral Distribution Act 1947 because you could not constitute the Parliament without having some other replacement legislation on that subject matter?

MR GAGELER: That is the point, your Honour, when that goes to the appropriate construction of the word “amend”, which, in our submission, includes repeal, that is a repeal per se is an amendment, but I will come to that in more detail.

GUMMOW J: Suppose the Bill we are looking at now at page 15 had been passed unanimously. You say that would be invalid in some way?

MR GAGELER: No, not at all. I would say it would be a - - -

GUMMOW J: Because it would leave no mechanism for the next election?

MR GAGELER: Not at all, your Honour. All I am saying is that, properly characterised, the Bill would be a Bill to amend within the meaning of section 13 of the 1947 Act and, if passed unanimously, the manner and form requirement of section 13 would be complied with.

GLEESON CJ: Your argument, as I understand it, is that the dispute about the meanings of “amendment” and “repeal” depend heavily on the context.

MR GAGELER: Exactly.

GLEESON CJ: And, rightly or wrongly, you say that this is a context in which the subject matter was one on which there had to be some legislation in order to constitute the Parliament.

MR GAGELER: Yes, exactly. The concept of expungement or extinguishment per se for its own sake is simply inapplicable to a law on this subject matter. It would lead to a void. The void would need to be filled. That, in our submission, your Honours, is relevant to the construction of the word “amend” and to the construction of the phrase “Bill to amend”, which I will come to. But to answer your Honour Justice Hayne’s question I think to Mr Jackson yesterday, that is could not the electoral machinery provisions in the Electoral Act still apply despite the repeal of the 1947 Act, the answer to that is no because the starting point for all of those machinery provisions is section 64 of the Electoral Act which deals with writs being issued for districts and regions respectively. You would simply not know what the districts and regions were once the transitional provision in clause 5 had done its work.

HAYNE J: Why? That is reading the transitional provision as exhausting the whole field. Does it, or does the transitional provision simply say, “Well, we’re giving specific attention to what happens with by-elections; here is what is to happen”? That is, is the transitional provision to be read as saying the division which now exists immediately before the passage of this Act is wiped out? The rolls which exist are of no point, et cetera.

MR GAGELER: It says that the - and there is a separate argument based on that which I will need to deal with later, but what it says is that the existing electoral districts and regions continue for a finite period, until the next election.

HAYNE J: I understand that, but is it saying, “And they are then abolished?” Because it does not say it.

MR GAGELER: Your Honour, that follows from a combination of the repeal provision plus the transitional provision. I mean, the 1947 Act says what they are and in section 11 gives the designation of electoral districts and electoral regions the “force of law” and makes them applicable to elections. That is then repealed and all that we have is the transitional provision in clause 5 that continues the existing system on for a finite period.

GUMMOW J: The difficulty is with the phrase, “all we have”. That is what Justice Hayne is trying to explore.

MR GAGELER: Yes.

HAYNE J: And it means, if that argument is right, that section 19, for example, of the Electoral Act, which says that:

(1) There shall be a roll for each region.

(2) There shall be a roll for each district –

to adopt deliberately neutral language, cannot operate.

MR GAGELER: Yes, that is right.

GUMMOW J: Now, why would one lean towards that construction which produces this void, which you say at all times since 1889 everyone knows should not be there?

MR GAGELER: Yes, because - - -

HAYNE J: Can I just add to it, because the knife in the napkin is this. This is an Act dealing with the division of the State and it is an assumption that seems to be lurking around in the background that there shall be single member divisions. What if Parliament decided, for whatever reason, to say, “Right, single electorate for the whole State, proportional representation, all vote together, and we have no further need for distribution”.

MR GAGELER: Your Honour, that fits comfortably within this point, and that is, on the subject of the electoral distribution, whatever form it might take, there must be legislation. I am not saying that it must be single member electorates, but the subject matter of electoral distribution must be dealt with.

HAYNE J: But you repeal the 1947 Act, and you change the Electoral Act to say in section 19, “There shall be a roll” for the State.

MR GAGELER: Yes, you have enacted new legislation on that subject matter. Your Honours, can I come to the legislative history, which divides fairly comfortably into two periods, 1889 to 1904 and 1904 to 1947. Can I approach it in that order. The first period starts with the 1889 - - -

GUMMOW J: Before getting into the history, Mr Gageler, it strikes me that one way of looking at it is that for you to succeed one really would have to read these two Bills together.

MR GAGELER: No.

GUMMOW J: You eschew that.

MR GAGELER: No, I do not eschew it.

HAYNE J: Paragraph 1(1) of your submission, where the question is put whether (a) or (b):

is “a Bill to amend this Act” –

not whether (a) and (b) together.

MR GAGELER: Your Honour, I am looking at paragraph 6 of my submission and we put subparagraphs (1) and (2) in the alternative. The first period starts with the 1889 Act, applicants’ materials volume 1, tab 6. Your Honours will note section 11, page 81 of the bundle, opposite the marginal note “Constitution of Legislative Assembly”, says that:

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

That provision needs to be read with section 37, page 88, which provides that:

The Colony shall be divided into thirty electoral districts –

referred to, the boundaries of which were set out in schedule A to the Act. The equivalent provisions, dealing with the constitution of the Legislative Council – sections 45 and 52.

Going then to section 73, page 98, and looking beyond the words “repeal or alter” in section 73, what one sees as the subject matter of the manner and form requirement in the second sentence is that:

any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected -

Now, reading that sentence as a proviso to the first sentence, one asks how would any change in the constitution of the Legislative Council or the Legislative Assembly be effected - - -

GUMMOW J: What is the force of the capital “C” for “Constitution”?

MR GAGELER: None at all. One sees that used interchangeably with lower case “c”, but the point is, your Honour, how is the change in the second sentence to be effected? It will be by a repeal or alteration of a provision of the Act. Your Honours, in the context of the Act in its original form, it would be very difficult, in our submission, to read the second sentence as not covering changes to electoral regions and electoral districts which might be effected by an alteration to or a repeal of sections 11 and 37 and schedule A in the case of electoral districts or sections 45 and 52 in the case of electoral regions.

KIRBY J: That is one way to beat it, I would accept that, but the legislative history is a two-edged sword, because when you look at section 73 and add that dual provision, this is the history of this State.

MR GAGELER: Yes.

KIRBY J: Once you have that dual provision, why should we struggle to turn “alter” into “repeal” where it has the effect of entrenching what appears to be a completely exceptional legislative arrangement in the Commonwealth of Australia. Why would we struggle to do that?

MR GAGELER: It was not exceptional at the time, your Honour.

KIRBY J: It may not have been exceptional at the time but it certainly is exceptional now.

MR GAGELER: What I will be asking your Honour to do – and I will do this in a structured way – is to treat “amend” as synonymous with “change” in the second sentence, and as covering “repeal or alteration” in the first sentence. Your Honours ought not - - -

KIRBY J: Yes, but it is read against a background of constitutional law and statutes in Western Australia where the express provision “repeal” was used. You cannot get out of that. That was there. This juxtaposition existed.

MR GAGELER: Your Honour, there is no juxtaposition in this provision of the word “amend” with the word “repeal”. The words in the first sentence are “repeal or alter”. The word in the second sentence is “change”. What I will seek to show your Honour is that in introducing the progenitor of section 13 as section 6 of the 1904 Act, what the legislature was doing was using “amend” as meaning “change”.

HAYNE J: It was doing that in a context where it was moving from dealing with a single statutory source, namely, the Constitution Act, to a system where there were dual statutory sources: one constitutional, another statute.

MR GAGELER: It is a little more complex than that, your Honour, and I will go through it. The next stage is the 1893 Act, which your Honours find behind tab 8, and your Honours might note the long title is “AN ACT to amend “The Constitution Act, 1889.’” Section 2, together with the First Schedule appearing at page 130, relevantly repealed sections 11, 37, 45 and 52 of the 1889 Act. This Act, that is the 1893 Act, re-enacted the subject matter of those provisions in this Act itself.

Your Honours will see that the provisions concerning the Legislative Assembly in sections 15 and 16 and the provisions concerning the Legislative Council in sections 4 and 5. Our learned friends helpfully had behind tab 1 of volume 1 of their materials a record of the manner in which the various Acts are recorded as having been passed. Your Honours will note from the summary there, tab 1, page 5, this 1893 Act is recorded as having been passed in the Legislative Assembly by an absolute majority in the manner required by section 73. So the enactment of this Act, which repealed the relevant sections and separately re-enacted the subject matter of those sections, was treated by the Parliament as being governed by the proviso in section 73.

GUMMOW J: Yes, but there is a twist in all of this, is there not? The 1889 Act which you took us to really required for its effectiveness the 1890 Imperial Act, did it not?

MR GAGELER: Yes, and it forms a schedule to the - - -

GUMMOW J: 1890 Imperial Act.

MR GAGELER: Yes. There was a question about whether there was some provisions in it that were repugnant to the earlier colonial - - -

GUMMOW J: Yes, but then the 1893 Act which you have taken us to is purely Western Australian source.

MR GAGELER: That is right.

GUMMOW J: Though it had to be reserved, I guess – I am note sure.

MR GAGELER: It had to be reserved pursuant to section 73.

GUMMOW J: Yes. I think it was, but that does not presently appear.

MR GAGELER: I do not think there is a record of that, but I am not taking any point about that.

GLEESON CJ: I notice that the expression that is used in section 4 of the 1893 Act is “Electoral Provinces as hereinafter stated and defined”.

MR GAGELER: Yes.

GLEESON CJ: The stating and defining is in section 5, is it?

MR GAGELER: Correct, yes. Your Honours might also note section 27 of this 1893 Act, a provision that one sometimes sees these days in taxation legislation:

THIS Act shall be read and construed with the Principal Act.

The Principal Act being the 1889 Act.

GLEESON CJ: The districts in section 5 are in the schedule, are they?

MR GAGELER: Yes. One really has to start with the Legislative Assembly, sections 15 and 16, and the electoral districts are then defined in the schedule, then having found the electoral districts, one can work out the electoral regions in sections 4 and 5.

GLEESON CJ: Electoral provinces - - -

MR GAGELER: Provinces, I am sorry, your Honour, yes. Can I move then to the 1896 Act, behind tab 9. Again, if your Honours will note the long title, it is styled again “AN ACT to. . . amend”. Your Honours note section 1, a provision like section 27 of the earlier Act, and then this Act follows essentially the same pattern as the 1893 Act, that is one finds in section 2 and the First Schedule a repeal of the relevant provisions of the earlier Acts. One finds then a re-enactment in this new Act of the same subject matter in respect of the Legislative Assembly in sections 8 and 9 and in the Legislative Council in sections 3 and 4.

If your Honours also perhaps note the preamble which recites it as having been made in the exercise of the:

full power and authority . . . to repeal or alter any of the provisions of this Act.

That is the first sentence of section 73 of the 1889 Act, and your Honours would note from our learned friend’s summary, tab 1, page 6, that there is a record of this 1896 Act having been passed in the Legislative Assembly with the absolute majority required by the proviso, the second sentence, in section 73 of the 1889 Act. One then goes to 1899 Act, tab 10, and with one twist there is the same pattern. It is styled “AN ACT to amend”. Your Honours note the preamble:

WHEREAS by the Constitution Act, 1889, it is provided that the Legislature of Western Australia shall have full power and authority from time to time to repeal or alter any of the provisions of the said Act: And whereas it is expedient to amend the said Act -

et cetera. There is in section 2, read with the First Schedule, then a repeal of the relevant provisions of the earlier Act, and there is a re-enactment of the subject matter of those provisions, sections 18 and 19 in the case of the Legislative Assembly, sections 5 and 6 in the case of the Legislative Council. Our learned friend’s summary, tab 1, page 7, records that this Act again in the Legislative Assembly was treated as being governed by the proviso in the second sentence of section 73 of the 1889 Act and passed by absolute majority.

The twist, the change, that occurred here is that in the 1899 Act what one does not find is a provision that says, “This Act is to be read together with and treated as one with the 1889 Act”. That was a point of some significance in Wilsmore [1982] HCA 19; 149 CLR 79. Indeed, it was the point upon which Wilsmore turned, your Honours would note at 102. Here for the first time one had, although in an Act styled an Amendment Act, the re-enactment of this subject matter in a freestanding Act. So it did not occur for the first time in 1904; it occurred in 1899.

What one draws from that – if I may summarise the position before going to the 1904 Act – for the purposes of our argument is two things. One is that there was a legislative usage by which the words “Act to amend” were used to describe an Act that repealed this relevant subject matter and which re-enacted the subject matter in another Act. Secondly, there was a legislative practice whereby such an Act to amend was treated as having been governed by section 73 of the 1889 Act, that is, the second sentence. Your Honours recall that the second sentence is expressed to apply to a Bill which effects:

any change in the Constitution of the Legislative Council or of the Legislative Assembly –

One then goes with that history to 1904 – this is in volume 2 of our learned friends’ materials behind tab 11 - and see in section 6 the progenitor of section 13 of the 1947 Act. For the explanation of the insertion of section 6, one needs to go to the parliamentary debates, which are then behind tab 12.

Your Honours, far from showing this to be a mere afterthought, what the parliamentary debates show is that this was an amendment seriously proposed in the Council, rejected by the Assembly, went back to the Council, the Council stuck to its position. There was then a conference between the Houses. The conference did not resolve the impasse and ultimately the Legislative Assembly agreed to the Council’s amendment. There are some passages in the debates that are of some relevance. Your Honours, I think, were taken to page 213 - - -

GLEESON CJ: What is the reference to the Western Australian interpretation legislation?

MR GAGELER: At the time, your Honour?

GLEESON CJ: No, now.

MR GAGELER: I am sorry. It is the Interpretation Act 1984, section 5, which, in respect of earlier enactments, needs to be read with section 3(1).

GLEESON CJ: Thank you.

MR GAGELER: Mr Hackett, after proposing what was then clause 3, says:

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.

That was agreed to in the Council. In the Assembly debates, next page, 214, right-hand side of the page, what one finds – odd to a modern audience - is the Premier supporting the proposal, but the proposed amendments still being negatived in the House. What the Premier says is of some importance - - -

KIRBY J: What column are you reading?

MR GAGELER: Right-hand page, left-hand column, under the heading of “Premier”. I would invite your Honours to read the whole of that paragraph attributed to the Premier, reading – as somebody’s handwriting suggests – “clause 23” as obviously meaning clause 73.

I will not go through the detail of what elsewhere occurred in the debates except to ask your Honours to note also page 218 where, after the Council stuck to its position and after there was a conference between the Houses, finally the Assembly is consenting to the amendment, again, what is attributed to the Premier in the first sentence of page 218, right-hand side, the left column.

Your Honours, what one gathers from that debate was that the contemplation was here was a Bill that was fundamentally concerned with the constitution of the Houses of Parliament and what was being inserted into it was a provision that reflected the existing rule in section 73 of the 1889 Act. Far from being an afterthought, it was a provision that was the subject of significant debate – indeed, a protracted tussle – between the two Houses. All of that, in our submission, strongly supports the position that the word “amend” as used in 1904 was not being used in contradistinction to “repeal”. It was not concerned simply with tinkering. It was intended to cover “repeal” and “re-enactment” in a different form in different legislation as had occurred in 1893, 1896 and certainly in 1899.

Secondly, your Honours, one can gather that the purpose of section 13 was very much the purpose of the second sentence of section 73; that is, to address any Bill that was to effect any change in the constitution of the Legislative Council or the Legislative Assembly, a change in electoral distribution being treated per se as a change in the constitution of the Houses.

HAYNE J: We have, I think, not been taken to either of the two other Bills that were the subject of conference at the same time as the Redistribution of Seats Bill. Does anything turn on those two other Bills, being the Constitution Bill and the Electoral Bill?

MR GAGELER: We can find copies of those if it would assist your Honour, but the answer is no.

HAYNE J: Yes.

MR GAGELER: Can I then take the legislative history during the period 1904 through to 1947. That is well enough set out in the judgment of Justices Steytler and Parker, paragraphs 190 to 197. It is set out in our written submissions, paragraphs 19 to 20, and there is a different version of essentially the same history in the applicants’ material, volume 1, tab 1, pages 8 and 9.

I will not go through it in detail, your Honours. What it does, in our submission, is show two things. One is that there was a wholesale repeal and re-enactment of the law on the topic of electoral distribution in 1911, tab 13; 1929, tab 16; and in the 1947 Act itself. On each occasion section 6 of the 1904 Act or its equivalent was treated as binding. That is, the Bill passed with absolute majorities in both Houses. The second point is that there was an attempted repeal and re-enactment in 1937 which failed in the Legislative Assembly because the absolute majority was not obtained in that House.

KIRBY J: In the Assembly, not the Council.

MR GAGELER: Yes, in the Assembly. One sees the 1937 Bill itself in our materials, tab 22; one sees the debates, tab 23; and one sees, relevantly, the failure of the Bill and the reason for the failure at tab 23, page 307. Now, your Honours, taking that legislative history into account, before 1904, 1904 itself and then 1904 to 1947, it strongly supports, in our submission, the two key points made in the judgment of Justices Steytler and Parker. Point 1, paragraph 188 of that judgment, is that the purpose of section 13 was to protect the subject matter of the 1947 Act “from change”. That is not an exogenous word; “change” is the language of the second sentence of section 73 of the 1889 Act.

The second point, paragraph 198 of their Honours’ judgment, is that the word “amend”, certainly as at 1947, could only be understood and intended “to comprehend a repeal and re-enactment”. Now, your Honours, if those two points are correct, if they are sustained, as we say they are, by the legislative history, then there is a third that needs to be added, and that is the principle of construction, which we refer to in paragraph 25 of our submissions. Translated to the current argument, what that amounts to is saying that the section ought not readily be given a construction that permits to be done indirectly that which it was obviously intended to prohibit being done directly. That brings us, your Honours, to - - -

KIRBY J: As always, there are competing principles of construction at work, the ones you have mentioned, and you could add the purpose of construction as a general principle of trying to give effect to what seems to have been a purpose of entrenchment.

MR GAGELER: Yes.

KIRBY J: As against that, the argument can be propounded that there was an express use of “repeal”, it was not used here, there is an ambiguity, and a court should not struggle to give a meaning to legislation which has the effect, uniquely in Australia as it now turns out, to diminish the democratic accountability of government to Parliament elected by the people.

MR GAGELER: Your Honour, I was going to say something about that in a little while, but can I respond to that proposition immediately. There is nothing onerous about a requirement that a Bill be passed by a majority of members of the House. On one view, what is being reinforced is the ability - - -

KIRBY J: Yes, but you do not even have here, Mr Gageler, a provision for a referendum to overcome this. You cannot go to the people to overcome it. You can be stuck forever with this provision which entrenches an artificially-procured majority.

MR GAGELER: Your Honour, if there was 51 per cent support for this Bill in the Legislative Assembly and the Legislative Council, it would be passed in accordance with this manner and form provision.

KIRBY J: Yes, if you have it in the Council constituted in this fashion. That is the point. It is entrenched; an artificiality in the constitution of one of the chambers of a Parliament of the Commonwealth of Australia.

MR GAGELER: Your Honour, with manner and form we are talking about the ability of a current Parliament, a current majority in Parliament, to bring about change to the existing constitutional structure.

KIRBY J: And this can go on indefinitely because, on your theory, the matter cannot be amended by the people and they are stuck with it.

MR GAGELER: On the alternative theory, your Honour, you still need some form of majority in the Legislative Council.

KIRBY J: Yes, but it is a majority procured in a manner that does not apply to a single other Parliament in this nation.

MR GAGELER: Your Honour, the majority that would apply in the absence of this provision is simply a majority of members, present and voting.

KIRBY J: Yes.

MR GAGELER: That is all, and - - -

KIRBY J: Of course, it is procured by a weighting, which I repeat, does not apply to any other legislature in this nation.

MR GAGELER: Your Honour, that would be the normal position. All I am seeking to say - - -

KIRBY J: It is the normal position secured by giving to the word “amend” an extended meaning which you have to persuade the Court is one it should give. You have gone through the history, and I understand the argument, but in the end we have to give a meaning to “amend” that includes repeal. The Court has said many times it takes its meaning from its context. Here the context is constituting a democratic legislature of the Commonwealth of Australia.

MR GAGELER: Can I come then precisely to what we say the construction is, and we put it in the alternative. One, is we say the word “amend” in section 13 of the 1947 Act means change. It has the same meaning as the word that appeared in the second sentence of section 73 of the 1889 Act and it encompasses change by alteration or change by repeal. That is proposition one. Proposition two, which I suppose is in the alternative, is that if “amend” encompasses, as it must have done, in our submission, in 1947, repeal and re-enactment, then the expression “Bill to amend” – that is the words “to amend” in that expression – used adjectively are apt to describe each step in a two-step process, that is, repeal and re-enactment, it being in the nature of things, given this subject matter, that a repeal will always need to be followed by a re-enactment.

So, your Honours, looking at the Repeal Bill, wholly in isolation, it is a Bill to amend because “amend” means change and encompasses per se repeal. It is a Bill to amend because it is, by reason of its very subject matter, reinforced by the terms that I have taken your Honours to, a Bill that repeals necessarily as a first stage in a two-stage process of repeal and re-enactment. That is the construction in the alternative for which we contend.

Now, your Honours, we support, in the further alternative, the approach taken by the majority in the Full Court. That was an approach of refusing to read the Repeal Bill in isolation; of treating as relevant to the characterisation of the Repeal Bill the fact that it travelled together through the Houses with the Amendment Bill and the fact that it was obviously intended to operate with the Amendment Bill as a single legislative package. That, in our submission, makes the Repeal Bill a Bill to amend because, together with the Amendment Bill, it will, if enacted, repeal and re-enact.

Your Honours, the interdependence of the Bills is, in our submission, self-evident, without need of going beyond the Bills themselves. That is, it is self-evident, in our submission, that you could not have one without the other. As was common ground in the court below, as is recorded by Justices Steytler and Parker, paragraph 281, and as we apprehend to remain common ground before your Honours from what is said in paragraph 22 of the applicants’ written submissions, the Amendment Bill, considered alone, would fall foul of section 13 of the 1947 Act, because it would repeal and replace the 1947 Act.

The purpose of the Repeal Bill is to attempt to do separately and expressly what would otherwise be implied in the Amendment Bill. The enactment of the Repeal Bill, on the other hand, alone could not be an end in itself, for the very reason that it would leave the legislative void that I have already pointed out in circumstances where the Amendment Bill is, clearly enough, designed to fill that void. To that, if necessary, one could turn to the evidence of Mr Marquet in volume 1 of the joint application book, page 86, paragraph 4, where he says in the first sentence that in submitting the Bill for Royal Assent, he will submit the Repeal Bill before the Amendment Bill. He goes on to say:

I will indeed ensure this by liaising with the Governor’s official secretary beforehand. This sequence gives effect to the Parliamentary intention expressed in the Bills.

And he goes on.

KIRBY J: Yes, but that is for us to say. That is not for an officer of Parliament to say. You do not make it any better by giving Mr Marquet’s opinion.

MR GAGELER: Not particularly, your Honour, but Mr Marquet is stating the obvious, that is the point.

KIRBY J: He is stating his opinion. We state ours and ours is what matters.

MR GAGELER: What the majority in the Full Court said, borrowing words used from the Privy Council in Moran’s Case, was that it would be shutting one’s mind to the obvious not to treat these two Bills as a legislative package. In our submission, that is so on the face of the Bills and Mr Marquet’s - - -

GUMMOW J: What does “legislative package” mean?

MR GAGELER: As designed together to achieve the result of repeal and re-enactment. Your Honours, could I mention something about two cases that our learned friends relied upon. There is no need for your Honours to turn to these cases.

GUMMOW J: Questions of motivation and purpose on the part of legislatures are usually considered irrelevant to questions of validity.

MR GAGELER: Correct, but - - -

GUMMOW J: There would be a justiciable area opened up, otherwise, that would be extraordinary. You have this limited idea that comes out of cases like Moran about legislative schemes in particular settings.

MR GAGELER: Yes.

GUMMOW J: You seek to adopt that here.

MR GAGELER: In support of this second argument, yes.

GUMMOW J: I need to know what the reasoning of it is in legal terms, rather than political terms.

MR GAGELER: I hope I have not been speaking too much in political terms, your Honour. The reasoning is that relevant to the characterisation of an Act or of a Bill is the legal setting in which that Act or Bill operates or will operate, including the context of other legislation. That is really what Moran is about.

HAYNE J: Thus, if there had been a competing proposal put forward by a private member’s Bill by members opposite, what would the package then have been?

MR GAGELER: Your Honour has to recognise that section 13 cuts in not at the first reading stage but at second and third reading stage, and we simply know here that at the second reading stage these two Bills went together into committee in the Legislative Council.

HAYNE J: But much seems to turn for your argument on the fact that these were the only two before the House. The question has to be assessed before members vote, does it not, at least within the Parliament?

MR GAGELER: Yes.

HAYNE J: What is it that makes them a package? The fact that there is nothing else on the subject matter and these are the only two that deal with the same subject matter. Is that enough?

MR GAGELER: Your Honour, two things. They are the only two Bills before the House at the second and third reading stage dealing with this subject matter. Secondly, they are obviously interrelated for the reasons that I put forward. So, going back to your Honour Justice Gummow’s question, the legal principle is one of characterisation, as it was in Moran’s Case. The character of the amendment - - -

GUMMOW J: The character ascertained by what criteria?

MR GAGELER: By reference to its proposed legal operation in the context in which it will operate, meaning in the context of the entire legal system and specifically other legislation. It is not enacted in a vacuum, your Honour. It will be there and there will be another Act together with it. That is really the principle in Moran’s Case. It is one of characterisation and it is characterisation of legal operation but in a context - - -

GUMMOW J: Now, how does Logan Downs fit with Moran?

MR GAGELER: Logan Downs was a different case. Logan Downs was a case where the argument was the Appropriation Act is invalid, therefore the Tax Act that raises the money to be appropriated by the Appropriation Act is invalid, and all that occurs because it is an inseverable legislative scheme. It was a different argument. Logan Downs was not concerned with characterising the Tax Act by reference to what it did in its legal context. It was an argument that bringing down one Act necessarily brought down the other Act. That deals, I think, your Honours, with the second argument about section 13, that is the principal way in which Justices Steytler and Parker dealt with the point reading the two Acts together as a legislative scheme.

Can I come to the further basis upon which the majority in the court below concluded that the Repeal Bill is a Bill to amend the 1947 Act, and that is that clause 5 of the Repeal Bill gives an altered temporal operation to the 1947 Act. That was dealt with by their Honours, paragraphs 204 to 206. It is dealt with in our written submissions, paragraph 28. The applicants’ argument is that clause 5 properly construed is not continuing the operation of the 1947 Act at all. It is making a completely new prescription in terms of what was the effect or result of the 1947 Act. In effect the argument is that the reference in clause 5(1) to existing electoral distribution simply picks up the context of the notice that was published in the Gazette under section 3(2)(c) of the 1947 Act and transposes it and continues it in operation under clause 5(2).

The answer to that argument, your Honours, is that a notice under section 3(2)(f) of the 1947 Act is more than a piece of paper. If your Honours look to the 1947 Act, you will see in section 11 that such a notice is given the “force of law” and is said to apply:

in respect of –

(a) elections in districts held after the date of the publication . . . and

(b) elections in regions held after the date of publication –

So, when one looks at what clause 5(2) of the Repeal Bill is doing and looks at it as a matter of substance it is using different words, that is, a different verbal formula, but in substance it is re-enacting section 11 with a limited temporal operation.

KIRBY J: Which of Mr Jackson’s five points was that last one, do you remember? I like to keep these things in some sort of conceptual order.

MR GAGELER: Your Honour, it is too hard for me – part three of the first point. Your Honour, I think it corresponds to part three of my second point.

KIRBY J: Thank you.

MR GAGELER: May I move then to his third point, I think, which is the binding effect of section 13.

KIRBY J: That was his fourth point.

MR GAGELER: I am sorry, your Honour. Can I start with the observation that as a manner and form provision, section 13 is neither onerous nor unorthodox in its requirements. It does not fetter the expression of the “popular will”, that popular will being expressed through a majority of members in each House of Parliament. I understand what your Honour says about that. There is no analogy to the provisions which were held ineffective in cases like West Lakes and Comalco, upon which some weight is placed in the written submissions. It does not even go so far as Trethowan as to introduce a new element into the legislative process. All that it requires is that a Bill to which it refers be passed in each House by a majority of members of that House and not simply by a majority of members who happen to be present and voting at the time.

If your Honours do look at the alternative, the alternative is if one takes the ordinary quorum in sections 14 and 24 of the 1899 Act, then it is possible for an Act of Parliament ordinarily to be passed by a quorum of one-third, voting by majority. So, it is possible for an Act of Parliament to be passed by as few as one-sixth’s plus one of the members of Parliament, and all this provision is doing is saying this subject matter is serious enough to require the deliberation of the entire Council or the entire Assembly.

Your Honours have seen the same provision in the second sentence of section 73 of the 1889 Act and your Honours will see essentially the same provision in the Constitution Act 1856 (SA), which we have set out in paragraph 43 of our written submissions, a provision that was treated by the law officers, in the opinion we summarise in paragraph 44, as applicable to the Electoral Act 1861 (SA).

Your Honours, in terms of section 6 of the Australia Act 1986 (Cth), compliance with the manner and form provision is a condition of validity of a State law:

respecting the constitution, powers or procedure of the Parliament of the State –

Within that collocation, we submit first that the Repeal Bill and the Amendment Bill, if enacted, would each be a law respecting the constitution of the Parliament. That is the position adopted by all members of the majority of the court below.

CALLINAN J: Why does not section 106 of the Constitution apply, if that is so, of its own direct force?

MR GAGELER: That is an alternative argument we put, your Honour, yes. I am just dealing here purely with section 6 of the Australia Act, but we put that argument as well. Secondly, the Repeal Bill and the Amendment Bill, if enacted, in our submission, will each be laws respecting the powers or procedures of the Parliament – which is the alternative position taken up by Justice Anderson at paragraph 95 of the judgment below.

GLEESON CJ: On that alternative or additional basis, what kind of manner and form provision would not affect the powers or procedures?

MR GAGELER: None.

KIRBY J: That argues against such a broad construction, does it not? You have the Dog Act.

MR GAGELER: No, it does not, but I will deal – there is nothing wrong with the Dog Act, your Honour.

KIRBY J: I like dogs, too, but one does not normally think of it being entrenched in the Constitution.

MR GAGELER: That is the point. It will not happen. One does not think of the Dog Act being entrenched. Your Honour has to remember that the words Dog Act came from the opposite end of the spectrum. What was being said in McCawley’s Case that provoked that was that an uncontrolled Constitution – that is, if there were no entrenching provisions, then it could be amended as if it were a Dog Act, and the answer to that was, well, yes, that is the logical consequence of the argument, but in practical terms it is not going to happen. So one takes the opposite position: if there is permissible entrenching, then it is possible to entrench the Dog Act, and the answer again is yes, but that is just the logical consequence of the argument.

GLEESON CJ: Well, I suppose you would deal with the argument either in terms of Dog Acts or in terms of independence of the judiciary, depending on your rhetorical purposes, but the argument has to be the same either way.

MR GAGELER: Yes, exactly, and in the history of the British Commonwealth, a Dog Act has never - - -

KIRBY J: Commonwealth of Nations.

MR GAGELER: The Commonwealth of Nations, the Dog Act has never impliedly amended a Constitution and a Dog Act has never been entrenched.

CALLINAN J: Well, the Swiss Constitution contains a provision with respect to the way in which cattle may be killed. There is no universal opinion as to what a Constitution should or should not contain, but the fact that a provision is entrenched is itself a fair indication that the legislature at the time thought that that was worthy of entrenchment and was an important, and therefore constitutional, provision.

MR GAGELER: Yes.

KIRBY J: It does diminish democratic accountable government, does not it, to that extent, that you have reduced the powers of elected Parliaments and you put the dead hand of the past and its values on any responsible government system that we have under the Constitution?

MR GAGELER: No, because - - -

CALLINAN J: There is no absolute fetter.

MR GAGELER: That is the answer, your Honour.

CALLINAN J: Furthermore, there is a compromise here. There is some desirable degree of certainty and stability, and as a matter of degree, an assessment is made as to how much of that there should be, and by what democratic process that stability and certainty might be disturbed.

MR GAGELER: Yes.

KIRBY J: These are the usual arguments for a Bill of Rights.

MR GAGELER: A Bill of Rights, your Honour, is much more likely to be entrenched than a Dog Act.

KIRBY J: Exactly.

GLEESON CJ: Yes, but the time will come when the hand of the present will in the future be the dead hand of the past?

MR GAGELER: Yes, and then the distinction between substantive fetters on powers and manner and form provisions that deal with the way in which powers are to be exercised is one that will come to the fore. The manner and form provision is not, as Justice Callinan intimated, a provision that prevents the current majority from doing anything. It is a provision that says how the current majority is to go about doing something, and no doubt the manner and form provision could get to the point of being a substantive fetter. That is not this case. This is the most traditional, the most benign manner and form provision known.

Your Honours, can I say a couple of things about the approach to the interpretation of section 6 and then go specifically to the constitution point and then the powers or procedures point. We understand that the proposition in paragraph 42 of our written submissions, supported by the citations given by Justices Steytler and Parker at paragraph 249 of the judgment is uncontroversial, that is, section 6 in substance replicates section 5 of the Colonial Laws Validity Act and it is to be interpreted in the light of the meaning of that earlier provision.

Now, it is important, in our submission, to recognise that section 5 of the Colonial Laws Validity Act, which your Honours will find in tab 9 of our book of materials, has the relevant words “respecting the Constitution, Powers and Procedure” appearing in a grant or confirmation of a grant of what is described as “full Power to make Laws”. In our submission, those words, “in a grant of power to a representative legislature”, ought be construed in accordance with the principles well established in the 19^th century for the interpretation of a grant of power to a colonial legislature – thinking here of Appollo and that line of cases, referred to in Justices Steytler and Parker’s judgment at paragraph 247.

KIRBY J: I just do not quite understand the point you are making.

MR GAGELER: This is a grant of plenary power, your Honour, and the words are to be construed broadly, substantively and in the expectation that the legislature will use that grant of power responsibly. Now, that is the position taken in the 19^th century and it is a position carried through to the construction of the grants of power in sections 51 and 52 of the Commonwealth Constitution.

So the word “respecting”, in our submission, ought be construed no less narrowly than the words “with respect to” in sections 51 and 52 of the Commonwealth Constitution and the words “Constitution powers and procedure” ought be construed in accordance with the Jumbunna principle. That is referred to in many cases, but, for example, in McGinty 186 CLR in Justice McHugh’s judgment at page 231, that principle being that these words appearing in a constitutional instrument ought be construed broadly, generously and as “intended to apply to varying conditions” of the communities to which it speaks.

GLEESON CJ: This may raise an interesting question of construction. The expression that appears in section 6 of the Australia Act 1986 plainly has its provenance in section 5 of the Colonial Laws Validity Act. In section 5 of the Colonial Laws Validity Act 1865 that expression was used, as you say, in the context of a grant of power.

MR GAGELER: Yes.

GLEESON CJ: In section 6 of the Australia Act the same expression is used in a somewhat different context. When I say the same expression, I think it is virtually identical.

MR GAGELER: Yes.

GLEESON CJ: What is the significance, if any, of the change of context in relation to the meaning of the identical expression?

MR GAGELER: In our submission, none. What has happened in the Australia Acts is that the plenary grant of power is now subsumed in section 2(2) and what is enacted in section 6 is the proviso to that plenary grant of power as originally was in section 5 of the Colonial Laws Validity Act, but the proviso extended to the entire grant and those words ought be interpreted in section 6 in exactly the same way as section 5.

GLEESON CJ: I am not suggesting you are wrong in your argument, but I would like to understand precisely why it assists the interpretation of section 6 of the Act of 1986 to know as an historical fact that it was taken from an Act of 1865.

MR GAGELER: Because the purpose of section 6, consequent upon the repeal of the Colonial Laws Validity Act by section 3(1), was to restate the effect of the proviso in section 5 of the Colonial Laws Validity Act, reusing the words of that provision, those words, in our submission, having in section 6 the same meaning as they had in section 5 of the earlier Act. So I am just restating what I said earlier.

KIRBY J: There are two points of difference I think. One is that you would not read the Australia Act as granting any new or different powers to the States. They get their powers from the Constitution itself. They could not be supplemented by, at least without the vote of the people, one would think, a Federal statute. The second point of difference is that, unlike the Colonial Laws Validity Act, at least until the Australia Act, the repeal or amendment was originally thought to be in the power of the Imperial Parliament, whereas what has been enacted by the Australia Act, if its source is the Federal Act, it could be repealed or amended or amended in respect of a particular State by the Federal Parliament, could it not? That is something which was not thought to exist in respect of the Colonial Laws Validity Act 1865.

MR GAGELER: In relation to the first point, your Honour will recall that the Colonial Laws Validity Act declared and enacted it was a provision that was meant to restate - - -

KIRBY J: And said that it had always been so.

MR GAGELER: And said it had always been so. One sees the same pattern really in section 2(3) read with section 6 here. As to the second point, yes, there is now the ability for higher law to intervene, but that of course was the position with the Colonial Laws Validity Act. Indeed, that is what section 2 of that Act, dealing with repugnancy, was designed to address specifically. So, your Honour, we do not see those differences as bringing about a different construction.

GLEESON CJ: Well, a question might arise as to how you could understand section 6 of the Australia Act without knowing anything about the Colonial Laws Validity Act.

MR GAGELER: Well, you could not. It reproduces the language and it is clearly consequential upon the repeal of that Act which is referred to in section 3(1) of the Australia Acts.

GLEESON CJ: But a possible point of view might be that nothing would more surely be likely to result in a misunderstanding of section 6 of the Act of 1986 than to require somebody to construe it without letting them know about the Colonial Laws Validity Act.

MR GAGELER: I would embrace that proposition, your Honour, yes. Indeed, all parties call in aid Trethowan’s Case, Taylor’s Case, cases dealing with the construction of section 5 of the Colonial Laws Validity Act. Your Honours, turning to the word “constitution” in section 6, we advance what we see as a relatively modest proposition, that a law determining or for determining the constituencies of a representative legislature is properly characterised as a law respecting the constitution of that legislature. In our submission, that fits comfortably with the terminology used in Taylor and Trethowan that “constitution” means nature, composition or make-up, and it is a very long way from simply being concerned with the qualifications or privileges of a member of Parliament, the subject matter of Clydesdale v Hughes, Wilsmore and Arissol.

Your Honours, there is considerable historical support for that view in the history that preceded the enactment of the Colonial Laws Validity Act, that we set out in paragraphs 42 to 53 of our written submissions. In response to a point I think made by the Solicitor-General for Queensland, we do not see the terms of the 1863 Act, that we set out in paragraph 45, as undermining the conclusion we draw at paragraph 53. The 1863 Act, as your Honours will see from the history, was brought about by the view of the colonial law officers that the Electoral Act 1861 (SA) altered the constitution of the Legislative Council and Legislative Assembly of South Australia.

In our submission, that explains the reference to constitution in the 1863 Act, and the additional reference to mode of appointing or electing members can be explained as making assurance doubly sure and as ensuring that purely machinery provisions were caught, as well as substance provisions.

Nor, in our submission, is the proposition undermined by the Australian States Constitution Act, called in aid by the Solicitor-General for Western Australia. One is, that was an Act of 1907. We are concerned with construing words in 1865. Two, the express carve-out in section 1(3) of that Act of electoral distribution suggests that, in the absence of that express carve-out of electoral distribution, the words “the constitution of the legislature of the State” in the positive provision, section 1(1)(a), would cover electoral distribution.

Your Honours, if I can move then to the powers and procedures alternative. It is addressed in our written submissions at paragraphs 55 to 57 and what it comes down to in very simple terms is this – that section 13 of the 1947 Act is a law respecting the powers or procedures of Parliament and that a law that expressly or impliedly repeals section 13 is equally a law respecting the powers or procedures of Parliament.

Now, the consequence of that is, yes, you can entrench a Dog Act. The consequence is that section 7B of the New South Wales Constitution Act is valid and effective in its application to Part 9. Equally, section 18(1B),(2AA) and (2A) of the Victorian Constitution Act is valid and effective in relation to its application to Part III, Part III dealing with a judiciary in a similar way to Part 9 of the New South Wales Act.

KIRBY J: Historically, 7B went into the New South Wales Constitution, I think after a referendum, but after Kable, did it not?

MR GAGELER: I will have to look that up, I do not know.

KIRBY J: I think some of the concerns may have been overtaken by the decision in Kable.

MR GAGELER: Your Honours, I think, have the Victorian Constitution Act 1975. May I point out a number of provisions? Your Honours will see a couple of pages into the extract Part III which deals with the Supreme Court of Victoria and deals with a number of aspects of that. Your Honours will note section 75(1) deals with the existence of the Supreme Court and section 85, which deals with the jurisdiction of the Supreme Court, and with that in mind, turn to section 18, which is entitled “Power for Parliament to alter this Act”.

KIRBY J: Of course, the existence of the Supreme Court of Victoria is provided for in the Federal Constitution. You have rights of appeal – there has to be a Supreme Court.

MR GAGELER: Implicit in section 73, yes.

GUMMOW J: The provisions establishing and maintaining the Supreme Court would be part of the Constitution of the State under 106, would they not?

MR GAGELER: Yes, which might bring me to another argument.

GUMMOW J: In other words, what I am trying to say is, the expression “Constitution” in 106 is not limited to legislative or executive branches.

MR GAGELER: That is exactly right and I think there is authority for the proposition that extending to courts – it is Re Tracey; Ex parte Ryan.

GUMMOW J: Yes, that is right.

MR GAGELER: I was just going to point out, your Honours, section 18(1B)(k), which entrenches section 75(1) and allows for its repeal, alteration or variation only by referendum; subsection (2AA)(b), which requires an absolute majority for an alteration of other provisions of Part 3, other than section 85; and then (2A), which deals specifically with section 85.

I wanted to draw your Honours’ attention to the decision of Smith v The Queen [1994] HCA 60; 181 CLR 338, where, in a dissenting judgment, Justice Deane dealt with the effect of an earlier version of section 18. Your Honours have that. The earlier version of section 18 is set out at page 351 and section 85 is set out on the same page. So it was 18(2) and it was a manner and form provision. The reasons for his Honour’s difference from the majority do not concern this point. At the next page, page 352, there is a reference to the Colonial Laws Validity Act, and then after his Honour sets out section 5 he says this:

In that regard, it should be mentioned that I consider that s.18(2) is, for the purposes both of the proviso to s.5 of the Colonial Laws Validity Act and of s.6 of the Australia Act 1986 (Cth), a law “respecting the...powers or procedure” of the Victorian Parliament which prescribes the “manner and form” to be observed in the enactment of the bills to which it applies. The consequence of that is that neither of those statutes undermined the effectiveness of s.18(2) to impose its special procedural requirements in relation to amendment of either its own provisions or of the provisions of s.85(3). In the result, s.18(2) was, at the time of the enactment of the Supreme Court Act in 1986, valid and effective to confer upon the provisions of Pt III of the 1975 Constitution, including s.85(3), the special status of constitutionally entrenched or controlled provisions.

In our submission, his Honour’s reasoning is entirely supportive of the proposition that we now put.

GUMMOW J: Now, how does 106 of the Constitution fit in with that reasoning? Is it an alternative to it or an addition to it?

MR GAGELER: In two ways, your Honour. One is that section 106 simply constitutionalises section 6 – originally constitutionalised section 5 of the Colonial Laws Invalidity Act, subsequently constitutionalised section 6 of the Australia Acts. It is an entirely orthodox proposition, and so it fits with that proposition quite comfortably. Secondly, your Honour will see we have an alternative argument, quite separately, section 106 has a parallel entrenching operation, but I will come to that in due course.

GUMMOW J: Where is that?

MR GAGELER: Where is that in our submissions?

GUMMOW J: Yes.

MR GAGELER: That is in paragraphs 60 to 63 of our written submissions. We are conscious that your Honour touched upon this in McGinty where, if I may say so, your Honour really covered all the material that there is to cover. I was not proposing to add to what we have in our written submissions in paragraphs 60 to 63.

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

MR GAGELER: It is, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: Your Honours, as to the meaning of powers and procedures in section 6 of the Australia Acts, can we add one further reference to those in our written submissions. It is to Trethowan’s Case [1931] HCA 3; (1931) 44 CLR 394 at 429 to 431, the judgment of Justice Dixon. I do not want to take your Honours specifically to the passage, but the point Justice Dixon there reaches about the middle of page 431 is the point I think your Honour the Chief Justice was making before lunch – that is, the plenary power to make laws with respect to powers is not a power to limit or expand power, but a power to prescribe the manner and form of the exercise of power.

Your Honours, we move very briefly, I think, to an alternative argument, which we do not need if we are right on section 6 of the Australia Acts or if we are right on section 106 of the Constitution. It is the argument contained in paragraphs 58 and 59 of our written submissions. Our learned friends have referred to it as the Ranasinghe point; I prefer to refer to it as the Clayton v Heffron point.

It comes down to this, that independently of section 5 of the Colonial Laws Validity Act or section 6 of the Australia Acts, the power of the Parliament of Western Australia to make laws for the peace, order and good government of Western Australia under section 2(1) of the 1889 Act - originally conferred by section 5 of the 1890 Imperial Act, now sustained by section 106 of the Constitution – is a constating power, in the sense that it allows the Parliament of Western Australia to prescribe the procedure to be followed for the making of a law.

That is what we draw from Clayton v Heffron [1960] HCA 92; 105 CLR 214. What was said in Clayton v Heffron was that the power to enact section 5B of the Constitution Act (NSW) was a power that was sufficiently derived from the peace, order, and good government power; one did not need to go to the Colonial Laws Validity Act. That is at pages 249 to 252.

Now, we move from there to say that a plenary power to make laws setting the procedures for making a law is a power to set procedures for the making of any law, including a law that repeals another law and it follows from - - -

KIRBY J: How is that different from Justice Anderson’s view?

MR GAGELER: Essentially the same concept, your Honour, but it is a concept that does not turn on the words “powers and procedures” in section 6 of the Australia Act. That is, it derives from the same notion of plenary power, but it does not depend on section 6 of the Australia Act as being a higher law. It is really, your Honour, amounting to saying that the power to prescribe manner and form in a binding way is inherent in the power to make laws with respect to procedure.

KIRBY J: Unless you have some higher thing to hook it onto, the Colonial Laws Validity Act, Australian Constitution and Australia Act, then you can have all the provisions you like in a statute but you can just take them out.

MR GAGELER: Your Honour, it derives from higher law. It originally derived from the Imperial Act 1890 and now it hangs off, in a sense, section 106 of the Constitution. So it does have its source in higher law.

KIRBY J: It has to have some higher principle to give it the entrenchment potential, otherwise it is just another Act and, as in England, you can enact a law and repeal it.

MR GAGELER: Yes, your Honour, but it really comes down to this, that - - -

KIRBY J: You say it is within peace, order, and good government and go a step earlier, but within peace, order, and good government is a power to repeal.

MR GAGELER: Exactly.

KIRBY J: Therefore, you can take it away – you can enact it and take it away, unless there is something else higher up that is - - -

MR GAGELER: Almost, but, your Honour, it is a power to repeal by law. The question is, do you have a repealing law? How do you know whether the thing is a repealing law? You have to ask whether it has been enacted in accordance with the procedure to create a law. If Parliament is to act in accordance with the rule of law, then Parliament’s will has to be determined in accordance with the laws that prescribe its procedure, even the laws that it has itself enacted.

KIRBY J: Yes, but the prescription of procedure, unless it is hooked onto something higher, is simply another Act of Parliament. You can then repeal that.

MR GAGELER: Of course. Your Honour, the question becomes, how do you know if you have repealed it? You only know if you have repealed it if you can find a law of the Parliament that repeals. How do you know if this thing is a law of the Parliament? You have to ask what are the procedures that brought about its existence.

Your Honour, I am not the first to say that. The first to say it – in terms of it being taken up by many others – was R.T.E. Latham, and what he had to say is extracted in our materials behind tab 17 in Professor Joseph’s work on the New Zealand Constitution.

In fairly simple and, in our submission, compelling terms, what Mr Latham was saying back in the 1930s was that if you have a representative body making laws, that is, if you move from having the single sovereign figure whose word becomes law whenever it is pronounced to having a body that makes laws, then that body must inherently be making laws in accordance with some rules about whether or not the thing that emerges from its deliberation is a law. So that manner and form is inherent in the very nature of a representative legislature or a Parliament.

Now, your Honour, Mr Latham’s views have been taken up and really have become orthodox in England. Professor Heuston, Professor Jennings, Professor Wade - - -

GUMMOW J: In England?

MR GAGELER: United Kingdom, yes.

GUMMOW J: Talking to lesser breeds, not talking to themselves. They are not talking about the Imperial Parliament.

MR GAGELER: Yes, they are. I do not have to talk about the Imperial Parliament, but they are certainly talking about the Imperial Parliament.

KIRBY J: I hate to let you in on this, it is just the United Kingdom Parliament.

MR GAGELER: I am sorry, your Honour, I keep slipping back to the wrong century.

KIRBY J: The Empire has shrunk to a few little rocks and islands.

MR GAGELER: Yes. In any event, we have cited against us in most of the written submissions the work of Professor Hood Phillips. Professor Hood Phillips stood apart from the mainstream on this issue.

GUMMOW J: All these gentlemen have been in their graves for 30 years now.

MR GAGELER: That is right, but Professor Hood Phillips may have some difficulty - - -

GUMMOW J: The European Communities has swamped over them.

MR GAGELER: Exactly, yes.

GUMMOW J: Devolutions come.

MR GAGELER: Yes. All of that fits with the mainstream use. It would be very difficult for Professor Hood Phillips to accommodate that in his theory. Indeed, he had a lot of difficulty with the 1949 Parliament Acts and he even had difficulty with the 1911 Parliament Act in England. Your Honours, the point is well explained by Justice Gibbs in Victoria v The Commonwealth [1975] HCA 39; 134 CLR 81, particularly at pages 163 to 164. We have given the citation and I do not want to take your Honours to it.

KIRBY J: That was a joint sitting case, was it not?

MR GAGELER: Yes. Your Honours, can I move to the prorogation point. It is a point, I confess, I do not advance with the conviction of - - -

GUMMOW J: It seems to have been a good idea that has not quite matured.

MR GAGELER: The problem is, your Honour, that - - -

KIRBY J: I am surprised you advance it at all in light of the argument we have heard. I mean, it started out as a good idea and, with a few English historical things, it seemed to have legs, but really it has been demolished. Good counsel jettison the flotsam.

MR GAGELER: Good counsel act on instructions, your Honour.

HAYNE J: Well, prudent counsel do.

MR GAGELER: It is raised on the facts; it cannot be ignored. Can I say what I have to say and then I will move on to the equally attractive point of costs, your Honours.

GUMMOW J: You are still in forma pauperis, are you?

MR GAGELER: Well, I am not quite as expensive as Mr Martin, your Honours, but yes.

CALLINAN J: Or perhaps some of the others at the Bar Table.

MR GAGELER: Perhaps that is right. Your Honours will have noted from volume 1 of the application book, page 26, that the Repeal Bill and the Amendment Bill were passed during what is described as the “First Session of the Thirty-Sixth Parliament” of Western Australia. That session of Parliament was brought to an end by the proclamation in volume 2 of the application book at page 265, proclamation made by the Governor acting in the exercise of the statutory power conferred upon him by section 3 of the 1889 Act. The question is as to the effect of the exercise of that statutory power. In our submission, it turns on the construction of the word “prorogation” in section 3 of the 1889 Act, and, applying orthodox principles of construction, one starts with the common law meaning of prorogation. “Common law” I use advisedly, because prorogation was a - - -

GUMMOW J: Executive activity.

MR GAGELER: Prerogative act is the word I was striving for. A prerogative act therefore defined and limited by the common law.

KIRBY J: What is the etymology of the word, do you know?

MR GAGELER: Prorogation?

KIRBY J: It sounds as though it comes from “prerogative”.

MR GAGELER: Interestingly, your Honour, it is a word frequently used in European settings to mean nothing more than “adjourn”. It may well have a Latin root. It is commonly used by the French.

So one starts then with the meaning at common law in 1889. That was the way that the effect of prorogation was dealt with by Justices Gibbs and Stephen in Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201. Can I give your Honours the reference: pages 238 to 239 in the judgment of Justice Gibbs and pages 254 to 255 in the judgment of Justice Stephen.

The commonly understood meaning of “prorogation” in the late nineteenth century is abundantly clear from the applicants’ book of materials volume 3, that is, that prorogation was a prerogative act that wiped the slate clean, including the slate insofar as it applied to Bills that had passed through the Houses but not yet received the Royal assent. The references are in volume 3, page 417, Quick & Garran, page 456, Redlich, page 460, Campion.

Your Honours will note that that common law position has been modified, for example, in India. The relevant reference is the case at tab 17. Your Honours were taken to that. At page 572, your Honours will see the provisions of the Indian Constitution that were said to be inconsistent with that common law position. On the other hand, in Canada, your Honours will see at tab 14 that there is a legislative endorsement of the common law position. That appears in the Royal Assent Act, section 2 of which says:

Royal assent to a bill passed by the Houses of Parliament may be signified, during the session in which both Houses pass the bill -

Now, the question is what, if anything, is there - - -

KIRBY J: That does not necessarily contradict “signified” in the subsequent session, so long as it is during a session. Does the definite article create a problem? Is it during the session or during a session?

MR GAGELER: The question is – it is a section, your Honour, that appears to deal with the way in which assent is to be given and to do so in an exhaustive way.

KIRBY J: The Canadians followed much more closely the United Kingdom Parliament, being the original dominion.

MR GAGELER: Yes.

KIRBY J: It does not seem to have been what happened here, because we have the problem, as it was pointed out by Mr Solicitor for New South Wales, that reservation for the Queen’s assent, that, going from Australia, is a very long journey, seven months.

MR GAGELER: If your Honour has volume 4 of the materials. I will deal with reservation in just a moment, but the question about whether we follow the English practice, if your Honour looks at volume 4 of the materials, behind tab 24, and looked at the prorogation, for example, that occurred in December 1889 – that is page 661 – what your Honours will see is pretty much the English practice. The Governor turns up in the Council and assents to the huge number of Bills that you see at 661 and over to 662 and makes a speech and the session is closed by prorogation. So that seems to be still in the colonial area pretty much an adoption of the English practice. But the question is whether there is something in the 1889 Act to give prorogation some modified meaning. Your Honours, we do accept that some modification is brought about by the various provisions which governed the reservation of Bills for Royal Assent.

Can I point out what they were. In the 1842 Act, tab 1 of the applicant’s historical statute, volume 1, tab 1, sections 31 and 33 contained provisions that have become replicated in sections 58 and 60 of the Commonwealth Constitution, essentially, the Governor, and subsequently the Governor-General, was given power to reserve any Bill for the Queen’s pleasure and the Queen’s assent could occur any time up to two years later.

Now, those provisions of the 1842 Act were picked up and carried over into the 1850 Act, tab 4, by sections XII and XXXIII, and we accept that, in 1889, or more particularly 1890, when the 1889 Act was enacted, that the provisions of the 1842 Act, as carried over into the 1850 Act, governed, that is, the Governor had power to reserve any Bill for the Queen’s pleasure and that Royal Assent could take up to two years.

That scenario in the Commonwealth context has been interpreted as meaning that the common law position, so far as prorogation is concerned, could no longer exist; that is it is simply inconsistent with the ability to reserve any Bill for Royal Assent.

In our submission, that is not the better way of looking at it. The existence of those higher laws does not justify giving an altered meaning to the word “prorogation”. What it gives rise to is a limited operational repugnancy or inconsistency within the meaning of section 2 of the Colonial Laws Validity Act, that is, prorogation under section 3 ought be given its full common law meaning. It simply would not be able to extinguish a Bill that had in fact been reserved for the Royal Assent.

KIRBY J: That would lead to uncertainty as to the status – whether, in the race of the steamer to England, you could get it there quickly enough to have it decided before Parliament was dissolved, prorogued.

MR GAGELER: No, that is not the point, your Honour. I accept that reserving a Bill for Royal Assent - - -

KIRBY J: The question is whether the theory works in our Australian distant colonial situation.

MR GAGELER: It does, it works in this way, your Honour. One will know at the time or prorogation, which is an act of the Governor himself - they were always men in those days – whether or not he had reserved a particular Bill for Royal Assent. If he had reserved a particular Bill, then the operation of the equivalent of section 60 of the Commonwealth Act, which allowed some two years for that assent to be notified, is just completely inconsistent with such a Bill being extinguished. But, your Honour, we put it on a plane of repugnancy, and we limit the repugnancy to Bills in fact reserved for Royal Assent.

Your Honours will recall that the power to reserve Bills for Royal Assent was terminated with the enactment of the Australia Acts, section 3 of which repealed the Colonial Laws Validity Act and section 7(2) of which, in any event, terminated the ability of the Governor to reserve a Bill for Royal Assent. Our learned friends point to a great deal of parliamentary practice, which they say shows that there have been a lot of Bills - - -

KIRBY J: There certainly have.

MR GAGELER: Yes.

KIRBY J: Which tends to suggest that our Parliaments accepted that the theory did not work with our distance and our own parliamentary traditions.

MR GAGELER: Two things to say - - -

KIRBY J: It is one of the great donations of the British to the world, that they establish Parliaments in all parts of the world, and they develop their own traditions, and we should respect our traditions, should we not?

MR GAGELER: Your Honour, if I am right in saying it is a question of the construction of the word in the 1889 Act, the practice since 1889 might give reason to pause, but it does not bear upon that construction. In any event, although our learned friends, by combing through the statutory materials, have produced one book of materials, it is a very small volume when compared with all of the statutes enacted in all of the Parliaments throughout Australia. What it shows is that here is the exception to a fairly well-established rule.

KIRBY J: Mr Mitchell just glanced at a few cases, gave us illustrative examples.

MR GAGELER: Mr Mitchell is much more diligent than that, your Honour. Can I just add one thing that concerns the standing orders. Your Honours were taken, I think, to volume 3 of our learned friends’ materials, to tab 18, that is, “The Standing Order of the Legislative Council”, the power to make which stems from section 34 of the 1889 Act. I think your Honours were taken to rule 436, which says:

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 –

I think it may have been suggested that “final stage” means Royal Assent. That is not so. If one looks at rule 437, one sees cognate language - - -

KIRBY J: Would you accept that “final stage” means final stage within the chambers of Parliament?

MR GAGELER: Yes, that is right. That is the most consistent reading with rule 437. I am sorry, I may have misunderstood my learned friend. Your Honours, that is as much as I think I want to say about prorogation. Can I come to the equally attractive point of costs - - -

HAYNE J: Before you do that, Mr Gageler, can I ask you to have undertaken some work. I would wish to know what the state of the Constitution Act was at 1904. To that end, I would want to know what effect the Electoral Bill and the Constitution Bill that was under consideration in the Houses at the time of the 1904 Act, what effect those Bills had on the Constitution. The reason I want it, so that you may have an opportunity to consider it, is I understand part of your submission to depend importantly on the proposition that the 1904 Act and the understanding of what is meant by “amend” is illuminated by understanding that the provision made in the Distribution Act was essential to electing a Parliament. Do I understand the submission you make?

MR GAGELER: Would your Honour repeat the last element of it?

HAYNE J: That the provision made in the Redistribution Act 1904 was essential to enable election of a Parliament, is that right?

MR GAGELER: Yes.

HAYNE J: What I need to know then is how much of what was in the Constitution after the 1899 Act which included things like qualification of members, franchise, division of the State into districts and regions, et cetera, moved out of the Constitution into other statutes. I get a smell from the fact that there is an Electoral Bill about that some, at least, of this moved out. So I want to know what was left in the Constitution. Now, that may take some time - - -

MR GAGELER: Yes. We will compile those materials, your Honour, yes.

HAYNE J: Yes, thank you.

MR GAGELER: Your Honours, in volume 2 of the application book, page 271, in paragraph 2 of our original submissions, we sought as a condition of the grant of special leave, or alternatively, as a condition of the referral of the matter to the Full Court, that our costs be paid in any event, and I am instructed to renew that application. There are two things I want to say about it. One is that the imposition of such a condition is by no means unusual, particularly in a matter of public importance - - -

KIRBY J: This is a matter of the constitutional law and public law of a State of the Commonwealth.

MR GAGELER: Exactly.

KIRBY J: Do you understand that the Attorney-General for Western Australia resists the payment of the costs of the amici who have been the contradictor in this Court, effectively?

MR GAGELER: Yes, I do. Your Honour has really made both of the points. The second is that we are here as effectively the contradictor. We do not stand in the role of amici in this Court. The common stand in that is of adding something. We are here as the effective contradictor.

KIRBY J: This is an important matter of the constitutional law of this country.

MR GAGELER: Yes, if the Court pleases.

KIRBY J: I only express my own view, but I am surprised that there is a dispute about this. If you had not been here, we would have had to try to work this all out ourselves. That would not have been to the benefit of the people of Western Australia or of the Commonwealth.

MR GAGELER: Yes, if the Court pleases.

GLEESON CJ: Yes, Mr Solicitor for the Commonwealth.

MR BENNETT: May it please the Court. I have three main submissions which are respectively numbered 3, 4 and 2 in our submissions to this Court.

HAYNE J: You count in a very odd way, Mr Solicitor.

MR BENNETT: It makes it too easy otherwise. The first of those is the submission that section 6 of the Australia Act is the sole means of entrenchment; the second is the Dog Act point; the third is the question whether the relevant laws are laws “respecting the constitution, powers or procedures of the Parliament”. I will then just say one or two words about prorogation. I anticipate it is unnecessary to say anything about justiciability, no one present having raised the issue.

Your Honours, on the first of those issues, one starts with an old philosophical dilemma that probably goes back to Aristotle. The problem is that if one is omnipotent, is it an element of that omnipotence that one can shed some of the omnipotence? If so, can one then, being omnipotent, recover it? That is no doubt a medieval theological debate but it is also something which lies behind many of the cases in this area and particularly lies behind what my learned friend Mr Gageler has submitted about Clayton v Heffron and Ranasinghe.

If one has a Parliament which is sovereign, one may on the one hand say it can do anything and therefore it can bind future Parliaments, or one can say it is sovereign and therefore it can ignore prior attempts to bind it. Either position has some logical basis. We would submit the first has problems once one is setting up something which is intended not only to be omnipotent or sovereign but also to be permanently so.

So we start, we would submit, with the position that the English courts reached in a case your Honours are no doubt familiar with called Ellen Street Estates [1934] 1 KB 590. That is a case where an English statute said, “This statute cannot be impliedly repealed; it can only be expressly repealed”. I am slightly oversimplifying the facts. The court held that one could impliedly repeal it because Parliament could not bind its successors.

It is significant that this case which applied some earlier authority was not referred to in either Ranasinghe or in Clayton v Heffron. Neither the Privy Council in the former case or this Court in the latter case seems to have started from the essential premise laid down and affirmed in Ellen Street Estates.

KIRBY J: That tends to bear out Justice Gummow’s comment about the view at that time looking at the lesser breeds beyond the law.

MR BENNETT: I will come to that, your Honour.

KIRBY J: Both our own self-image and certainly the image of the English Law Lords.

MR BENNETT: I will come to that in a moment, your Honour. At the moment I am talking about pure sovereignty and the simple question whether a sovereign Parliament or, for present purposes, a Parliament having plenary power to make laws for the peace, order and good government of an area can, as part of that plenary power, surrender some of that. That is, in a sense, the first question.

KIRBY J: It would be doubtful that that English decision would now prevail in England, given the provisions of the Human Rights Act 1998 and what is actually happening in the courts in respect of that Act, because every inconsistency would be an implied repeal if you followed that logic. They do not. They give a special status to the Human Rights Act.

MR BENNETT: Well, taken to its logical conclusion, that doctrine might have problems for Interpretation Acts, but no one takes it quite that far. That is the starting principle, we would submit, that if one has sovereignty, and if it is an indefinite sovereignty, if one seeks to limit it in some way, that limitation is not binding on one – not because the first law is not a valid law, but because the first law is not an effective law, because the sovereign is not bound by it.

Now, there are some obvious qualifications which one has to recognise. The qualification recognised in Ranasinghe is one which has been referred to a number of times in argument today and that is that if one has a superior legislature setting up a new legislature and conferring on it powers, and it limits those powers, clearly, that limitation is part of what the new legislature has.

That was what occurred in relation to what was formerly Ceylon. There was an Order in Council which set up a Parliament, gave it powers to make laws for the peace, order and good government, but as part of that instrument said that laws had to be passed in the manner and form of laws which were made by it. There was, in effect, a specific entrenching provision. Now, of course, the Parliament could not go behind that. That is not really an exception at all. That is a Parliament which is only 99.5 per cent sovereign, if one likes.

KIRBY J: This was in colonial times or post-independence?

MR BENNETT: Intermediate, your Honour, mid-twentieth century. I think around the 1930s or 1950s.

KIRBY J: What year was Ranasinghe?

MR BENNETT: The case was 1965, your Honour, but the legislation was earlier.

KIRBY J: I think Ceylon got its independence in 1960.

MR BENNETT: The Ceylon (Constitution) Order in Council was 1946.

KIRBY J: 1946, yes. It would be about the same time as India got independence.

MR BENNETT: Before it became Sri Lanka, of course. The other aspect, which is the Clayton v Heffron aspect, is this. It may well be an attribute of sovereignty that the sovereign has power to substitute in whole or in part another sovereign – the power of the trustee to resign and appoint a new trustee, if one likes.

If a Parliament having power to make laws by Acts of two Houses and a Governor chooses by appropriate procedure to make a law abolishing one of the Houses, then the Parliament for the future is the remaining House and the Governor. Now, if that is to be reversed, clearly the reversal cannot require the two Houses and the Governor. One cannot sort of resurrect the dead Queensland Legislative Council and say it is required, if one is going to legislate, to reverse the legislation abolishing it.

So one can understand where the legislation has the effect of changing the constituent bodies there is a different rule. The same may apply where one says in order to pass certain forms of legislation one has to have a referendum because there one is in effect adding another element to the legislature. The more difficult question arises when what one wants to do is say laws of a certain type shall not be passed or shall not be presented to the Governor for assent unless certain conditions are fulfilled.

GLEESON CJ: If when the people of Western Australia desired to secede they had managed to persuade the United Kingdom Parliament to repeal the Commonwealth Constitution, would that have been legally effective?

MR BENNETT: It depends what year it was done in, your Honour. If it was done in 1902, it might have been. Sed quaere, it depends if one accepts the Murphy view or various other views in relation to that. If it was done in 2003, quite clearly it could not.

GLEESON CJ: Well, it was done in the 1930s, was it not?

MR BENNETT: That is when the agitation existed. Now, your Honour, that raises the question squarely because that is after the Statute of Westminster, before the adoption of the Statute of Westminster, after the Treaty of Versailles. One therefore has to ask the conundrum of what is the point on the continuum at which the relevant event occurred? It is related to what was argued in Shaw a few weeks ago.

GLEESON CJ: Is section 128 a manner and form provision?

MR BENNETT: Your Honour, that involves a number of assumptions. In one sense it is. In another sense it is a provision which brings in a fourth element to the body empowered to make laws in relation to laws of a particular type, namely laws amending the Constitution. In one sense this discussion is academic because what we submit in this case is that section 6 is the be-all and end-all. Section 6 is a federal provision which by virtue of section 109 overrides any State provisions. It clearly overrides the common law. So if there is, by virtue of either Ellen Street Estates or Ranasinghe or Clayton v Heffron or anything else, some common law rule about the philosophical question of whether a sovereign can surrender part of its sovereignty, whatever the common law rule was is overridden by it. As far as we are concerned, section 6 is all that remains.

Your Honours recall the decision of this Court in Port MacDonnell where it was said that the Australia Act enacted pursuant to section 51(xxxviii) prevailed over section 106, not because an Act of Parliament overrode a provision of the Constitution, but, rather, because it was necessary to weigh the constitutional provision in section 106 against the constitutional provision in section 51(xxxviii), both of which were said to be subject of the Constitution.

KIRBY J: Section 51 is all those powers are subject to the Constitution.

MR BENNETT: Yes, and so is section 106, your Honour.

GLEESON CJ: Does your section 109 argument involve finding a negative implication in section 6?

MR BENNETT: Yes, your Honour. It lays down the law in relation to when one can entrench. Part of the reason that one sees that is the history of section 6 and the Colonial Laws Validity Act. In the Colonial Laws Validity Act there was a grant of plenary power in section 5. There was a qualification to it. In other words, the draftsman in 1865 recognised the philosophical dilemma I have referred to and said, “Well, you could go one way or the other. We could give absolute sovereignty with no ability to renounce. We could give sovereignty with an ability to renounce, which in a sense may result in something less than sovereignty, or we can define exactly the extent to which entrenchment is to be permitted.”

GLEESON CJ: Yes. It would be very difficult to find a negative implication in section 6 – and I am not denying that one is there – but it would be very difficult to find it there unless you understood it in the light of its history.

MR BENNETT: That is so, your Honour, except one could get it from looking at sections 2 and 3, and saying, “Well, one is pointed to the history by the reference to the Colonial Laws Validity Act and there is the broad grant of power, a broader grant than that which appeared in the earlier Act, to which section 6 was a qualification.” So it is now a qualification to something broader, but still the sole qualification. We submit that when one looks at it that way it is reasonably clear that section 6 covers the field, and one does not find any ability to entrench outside it. Now, the second matter I wanted to address on is - - -

KIRBY J: Mr Gageler relied on section 106 itself as well. As I understand it, his argument was that it is either section 6 of the Australia Act or section 106 of the Constitution.

MR BENNETT: Your Honour, section 106, that was why I referred to Port MacDonnell Fishermen where this Court said that in resolving the conflict - - -

GUMMOW J: 168 CLR - - -

MR BENNETT: Yes, your Honour, I was looking at the Constitution rather than the case. Section 106 contains the words “subject to this Constitution”, as does section 51. The Court was faced with the dilemma, what do we do in relation to a conflict between an Act passed pursuant to section 51(xxxviii) and section 106, and it gave an answer, and we rely on that answer. That means we can forget about section 106 in this context. Maybe we cannot in other contexts, but we can in this context. It is Port MacDonnell Fishermen’s Association, as your Honour Justice Gummow tells me.

GUMMOW J: Page 381 is the page you want, I think.

MR BENNETT: Yes.

HAYNE J: Which volume?

MR BENNETT: It is 168 CLR and the relevant passage is at page 381:

The only provision of the Constitution which arguably confines the grant of power contained in par.(xxxviii) in a manner which would affect the validity of s.5(c) of the Coastal Waters (State Powers) Act is s.106 . . . It is debatable whether a Commonwealth law confirming and conferring legislative power upon the Parliament of a State can properly been seen as in conflict with s.106’s provision for the continuance of the Constitution of the State. It is, however, unnecessary for present purposes that we pursue that question since we are of the view –

and this is seven Justices –

that, as the purpose of s.51(xxxviii) of the Constitution is to ensure that a plenitude of residual legislative power is vested in and exercisable in co-operation by the Parliaments of the Commonwealth and the States, the dilemma which is posed by the inclusion of the words “subject to this Constitution” in both par.(xxxviii) and s.106 must be resolved in favour of the grant of power in par.(xxxviii).

That is what we rely on.

KIRBY J: Why? I know that is what it said, but why do you resolve it that way? I suppose because the one is a grant of power to the national Parliament and the other is specific to a part of the Commonwealth, and therefore the logic is that the nation takes priority over the part.

MR BENNETT: Yes, and, your Honour, an unusual grant of power in that it is a grant of power exercisable at the request of all the States.

KIRBY J: It is not all the States, is it? The States concerned.

MR BENNETT: It need not be – the States concerned. Here it was all of them, yes.

KIRBY J: Can it be amended by the Federal Parliament?

MR BENNETT: Yes, your Honour.

KIRBY J: It is like any other law under section 51, I suppose.

MR BENNETT: Like any other. I do not know, there may be agreements of some kind in relation to it, but they, of course, would not - - -

KIRBY J: But so far as power is concerned, the power to make is the power to amend, as Kartinyeri pointed out.

MR BENNETT:

This Act . . . may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner.

This is section 15 of the Australia Act.

KIRBY J: Query whether that is entrenched.

MR BENNETT: That is not in argument today, your Honour.

KIRBY J: That is for another day, if we ever come to it.

MR BENNETT: That is for another day, your Honour, yes. In relation to the Dog Act argument, which is Part 4, paragraphs 23 and following of our submissions, the submission we make is this, that the words “respecting the constitution, powers or procedure of the Parliament” really go to subject matter and not merely to form. If they went merely to form, they would apply, of course, to an entrenchment of the Dog Act. Now, I should not talk about the Dog Act, because I have been told that comes from McCawley’s Case, in a different context, but one could call it the Cat Act or any - - -

GLEESON CJ: What is an example of a law respecting the powers of Parliament that would fall within section 6?

MR BENNETT: A law dealing with the Fitzpatrick & Browne situation. A law dealing with contempt of Parliament would be an example. A law dealing with Parliamentary committees and their power of subpoena, perhaps.

CALLINAN J: Disqualification.

MR BENNETT: Yes, disqualification.

HAYNE J: But not law, for example, dealing with the subject matter of the jurisdiction of the Supreme Court?

MR BENNETT: Probably not, your Honour. It – quaere a law which in very broad terms took away or limited Parliament’s power to pass laws over a broad spectrum of subject matters covering a large part of its general plenary power. I reserve that situation, but certainly its powers in relation to dogs or cats, no, your Honour.

GLEESON CJ: And an example of a law relating to the procedures of Parliament that would fall within section 6?

MR BENNETT: A member shall indicate his vote by raising his or her hand or by going into a lobby. Bells shall ring for three minutes before a division.

GLEESON CJ: But not a law that says a majority will consist of - - -

MR BENNETT: Your Honour, that is more difficult because that might well go to the Constitution, but one can imagine situations where that might relate to procedure. Our submission is that here one is squarely within the Constitution, because here one is – this is really coming to the third of my submissions – dealing with the basic composition of the membership and by whom they are elected. It must be remembered that at the time of the Colonial Laws Validity Act many Colonial Parliaments were largely appointed and many were partially appointed with a Governor, partially elected by landed aristocracies, and the constitution of Parliament would have very much been involved in who appointed particular members, how many were appointed by that person, who elected particular people and how many elected them.

Now, of course one has to draw lines. It is always going to be a question of degree. A law, for example, dealing with the right to vote of a person subject to a life sentence would probably not be sufficiently significant to go to the constitution of Parliament. An intermediate example might be a law dealing with female voting for the first time. A law which divides the State into one constituency, clearly would relate to the constitution of Parliament; a law which set up a Hare-Clark system and had two members per constituency would go to the constitution of Parliament.

GLEESON CJ: What about a law that imposed or removed a property qualification on electors?

MR BENNETT: That might be a question of degree, your Honour. That would probably fall within that category, because that would, in a very real way, affect the composition, which is one of the elements of constitution of the Parliament. It is a question of degree in each case.

GLEESON CJ: Just coming back to the matter of procedures, if you were dealing with the articles of association of a company, you would not raise an eyebrow at a provision that says, “This sort of thing can be done by an ordinary resolution and this sort of thing requires a special resolution”, and you would regard them as provisions relating to the procedures of a general meeting.

MR BENNETT: Or one might regard them as provisions relating to the constitution or the articles of the company. The only reason one might not is that one does not normally use the word “constitution” in relation to a company, and that might distort one’s thinking in that area. Certainly there may be an overlap between the constitution, powers and procedures. There may be things which fall into more than one category, but where one is dealing with something as significant as the balance between the city and the country in a State in electing Parliament, that, we submit, is clearly something relating to the constitution of Parliament.

I had not completed what I wanted to say about the Dog Act argument and may I just say this about it, that the case which treated it the other way was South Eastern Drainage Board v Savings Bank of South Australia. Your Honours recall that was a case where the Real Property Act said that one could not amend the Real Property Act except in certain ways, rather like Ellen Street Estates, and then the South Eastern Drainage Act said that the South Eastern Drainage Board had a charge on all property and that will exist notwithstanding the Real Property Act, and the question was whether that form of retrenchment could take place. In discussing it, the Court seems to have looked at the first Act, in other words, at the Real Property Act, rather than at the repealing Act or amending Act, the Act whose validity was challenged, in order to see whether or not it was related to the constitution, power or procedure.

Now, there is a linguistic problem with that approach of course because when one looks at section 5 of the Colonial Laws Validity Act with which the court was concerned, it used the words:

provided that such laws -

ie, laws relating to the constitution, power or procedure -

have been passed in such manner and form as may from time to time be required -

And the criticism is sometimes made of that case. Why did the court not look at the second Act? Why did it look at the first one? One answer is it would not have made any difference in that case which Act it looked at because neither related to the constitution, power or procedure of the Parliament. But it is appropriate where one is looking at a power to entrench, that the power to entrench was only given in the Colonial Laws Validity Act as part of a power to make laws respecting the constitution, powers and procedures of such legislature. So it gives that power, then partially takes it away by requiring compliance. In that situation it is not unreasonable to say one can look to either law, either the first law or the second law to see whether it is a law relating to the constitution, power or procedure because ultimately it is, we would submit, the subject matter of the law which determines whether it falls within that or falls outside it.

For those reasons we submit in relation to that along the lines submitted by the applicants, by Western Australia. What should have appeared from what I have said thus far is that on the first submission that section 6 is the sole power, our submissions coincide with those of the applicants. On the second question, the Dog Act question, again they coincide with the applicants. On the question of whether this is the constitution, power or procedures of the State, our submissions go along with those of the amici curiae.

Now, as I have said, I do not need to say anything about the issues concerning justiciability. In relation to prorogation, we make no submission as to what the position is in Western Australia, but we simply ask the Court to bear in mind that if there were a question about the application of this principle to the Commonwealth, we would submit that the effect of sections 56 and 58 of the Constitution is that a Bill may be assented to after prorogation.

We call in aid one matter which has not been referred to quite the way we would put it and that is the word “assent”. The argument which was - the New Zealand case, your Honours recall, is in my favour on this proposition. That says that a Bill can be validly passed after prorogation. And it says it by majority and there is a judgment of Justice McGregor in which doubts are cast on that. Now, the argument which commended itself to Justice McGregor was that the Parliament consists of all the entities that make it up, including the monarch and the Houses and, therefore, if the effect of prorogation is to suspend the existence of one of the Houses, the other two cannot do anything because the third is not there.

Now, we would submit that reasoning is flawed and ignores the significance of the word “assent”. Normally one assents to something after it has been done. In other words, one person does something and then the second person assents to it. Now, when one assents therefore, one assumes that the assenting is done separately and afterwards. Why, one asks rhetorically, is any particular continued existence required for the former when the latter gives his or her assent? What is the logic of saying it?

We would submit it is a non sequitur to say, because the three are the Parliament no one can act when one of the others is suspended. Looking at it from the reverse point of view, why should not Parliament pass an Act during an interregnum between Governors or Governors-General if, under the particular Constitution, an interregnum can occur. It is not like directors of a company or members of Parliament doing something individually and separately because they, of course, are required to meet to carry out their business. One could understand the saying that independent acts by different directors at different times might not constitute an act of the board because they have not had a chance to meet and act together as is required by the articles.

The same might apply within a House of Parliament. But the Governor or Governor-General – Governor-General in what I am putting - does not confer with Parliament. The very fact that the Constitution makes provision for the reservation of Bills for Her Majesty’s approval makes it clear, as has been said, in relation to Western Australia, that assent can, at least in some circumstances, occur after prorogation.

The original idea, of course, of the King or Queen coming into Parliament, sitting in the throne at the front of Parliament, assenting to a pile of Bills and then proroguing Parliament is no doubt behind the quaint idea that there is some prohibition against an assent after prorogation. But that tradition is clearly inapplicable in a country 12,000 miles from at least part of the monarchy and there is just no reason, we would submit, for it being applicable today, where the Governor-General does not take any part in Parliament.

So we submit that, so far as the Commonwealth is concerned, the prorogation does not cause a necessary lapse and we ask your Honours, if your Honours express any views on the question or prorogation, as your Honours may be required to, not to assume that the position in the Commonwealth is as has been submitted.

KIRBY J: Submitted by whom? By Mr Gageler?

MR BENNETT: By Mr Gageler.

KIRBY J: Yes.

MR BENNETT: On that issue, we are with the applicants, except that we do not make any submissions in relation to the position in Western Australia. Your Honours, those are my submissions.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with what essentially is the principal point, in our submission, concerning the interpretation of section 13. Our learned friends’ argument has, in a sense, at its heart the proposition that section 13, when it uses the expression, “any Bill to amend this Act”, readily comprehends a Bill to repeal it, because it would be no more than a precursor to replacement of the 1947 Act. A better description, in a sense, would be that the repeal of the 1947 Act is the precursor to some new form of electoral distribution. It does not follow that a repeal of that Act in those circumstances is amendment of this Act, to use the expression.

Your Honours, the second aspect of the argument advanced on behalf of the amici is that “amend” really means “change”, but, in our submission, that amendment – if I could the expression – of the language does not go far enough, because section 13 uses a composite expression:

any Bill to amend this Act –

Even if one uses synonyms for “amend”, such as “change” or “alter”, the words of section 13 make it apparent that one still has to end up with that Act, that is, the original Act. Your Honours, the third aspect is - - -

KIRBY J: I do not quite understand the significance of – it is true that we would have to look at the whole section, look at the whole phrase and not just at the one word “amend”, but what does the “amend this Act” add?

MR JACKSON: I am sorry, your Honour, what I was seeking to say was this. I suppose, in a sense, it draws on the distinction between “amend”, on the one hand, and “repeal”, on the other, but if one says, well, “amend” means “change”, or perhaps it means “alter”, the presence of the words “this Act” in section 13 really directs attention to what, in our submission, is the ultimate distinction between amend and repeal, and that is that the end of amendment means that there is something of the original that remains – it may be transformed in various ways. The end of repeal is that there is nothing.

Now, your Honours, another aspect of our learned friend’s argument was it was sought to suggest in a way that section 13 really protected a subject matter, as it were, rather than an enactment, and the subject matter was described in perhaps a number of ways, but they seem to amount to something like electoral distribution. Your Honours, that, in our submission, again does not pay sufficient regard to the words of section 13, which do not refer to a subject matter of electoral distribution, but to a Bill which amends that Act.

Your Honours, could we also say that if one goes to the original Constitution Act 1889, section 73, which is in volume 1 of the materials behind tab 7 at page 98, reference was made in about the fifth line of section 73 to “change”; the word “change” being used there. What we would say is that the change that is contemplated is the change that is referred to in the earlier part of the section, namely, the repeal or alteration by which a change in the constitution of the Assembly is effected. The word “change” is not there used as a synonym for “repeal or alter”, nor for “electoral distribution”. Your Honours, could we just say one other thing about that.

KIRBY J: Let me understand that, is the contention that where, in the second sentence or the second paragraph, it refers to “change”, this is a reference back and a generic word to incorporate the “repeal or amend” that is already referred to - - -

MR JACKSON: Yes, “repeal or alter”. Your Honour, that is what we say, it just means the same thing. It means repeal or alter - - -

KIRBY J: To save repeating the two words, they found a generic word which would encompass both, is that it?

MR JACKSON: Well, it is a little more restrictive than that, in a way, your Honour, because what your Honours will see – and this, of course, has been elaborated upon or explained a little in Western Australia v Wilsmore – is that the provisos are not freestanding; they are provisos to the first sentence and so what one sees is that when it speaks of change, it is speaking of a change of a particular kind, repeal or amend to effect particular types of change.

Your Honours, I have drifted a little, I am afraid, from what I was saying about electoral distribution and the argument on that. Could I come back to it. Your Honours, it is true that so long as the Legislative Council and the Legislative Assembly are composed of members chosen directly by the people as section 73(2)(c) of the Constitution Act in its current for provides, there will always be something which is an electoral law, to use a generic expression. But, your Honours, unless one takes the concept of electoral distribution, as used by our learned friends, as including such things as laws providing, for example, for State-wide proportional representation or some other system which is not based on geographic divisions, there is not a need for any law on the subject of electoral distribution or, to use the original words of 1947 Act, electoral districts.

There will always be an electoral law of some kind, but there need not always be some Act dealing with electoral distribution. One sees the present situation in the Upper Houses of New South Wales and South Australia where there is a system of State-wide proportional representation and also section 29 of the Commonwealth Constitution provides for a default position for a State-wide election.

KIRBY J: Are the Electoral Commissioners provided for in the 1947 Act only for divisional purposes or do they have other purposes for elections more generally?

MR JACKSON: No, your Honour, their function is provided for by the 1947 Act to decide upon - - -

KIRBY J: It is purely divisions. That reflects the fact that it was originally called, I think, the Electoral Divisions Act or something.

MR JACKSON: No, your Honour, the original fish has been filleted somewhat and it is a smaller thing.

GUMMOW J: Section 3(1) seems to be their only function.

KIRBY J: It was originally the Electoral Districts Act.

MR JACKSON: Yes, and their function, as your Honour Justice Gummow said, is set out in section 3(1). Whilst individually, as one sees from, for example, section 2(1)(b), at least one of the members of the Commission would have some other functions in relation to elections, the function of the Commissioners as such is that provided for by the Act, which is to fix regions and divisions within the parameters provided for elsewhere.

GLEESON CJ: Which is a function commonly described as redistribution?

MR JACKSON: Yes, your Honour.

KIRBY J: You heard Justice Hayne’s question to Mr Gageler. No doubt when his submission comes in, you will want to respond to that as to what is left. Is there left a viable electoral system in Western Australia by the repeal of the 1947 Act?

MR JACKSON: Your Honour, I thought, with respect, that Justice Hayne’s question related to the situation as at the time of the introduction of 1904 Act.

KIRBY J: That is true, but I think, speaking for myself, I would need to know whether, as it were, it is a package deal, or whether the repeal of the 1947 Act leaves a workable electoral system in the State of Western Australia, because without that, one would not contemplate a severed separated repeal of the 1947 Act.

MR JACKSON: Your Honour, one asks, in a sense, severed from what, because the position is that there is – your Honour, it could be assumed that - - -

KIRBY J: You are trying to work out what Parliament is doing here and if the repeal of the 1947 Act is separate as a parliamentary action and yet by repealing it, without more, you do not leave a workable electoral system for the State, that rather suggests that it was intended to ride with the other Act, the amending Act and that that tends to bear out the fact that they are truly cognate measures that are intended to operate in tandem.

MR JACKSON: Your Honour, may I come back to that in just a moment, because I do need to say something about that? Your Honours, our learned friends placed reliance on the proposition - your Honours will see it, for example, in the joint reasons of Justices Steytler and Parker at paragraph 188 – that the legislative purpose for the enactment of section 13 is to be perceived from a viewpoint that it was intended to protect or entrench the provisions of the 1947 Act from change, and that one should treat “amend” as meaning that.

Your Honours, a difficulty with that view is that it really is a departure, in our submission, from the words actually used and which do speak of “amend” and “this Act” and they, in our submission, should be the starting point. The second feature, your Honours, is that it does not take into account the fact that section 13 is a restriction by one Parliament on the legislative powers of its successors. Why give it a greater ambit than the constricting Parliament itself has chosen, particularly, your Honours, when the words used have a well-known meaning and the words which might have been used to effect the wider restraint were equally well-known.

Now, it may well be, your Honours, that some would say that provisions like section 13 – and your Honour Justice Callinan adverted to this – achieve stability, and no doubt there are obviously views either way on questions of that kind, but in the end what has to be achieved is what is to be derived from the words that the earlier Parliaments used, and that is, really, your Honours, the starting point, if I may say so.

Your Honours, could I come then to the matter that your Honour Justice Kirby was raising, and the position is – if I could deal, first of all, with the situation that would obtain if the Repeal Act was passed and nothing else. Your Honour, the first thing is that if one goes to the Electoral Act, section 4(1) of that Act, defines an elector as being a:

person whose name appears on a role as an elector

By section 19(1) and (2), there has to be a role for each region and district. By section 19(6) - - -

GLEESON CJ: Before you pass from there, how do you know what is a region and what is a district?

MR JACKSON: Well, your Honour, they came from the terms of the 1947 Act. I am sorry, perhaps that puts it a little too shortly, but the position is that under the Electoral Act there are to be regions and districts and the way in which they were defined was to pick them up by sections 5, 6, 18 and 19 as being regions and districts as provided for by the 1947 Act.

Now, the position which I am going to go to is this, your Honours, that by section 19(6), there would be persons whose name would be on the rolls for the districts that had been provided for pursuant to the 1947 Act and for those regions as well. One then has section 17(1)(e) which gives an entitlement to vote in elections for the regions and districts.

Now, your Honours, the rolls as a physical thing, of course, maintained under that Act would continue to exist even after the repeal of the Electoral Distribution Act. Now, there are really two aspects - - -

GLEESON CJ: Yes, but how do you know who you are voting for? You cannot have a right to vote in the air, as it were. The right to vote means a right to choose between candidates for a particular district or region.

MR JACKSON: Yes, of course, your Honour. But there are rolls for the districts or regions which came about from the 1947 Act and one sees then if one goes to the - your Honours will see in the Repeal Bill, it is at page 16 of volume 1 of the books, section 18 is inserted in the Constitution Act to say that the Legislative Assembly shall consist of 57 members who will be returned and sit for electoral districts.

Then, your Honours, section 5 of the Constitution Act 1899 would, as amended by the Repeal Bill, say that:

The Legislative Council shall consist of 34 elected members who shall be returned and sit for electoral regions - - -

GLEESON CJ: But am I right in thinking that section 5 of the Repeal Bill, which is the transitional provision, in effect says you maintain the status quo in relation to districts and divisions that was established under the 1947 Act during the period of transition?

MR JACKSON: Well, during the period between the Act coming into force and the next general election.

GLEESON CJ: Now, if you had not had those transitional provisions in the Repeal Act, what would have been the consequence?

MR JACKSON: Your Honour, the consequence would have been that by-elections – it is a question, really, whether section 5 is necessary at all. The consequence would have been that in relation to by-elections, the position would be dealt with by the Electoral Act.

GLEESON CJ: What about somebody wanting to get on a roll? A person who reaches voting age and wants to enrol as an elector?

MR JACKSON: Your Honour, in relation to persons of that kind, some amendment would be necessary at some point, some legislation in relation to persons who want to become members.

GLEESON CJ: You would not know what roll you would be entitled to be on, if it were not for some scheme of distribution.

MR JACKSON: That is quite so, your Honour, but can I just say - - -

KIRBY J: It has to be your bottom line, does it not? You have to say, amendment means amendment, it does not mean repeal. If we have repealed it, we have knocked it out and the fact that these things may not have passed does not matter, because once we have knocked it out we can just deal with it as an ordinary Bill.

MR JACKSON: The notion that Parliament, having repealed the 1947 Act, is not at an appropriate time going to enact whatever legislation it chooses as then necessary for the future is, with respect, absurd. There is no doubt Parliament will do that. There may be political compromises, of course. There may be differences of view. As I submitted earlier, it may well be the situation, or may well have been the situation, that it was possible to get one of the two Bills through, but not the other.

CALLINAN J: Mr Jackson, how would you give effect to section 51(2) of the Electoral Act unless you had the transitional provision or some like provision with respect to division?

MR JACKSON: Your Honour, the position in relation to section 51(2) is that 51(2) would go, of course, and one would then see - - -

CALLINAN J: Does that not make the Chief Justice’s point, that you need something? It is gone. How do you know which roll or which district roll you get onto?

MR JACKSON: Well, your Honour, I think in our argument - - -

GUMMOW J: You fall back on section 11, do you not?

HAYNE J: The critical question is: does section 11 of the 1947 Act have any life after death?

MR JACKSON: Your Honour, that is so.

HAYNE J: Are those districts and regions of any legal consequence after repeal? That takes you off into Acts Interpretation Act problems perhaps, perhaps not.

MR JACKSON: Your Honour, could I just say in relation to that, two things. The first is that – and we have said this in our submissions in-chief - no doubt the result of repealing the 1947 Act is that there will be some new legislation. But, having said that, it does not follow that either the term “amend” should be treated as involving repeal, so that you cannot repeal unless you amend at the same time - - -

HAYNE J: It depends, Mr Jackson, on whether the proposition from which you began is a political proposition or a legal proposition. I can understand the political proposition. Of course, Parliament will get around to doing something. But the question is: is it a legal proposition?

MR JACKSON: Your Honour, may we say that, really, in relation to that, the legal proposition is the one that starts from the words of section 13. One can say in relation to that that what has been done has been to identify what is the ambit of the restriction. Now, the restriction, your Honour, comes from nowhere other than section 13. The words of section 13 are not general; they are quite precise. I will not repeat them, but they select a number of words – “amend” and “this Act”, of course. To give them a wider meaning is not, in our submission, supported. Could I just deal with a couple of other aspects of this, your Honours.

Our learned friends have advanced an argument based on the terms of the 1893, 1896 and 1899 Acts. If one goes to those enactments, the argument, in our submission, is not borne out. Could I go to tab 8 in the materials in volume 1, which deals with the 1893 Act. What your Honours will see – and this is what was, in a sense, fastened on in our learned friends’ argument – is that it is described as “An Act to amend ‘The Constitution Act’”. What it does is to repeal in part the Constitution Act.

It is a quite appropriate use of language to say that an Act which repeals another Act in part is to be treated as effecting an amendment of the earlier Act. I think it is adverted to in the passages from Kartinyeri that are set out in our written submissions, in paragraph 15. The former Act in such a case remains in being, although in an altered form.

A similar situation obtained with the 1896 Act, which is behind tab 9. There was again a partial repeal – your Honours will see that from section 2 – and the 1899 Act, in tab 10, was again a partial repeal, which your Honours will see from section 2 of that. In circumstances where one Act partially repeals another, in our submission, it amends the earlier Act. The supposed legislative practice derived by our learned friends does not support our learned friends’ argument.

Could I just say that it may also have been that at the time of these and the 1904, et cetera, enactments, that it had not fully been appreciated that the proviso as to the then section 73 only operated as provisos to the first sentence of section 73 and were not freestanding provisions.

Your Honours, could I just say something about the legislative debate at the introduction of the provision in 1904. Your Honours will see in volume 2 of the materials, tab 12, at page 214 in the right column about point 2 on the page it was said:

Should this clause be in a Redistribution of Seats Bill? It was really in the nature of a constitutional provision, and if it appeared in the measure it should, in order to be effective, be in the Constitution Act.

And there are some observations about it through the remainder of that paragraph. Your Honours, the point we would seek to make about it is that if one looks at what took place in the debates, first of all, it was the Legislative Council which chose the words; secondly, there was no serious discussion of any consequence as to their ambit. The terms of the legislation were, in a sense, forced on the Assembly and, your Honours, there is not any basis to give it any greater effect than was chosen, particularly when the framer did not even fix on the words used in section 73 from which it was said to be derived.

Your Honours, in relation to the 1904 and subsequent Acts, we dealt with the course of the legislation yesterday in our oral submissions. Your Honours, one can understand, for the reasons then set out, why the course was taken of requiring the absolute majority and, at that stage, it was of course prior to Wilsmore. One other matter on this aspect is that our learned friends appeared to accept that if the Repeal Bill had passed with an absolute majority, it would be effective, which would have the effect – and would repeal the Electoral Distribution Act. Your Honours, that would be so and it would have two effects that would be so even without a Bill for a substituted provision being in existence. Your Honours, that would not seem to accord with the burden of the first and second arguments advanced by them.

Your Honours, could I move then to the question of prorogation. The argument of the amici is that section 3 of the 1889 Act confers power on the Governor to prorogue the Legislative Council and Legislative Assembly from time to time and that the question is as to the effect of the exercise to that statutory power. In dealing with that one will also have to look at two other things: one is the provision of section 2(3) of the Constitution Act 1889, which says that:

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

Now, your Honours, that has to be complied with as well as section 3. But also, your Honours, there is the provision of section 9(1) of the Australia Act, which says that:

No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State.

If it be that the effect of section 3 of the Constitution Act, as our learned friends say in relation to prorogation, is that assent cannot be given to a Bill which has otherwise passed through the House in the appropriate manner and form, that would seem to conflict with the terms of section 9(1).

Your Honours, could I say also that the observations of Justices Gibbs and Stephen in Western Australia v The Commonwealth recognise that the effect of prorogation depended on the statutes and standing rules and orders the Parliament - - -

GUMMOW J: I am sorry, Mr Jackson, I have missed – section 9(1) of the Australia Acts, this is the first time it has come across the screen. How do you say it applies?

MR JACKSON: Your Honour, I am dealing with an argument, the argument being that the effect of prorogation pursuant to sections, because of the interpretation to be given to prorogation in section 3 of the 1889 Act, is that the Governor cannot assent to a law otherwise duly passed by the Parliament, because of prorogation. Now, what we would say is this, I think, that no law should bear any force or effect insofar as it purports to require the Governor to withhold assent for an Act that has been passed in the appropriate manner and form. Now, if it be that the Act has otherwise passed through the Houses of Parliament in the appropriate manner and form, one would then have a situation where, on our learned friends’ construction of section 3, it would seem to be at least arguable that it would - - -

GUMMOW J: In other words, the spectre of invalidity under 9(1) of the Australia Acts is an incentive to a construction of 3 which you would have, and which is the opposite of what your opponent would have.

MR JACKSON: Yes, that is all that I am saying about it. Your Honours, I was just going to say that in Western Australia it is quite clear that the statutes and standing orders make it apparent that there is a different practice from that in the United Kingdom. I have been to that. But may I just say that if one looks at the statutes that are assented to after prorogation, they are contained in tabs 22 to 28 - - -

GLEESON CJ: Just a minute, Mr Jackson. We do not need to hear from you on that last point – prorogation.

MR JACKSON: May I add one word about it, your Honour, just this, that the total number of Bills is 365.

HAYNE J: You like the symmetry, do you, Mr Jackson?

MR JACKSON: And the lack of plumpness of that volume is brought about by the fact that only the first page of each has been included.

KIRBY J: Just for curiosity, you will remember Mr Gageler showed us how in 1890 I think the Governor came along and in the royal manner sent to us a list. Did the materials you showed us indicate that that practice has not been followed or continued in Western Australia?

MR JACKSON: I think your Honour will find that at a particular time, which I cannot identify conveniently – it is in that book – what happened was that there become a proclamation which was published in the Gazette. Your Honours, even in the Commonwealth Parliament one sees in some of the materials the Governor-General appearing at the Parliament and saying, in the mirror image I suppose of the speech opening Parliament, what a particularly good job Parliament had done. By about 1911, I am told, that had stopped.

Your Honours, could I say two further things. Our learned friends referred to Clayton v Heffron 105 CLR. Could I just say one thing about it. At page 252 in the majority judgment one sees in the judgment of four members of the Court, about two-thirds of the way down the page, a reference after all the discussion our learned friends referred to:

It must be remembered that the negative restrictions which s.7A imposes under the operation of s.5 . . . were complied with when s.5B was enacted.

So there was reference to the Colonial Laws Validity Act. Finally, your Honours, may I come to the question of costs. Your Honours, the identity of the amici can be seen from volume 2 of the application book at page 321, political parties and others. Your Honours, this is a case where they could have become parties, in our submission. Of course, if they did so and they chose not to, they would have been subject to a liability for costs. It is not a case - - -

KIRBY J: It is a matter of principle, is it not? I mean, the Attorney-General, on the one side of the record, argues for one construction of the Constitution of the State, and parties who, in some sense, are affected come along to argue the other side, and it is desirable and in the public interest that the Court should have a true contest of arms, as we have. It seems to me that it should not come out of the private pocket of litigants for the resolution of what is a high question of the constitutional law of this country.

MR JACKSON: Your Honour, could I just say, that course was not adopted, for example, in the earlier case of McGinty in Western Australia, where Mr McGinty, in a different situation, of course - - -

KIRBY J: Well, I was not here then. I would not have taken that view either.

MR JACKSON: No, but, your Honour - - -

KIRBY J: Here the hypothesis is that the amici lose their argument. Mr McGinty lost his argument.

MR JACKSON: Your Honour, we do not ask for costs, of course, but it is a different situation, in our submission, where, they being persons obviously having a political interest in the outcome of it - - -

KIRBY J: Yes, but the bottom line is that one side of the political interest is funded from the public purse and the other side of the political interest is not.

MR JACKSON: It is funded from a number of persons, your Honour, funded by multiple persons. If they wish to be here as parties, so be it, but if they choose to adopt the half-and-half approach then, in our submission, they are not asked to pay costs, but there is no reason why they should receive them in any event. Your Honour, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. We will reserve our decision in this matter and we will adjourn for a few minutes to enable people to rearrange themselves in the next case.

AT 3.55 PM THE MATTER WAS ADJOURNED