Di Lena and Washer v State of Western Australia

The case of *Di Lena and Washer v State of Western Australia* concerned an appeal to the High Court of Australia following a decision of the Supreme Court of Western Australia. The appellants, Di Lena and Washer, sought to challenge the validity of certain provisions of the *Criminal Code Amendment Act 1998* (WA) and the *Criminal Code Amendment Act 2002* (WA), which they contended were invalidly enacted by the Western Australian Parliament. The core of the dispute revolved around the proper interpretation and application of section 35 of the *Constitution of Western Australia* and the constitutional validity of the legislative process followed by the Western Australian Parliament in passing these amendments.

The High Court was required to determine whether the amendments to the *Criminal Code* were enacted in accordance with the constitutional requirements of Western Australia, specifically concerning the role of the Governor and the presentation of bills to the Governor for assent. The central legal issue was whether the amendments, having been passed by both Houses of the Western Australian Parliament, were validly assented to in a manner that satisfied the constitutional framework, or if the process undertaken rendered them constitutionally defective.

In their reasoning, Kirby and Heydon JJ considered the historical context and the plain meaning of section 35 of the *Constitution of Western Australia*. They analysed the requirements for a bill to become law, including its passage by the Legislative Assembly and Legislative Council, and its subsequent presentation to the Governor for assent. The Court examined the evidence regarding the presentation of the amending Bills and the Governor's assent, concluding that the legislative process had been followed correctly. The legal principle applied was that legislation duly passed by the Parliament and assented to by the Governor in accordance with the constitutional requirements is valid, and that the Court should not lightly infer procedural defects in the parliamentary process.

The High Court dismissed the appeal, upholding the validity of the *Criminal Code Amendment Act 1998* (WA) and the *Criminal Code Amendment Act 2002* (WA).