Attorney-General (NSW) v Trethowan

[1931] HCA 3

44 CLR 394

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."

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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 assent until the Bill has been approved by the electors in accordance with this section. (3) On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly. Such day shall be appointed by the Legislature. (4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty's assent. (6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, sections thirteen, fourteen, fifteen, eighteen, nineteen, twenty, twenty-one, and twenty-two." This amending section was reserved for the royal assent, and afterwards received it.

In consequence of the provisions in sec. 7A that any Bill altering the constitution or powers of the Legislative Council should be referred to the electors for their approval, early in 1930 an Act was

44 CLR 396

passed called the Constitution Further Amendment (Referendum) Act 1930, and intituled An Act to provide for the holding of a referen- dum upon a Bill intituled 'A Bill to alter the Constitution of the (N.S.W.)

Legislative Council to amend the Constitution Act 1902 and certain other Acts and for purposes connected therewith to provide for certain matters necessary for giving effect to that Bill if approved at the referendum and assented to by His Majesty, including the conduct of elections of members of the Legislative Council: to provide for the conduct of any referendum upon a Bill authorized or directed by law to be submitted to a referendum; to make certain provisions as to the privileges of existing members of the Legislative Council and for purposes connected therewith." The Act was assented to in March 1930, but before it was given effect to, the Parliament which had passed it came to an end. A new Parlia- ment came into existence and a Bill was passed through both Houses repealing sec. 7A of the Constitution Act 1902. Such Bill-intituled

A Bill to repeal the Constitution (Legislative Council) Amendment Act 1929 and the Constitution Further Amendment (Referendum) Act 1930; and to amend the Constitution Act 1902, as amended by subsequent Acts; and for purposes connected therewith - - was in the following terms:-" (1) This Act may be cited as the Constitu- tion (Amendment) Act 1930.' (2) The Constitution (Legislative Council) Amendment Act 1929, and section 7A of the Constitution Act 1902, as amended by subsequent Acts, and the Constitution Further Amendment (Referendum) Act 1930 are repealed." In addition, a Bill abolishing the Council was before Parliament when this suit was instituted, and has since been passed through both Houses. Such Bill-intituled "A Bill to abolish the Legislative Council; to amend the Constitution Act 1902, and certain other Acts; and for purposes connected therewith -was in the following terms:- " 1. This Act may be cited as the Constitution Further Amendment (Legislative Council Abolition) Act 1930 and shall be read with the Constitution Act 1902 as amended by subsequent Acts. 2. (1) The Legislative Council of New South Wales is abolished. (2) The seat of every member of the said Legislative Council shall, on and after the commencement of this Act, be vacant and the office of member of the said Legislative Council is abolished. (3) All offices constituted

44 CLR 397

or created in or in connection with the said Legislative Council are abolished and all appropriations in respect thereof are repealed. (4) Any reference in any Act, ordinance rule regulation instrument or writing whatsoever to the Legislature or to the Parliament or to both Houses of Parliament or of the Legislature or to each House of Parliament or to either House of Parliament or other reference which if this Act had not been passed would be deemed to include a reference to the Legislative Council shall be construed to refer only to His Majesty The King with the advice and consent of the Legislative Assembly of New South Wales or only to the said Legislative Assembly as the context may require."

Neither of these Bills was submitted to the electors for their approval as required by sec. 7A, and this suit was instituted by two members of the Council, on behalf of themselves and all other members except those who were defendants, against the President of the Council and the Ministers of the Crown for New South Wales, seeking to restrain them from taking any steps to have either Bill presented to the Governor for His Majesty's assent until the will of the electors had been ascertained.

The statement of claim alleged (inter alia and in effect) that the plaintiffs were members of the Legislative Council of New South Wales; that the defendant the Hon. Sir John Beverley Peden, K.C.M.G., M.L.C., was the President of the said Legislative Council that the defendants other than the Hon. Sir John Beverley Peden were Ministers of the Crown of the State of New South Wales that the Constitution (Legislative Council) Amendment Act 1929 was duly passed and commenced on 1st October 1930 that the Bill to repeal the Constitution (Legislative Council) Amendment Act 1929, which was initiated in the Legislative Council, was passed by the Legislative Assembly on 10th December 1930 that such Bill had not been approved by the electors in accordance with sec. 7A of the Constitution Act 1902; that the defendant the Hon. Sir John Beverley Peden as President of the Legislative Council is the officer appointed by the standing orders of such Legislative Council to present to the Governor for His Majesty's assent Bills initiated in such Legislative Council after the same have been finally passed by both Houses that in contravention of sec. 7A of the Constitution

44 CLR 398

Act 1902 the defendant the Hon. Sir John Beverley Peden was threatening to present such Bill to the Governor for His Majesty's assent although such Bill had not been approved by the electors in (N.S.W

accordance with sec. 7A of the Constitution Act 1902. The statement of claim also alleged that the Bill to Abolish the Legislative Council, initiated in the Legislative Council, was passed by the Legislative Council on 9th December 1930; that the defendants, other than the Hon. Sir John Beverley Peden, claimed to be entitled to have each of such Bills if and when the same should have been passed by the Legislative Council and Legislative Assembly presented to the Governor for His Majesty's assent without any prior approval of the electors, and did not intend to submit the same or either of them to the electors for approval and threatened and intended to cause the same to be presented to the Governor for His Majesty's assent without such prior approval of the electors: that the plaintiffs feared that unless the defendants were restrained from presenting the Bills for His Majesty's assent until the same had been respectively approved by the electors in accordance with sec. 7A of the Constitution Act 1902 the plaintiffs would be seriously prejudiced and would be impaired in the security of their status, rights and privileges. The plaintiffs claimed (a) that it may be declared that a Bill to abolish the Legislative Council or repeal or amend the provisions of sec. 7A of the Constitution Act of 1902 cannot be presented to the Governor for His Majesty's assent until approved by the electors in accordance with such section; (b) that the defendant the Hon. Sir John Beverley Peden, K.C.M.G., M.L.C., may be restrained from presenting to the Governor for His Majesty's assent the Bill to Repeal the Constitution (Legislative Council) Amend- ment Act 1929 until the same has been approved by the electors in accordance with sec. 7A of the Constitution Act 1902; (c) that the defendants, other than the Hon. Sir John Beverley Peden, K.C.M.G., M.L.C., their servants and agents may be restrained from presenting or endeavouring or causing or procuring to be presented to the Governor for His Majesty's assent either of the Bills above mentioned until the same have been respectively approved by the electors in accordance with sec. 7A of the Constitution Act 1902; (d) that the

44 CLR 399

costs of this suit may be provided for; (e) that the plaintiffs may have such further or other relief as the nature of the case may require.

The matter having come before Long Innes J. on an ex parte ATTORNEY- application for an interim injunction, he referred the matter to the Full Court of New South Wales under the powers contained in the Equity Act; and as the defendants other than the President of the Council (who did not appear) refused to give any undertaking, he granted an injunction until the matter could be heard by the Full Court. The matter then came before the Full Court on a motion to continue that injunction, and the statement of claim was demurred to ore tenus. Apart from objections to the competence of the suit the principal submission upon which the demurrer was based was that sub-sec. 6 of sec. 7A was void and inoperative, so far as it purported to prevent the Legislature from repealing the section without a referendum, upon the grounds 1 that, as the constitution of New South Wales was, in substance, a flexible or uncontrolled constitution, the Parliament of 1929 had no authority to shackle or control the then existing Parliament, and (2) that sub-sec. 6 of sec. 7A was repugnant to and inconsistent with sec. 4 of the Imperial statute 18 &19 Vict. c. 54, which conferred a constitution on New South Wales, and with sec. 5 of the Colonial Laws Validity Act 1865 (28 &29 Vict. c. 63).

The Full Court of New South Wales (Street C.J., Ferguson, James and Owen JJ., Long Innes J. dissenting as to the validity of sec. 7A) ordered that the demurrer be overruled and that the injunctions be continued until the hearing of the suit or further order; and, the parties consenting to the motion being turned into a motion for a decree, the Court declared that the Bill to abolish the Legislative Council or repeal or amend the provisions of sec. 7A of the Constitution Act 1902 cannot be presented to his Excellency for His Majesty's assent until approved by the electors in accordance with such section Trethowan v. Peden (1).

From this decision the defendants other than the President of the Council appealed, by special leave, to the High Court, which in granting such leave ordered that the appeal to the High Court be limited to the questions whether the Parliament of the State of New

1(1930) 31 S.R. (N.S.W.) 183. 44 CLR 400

South Wales had power to abolish the Legislative Council of the said State or to alter its constitution or powers or to repeal sec. 7A of the Constitution Act 1902 except in the manner provided in the (N.S.W.)

Loxton K.C. (with him Kitto), for the appellants. The broad question is whether the State Parliament of New South Wales was competent to fetter its power of amending its own legislation. The Act which imposes this fetter is the Constitution (Legislative Council) Amendment Act 1929 (No. 28 of 1929), clause 6, which added sec. 7A to the Constitution Act 1902. Parliament cannot denude itself of the power to restrict its power to amend, and certainly could not fetter any subsequent Parliament. Parliament was never given power to lose its independence, and could not submit its volition to the volition of a third person. The present Parliament has full plenary powers as to territory and as to the subject matter of the legislation. The powers were as plenary as those possessed by the donor of the powers, that is, by the Imperial Parliament, and those powers connote the right of the Legislature to whom those powers were entrusted to repeal and to give expression to any change of mind which may take place or to any change of intention.

[GAVAN DUFFY C.J. It all amounts to this You say that Parliament has a perfect right to re-alter that which had been altered by this former Act of Parliament.]

That is so; and no Parliament can prevent a subsequent Parliament, or even prevent itself, from subsequently repealing its own legislation. That is really the invalidity that is attacked

SO far as this measure is concerned. No authority has been pro- duced that indicates that it ever has been successfully attempted on the part either of the Imperial Parliament or of a Dominion legislature to limit its own inherent powers of repeal. To support a claim to fetter such as is here set up by the respondents there must be either clear judicial authority, clear legislation OF clear appearance of necessity to support it (per Earl of Birkenhead in Birkdale District Electricity Supply Co. v. Southport Corporation 1 ). Part of the strength of the appellants' argument lies in the fact

1(1926) A.C. 355. 44 CLR 401

that although the Imperial Parliament has been in existence, practically speaking, from time immemorial, and although the Australian Colonies and States having responsible government were in existence at all events as far back as 1855, there has never been a successful attempt by either the Imperial Parliament or by any of the Dominion Parliaments to place a fetter on the right to legislate such as is placed upon the Parliament of New South Wales in this Act.

[GAVAN DUFFY C.J. I appreciate the fact that there may not have been a successful attempt to do this but has there been an unsuccessful attempt

So far as an unsuccessful attempt is concerned, the only instance is the proposal to grant Home Rule to Ireland in 1866 when it was proposed to prohibit an alteration except in the presence of Irish members. The question for decision is one of construction not of one Act of Parliament alone but of at least three Acts, two of them being Imperial Acts and one a State Act. First, there is sec. 2 of Act No. 28 of 1929 to be considered; then the Imperial Act 18 &19 Vict. c. 54, and then, in dealing with the effect of that Act, the Colonial Laws Validity Act 1865 (28 &29 Vict. c. 63). First, the Act 18 &19 Vict. c. 54 is in full force and operation, and assuming (which the appellants do not admit) that the Colonial Laws Validity Act is not as wide in its terms as 18 &19 Vict. c. 54, the Act 18 &19 Vict. C. 54 is still in force in the State of New South Wales, even if the later Act 28 &29 Vict. c. 63 is not as wide as the former, and under the Act 18 &19 Vict. c. 54 legislation such as that now in question would be absolutely invalid. Then as to the Colonial Laws Validity Act, that is an explanatory and also an enabling Act, but in no sense does it cut down 18 &19 Vict. c. 54. They are perfectly consistent with one another, and the Colonial Laws Validity Act purports to explain certain things in respect of which doubt had been cast by some of the Judges of the Dominion Courts, and that doubt necessitated the passing of that particular Act. The Colonial Laws Validity Act, apart from 18 &19 Vict. C. 54, shows in itself that sec. 2 (6) of the State Act is invalid as attempting to impose a fetter on legislation which the Legislature could not impose. Sub-sec. 6 differs from the preceding sub-sections because it purports to control the Legislature's right to change its

44 CLR 402

own mind. The section requires a delay of at least two months before the referendum is submitted to the people, and the taking of a referendum also involves an expenditure of money. Both of (N.S.W.)

these are fetters on the powers of Parliament. The requirement of a referendum also destroys the volition and independence of Parliament by subordinating its volition to that of a third person, namely, the electors. The Imperial Legislature never conferred on the State Legislature the right to destroy its own independence either in part or in whole. What the Imperial Parliament gave, it gave completely and unequivocally (McCawley v. The King 1. The Imperial Parliament had the fullest power to reconsider its own determinations, and this power it conferred on the Dominion legislature. Had sec. 2 of Act No. 28 of 1929 stopped at sub-sec. 5 it would have been valid, because it would still have been within the competence of Parliament to alter it. The Legislature of New South Wales is in all respects similar to the Imperial Legislature

SO far as this present litigation is concerned (Dicey on the Law of the Constitution, 8th ed., p. 62: Wilberforce on Statute Law, p. 34). The suggestion that the law can be repealed only in a certain way is in conflict with the theory that a sovereign body cannot limit its powers to legislate either in part or completely. The crux of the matter is this: Can the State Legislature deprive itself of the right to alter its mind ? And that does not raise the question whether it has got to do it in one particular form or another. Sec. 4 of 18 &19 Vict. c. 54, giving the Legislature of New South Wales power to repeal the provisions of the reserved Bill, described as the Constitution Act by the Acts Interpretation Act 1897 (N.S.W.), was itself subse- quently repealed by the Act 20 Vict. No. 10. Sec. 4, however, is not thereby rendered inoperative (see the Despatch of Lord John Russell in the Parliamentary Handbook (N.S.W.), p. 228; Taylor V. Attorney-General of Queensland 2 ).

[DIXON J. Clause 22 of the Queensland Order in Council is equivalent to sec. 4 of the Imperial statute.]

McCawley v. The King 3 Cooper v. Commissioner of Income Tax for the State of Queensland 4, and 18 &19 Vict. c. 54, Sched. I.,

1(1920) A.C. 691 : 28 C.L.R. 106. 2(1917) 23 C.L.R. 457, at p. 472. 3(1918) 26 C.L.R. 9, at p. 38. 4(1907) 4 C.L.R. 1304, at p. 1314. 44 CLR 403

sec. 9, also show that sec. 4 is not wholly inoperative. The legis- lature referred to in sec. 9 consists of the three component parts, the Upper House, the Lower House and the Crown, and this section contemplates that the State Legislature will, in exercise of the powers conferred upon it by sec. 4 of 18 &19 Vict. c. 54, alter the constitution of that Legislature.

As to the Colonial Laws Validity Act, 28 &29 Vict. C. 63, having regard to the preamble of that Act, it is clear that it is a law of general application, and, as it is a law dealing with general matters, it does not cut down the specific right created by the Act 18 &19 Vict. c. 54. because the latter Act was the charter dealing with the special conditions prevailing in the State of New South Wales, which was not open to the doubts to which some of the constitutions of the other Dominions were open. Secs. 1, 2 and 4 of 28 &29 Vict. c. 63 support this view; and SO far as there is inconsistency the provisions of 18 &19 Vict. e. 54 should prevail. Sec. 5 of 28 &29 Vict. c. 63, which is the crucial section, means, merely, that whatever law was applicable to the passing of a statute, every valid law that was applicable at the time must be complied with, but the provision for a referendum takes from Parliament the power to do as it likes and makes its will dependent on the volition of a body it is unable to control, and this is not a matter relating to the "manner and form " required by any Act of Parliament within the meaning of sec. 5. but is a matter of substance. Even if it were a matter of "manner and form " the Legislature was just as competent to change its mind as to that as to any other matter, because it comes within the scope of the term "peace, order and good government." Parlia- ment cannot hand over control to a third person in such a manner as provided in the statute No. 28 of 1929 (N.S.W.) (Birkdale District Electricity Supply Co. v. Southport Corporation 1 Powell v. Apollo Candle Co. 2 Hodge v. The Queen 3 ). It is inherent in the Imperial Parliament that it cannot bind future legislators or future Parliaments, and this applies to powers conferred on the Parliament of New South Wales. Dealing with sec. 7 and sec. 7A of the Con- stitution Act 1902, it is clear that the Legislature is the same body

1(1926) A.C., at pp. 363-366. 2(1885) 10 App. Cas. 282, at pp. 287, 288. 3(1883) 9 App. Cas. 117. 44 CLR 404

in each case, and the referendum does not create a new constituent

part of the Legislature, and in the Colonial Laws Validity Act it is the same body that is recognized. As to the question of manner (N.S.W.)

and form," if the Legislature is going to part with its volition. or make its volition subject to the volition of a third person, that is not a matter dealing merely with "manner and form but with substance then it is necessary to see whether the purporting to perform that act, which is a matter of substance, is something which is consistent with what the Imperial Legislature has given--a com- plete and unequivocal power of legislation which has been given to this new creation.

[DIXON J. In the discussion which has taken place upon sec. 3 of the Colonial Laws Validity Act there has been some difference of opinion, but I think the result now is that sec. 3 applies to the Com- monwealth Constitution, and the Commonwealth Constitution is not to be treated as a later inconsistent law. That leaves the question of sec. 5 completely open but it affords some ground at least for saying that the whole of the provisions of the Colonial Laws Validity Act are of general application to any existing and future constitution of every British possession. If that is so, then, as it seems to be conceded on all hands that sec. 5 does not clothe the Federal Parliament with any power to amend the Constitution inconsistently with sec. 128, there appear to be only two ways of getting at that result: one is to say that sec. 5 does not apply because sec. 128 of the Constitution is a later Imperial law inconsistent with it, and the other is to say that it does not apply, or it only applies sub modo, because the words "manner and form in the proviso of sec. 5 requiring that laws with respect to the constitution, powers and procedure of the legislature shall be passed in the manner and form prescribed by the law in force for the time being, afford a description which is answered by the referendum provisions of sec. 128. But there has been a judicial tendency to say that the Colonial Laws Validity Act does apply generally to all present and future constitutions, and you are not to treat the fact that the Constitution is later in point of date as militating against the conclusion that it applies to the Constitution.]

44 CLR 405

Referring to an earlier contention, even if the Colonial Laws Validity Act is to be given a narrower construction than that con- tended for, the Act 18 &19 Vict. c. 54 specially regulates the Con- stitution of New South Wales, and, as is pointed out in McCawley's Case 1 and also in Taylor v. Attorney-General of Queensland 2, that Act and the Colonial Laws Validity Act are two separate and distinct fountains of legislative authority. No doubt they cover the same ground to some extent, but to the extent to which they do not cover the same ground the later statute does not repeal the earlier. In the Act 18 &19 Vict. c. 54 the same word "manner" is used. The expression "manner and form " in the Colonial Laws Validity Act amounts only to this: that when you pass laws you must pass laws which are regarded as laws by the competent authorities. It is necessary to comply with the requirements which a Court would say were necessary for the purpose of making it a law, but that does not in any way cut down the inherent right of a legis- lature to reconsider its determination and cease to act upon a former determination. When it is found that the Legislature has passed these laws or these Bills in accordance with the standing orders of the House, which have the operation of law, then you have the full effect of manner and form.

[DIXON J. There is a theoretical discussion of Soveregnity in Appendix II. to Salmond on Jurisprudence, 8th ed., p. 524, in which the question is considered whether, in virtue of Sovereignty, limita- tions upon Sovereignty may be prescribed.]

Maughan K.C. (with him E. M. Mitchell K.C. and Nicholas), for the respondents. The issue before the Court on this appeal is whether sub-sec. 6 of sec. 7A of the Constitution Act 1902, introduced by the Act No. 28 of 1929, was intra vires the Parliament of New South Wales; and that question is rather one with regard to the powers of the 1929 Parliament. If an Act says that it shall not be repealed except in a particular way, such a provision is either good or bad and when the time comes to repeal it, if it can be repealed in some other way, then to all intents and purposes it was

1(1920) A.C. 691 ; 28 C.L.R. 106. 2(1917) 23 C.L.R. 457. 44 CLR 406

OF A. bad from the beginning. Ultimately, the question turns on the

true construction of sec. 5 of the Colonial Laws Validity Act. The question is really rather one of the powers of the 1929 Parliament (N.S.W.)

than of the powers of the 1930 Parliament. To put the problem in a colloquial way: Can the New South Wales Parliament embody the compulsory referendum in its Constitution effectively and effectually, or must it go to the Imperial Parliament if it desires to embody that principle in its Constitution ? It would appear that the powers of the New South Wales Parliament are SO complete and unequivocal that it can do this very thing effectually. There is a substantial distinction between the powers of the Imperial Parliament and the powers of the Dominion Parliaments. The position of the Dominion Parliaments is stated by Lord Birkenhead in McCawley's Case 1. It was the intention of the Imperial Parliament to make these colonial Parliaments their own constitution- makers. It is both the letter and the spirit of our constitutions that the legislatures mentioned either in 18 &19 Vict. c. 54 or in the Colonial Laws Validity Act were intended to be their own constitution-makers. They were intended to be the architects of their own fortunes, and were to make their own constitutions: and there were only two limitations placed upon them, one was that they must observe the manner and form then required, and the other is that probably the legislature must continue to be a representative legislature. With those two limitations the words contained in the Constitution are SO very full that the Legislature in question can mould its own constitution, completely alter its nature, and do anything it wishes in the way of constitution-making provided it observes those two limitations, and can, in effect. turn that which is a flexible constitution into a rigid constitution, and that is what has been done in this instance. The power given to the Dominion Parliaments is a power to do something which will bind future Parliaments, and the very object of the Colonial Laws Validity Act is to enable the Dominion legislature to do such an act as the introduction of a referendum. The provision which controls the present position is sec. 5 of the Colonial Laws Validity

1(1920) A.C. 691 28 C.L.R. 106. 44 CLR 407

Act, which defines' the powers previously given. The expressions used by Isaacs J. and Rich J. in McCawley's Case 1 show that sec. 5 must be regarded as being written into the constitution and as being a component part of the constitution. Doubts had arisen as to the meaning of sec. 4 of 18 &19 Vict. C. 54 and of similar provisions in other colonial constitutions, particularly in South Australia and Tasmania, and the Imperial Parliament, in order to set those doubts at rest, passed the Colonial Laws Validity Act of 1865, which, by sec. 5, said what sec. 4 of the Act 18 &19 Vict. C. 54 meant. In effect the Colonial Laws Validity Act replaced or expounded the earlier Act. If what was done in 1929 was authorized by sec. 5 of the Colonial Laws Validity Act, that is sufficient. More- over, sec. 4 of the Act 18 &19 Vict. c. 54 gave the Legislature of New South Wales power to legislate as to manner and form, and also power to alter the Constitution, that is, to transfer that power to some other body or group of bodies which would still be the representative legislature, and if sec. 5 of such Act is a charter for us and has the meaning alleged, sec. 7A of the Constitution Act is intra vires the Parliament of New South Wales. There is no rule that one colonial Parliament cannot bind another, and no authority or principle. to support such a rule. Although one Parliament cannot make a law which is unrepealable, it can define the manner and form in which the law must be repealed. There are two ways, which are quite distinct from each other, in which one Parliament can tie the hands of a succeeding Parliament. One is as to the manner and form, and if a particular manner and form are prescribed that must be observed. Such manner and form may be prescribed for all Bills including a Bill to repeal the Bill, and if there is any restriction passed by one Parliament as to the way in which constitutional Acts must be repealed, that restriction must be observed and cannot be got rid of by an Act passed in the ordinary way. It was the ignoring of those very restrictions that led to the passing of the Colonial Laws Validity Act, and the letter of the law officers to the Secretary of State to the Colonies describes the matters that gave rise to the Colonial Laws Validity Act. One of those matters was the ignoring of forms which they thought were not

1(1918) 26 C.L.R., at p. 49. 44 CLR 408

imperative and which the Colonial Laws Validity Act has intended

to make imperative. That is not taking away or destroying the power, but is merely doing what the Imperial Legislature intended (N.S.W.)

should be done.

[GAVAN DUFFY C.J. In other words, it amounts to this: that in order to make a repealing Act effective it must be passed in a way which is effective in the then existing law.]

That is SO; and that is the issue in this case. The other method by which one Parliament can tie the hands of its successor resides in the power which the New South Wales Parliament has to alter its own constitution. That is independent of manner and form. It can alter its own constitution and transfer the law-making power to a different group of bodies or to a group of bodies differently constituted. If it does so, that then becomes the new group and the new units that have power to alter the law, and they still have the full power given in the Act. In order to ascertain what sort of thing the Legislature meant when it spoke of manner and form, the matter can be viewed from three angles. One is historical, to see what drew the attention of the Imperial Parliament to the necessity for the legislation the second is authority, the statements either of Justices of the Court or of text-book writers and the third is the natural meaning of the words. Sub-sec. 6 of sec. 7A of the Constitution Act is clearly a law respecting the powers of the Legislature whatever that Legislature is or is not, because it restricts the powers. Sub-sec. 6 of sec. 7A is a law respecting the power of the Legislature to repeal sub-sec. 6-that is to say, it is a law respecting the power of the Legislature to make that particular law therefore, it is within the description given there, and it is authorized. Sec. 7A is a law respecting the constituents, because it adds, for this particular class of law, a new body to the law-making element.

The next step is that it is a law respecting the powers of such Legislature because sub-sec. 6 of sec. 7A is a law which says that the power shall only be exercised in a certain way. Therefore, it is a law respecting the powers of the New South Wales Legislature, and is justified because it relates to manner and form. A further view is that the law here in question is one relating to manner and form, and it is necessary to see what sort of things could be

44 CLR 409

prescribed as manner and form in the Constitution of New South Wales as it existed in 1855. There are several restrictions on the very ample power contained in sec. 4 of the Act 18 &19 Vict. C. 54; such as the reservation for the King's assent, the lying on the table of both Houses of the Imperial Parliament, and the requirement of unusual majorities. Two of them have nothing to do with the Houses of Parliament and one of them has nothing to do with any of the units of the Legislature. If these restrictions are not observed the law will be invalid. (See Blackmore on the Law of the Constitution of South Australia, pp. 57, 62 25 &26 Vict. c. 11.) The letter of the law officers giving rise to the passing of the Colonial Laws Validity Act is quoted in Blackmore on the Law of the Constitution of South Australia, at pp. 67-68. This letter treats the two things, majorities and non-reservation, in the same category as forms necessary in the making of the law. So that what preceded the Colonial Laws Validity Act was this failure to observe the forms-not only the forms as to things happening in the House but happening outside the House and happening in regard to units not part of the Legislature. What happened was that the law officers advised that an Act should be passed for the purpose of empowering the legislature of any Colony which might be in like circumstances to South Australia to alter its own constitu- tion, and in the resultant Act they put this provision that laws of the class mentioned must have been passed in such manner and form as may be required, &. That is a recognition of the colonial legislature to legislate as to manner and form as to things which are not only inside the Houses but outside the Houses of Parliament (McCawley's Case 1 ). If any of the matters of manner and form are not observed, the Bill is not well passed and invalid even if it got on the Statute Book. The Dominion Parliaments working under the Colonial Laws Validity Act can make special restrictions binding upon themselves (McCawley's Case 2 Berriedale Keith on Responsible Government in the Dominions (1927 ed.), vol. I., pp. 350, 352). If Parliament has laid down a restriction on the manner of repealing a particular Act, succeeding Parliaments must obey

1(1918) 26 C.L.R., at pp. 54, 61. Lord Birkenhead L.C. 28 C.L.R., at 2(1920) A.C., at pp. 704, 710, per pp. 115, 121. 44 CLR 410

OF that restriction: they cannot ignore it. Only two conditions are

necessary first, the law must, as to subject matter, answer the description, and, secondly, it must have been passed in manner and (N.S.W.)

form as required by the law of the Colony relating to the passing of laws. If it is laid down in the Constitution of any Dominion that Parliament must observe any special manner and form for repealing any given Act, then that manner and form must be obeyed. Conse- quently, if there was power in 1929 to impose the restrictions under sec. 5 of the Colonial Laws Validity Act, no construction of sec. 4 of 18 &19 Vict. c. 54, which would allow Parliament to undo them in 1930, can prohibit the observance of such restrictions (Berriedale Keith on the Sovereignty of the British Dominions, pp. 46, 198). Sec. 128 of the Commonwealth Constitution is an illustration of a similar restriction, but one imposed by an Imperial Act, and there is a similarity between that section and sec. 7A of the Constitution Act 1902 (N.S.W.). Taylor's Case 1 establishes, first, that a law setting up a referendum of the electors as a step in making laws is a law respecting the powers of the legislature, and, secondly, that it is not outside the scope or intention of the Colonial Laws Validity Act to incorporate the electors as part of the law-making machine, and in the present instance the electors are made part of the law- making machine, and Parliament has thus altered the constitution of the legislature (In Initiative and Referendum Act 2; Dicey on the Law of the Constitution, 8th ed., pp. 65,66). In addition, the respon- dents rely upon the reasoning of the various judgments in the Supreme Court. Moreover, in the Birkdale Case 3, which related to the duties of a justice, there is nothing established which will give the Court any assistance in this case. The conclusion to be drawn is that sec. 7A is right for these two reasons, namely, that this is a law relating to manner and form which the Imperial Parliament recognizes the colonial Parliament by the Colonial Laws Validity Act as having power to pass, and that is quite independent of what the word "legislature" means in sec. 5; and, secondly, the New South Wales Legislature has altered the constitution of the Legis- lature by bringing a new unit into the law-making body for the

1(1917) 23 C.L.R. 457. 2(1919) A.C., at pp. 939, 943, 945, 3(1926) A.C. 355, 44 CLR 411

purpose of making this particular class of law, and that is capable of being done under the powers conferred by the Colonial Laws Validity Act, sec. 5, and the appeal should, consequently, be dis- missed.

Cur. adv. vult. The following written judgments were delivered :-

GAVAN DUFFY C.J. In the year 1929 the Legislature of New South Wales enacted the Constitution (Legislative Council) Amend- ment Act 1929. Sec. 2 of that Act raises the questions for discussion in the present case, and is in the following terms "The Constitution Act, 1902, as amended by subsequent Acts is amended by inserting next after sec. 7 the following new section :- 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 assent until the Bill has been approved by the electors in accordance with this section. (3) On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be sub- mitted to the electors qualified to vote for the election of members of the Legislative Assembly. Such day shall be appointed by the Legislature. (4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes. (5) If a majority of the electors voting approve the Bill, it shall be pre- sented to the Governor for His Majesty's assent. (6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, sections thirteen, fourteen, fifteen, eighteen, nineteen, twenty, twenty-one, and twenty-two." It does not appear whether in making this enactment Parliament purported to exercise the powers conferred on it by the Imperial Act 18 &19 Vict. c. 54, or those conferred on it by the Colonial Laws Validity Act 1865. But in order to face the difficulties raised in this case, I shall assume that it

44 CLR 412

C. OF acted under sec. 5 of the latter Act, and subject to the proviso

contained in that section. The section is as follows: "5. Every colonial legislature shall have, and be deemed at all times to have (N.S.W.)

had, full power within its jurisdiction to establish Courts of judi- cature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein and every representative legislature shall, in respect to the Colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the con- stitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council, or colonial law for the time being in force in the said colony."

In my opinion sec. 2 of the Constitution (Legislative Council) Amendment Act 1929, which inserted sec. 7A into the Constitution Act, was within the powers conferred on the Legislature by sec. 5 of the Colonial Laws Validity Act 1865 because it was a law respect- ing the powers of the Legislature. The question for consideration is whether the section which authorized its enactment also authorized its repeal in the circumstances now to be stated. In the year 1930 a Bill was introduced and passed through both Houses of Parliament for the repeal of sec. 7A of the Constitution Act; and these proceedings are brought for the purpose of restraining the presentation of this Bill to His Excellency the Governor of New South Wales for his assent on the ground that the Bill has not been approved by the electors in pursuance of the provisions of that section. It is to be observed that sec. 7A, while requiring the approval of the electors to enactments coming within the scope of the section, does not affect the constitution of the Legislature, which remains as it was before the passing of that section. It was, and it remains, the body to exercise the powers conferred by sec. 5 of the Colonial Laws Validity Act 1865, and we are relieved from the consideration of any question which might have arisen, had the constitution of the Legislature been altered for all purposes, or merely for the purpose of dealing with some specific subject or subjects. I have no doubt that the same authority which imposed the condition of approval by the

44 CLR 413

electors can now alter the law and remove such condition. It is said that sub-sec. 6 of sec. 7A of the Constitution Act imposes a law as to "manner and form " within the meaning of the proviso to sec. 5 of the Colonial Laws Validity Act 1865, inasmuch as it requires a "manner and form " which must be adopted in repealing that section, and that that law can be altered only in the manner pre- scribed by the section. Let us assume for the moment that it does impose such "manner and form," the result is that that "manner and form " must be followed as long as the requirement exists. If Parliament had erected a new authority within the meaning of the Colonial Laws Validity Act 1865 to take its place either wholly or for the purpose of the repeal of sec. 7A, it might well be that that authority could alone repeal the section; but it has not done so, and though the Legislature as it existed in 1929 could exercise all the powers conferred on it by the Colonial Laws Validity Act 1865, it could not derogate from those powers in the hands of the Legislature as it existed in 1930. Sec. 7A has no more binding force than any other enactment of the Parliament of New South Wales, and the power to make laws respecting its own "constitution, powers, and procedure" as fully authorized the removal of the referendum machinery as it authorized its introduction. That Legislature can prescribe what "manner and form " shall be neces- sary, and SO cease to require what has theretofore been necessary. For the purposes of the argument which I have already stated, I have assumed that sec. 7A prescribes a "manner and form " in which a law shall be passed within the meaning of sec. 5 of the Colonial Laws Validity Act 1865. But a careful examination of both enact- ments has satisfied me that this is not SO. It is legislation with respect to the "powers" of the Legislature within the meaning of sec. 5 of the Imperial statute and not with respect to its "constitu- tion" or "procedure." Again, when the Imperial statute deals with the making of a law as a whole it uses the word "make" or "enact," but when it deals with any integral part of the making it uses an expression appropriate to that integral part, such as "passed," "presented to the Governor," "assented to by the Governor," and the antithesis between the words "make" and "pass" appears to be preserved in the language of sec. 5 itself.

44 CLR 414

It may well be that the words "shall have been passed in such 1931.

manner and form " in sec. 5 mean nothing more than "passed by the House or Houses of Parliament." But in any case it seems (N.S.W.)

clear to me that the proviso has application only to acts of the Legislature or of some branch of the Legislature. Thus, it might include all that is to be done in the course of legislation by any branch of the legislative body, but it cannot include an act required to be done by some person, or persons outside the legislative body, as a condition precedent to any act of the legislative body.

In my opinion the appeal should be allowed.

RICH J. This is an appeal by special leave from a decree of the Supreme Court of New South Wales in Equity by which it is declared that a Bill to abolish the Legislative Council of New South Wales or repeal or amend the provisions of sec. 7A of the Constitution Act 1902 of New South Wales cannot be presented to His Excellency the Governor for His Majesty's assent until approved by the electors in accordance with that section, and the defendants are restrained from presenting for His Majesty's assent, or endeavouring or causing or procuring to be SO presented, unless they have been SO approved. two Bills, namely, a Bill passed by both Houses of the Legislature for the repeal of sec. 7A of the Constitution Act 1902, and a Bill passed by both Houses for the abolition of the Legislative Council. The defendants SO restrained are the President of the Legislative Council, the Attorney-General for the State of New South Wales, the Premier and the other Ministers of the Crown for the State of New South Wales. The provisions of sec. 7A, which were inserted in the Constitution Act 1902 by an amendment adopted in 1929, are as follows: 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 assent until the Bill has been approved by the electors in accordance with this section. (3) On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be submitted to the electors qualified

44 CLR 415

to vote for the election of members of the Legislative Assembly. Such day shall be appointed by the Legislature. (4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty's assent. (6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, sections thirteen, four- teen, fifteen, eighteen, nineteen, twenty, twenty-one, and twenty- two."

A manner for taking the vote of the electors when a Bill is submitted to them was prescribed by an Act of 1930. The Government of the day having announced its intention of taking measures to procure the passage through both Houses of Bills to repeal sec. 7A and to abolish the Legislative Council, the Legislative Council itself, relying apparently upon the belief that such Bills could not be lawfully assented to without a referendum, originated and passed the Bills which are the subject of the decree. It thus became unnecessary for the Government to adopt any of the measures announced, and upon the Bills being passed by the Legislative Assembly the controversy was reduced to the questions of law whether the Bills could lawfully be presented to the Governor, and whether, if presented, lawfully or unlawfully, the royal assent could validly be given unless the Bills were first submitted to and approved by the electors at a referendum. The suit was instituted by two members of the Legislative Council suing on behalf of themselves and all other members except the President and those members who, being Ministers of the Crown, were joined as defen- dants. The plaintiffs maintained that sec. 7A was a valid and effectual restraint upon the power of the two Houses of Parliament and the Crown to abolish the Legislative Council or to repeal or amend the provisions of sec. 7A imposing that restraint. The defendants, as well as denying this contention, objected to the form of the suit which, they said, disclosed no ground for equitable relief, and to the relief claimed which, they said, was designed to prevent the free access to the Sovereign of the representatives of

44 CLR 416

Parliament. These objections were overruled in the Supreme Court. The person to whose lot it would fall to present Bills originated in the Legislative Council is the President of that Chamber, (N.S.W.)

and the Court inferred that unless restrained the President would present the Bills which had been passed to the Governor for the royal assent although neither of them was first submitted for the approval of the electors. The members of the Supreme Court were further of opinion that, having regard to the terms of sec. 7A and to the consequences which might ensue if the President took this course, an injunction should be granted unless sec. 7A was ineffectual. The majority of the Court, consisting of Street C.J., Ferguson, James and Owen JJ., Long Innes J. dissenting, held that sec. 7A was valid and effectual and precluded its own repeal without a referendum. Upon the application to this Court for special leave to appeal from their decision, this Court considered that, in the exercise of its discretion to permit an appeal to it, it should impose conditions upon the appellants which would confine the appeal to the substantial questions "Whether the Parliament of the State of New South Wales has power to abolish the Legislative Council of the said State or to alter its constitution or powers or to repeal section 7A of the Constitution Act 1902 except in the manner provided by the said section 7A."

The first ground which the appellants took for attacking the correctness of the conclusion of the majority of the Supreme Court was that sec. 4 of the Imperial Act 18 &19 Vict. c. 54 (the Constitution Statute as it is called in New South Wales) conferred upon the Parliament of New South Wales a power, which it could not abridge or condition and of which it could not divest itself, enabling it at any time to make and to repeal a law relating to any of the matters governed by the Constitution Act. It was pointed out from the Bench that all this section expressly provided was that the Legislature of New South Wales might make laws altering or repealing the Bill contained in the Schedule in the same manner as any other laws for the good government of the Colony, and that this power had been exercised once and for all when the Bill contained in the Schedule was repealed and the Constitution Act 1902 was substituted for it as an instrument of government. This

44 CLR 417

appears to be a formidable criticism of the argument, but I am prepared to assume that the powers given by sec. 4 of the Constitution Statute were not all thereby spent, and that, if no more had occurred. a power of constitutional amendment would belong to the Parliament of New South Wales in virtue of this section. The argument leaves out of account an occurrence of great constitutional importance to the Dominions. It ignores the passing of the Colonial Laws Validity Act 1865. Sec. 5 of that Act confers upon representative legislatures in the Dominions full power to make laws respecting the constitution, powers and procedure of such legislatures, provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament. letters patent, order in council, or colonial law for the time being in force therein. This is a parallel power, but it is not alternative. It is the final and authoritative expression of every colonial representative legislature's power to make laws respecting its own constitution, powers and procedure. In the judgment of Isaacs J. (as he then was) and myself in McCawley's Case 1, which obtained the approval of the Judicial Committee 2, we said the Colonial Laws Validity Act was intended obviously to end for ever all doubts as to matters with which it dealt. In answer to an argument that the Constitution of Queensland impliedly restricted the power of amendment, we said that, in effect, that view disregarded the fifth section of the Act. The argument was, in the words of the judgment, " If the power exists independently of theAct, the Act was unnecessary. If it does not, then

the Act does not apply' 3. In dealing with this contention we said 4 Whatever colonial restrictions existed immediately prior to the passing of the Colonial Laws Validity Act must yield to the later will of the Imperial Parliament as expressed in sec. 5.

At the moment, therefore, of the passing of the Colonial Laws Validity Act 1865, sec. 5 was,

SO far as its language extends, an absolute charter, no matter what the British Legislature had previously said. It is as if the Imperial Parliament

had said: Notwithstanding anything contained in or omitted from the constitutional law of any Colony, be it

1(1918) 26 C.L.R., at pp. 64-65. 2(1920) A.C., at p. 701 ; 28 C.L.R., 3(1918) 26 C.L.R., at p. 50. at p. 112. 4(1918) 26 C.L.R., at pp. 50, 51. 44 CLR 418

enacted &." I regard it as clear that in SO far as sec. 5 enables the Legislature of New South Wales to fetter, restrain, or condition ATTORNEY- the exercise of its power of constitutional alteration, no prior

statute of the Imperial Parliament can operate to enable it to ignore or set at nought any restraint, fetter, or condition it has seen fit to impose in the exercise of that power. On the other hand, in SO far as sec. 5 confers a power of constitutional alteration which it does not authorize the Legislature SO to fetter, restrain, or condition, that power may be exercised in complete disregard of any fetter, restraint, or condition which may have been attempted. How far, then, does sec. 5 permit of constitutional alterations which have the effect of controlling the future action of the Legislature ? Two methods of controlling the operations of the Legislature appear to be allowed by the express terms of the section. The constitution of the legislative body may be altered that is to say, the power of legislation may be reposed in an authority differently constituted. Again, laws may be passed imposing legal requirements as to manner and form in which constitutional amendments must be passed. In my opinion the efficacy of sec. 7A depends upon the answer to the questions-does it fall within the proviso as to a requirement of manner and form ? and does it introduce into the legislative body a new element ? If the true answer to either of these questions is Yes, then the Legislative Council cannot be abolished without a referendum unless and until sec. 7A is repealed, and sec. 7A cannot be repealed except by a Bill approved at a referendum before it is presented for the royal assent. I think the whole matter is deter- mined by the answer to these questions. They arise upon the text of the constating instrument, the Colonial Laws Validity Act. The Legislature of New South Wales is not sovereign, and no analogy can be drawn from the position of the British Parliament. The question is one of construction, and not of general reasoning as to the inherent right of a sovereign legislature to undo all that it has done. The first question is whether sub-sec. 6, which is a colonial law for the time being in force, requires a manner and form in which a law repealing sec. 7A must be passed. In my opinion it does. take the word "passed" to be equivalent to " enacted." The proviso is not dealing with narrow questions of parliamentary

44 CLR 419

procedure. At the time when the Colonial Laws Validity Act was passed, the matters of principal concern were prescribed majorities, reservation of Bills for the signification of the Queen's pleasure and the laying of colonial Bills before both Houses of the Imperial Parliament (see sec. 36 of the Constitution Bill, Schedule to 18 &19 Vict. c. 54). It may be noticed that the reservation and tabling of Bills in both Houses of the Imperial Parliament are matters quite extrinsic to the process of passing measures through the Houses of the local Parliament and, even if the Crown be included within the language of sec. 5 of the Colonial Laws Validity Act as part of the colonial legislature, the tabling of Bills to which the Governor has assented, forms no part of the process of assent or disallowance. In my opinion the proviso to sec. 5 relates to the entire process of turning a proposed law into a legislative enact- ment, and was intended to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making This view is enough to dispose of the case but if what is done under sub-sec. 6 did not fall under the proviso, the question would still remain whether for the purpose of abolishing the Legislative Council and the purpose of repealing sec. 7A a new element is not introduced into the legis- lative authority. It was conceded that under sec. 5 it was competent to the legislature to establish a third Chamber whose assent would be required to complete any legislative act. It could not be denied that, if a third Chamber could be introduced, a body of persons of another character might also be created a constituent element of the legislature. It was said, however, that the definition of "colonial legislature " in sec. 1 of the Colonial Laws Validity Act confines the signification of that term to the authority competent to make laws for the Colony upon general matters, and that if upon matters in general the two Houses with the assent of the Sovereign could legislate, sec. 5 gave them the power of constitutional amend- ment in spite of the attempt to incorporate the electorate in the legislative system for the purpose of particular legislation. But no reason appears to exist for applying the definition of colonial legislature in such a manner. If the legislative body consists of different elements for the purpose of legislation upon different

44 CLR 420

subjects, the natural method of applying the definition would be to consider what was the subject upon which the particular exercise of power was proposed, and to treat sec. 5 as conferring upon the (N.S.W.)

body constituted to deal with that subject authority to pass the law although it related to the powers of the legislature. An examination of sec. 7A shows that a legislative body has been created for the purpose of passing or co-operating in passing a particular law. There is no reason why this authority need extend to all laws. It is enough to turn to the Commonwealth of Australia Constitution Act to find in sec. 128 of the Constitution the prototype of sec. 7A. The electors are called upon to approve or not of certain class of Bill. In SO doing they discharge a function of law- making. It is not necessary for them to have a power of altering or amending a proposal submitted to them. According to the practice of the Legislature of New South Wales, the Legislative Assembly will not proceed further if the Council amend a money-bill. In the Federal Parliament the Senate has no power to amend money-bills (sec. 53 of the Commonwealth of Australia Constitution). It must accept or reject a Bill. But when it has expressed its approval or disapproval it has discharged its function as a legislative body. The legislative part played by the electorate in the referendum is recognized by Bryce, who describes it in his American Commonwealth (1911 ed.), vol. I., c. 39, p. 467, as "A transference of legislative authority from a representative body, whether the Parliament of the nation or the parish vestry or municipal council of the town (as the case may be), to the voters at the polls."

On the last-mentioned matter I would make these observations:- Sec. 9 of the Imperial statute 18 &19 Vict. c. 54 provides that the word "legislature," wherever used in that Act or the Schedule to it which contains the reserved Bill, shall include as well the Legislature to be constituted under the said reserved Bill and that statute, any future Legislature which may be established in New South Wales under the powers in the said reserved Bill and the statute contained. Clause 1 of the reserved Bill provided that there should be in place of the Legislative Council then subsisting one Legislative Council and one Legislative Assembly, and, within New South Wales, Her Majesty should have power by and with the advice and consent of the said Council and Assembly to make laws for the peace, welfare and good government of New South Wales. Thus the existing Legislature was effaced and its powers transferred to another legislative authority, which became the Legislature. Bv

44 CLR 447

sec. 1 of the Colonial Laws Validity Act, "legislature" and "colonial legislature" severally signify the authority other than the Imperial Parliament, or Her Majesty in Council, competent to make laws for any Colony, and the term "representative legislature" signifies any colonial legislature which. shall comprise a legislative body of which one half are elected by the inhabitants of the Colony. The powers confirmed to every representative legislature are stated by sec. 5 to be in respect to the Colony under its jurisdiction. Sec. 3 of the Constitution Act 1902 provides that, unless the context or sub- ject matter otherwise indicates or requires, "the Legislature" means His Majesty the King with the advice and consent of the Legislative Council and Legislative Assembly. Sec. 5 of the same Act provides that the Legislature shall, subject to the provisions of the Common- wealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever. The submission of the respondents on this branch of the case was that the effect of sec. 7A is to constitute the electors therein designated, a part of the Legislature. They did not submit that the King, the Legislative Council, the Legislative Assembly and the said electors became the only authority competent to exercise the powers of the Legislature of New South Wales, but that it was the only authority competent to repeal sec. 7A of the Constitution Act 1902. I understand their submission to mean that by enacting sec. 7A the Legislature transferred its powers to repeal or amend that section to another Legislature which was thereby constituted ad hoc. If sub-sec. 6 of sec. 7A should be con- strued to place this power in another Legislature different from the bicameral Legislature just described, sub-sec. 6 would clearly be in substance a law respecting the power of the Legislature which enacted it. The authority, which enacted it, is the "representative Legislature." Notwithstanding sub-sec. 6, it has sec. 7A completely under its control by virtue of sec. 5 of the Colonial Laws Validity Act. It is the Legislature which continues to have New South Wales `under its jurisdiction" and is "competent to make laws '' for New South Wales (vide sec. 5 and sec. 1 of the Colonial Laws Validity Act). Further, it is the Legislature in which, subject to the Common- wealth of Australia Constitution Act, resides the power to make laws

44 CLR 448

for the peace, welfare and good government of New South Wales in all cases whatsoever. Also it is the Legislature which, under sec. 4 of the Imperial Act 18 &19 Vict. c. 54, has power subject to the (N.S.W.)

definition of that power by sec. 5 of the Colonial Laws Validity Act,

SO far as it extended to the constitution, powers and procedure of such Legislature, to make laws altering or repealing all or any of the provisions of the reserved Bill in the same manner as any other laws for the good government of New South Wales. Considering the authority now vested in the Legislature which enacted sec. 7A. it has not ceased to be the "representative legislature mentioned in sec. 5 of the Colonial Laws Validity Act. Therefore I do not think it is necessary to submit the Bill to repeal sec. 7A for the approval of the electors before it can be presented for the royal assent. The Legislature of New South Wales in pursuance of its authority as the representative legislature may resume to their full extent any powers which, for the time being, it may have curtailed by enacting sec. 7A.

In my opinion there can only be one Legislature in New South Wales. Any authority which the Legislature creates and vests with legislative power is subordinate to it unless the Legislature has validly transferred its powers as the Legislature to that body. "Sec. 92 of the Act of 1867 entrusts the legislative power in a Province to its Legis- lature, and to that Legislature only. No doubt a body, with a power of legislation on the subjects entrusted to it SO ample as that enjoyed by provincial legislature

could, while preserving its own capacity intact, seek the assistance of subordinate agencies (In re Initiative and Referendum Act 1 ). In my opinion, however, the Legislature has not assumed by sec. 7A to create a new body answering to the description of a legislature. I do not think that the electors who would vote on the day appointed would be members of a quasi- primary assembly which, with the King, the Legislative Council and the Legislative Assembly, would constitute a tricameral Legis- lature. "The three-fold expression of assent, advice, and authority may be regarded as the declaration of the function of the estates in legislation" (Stubbs' Constitutional History of England, vol. III. p. 502). In my opinion the function of assent, advice and authority

1(1919) A.C., at p 945. 44 CLR 449

has not been vested in the "qualified electors." In approving or rejecting a Bill submitted to them they would not discharge the function which is enjoyed by the Legislative Council when it agrees or fails to agree to a Bill passed by the Legislative Assembly, or by the Crown when as part of the Legislature it assents or declines to assent to a Bill passed by the Legislative Council and the Legislative Assembly. It may be noted that the traditional links between the Houses of Parliament and the Crown are imitated as far as circum- stances allow by the links which the Constitution of New South Wales establishes between the Legislative Council and the Legis- lative Assembly respectively as parts of the Legislature, and the Crown, through the Governor, who is the personal representative of the Crown. No semblance of any link between the electors and the Crown is established by sec. 7A. In my opinion, if the electors voted under this section, they would vote as members of a primary Constitutional Convention without legislative authority upon a pro- posal submitted to them by the two Houses of the Legislature.

In the course of argument it was stated by counsel for the said respondents that if sec. 7A is not a rigid part of the constitution the Constitution of New South Wales is defective because the Legis- lature has not power to place the "compulsory referendum" in the Constitution, and power would have to be sought from the Imperial Legislature to enable the Parliament to do SO. Whether such a request would indicate a greater defect in the Constitution than a request for power to enable the Legislature to cut the knot of legis- lative provisions for two or more referenda, SO that it could act as it deemed expedient in an emergency which would not in its judg- ment permit of the delay involved in taking the referendum or referenda, by which some existing law or new law had been fortified against repeal or amendment, is a speculation which will not decide the issue in this appeal.

Though the Legislature of New South Wales is not sovereign, it would, in my opinion, be operating within the area where it enjoys plenary power in proceeding to complete the enactment of a Bill to repeal sec. 7A of the Constitution Act 1902, before the electors have given their approval to the Bill.

44 CLR 450" text-full="44 CLR 450" text-short="44 CLR 450">44 CLR 450

For these reasons I am of opinion that the appeal should be allowed.

Appeal dismissed. (N.S.W.)

Solicitor for the appellants, J. v. Tillett, Crown Solicitor for New South Wales.

Solicitors for the respondents, Allen, Allen &Hemsley.

[HIGH COURT OF AUSTRALIA.]

HUNGERFORD AND ANOTHER

THE INSPECTOR-GENERAL IN BANKRUPTCY RESPONDENT.

IN RE NORMAN AND ANOTHER.

APPEAL FROM THE COURT OF BANKRUPTOY. Bankruptcy-Deed of inspectorshipInspector's remuneration-Immp sum or com-

mission according to scale prescribed in Bankruptcy Rules-Provision in deed Amount allowable-Resolution of creditors-Costs-Bankruptcy Act 1924-1930 SYDNEY,

(No. 37 of 1924-No. 17 of 1930), Parts VIII., XI., XII., secs. 133 (2), 184, April 13, 14,

199 (3), 203, 223-Bankruptcy Rules 1928 (S.R. 1928, No. 8), rr. 7, 356 Sched. 6.

Rule 356 of the Bankruptcy Rules 1928, which provides that 44 where the creditors resolve that the remuneration of the trustee shall be a sum of money, the sum of money shall be fixed in accordance with the scale in the Sixth Schedule," does not apply to the remuneration of inspectors under deeds of inspectorship, or of trustees under deeds of arrangement, because it is inconsis- tent with the provisions of secs. 184 and 203 of the Bankruptcy Act 1924-1930, which, respectively, deal expressly with the matter. Those sections, unlike sec. 133 of the Act,