Attorney-General (WA) v Marquet

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ATTORNEY-GENERAL FOR WESTERN
AUSTRALIA & ANOR  APPLICANTS

AND

LAURENCE BERNHARD MARQUET  RESPONDENT

Attorney-General (WA) v Marquet [2003] HCA 67

13 November 2003
P114/2002 and P115/2002

ORDER

In each of Matters No P114 and P115 of 2002, order:

1.   Special leave to appeal granted.

2.   Appeal treated as instituted and heard instanter but dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

R J Meadows QC, Solicitor-General for the State of Western Australia with D F Jackson QC and R M Mitchell for the applicants (instructed by Crown Solicitor for the State of Western Australia)

No appearance for the respondent

S J Gageler SC with B Dharmananda for the amici curiae (instructed by Mallesons Stephen Jaques) 

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with G M Aitken intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)

P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland) 

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming, intervening on behalf of the Attorney‑General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales) 

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. The ultimate question in each of these matters is whether it was lawful for the respondent, the Clerk of the Parliaments of Western Australia, to present for Royal Assent either the Bill for an Act to be entitled the Electoral Distribution Repeal Act 2001 ("the Repeal Bill") or the Bill for an Act to be entitled the Electoral Amendment Act 2001 ("the Amendment Bill").

  2. Section 13 of the Electoral Distribution Act 1947 (WA)[1] provided that:

    "It shall not be lawful to present to the Governor for 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 of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively."

    Neither the Repeal Bill nor the Amendment Bill was passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council. Did s 13 of the Electoral Distribution Act make it "not ... lawful" to present to the Governor for Her Majesty's assent either the Repeal Bill or the Amendment Bill?  That is, did either or both "amend" the Electoral Distribution Act?  (It is convenient to call this the "construction question".)

    [1]The Act was originally entitled the Electoral Districts Act 1947 (WA). Its short title was amended by s 86 of the Acts Amendment (Electoral Reform) Act

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Details
Case
[2003] HCA 67
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from the Full Court of the Supreme Court of Western Australia concerning the validity of two Bills passed by the Western Australian Parliament: the Electoral Distribution Repeal Bill 2001 and the Electoral Amendment Bill 2001. The dispute arose because the Clerk of the Parliaments, the respondent, sought declarations as to whether it was lawful to present these Bills to the Governor for assent, given that they had not been passed by an absolute majority of the Legislative Council, as arguably required by section 13 of the Electoral Distribution Act 1947 (WA).

The central legal issues before the High Court were whether section 13 of the Electoral Distribution Act 1947 (WA) applied to the two Bills, and consequently, whether those Bills had been validly passed. This involved interpreting the meaning of "amend" in the context of section 13, particularly in relation to a Bill that sought to repeal the Act. The Court also considered whether section 6 of the Australia Act 1986 (Cth) required compliance with the manner and form provisions of the Electoral Distribution Act 1947, and whether the Bills affected the constitution, powers, or procedure of the Western Australian Parliament. The effect of prorogation on Bills pending Royal Assent was also a relevant consideration.

The High Court reasoned that the purpose of section 13 of the Electoral Distribution Act 1947 (WA) was to ensure that any changes to electoral districts required a special majority in both Houses. The Court held that a Bill to repeal the Act, which was essential for the subsequent enactment of new electoral distribution provisions, should be considered an "amendment" for the purposes of section 13, as a narrow interpretation would defeat the evident legislative purpose of entrenching the electoral distribution process. The Court found that the content of the Bills, whether desirable or not, was irrelevant to the construction of section 13, and that international instruments concerning representative democracy did not control the interpretation of this state legislative provision. The Court also determined that prorogation of Parliament would not have affected the status of the Bills if they had been passed by both Houses, as no proceedings would have been pending.

The High Court granted special leave to appeal, treated the appeals as instituted and heard instanter, but ultimately dismissed the appeals. The Court ordered that there be no order for costs in favour of the applicants or the respondent, and that the amici curiae bear their own costs.

Orders

Orders of the court

In each of Matters No P114 and P115 of 2002, order:

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter but dismissed.

Background

Background to the litigation

Finally, it should be noted that one matter dealt with at length in the judgments of the Full Court[2] was not agitated in this Court. No party to the proceedings (the Attorney‑General for Western Australia and the State on the one side and the Clerk of the Parliaments on the other) and none of the Attorneys‑General who intervened (the Attorneys‑General for the Commonwealth, New South Wales and Queensland) contended in this Court that the issues tendered in the present proceedings were not justiciable. The respondent, the Clerk of the Parliaments, played no active part in the proceeding in this Court or in the court below. Those who appeared in this Court, as amici curiae, to contradict the arguments for the applicants (the Liberal Party of Australia (WA Division) Incorporated, the National Party of Australia (WA) Incorporated, the Pastoralists and Graziers Association of Western Australia (Incorporated), The Western Australian Farmers Federation (Inc), One Nation (Western Australian Division) Incorporated and Judith Ann Hebiton) likewise did not seek to contend that the issues were not justiciable. That question need not be considered.[2]Marquet, Clerk of the Parliaments (WA) v Attorney‑General (WA) (2002) 26 WAR 201 at 209‑210 [17]‑[23] per Malcolm CJ, 223‑224 [84]‑[85] per Anderson J, 230‑244 [119]‑[169] per Steytler and Parker JJ, 270 [296] per Wheeler J.The essential facts On 19 December 2001, the Legislative Council of Western Australia completed its consideration of the Repeal Bill. In the Legislative Assembly an absolute majority of members had voted in favour of the Bill. In the Legislative Council a majority of the members of that House, then present and voting, voted for the Bill but it was not passed by an absolute majority of the members of that body. On the next day, 20 December 2001, the Legislative Council completed its consideration of the Amendment Bill. The Bill had been passed by an absolute majority of members of the Legislative Assembly but it, too, secured only a majority of those members then present and voting. It did not secure an absolute majority of the Legislative Council.The proceedings below On 21 December 2001, the respondent commenced proceedings in the Supreme Court of Western Australia seeking declarations. A separate proceeding was commenced concerning each Bill. In each, the respondent asked the Court, in effect, to determine whether it was lawful for him to present the relevant Bill to the Governor for assent. The proceedings were referred to the Full Court of the Supreme Court of Western Australia. A majority of the Court (Malcolm CJ, Anderson, Steytler and Parker JJ) answered the questions in the negative[3]. The fifth member of the Court (Wheeler J) dissented, being of the opinion that it was lawful to present the Repeal Bill to the Governor for assent and that the lawfulness of presenting the Amendment Bill for assent "would depend upon whether the Repeal Bill [had] been assented to at the relevant time"[4].[3]Marquet, Clerk of the Parliaments (WA) v Attorney‑General (WA) (2002) 26 WAR 201.[4](2002) 26 WAR 201 at 288 [371].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ (dissent) KIRBY J (dissent)
The power to prorogue given by s 3 of the 1889 Constitution is a power "to prorogue the Legislative Council and Legislative Assembly from time to time". The power may be exercised with respect to each House at different times or at the one time. When it is said that prorogation wipes the parliamentary slate clean, what is meant is that proceedings then pending in the House that has been prorogued must be begun again unless there is some contrary provision made by statute or Standing Order. (Here, the Standing Orders of each House provided for proceedings to be taken up after prorogation at the point they had reached when the House was prorogued[52].) But here, if the Bills had been passed by both Houses, there was no proceeding then pending in either House. Each House would have completed its consideration of the Bills. There being no proceeding pending in the Houses, proroguing the Houses would have had no relevant effect on the Bills. They could lawfully have been presented for and could lawfully have received Royal Assent.[52]Western Australia, Legislative Council, Standing Orders, Order 436; Western Australia, Legislative Assembly, Standing Orders, Order 220.Conclusion and orders For these reasons, which differ in some significant respects from those adopted by the majority in the Full Court, the questions asked in the proceedings should be answered, "No". Special leave to appeal should be granted in each matter; the appeal in each matter should be treated as instituted and heard instanter but dismissed. There should be no order for the costs of either application or either appeal, the respondent in each case simply submitting to the jurisdiction of the Court. The amici should bear their own costs. These applications for special leave to appeal[53] concern the constitutional law of Western Australia ("the State"). Specifically, they concern the latest attempt to correct the unequal distribution of electors in the State for the purpose of State elections[54]. [53]From a judgment of the Full Court of the Supreme Court of Western Australia: Marquet, Clerk of the Parliaments (WA) v Attorney-General (WA) (2002) 26 WAR 201. The applications were referred into the Full Court by order of Gummow, Callinan and Heydon JJ on 11 April 2003. [54]Burke v Western Australia [1982] WAR 248 at 252-253.Representative democracy and the value of the vote Changes in electoral democracy: At the time of federation, both in federal and State elections in Australia[55], as in other countries, there were significant departures from the ideal of electoral democracy. In all but two of the Australian States, women had no vote[56]. Property qualifications existed[57]. So did plural voting[58]. The number of voters in electorates (and hence the value and influence of their votes) varied considerably. Substantial variations existed in the size of metropolitan and rural constituencies. [55]The qualification of electors in federal elections were initially related to those in State elections. See the Constitution, ss 8 (Senate), 30 (House of Representatives).[56]Norberry and Williams, "Voters and the Franchise: the Federal Story", The Vision in Hindsight: Parliament and the Constitution Paper No 16, Australian Parliamentary Library Information and Research Services Research Paper No 17, 28 May 2002. See now Art 7 of the Convention on the Elimination of All Forms of Discrimination against Women done at New York on 18 December 1979, 1983 Australia Treaty Series 9, entered into force for Australia on 27 August 1983.[57]Hughes, "Institutionalising electoral integrity", in Sawer (ed), Elections: Full, free & fair, (2001) 142 at 145. There were similar property requirements for jury service: Ng v The Queen (2003) 77 ALJR 967 at 973 [36]; 197 ALR 10 at 18-19.[58]Hughes, "Institutionalising electoral integrity", in Sawer (ed), Elections: Full, free & fair, (2001) 142 at 145.

Ratio Decidendi

Legal Principle Established

Established by:

Because definition of electoral boundaries is legally essential to the election of the Parliament, repealing the Electoral Distribution Act must necessarily be a precursor to the enactment of other provisions on that subject of electoral boundaries. To read "any Bill to amend this Act" as confined to a Bill which will leave at least one provision of the Electoral Distribution Act remaining in force, whether with the same or different legal operation, would defeat the evident purpose behind the introduction of the provision in 1904. That purpose was to ensure that no change could be made to electoral districts save by absolute majority of both Houses. And when identical provision was made in subsequent legislation there is no reason to read the phrase more narrowly. The evident purpose of the provision should not be defeated by preferring form over substance[20].[20]Bropho v Western Australia (1990) 171 CLR 1 at 20. See also Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 145‑146 [82].The construction question – irrelevant considerations Section 13 of the Electoral Distribution Act must be given the same meaning no matter whether the proposed legislation would advance or diminish the rights of particular electors. The construction question cannot be resolved by classifying the particular proposals that are made for new electoral boundaries as "desirable" or "undesirable", or as advancing human or other rights of electors in Western Australia. The content of the Bills which it is said have not validly been passed is irrelevant to whether either was a Bill to amend the Electoral Distribution Act. To assign a different meaning to s 13 according to the qualitative assessment that is made of the desirability of the proposed laws under consideration constitutes fundamental legal error. It was decided in McGinty v Western Australia[21] that the Constitution contains no implication affecting disparities of voting power among the holders of the franchise for the election of members of a State Parliament. That outcome is not to be gainsaid by reference to international instruments and their elevation to control constitutional interpretation, including that of "manner and form" provisions[22].[21](1996) 186 CLR 140.[22]See Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383‑386 [95]‑[101]. There is, moreover, a logical difficulty as to the use of such instruments in the present case. The question is one of the construction of s 13 of the Electoral Distribution Act. The section is to be construed in the context of the whole Act. It stipulates a special procedure for the alteration of the substantive provisions of the Act. The meaning and effect of the stipulation is in dispute, but at least that much is clear. Let it be assumed, for the purposes of argument, that the substantive provisions of the Act are antithetical to the standards of representative democracy established by international instruments. If the purpose of s 13 is to make it more difficult to change a system of electoral distribution that is contrary to international norms, then an argument that the section itself should be construed by reference to such norms is self‑contradictory.The construction question – applying s 13