Attorney-General (NSW) v Trethowan - [1932] UKPCHCA 1

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 both Houses-Bills not submitted to referendum-Action to restrain presentation of such Bills to Governor for royal assent until submitted to a referendum- Constitution Statute of New South Wales (18 &19 Vict. c. 54), sec. 4-Colonial Laws Validity Act 1865 (28 &29 Vict. c. 63), sec. 5-Constitution Act 1902 (N.S.W.) (No. 32 of 1902), sec. 7s-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 :- " (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 * Present-The Lord Chancellor, Lord Blanesburgh, Lord Hanworth, Lord Atkin and Lord Russell of Killowen.

47 CLR 98

His Majesty's assent until the Bill has been approved by the electors in

(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section." Sec. 5 of the Colonial Laws Validity Act 1865 provides: Every colonial legislature shall have, and be deemed at all times to have had, full power (N.S.W.)

within its jurisdiction to establish Courts of judicature, 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 constitution, 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."

Held, that the Legislature of the State of New South Wales has no power to repeal sec. 7A of the New South Wales Constitution Act 1902, or to abolish the Legislative Council of the State, except in the manner provided by that

Held, therefore, that two Bills which had been passed by both Houses of the New South Wales Parliament-one to repeal sec. 7A of the Constitution Act 1902 and the other to abolish the Legislative Council-and which had not been approved by the electors in accordance with sec. 7A, could not be lawfully presented to the Governor for His Majesty's assent.

Decision of the High Court Attorney-General for the State of New South Wales v. Trethowan, (1931) 44 C.L.R. 394, affirmed.

APPEAL from the High Court…

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: [1932] UKPCHCA 1
Decision Date: 31 May 1932

CaseChat Overview and Summary

In the case of Attorney-General (NSW) v Trethowan, the parties involved were the Attorney-General for the State of New South Wales, members of the Legislative Council, and several Ministers of the Crown. The dispute centred around the validity of Bills passed by both Houses of the New South Wales Parliament, which sought to abolish the Legislative Council and repeal certain sections of the Constitution Act 1902. The issue before the court was whether the New South Wales Legislature had the power to alter the constitution or powers of the Legislative Council without first submitting the relevant Bills to a referendum. The legal issues included the interpretation of sections 4 and 5 of the Constitution Statute of 1855, section 5 of the Colonial Laws Validity Act 1865, and section 7A of the Constitution Act 1902. The court held that the Legislature of New South Wales had no power to repeal section 7A or to abolish the Legislative Council except in the manner provided by that section. Consequently, the two Bills in question could not be lawfully presented to the Governor for royal assent until they had been approved by the electors in accordance with section 7A. The final orders affirmed the decision of the High Court, declaring that the Bills could not be presented to the Governor for royal assent until they had been approved by the electors in a prescribed manner.

Orders