Attorney-General (NSW) v Trethowan - [1931] HCA 3

ATTORNEY-GENERAL FOR THE STATE OF

NEW SOUTH WALES AND OTHERS

DEFENDANTS,

TRETHOWAN AND OTHERS

ON APPEAL FROM THE SUPREME COURT OF Constitutional Law (N.S.W.)--Legislative Council of New South Wales-Act requiring

any Bill to abolish Legislative Council or to repeal such Act to be submitted to a referendum-Bills to abolish Legislative Council and to repeal such Act passed by MELBOURNE,

both Houses-Bills not submitted to referendum-Action to restrain presentation of Jan. 20, 21;

such Bills to Governor for royal assent until submitted to a referendum-Infunction to restrain presentation-Power of Parliament of New South Wales to fetter legislation respecting abolition of Legislative Council and repeal or amendment of provisions of Constitution of New South Wales- Manner and form ** of repeal or amendment prescribed-The Constitution Statute (N.S.W.) (18 &19 Vict. c. 54), sec. 4-Colonial Laws Validity Act 1865 (28 &29 Vict. C, 63), sec. 5-Con- stitution Act 1902 (N.S.T W.) (No. 32 of 1902), sec. 7A-Constitution (Legislative Council) Amendment Act 1929 (N.S.W.) (No. 28 of 1929), sec. 2-Constitution Further Amendment (Referendum) Act 1930 (No. 2 of 1930).

Sec. 7A of the Constitution Act 1902-1929 (N.S.W.) provided :- 7A. (1) The Legislative Council shall not be abolished nor, subject to the provisions of sub-section six of this section, shall its constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within sub-section one of this section shall not be presented to the Govern or for His Majesty's assent until the Bill has been approved by the electors in accordance

(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section."

44 CLR 395

Held, by Rich, Starke and Dixon JJ. (Gavan Duffy C.J. and McTiernan J. dissenting), that a repeal of this provision cannot be enacted unless it is submitted to and approved by a majority of the electors because it requires a manner and form in which a law shall be passed respecting powers of the Legislature within the meaning of sec. 5 of the Colonial Laws Validity Act 1865; and, further, by Rich J., because, quoad the power to abolish the Legislative Council, it introduced into the legislative body a new element, namely, the electorate.

Decision of the Supreme Court of New South Wales (Full Court) Trethowan V. Peden, (1930) 31 S.R. (N.S.W.) 183, affirmed.

APPEAL from the Supreme Court of New South Wales.

By the Constitution (Legislative Council) Amendment Act 1929 the Parliament of New South Wales amended the Constitution Act 1902, as amended by subsequent Acts, by inserting after sec. 7 a new section, called sec. 7A, in these terms 7A. (1) The Legislative Council shall not be abolished nor, subject to the provisions of sub-section six of this section, shall its constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within sub-section one of this section shall not be presented to the Governor for His Majesty's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1931] HCA 3
Decision Date: 16 March 1931

CaseChat Overview and Summary

The Attorney-General for New South Wales and others appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the validity of two Bills passed by the New South Wales Parliament: one to repeal section 7A of the Constitution Act 1902 (which mandated a referendum for certain constitutional changes) and another to abolish the Legislative Council. The plaintiffs, members of the Legislative Council, sought to restrain the presentation of these Bills to the Governor for assent until they had been approved by the electors, as required by section 7A.

The central legal issue before the High Court was whether the Parliament of New South Wales had the power to enact section 7A of the Constitution Act 1902, which imposed a requirement for a referendum for any Bill seeking to abolish the Legislative Council or repeal or amend section 7A itself. Specifically, the Court had to determine if this provision constituted a valid restriction on the Parliament's legislative power, particularly concerning its ability to amend or repeal its own constitutional provisions, and whether it complied with the requirements of the Colonial Laws Validity Act 1865.

A majority of the High Court, comprising Rich, Starke, and Dixon JJ., held that section 7A, by requiring a referendum for the repeal or amendment of itself, imposed a condition on the manner and form in which a law respecting the powers of the Legislature could be passed. This condition was considered valid under section 5 of the Colonial Laws Validity Act 1865. Furthermore, Rich J. reasoned that by introducing the electorate as a necessary element in the legislative process for abolishing the Legislative Council, section 7A effectively introduced a new constituent part into the legislative body, which the Parliament had the power to do. Consequently, the Bills to repeal section 7A and to abolish the Legislative Council, not having been submitted to a referendum, could not be presented for royal assent. The decision of the Supreme Court of New South Wales was affirmed.

Orders