Attorney-General (WA) v Marquet

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.