Attorney‑General for Western Australia v Marquet

[2003] HCATrans 8

[2003] HCATrans 8

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  Nos P114 and P115 of 2002

B e t w e e n -

ATTORNEY‑GENERAL FOR WESTERN AUSTRALIA

First Applicant

STATE OF WESTERN AUSTRALIA

Second Applicant

and

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

Respondent

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

TRANSCRIPT OF PROCEEDINGS

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

Copyright in the High Court of Australia

__________________

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

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

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

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

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

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

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

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

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

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

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

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

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

MR JACKSON:   Yes, your Honour.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HAYNE J:   Sorry, which provision?

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

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

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

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

MR JACKSON:   Yes, your Honour.

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

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

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

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

GUMMOW J:   It was Wilson, really.

MR JACKSON:   Yes, your Honour.

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

MR JACKSON:   Yes.

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

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

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

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

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

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

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

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

MR JACKSON:   No, your Honour.

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

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

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

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

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

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

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

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

GUMMOW J:   I realise that.

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

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

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

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

KIRBY J:   What follows from those passages?

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

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

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

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

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

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

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

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

in each House.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR JACKSON:   Yes.

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

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

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

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

The 3 fair prints of all Bills –

are to –

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

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

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

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

HAYNE J:   Yes.

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

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

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

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

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

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

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

CALLINAN J:   Section 7, is it not?

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

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

a slightly different thing of course –

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

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

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

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

KIRBY J:   So that is half plus one.

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

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

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

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

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

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

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

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

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

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

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

GUMMOW J:   Or abstained.

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

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

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

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

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

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

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

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

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

MR JACKSON:   No, your Honour.

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

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

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

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

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

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

KIRBY J:   Which tab is this?

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

The Electoral Distribution Act 1947 is repealed –

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

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

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

Subsection (2), it said:

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

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

The State shall be divided into 6 electoral regions –

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

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

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

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

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

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

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

Whether: 

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

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

is “a Bill to amend this Act” –

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

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

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

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

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

GLEESON CJ:   Why would there be need for that?

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

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

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

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

MR JACKSON:   Presumably it would, your Honour.

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

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

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

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

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

the various Acts here under consideration form a scheme.

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

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

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

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

MR JACKSON:   Well, your Honour ‑ ‑ ‑

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

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

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

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

GUMMOW J:   One can always do that.

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

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

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

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

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

HAYNE J:   No.

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

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

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

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

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

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

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

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

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

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

MR JACKSON:   I am sorry, your Honour, it is (2002) 26 WAR 201.

KIRBY J:   Thank you.

GUMMOW J:   For those in the Eastern States, it is in 193 ALR 269.

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

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

HAYNE J:   Now, do you accept that?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR JACKSON:   Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GLEESON CJ:   Thank you.

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

GLEESON CJ:   Thank you.

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

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

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

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

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

Section 77. Meaning of ‘amendment’

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

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

Repeal or Expiry of Acts

Section 85. Meaning of ‘repeal’

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

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

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

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

MR MEADOWS:   Yes.

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

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

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

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

KIRBY J:   Which tab is this?

MR MEADOWS:   It is tab 18, your Honour.

KIRBY J:   Which standing order?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR MEADOWS:   Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR MEADOWS:   There is actually, your Honour, in an oblique kind of way – and this was referred to by the amici before the Full Court.  There is nothing in the debates as such relating to the 1978 Act to suggest that it

would have an impact on section 13 and there is nothing in that Act which deals with electoral districts, but if you go to volume 2 of the materials, under tab 20, there is a somewhat cryptic reference at page 306 in the second column in the third paragraph:

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

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

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

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

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

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

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

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

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

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

Then after the quotation of the provision

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

Then his Honour goes on.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR KEANE:   Yes.

GLEESON CJ:   It does not mean modern.

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

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

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

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

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

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

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