JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: MARQUET Clerk of the Parliaments of Western Australia -v- THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA & ANOR [2002] WASCA 277
CORAM: MALCOLM CJ
ANDERSON J
STEYTLER J
PARKER J
WHEELER J
HEARD: 17-19 APRIL 2002
DELIVERED : 11 OCTOBER 2002
FILE NO/S: CIV 2949 of 2001
CIV 2965 of 2001
MATTER :Section 13 of the Electoral Distribution Act 1947 (WA) and the Electoral Distribution Repeal Bill 2001
Section 13 of the Electoral Distribution Act 1947 (WA) and the Electoral Amendment Bill 2001
BETWEEN: LAURENCE BERNHARD MARQUET Clerk of the Parliaments of Western Australia
Plaintiff
AND
THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA
First DefendantTHE STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Constitutional Law (WA) - Provision of Electoral Distribution Act 1947 (WA) ("the Act") that it is not lawful to present for Royal Assent a Bill to amend the provisions of the Act unless passed by absolute majorities in both Houses - Two Bills passed by both Houses but not by absolute majorities in Legislative Council - Neither Bill yet presented for Assent - Whether lawful to present either Bill - Declarations sought - Justiciability - Discretion
Constitutional Law (WA) - "Manner and form" provision in the Act - Whether binding on present Parliament - Australia Acts, s 6 - Law respecting the "constitution powers or procedure" of the Parliament - Two Bills, the first to repeal the Act, the second to re-enact its provisions with amendments - Whether either Bill is to "amend" the provisions of the Act
Statutes - Interpretation - Subsequent enactment requiring every Bill to be presented for Assent after its "passage" - Whether implied repeal of earlier manner and form provision requiring absolute majorities
Legislation:
Australia Acts 1986 (Cth & UK), s 6
Constitution Act 1889 (WA), s 2(3)
Constitution Acts Amendment Act 1899 (WA), s 18, s 19
Electoral Distribution Act 1947 (WA), s 6(1), s 13
Result:
Questions whether it is lawful to present each of the two Bills for Her
Majesty's Assent each answered "No"
Category: A
Representation:
Counsel:
Plaintiff: Dr J T Schoombee & Mr A J Davidson
First Defendant : Mr R J Meadows QC SG & Mr R M Mitchell
Second Defendant : Mr R J Meadows QC SG & Mr R M Mitchell
Amici Curiae : Mr W S Martin QC & Mr B Dharmananda
Solicitors:
Plaintiff: Downings Legal
First Defendant : State Crown Solicitor
Second Defendant : State Crown Solicitor
Amici Curiae : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Attorney General (Vic); Ex rel Black v Commonwealth of Australia (1981) 146 CLR 559
Attorney‑General (NSW) v Trethowan (1931) 44 CLR 394
Attorney‑General (NSW) v Trethowan (1932) AC 526; 47 CLR 97
Attorney-General (WA); Ex rel Burke v Western Australia [1982] WAR 241
Beaumont v Yeomans (1934) 34 SR (NSW) 562
Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233
Briggs v Thomas Dryden & Sons; Talbot v Vickers Ltd [1925] 2 KB 667
British Medical Association v The Commonwealth (1949) 79 CLR 201
Bropho v Western Australia (1990) 171 CLR 1
Butler v Attorney-General (Vic) (1961) 106 CLR 268
Chenard & Co v Arissol [1949] AC 127
Clayton v Heffron (1960) 105 CLR 214
Clayton v Heffron (1961) SR (NSW) 768
Clydesdale v Hughes (1934) 51 CLR 518
Commonwealth Aluminium Corporation v Attorney-General (Qld) [1976] 1 Qd 231
Cormack v Cope (1974) 131 CLR 432
Deputy Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735
Deputy Federal Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219
Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501
Eastgate v Rozzoli (1990) 20 NSWLR 188
Egan v Willis (1998) 195 CLR 424; [1998] HCA 71
Ex parte Todd; In re Ashcroft (1887) 19 QBD 186
Goodwin v Phillips (1908) 7 CLR 1
Heston & Isleworth Urban District Council v Grout [1897] 2 Ch 306
Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203
Hughes &Vale Pty Ltd v Gair (1954) 90 CLR 203
Ibralebbe v The Queen [1964] AC 900
Kartinyeri v The Commonwealth (1998) 195 CLR 337
Kenny v Chapman [1861] 1 Wyatt & Webb (L) 93
Mathieson v Burton (1971) 124 CLR 1
McCawley v The King (1918) 26 CLR 9
McCawley v The King [1920] AC 691; (1920) 28 CLR 106
McDonald v Cain [1953] VLR 411
McGinty v Western Australia (1996) 186 CLR 140
Mitchell v Scales (1907) 5 CLR 405
Moakes v Blackwell Colliery Co Ltd [1925] 2 KB 64
Osborne v The Commonwealth (1911) 12 CLR 321
Powell v Appollo Candle Co Ltd (1885) 10 App Cas 282
R v Burah (1878) 3 App Cas 889
Rediffusion (Hong Kong) Ltd v Attorney‑General (Hong Kong) [1970] AC 1136
Riel v The Queen (1885) 10 App Cas 675
Rose v Hvric (1963) 108 CLR 353
Saraswati v The Queen (1991) 172 CLR 1
SGH Ltd v Commissioner of Taxation (2002) 76 ALJR 780; [2002] HCA 18
South Australia v The Commonwealth (1942) 65 CLR 373
South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603
Taylor v Attorney-General (Qld) (1917) 23 CLR 457
Tonkin v Brand [1962] WAR 2
Trethowan v Peden (1930) 31 SR (NSW) 183
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Victoria v The Commonwealth (1975) 134 CLR 81
W R Moran Pty Ltd v The Deputy Federal Commissioner of Taxation (NSW) (1940) 63 CLR 338
West Lakes Limited v South Australia (1980) 25 SASR 389
Western Australia v The Commonwealth (1975) 134 CLR 201
Western Australia v Wilsmore (1982) 149 CLR 79
Yougarla v Western Australia (1999) 21 WAR 488
Case(s) also cited:
Associate Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538
Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106
Bank Officials' Association (SA) v Savings Bank of South Australia (1923) 32 CLR 276
Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334
Breen v Williams (1994) 35 NSWLR 522
Bribery Commissioner v Ranasinghe [1965] AC 172
Broken Hill Proprietary Co Ltd v Dagi [1996] 2 VR 117
Campbell v RGC Mineral Sands Ltd [2001] WASCA 395
City of Collingwood v Victoria & Collingwood Football Club Ltd [1994] 1 VR 652
City of Collingwood v Victoria [1993] 2 VR 66
Cobiac v Liddy (1969) 119 CLR 257
Collie v Deputy Commissioner of Taxation (1997) 45 ALD 556
Collins v Minister of the Interior [1957] 1 SA 552
Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240
Commonwealth of Australia v Christmas Island Resort Pty Ltd (1998) 147 FLR 460
Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1971) 126 CLR 297
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297
Croome v Tasmania (1997) 189 CLR 579
Dobree v Hoffman (1996) 18 WAR 36
Ex parte McLean (1930) 43 CLR 472
F Hoffman-La Roche & Co AG v Secretary for Trade & Industry [1975] AC 295
Fairfield City Council v Taouk (1998) 100 LGERA 110
Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55
Harris v Minister of the Interior [1952] 2 SA 428
Hemel Hempstead Development Corporation v Hemel Hempstead Borough Council [1962] 1 WLR 1158
Ibeneweka v Egbuna [1964] 1 WLR 219
IW v City of Perth (1997) 191 CLR 1
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351
Ladore v Bennett [1939] AC 468
Levy v Victoria (1997) 189 CLR 579
Mavromatidis v Dundon (1997) 18 WAR 298
Maybury v Plowman (1913) 16 CLR 468
McBain v Victoria (2000) 177 ALR 320
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289
Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556
Mills v Meeking (1990) 169 CLR 214
Morrell v Mercantile Mutual Insurance (Australia) Ltd (1999) 21 WAR 451
Mpangele v Botha (1982) 3 SA 633
National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377
New South Wales v Law (1992) 29 ALD 215
O'Grady v Northern Queensland Company Ltd (1990) 169 CLR 356
Perpetual Executors & Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1
Port MacDonnell Professional Fishermen's Association v South Australia (1989) 168 CLR 340
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545
R v Wheeldon (1978) 18 ALR 619
Re Tooth & Co Ltd (1978) 19 ALR 191
Smith v The Queen (1994) 181 CLR 338
State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412
Stuart-Robertson v Lloyd (1932) 47 CLR 482
Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532
Telstra Corporation Ltd v Worthing (1999) 197 CLR 61
United States Tobacco Co v Minister for Consumer Affairs (1988) 19 FCR 184
Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40
Western Australia v Wilsmore [1981] WAR 179
Wilsmore v Western Australia, unreported; FCt SCt of WA; Library No 2820; 15 February 1980
Workers' Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642
MALCOLM CJ: By two originating summonses pursuant to O 58 r 11 of the Rules of the Supreme Court 1971, the Clerk of the Parliaments of Western Australia has asked the Court to determine two questions. The first, in CIV 2949 of 2001 is:
"Whether it is lawful for the plaintiff to present to the Governor for Her Majesty's assent the Electoral Distribution Repeal Bill 2001?"
The second in CIV 2965 of 2001 is:
"Whether it is lawful for the plaintiff to present to the Governor for Her Majesty's assent the Electoral Amendment Bill 2001?"
The plaintiff is the Clerk of the Parliaments of Western Australia. By par 6 of the Joint Standing Rules and Orders of the Legislative Council and the Legislative Assembly ("the Standing Orders") it is provided that:
"The 3 fair prints of all Bills, except the Appropriation Bill, shall, when passed, be presented to His Excellency the Governor for Her Majesty's assent by the Clerk of the Parliaments."
Provision for the adoption of such Standing Rules and Orders is contained in s 34 of the Constitution Act 1889 (WA). They become binding and of force when laid before the Governor and being approved by him.
The first defendant in these proceedings is the Attorney‑General of Western Australia and the State of Western Australia is the second defendant. By the leave of the Court, a number of incorporated bodies and two persons representing various political, rural and country community interests appeared together by Senior Counsel amici curiae, namely:
(a)the Liberal Party of Australia (WA Division) Incorporated (ABN 364 966 03459);
(b)the National Party of Australia (WA) Incorporated (ABN 30 167 638 893);
(c)the Pastoralists and Graziers' Association of Western Australia (Incorporated);
(d)the Western Australian Farmers' Federation (Inc) (ABN 758 779 85228);
(e)Ian Raymond Brandenberg (as the representative of the South Coast Regional Council); and
(f)John Fischer (as the representative of One Nation (Western Australian Division)).
I shall refer to those bodies and persons collectively as the amici curiae.
In the Constitution Acts Amendment Act 1899 (WA), ("the Constitution Amendment Act") it is currently provided that the Legislative Council shall consist of 34 elected members who shall be returned and sit for electoral regions as defined in s 6. Section 6 provides for the State to be divided into six electoral regions under the Electoral Distribution Act 1947 (WA) ("the 1947 Act") on the basis that two of those regions return seven members each and the other four return five members each to constitute the Legislative Council. By virtue of s 18 of the Constitution Amendment Act the Legislative Assembly currently consists of 57 members elected from 57 electoral districts into which the State is divided pursuant to the 1947 Act, on the basis that each district returns one member so as to constitute the Legislative Assembly.
The 1947 Act makes provision for the division of the State into electoral regions and divisions, and for redivision from time to time. This task is carried out by three Electoral Commissioners, namely, the Chief Justice as Chairman, the Chief Electoral Officer and the deputy Commonwealth statistician for Western Australia; s 2 of the 1947 Act. Section 13 of the 1947 Act provides:
"13.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."
Section 3 of the Electoral Distribution Repeal Bill 2001 ("the Repeal Bill") provides that:
"The Electoral Distribution Act 1947 is repealed."
The Repeal Bill was passed in the Legislative Assembly at the second and third reading stages by an absolute majority of the whole numbers of the members at the relevant time. In the Legislative Council, the Repeal Bill was passed at the second and third reading stages by a simple majority of the members present and voting, but not by the concurrence of an absolute majority of the whole number of the members at that time. The Repeal Bill has not been presented to the Governor for assent pending the outcome of these proceedings.
The Electoral Amendment Bill 2001 ("the Amendment Bill") was passed in the Legislative Assembly with the concurrence of an absolute majority of the whole number of the members of the Legislative Assembly at the second and third readings. As was the case with the Repeal Bill, the Amendment Bill was passed at the second and third reading stages in the Legislative Council only by a simple majority of the members of the Council then present and voting. This gives rise to the second question whether, in these circumstances, it is lawful for the Amendment Bill to be presented to the Governor for his assent. The plaintiff says that it is intended that the Repeal Bill be first presented to the Governor for assent followed by the Amendment Bill, but only if it is lawful for him to present the Bills. The reason for that is to first procure the repeal of s 13 of the 1947 Act so that it is no longer of any force or effect at the time when the Amendment Bill is presented for assent, notwithstanding that s 13 of the 1947 Act was in force at the time the Amendment Bill was passed in each House.
The purpose of the Amendment Bill is to amend the Constitution Amendment Act to increase the number of members of the Legislative Council from 34 to 36 on the basis that each of the six electoral regions should return six members to the Legislative Council. The Amendment Bill when proclaimed would amend the Electoral Act 1907 (WA) by providing for a new mechanism for setting the boundaries of electoral regions and districts from which members of the Houses of Parliament are chosen. The basis provided by proposed s 16I for the division is different from that presently provided by the 1947 Act for the division of the State into electoral districts and would also change the basis for the division of the six electoral regions. Apart from proposed s 16I and certain related machinery provisions, the provisions to be inserted into the Electoral Act 1907 by the Amendment Bill are substantially in the same terms as the present provisions of the 1947 Act, except that s 13 of the 1947 Act would not be re‑enacted. The result will be a change on the basis upon which the State is divided into electoral districts and, as a necessary consequence, the basis upon which the State is divided into regions for the purposes of the election of members to the Legislative Council.
Section 6 of the 1947 Act makes provision for the basis for division of the State into districts. The Commissioners are required by s 6(1) to divide the Metropolitan Area into 34 districts and divide the remainder of the State into 23 districts. The division is required by s 6(2) to be made in accordance with the principle that the number of enrolled electors comprised in any district in the relevant area must not be more than 50 per cent greater, or more than 50 per cent less, than the quotient obtained by dividing the total number of enrolled electors in the area by the number of districts into which the area is to be divided. Proposed s 16I of the Electoral Act would require the Commissioners to divide the State into districts in accordance with the principles that:
"(a)if a district has an area of less than 100,000 square kilometres, the number of electors comprised in the district at the day specified in section 16E, 16F, or 16G(1) as the day as soon as practicable after which the division is to be carried out must not be more than 10% greater, or more than 10% less, than the average district enrolment on the day so specified; and
(b)if a district has an area of 100,000 square kilometres or more, the sum of –
(i)the number of electors comprised in the district at the day specified in section 16E, 16F or 16G(1) as the day as soon as practicable after which the division is to be carried out; and
(ii)the additional large district number,
must be not more than 10% greater, or more than 20% less, than the average district enrolment at the day specified in section 16E, 16F or 16G(1) as the day as soon as practicable after which the division is to be carried out."
Section 16I(2) provides:
"In subsection (1)(b) –
'additional large district number' means 0.5% of the number of square kilometres in the area of the district."
As Steytler and Parker JJ have pointed out, the transfer of the relevant provisions governing electoral distribution from the 1947 Act into the Electoral Act of itself is a matter of no legal or practical significance. The changes sought to have been made could well have been effected by a simple amendment of the 1947 Act. The process of amendment by way of repeal and re‑enactment utilising the two separate bills, with the Repeal Bill being passed first, was calculated to avoid what it was thought might otherwise be the effect of s 13 of the 1947 Act. The inference is that it was anticipated that the legislation would not attract the support of an absolute majority of the whole number of the members of the Legislative Council for the change in the provisions relating to the division of the State into electoral districts and, as a consequence, the number of regions, resulting in an increase of two members in the Legislative Council.
The issue in this case is whether one or other or both the Repeal Bill and the Amendment Bill are Bills "to amend" the 1947 Act and, if so, whether s 13 of the 1947 Act is binding on the present Parliament. To put it another way, the question is whether one or other or both of the relevant Bills have been passed by the requisite majority, so that they may lawfully be presented to His Excellency the Governor for his assent.
Justiciability
I am in substantial agreement with the reasons to be published by Steytler and Parker JJ on the issue of justiciability. In Attorney‑General (NSW) v Trethowan (1931) 44 CLR 394 at 426 Dixon J considered that it would be unlawful to present a Bill to repeal an Act containing a provision restraining its repeal, unless first approved by the electors. The Act would have the force of law until the sovereign did assent to a Bill for its repeal. Consequently, it would be unlawful to present such a Bill for the Royal assent before it had been so approved and, as his Honour said, at 426:
"If, before the Bill received the assent of the Crown, it was found possible, as appears to have been done in this appeal, to raise for judicial decision the question whether it was lawful to present the Bill for that assent, the Courts would be bound to pronounce it unlawful to do so."
The decision of the High Court was affirmed by the Privy Council. Had there been no jurisdiction, the point would have been taken either in the High Court or in the Privy Council. If there had been no jurisdiction, and the point had not been taken, it is likely that the High Court or the judicial committee would have raised the point: see Rediffusion (Hong Kong) Ltd v Attorney‑General (Hong Kong) [1970] AC 1136 at 1154 per Lord Diplock.
While in Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203 at 204 – 205, Dixon CJ did not consider that an application for an injunction restraining the presentation of a Bill for the Royal assent should be granted "on this occasion or later or in any case", the Chief Justice adhered to the view that if it was found possible to raise for judicial decision the question whether it was lawful to present a Bill for that assent "the courts would be bound to pronounce it unlawful to do". In other words, the Court would declare whether it was lawful to present the Bill for the Royal assent. A year earlier, the Full Court of the Supreme Court of Victoria held in McDonald v Cain [1953] VLR 411 that the court had jurisdiction to declare that it was unlawful for the defendants to present a Bill to the Governor for the Royal assent because the Bill had not been passed by an absolute majority of the members of both Houses of Parliament as required by the relevant legislation. The three members of the Court, namely, Gavan Duffy, Martin and O'Bryan JJ, applied the law as stated by Dixon J in Trethowan (supra). As O'Bryan J said at 437:
"All the Court is asked to do is to declare what the law is in an action to which these Ministers are made defendants. A declaration in such an action will authoritatively inform and bind these responsible Ministers of the Crown as to what the law is, on a matter which concerns them as ministers … It is said that the substance of the action against the ministers is to restrain them from giving certain advice to the Governor. In my opinion that is a misstatement of the case. The action merely asks that a declaration be made as to what the law is, so that the correct advice may be given if it is to be tendered or asked for."
In Tonkin v Brand [1962] WAR 2 the Full Court declared that each of the members of the Executive Council was under a duty to advise the Governor to issue a proclamation under s 12 of the 1947 Act for the purpose of carrying out an electoral redistribution. Wolfe CJ said at 15 that there was "ample authority" for the proposition that, when Ministers were about to advise the Governor or had advised the Governor to assent to some act which was illegal or unconstitutional, the Court had jurisdiction to declare the law and issue coercive process to prevent Ministers from doing an illegal act. Citing Trethowan and British Medical Association v The Commonwealth (1949) 79 CLR 201 Jackson SPJ and Hale J were of the same opinion.
I agree with Steytler and Parker JJ that the review of the cases to which they have referred in their reasons, including those which I have mentioned, indicates that no useful purpose would be served by the enactment of the legislative declaration in the form of s 13 of the 1947 Act that particular conduct was not lawful, unless it was intended by Parliament that this would confer jurisdiction on this Court to declare whether it was lawful for a particular Bill to be presented to His Excellency the Governor for the Royal assent. In my view, the existence of the jurisdiction is confirmed by the action of Parliament when legislation was enacted to amend s 73 of the Constitution Act. It was expressly provided in s 73(6) that this Court may, by declaration, injunction or other remedy, enforce s 73 "either before or after a Bill of the kind referred to in subsection (2) is presented for assent …".
In my opinion, it follows that in the case of legislation in the terms of a provision such as s 13 of the 1947 Act which requires that a Bill "shall not be lawful" unless specified requirements had been satisfied, this Court has jurisdiction to make a declaration after the passage of the legislation whether it would be lawful to present the Bill to the Governor for the Royal assent.
The issue then arises whether, in the exercise of discretion, the Court should make a declaration at this stage. On this aspect of the case, I am content to exercise the jurisdiction to make the relevant declaration for the reasons stated by Steytler and Parker JJ and, in particular, because the defendants, represented by the Solicitor‑General, were not only content for the Court to exercise its jurisdiction at this stage, but positively wished the Court to do so.
Amendment and/or Repeal
Given that the Court has jurisdiction, the question is whether, on the proper construction of s 13 of the 1947 Act, the Repeal Bill and the Amendment Bill are, or either of them is, a "Bill to amend" the 1947 Act. The defendants' contention is that this question should be answered in the negative. If this is right, it would follow that s 13 of the 1947 Act has no application to either of the Bills. This is said to be so because the 1947 Act will be entirely repealed by the Repeal Bill and such a repeal cannot constitute an amendment. Hence the Repeal Bill is not "a Bill to amend" the 1947 Act. It is also contended that it is not material that the relevant provisions of s 13 of the 1947 Act will be substantially re‑enacted by the Amendment Bill. The contrary argument advanced by the amici curiae is that an amendment can take the form of, or include, repeal. They argue that the substance of the proposal is an amendment of the 1947 Act, which would not be lawful unless passed with an absolute majority as required by s 13 of the 1947 Act. It was also contended that it would be artificial to consider the provisions of the Repeal Bill in isolation from the provisions of the Amendment Bill.
In this context, I agree with Steytler and Parker JJ that dictionary definitions of "amend" and "repeal" are not particularly helpful. There were no definitions of either "repeal" or "amend" in the Interpretation Act 1918 (WA) which was current at the time of the enactment of the 1947 Act. I also agree with Steytler and Parker JJ that the relevant provisions are of no assistance in the interpretation of s 13 of the 1947 Act. Similarly, s 73(1) of the Constitution Act 1890 (WA) refers to the power to "repeal or alter" legislation and the Western Australia Constitution Act 1890 (53 and 54 Vict) (UK) and confers the power to make laws "altering or repealing" particular provisions. Section 4(3) of the Interpretation Act 1898 (WA) also indicates that Parliament distinguished between amendment and repeal in that s 4(3) provided any Act might be "altered, amended or repealed" in the same session of Parliament. A provision to similar effect was included in s 30 of the Interpretation Act 1918 (WA) which provides that an Act may be "amended or repealed" in the same session or that in which it was passed.
The definition of "amend" in s 5 of the Interpretation Act 1984 (WA) is:
" 'amend' means replace, substitute, in whole or in part, add to or vary, and the doing of any 2 or more of such things simultaneously or by the same written law."
The definition of "repeal" in s 5 is:
" 'repeal' includes rescind, revoke, cancel or delete."
The decision of the Full Court in New South Wales in Beaumont v Yeomans (1934) 34 SR (NSW) 562 was concerned with the effect of s 3 of the Pastures Protection (Amendment) Act 1920 (NSW) which "repealed" s 105(1) of the Pastures Protection Act 1912‑1918 (NSW) and inserted a new subsection "in lieu thereof". In a unanimous decision, it was held that s 3 of the former Act effected, in substance, an amendment rather than a simple repeal of s 105(1). Jordan CJ (with whom Stephen and Maxwell JJ agreed) concluded that whether an Act had been repealed or amended was a matter of substance and not one of form only. The Chief Justice said at 569:
"One Act may purport to amend another by repealing part of it. On the other hand, an amendment may be effected either by the addition to a section of a particular phrase, or by the repeal of the section and the substitution of the same words with the phrase added … "
In the same passage, the Chief Justice went on to refer to Ex parte Todd; In re Ashcroft (1887) 19 QBD 186 as authority for the proposition that where a provision of an Act was repealed and re‑enacted in a form which enlarged its scope, this was to be construed as amounting in substance to an amendment. The reason for this was that the new provision was regarded as intended to be retrospective insofar as the earlier section was repealed.
Ex parte Todd (ibid) was concerned with the true construction of s 47 of the Bankruptcy Act 1883 (UK) and its application to the particular facts. In 1877 a bankrupt executed a document purporting to be a voluntary settlement of property on his wife and children. The Bankruptcy Act came into operation on 1 January 1884. Shortly before he became bankrupt, a parcel of shares comprised in the 1877 document was transferred to trustees. Following the bankruptcy, the question was whether the shares were to remain with the trustees of the settlement or whether they passed to the trustee in bankruptcy for distribution among the bankrupt's creditors. It was contended that the document was "a settlement" within the meaning of s 47 which was void against a trustee in bankruptcy, because the interest of the settlor in the shares had not passed to the trustees of the settlement upon execution of the document. An essential step in that argument was to say that the whole of s 47 was retrospective in its operation and applied to settlements executed before the commencement of the Act, even though they could not be impeached as in any way dishonest. Notwithstanding that it was not "absolutely necessary" to determine whether s 47 was or was not retrospective, the Court expressed its opinion about it. Lord Esher MR (with whom Lopes LJ agreed) concluded that s 47 was retrospective so far as it was a re‑enactment of s 91 of the Bankruptcy Act 1869 (UK). Fry LJ queried whether the additional provision in s 47 was retrospective, but held that the Act applied to the actual transfer of the shares.
In my opinion, it is implicit in the reasoning that the effect of the repeal of the former section and its re‑enactment with the additional provision was in substance an amendment, the re‑enactment having retrospective effect and the amendment taking effect prospectively. There was, however, no express consideration of the question whether the new provision constituted an amendment of the Act.
In Mathieson v Burton (1971) 124 CLR 1, the High Court was concerned with the interpretation and application of s 83A of the Landlord and Tenant (Amendment) Act 1948 (NSW). It was provided by s 83A that certain persons, including a child of a lessee of prescribed premises under the Act, who was over the age of 21 and resided with the lessee immediately before the death of the lessee, were given, until probate or letters of administration of the estate of the deceased lessee was granted, the same right to continue in possession of the premises as the deceased lessee would have had if he lived. The section was amended by s 4(h) of the Landlord and Tenant (Amendment) Act 1968 (NSW) in such a way as to reduce the class of persons entitled to remain in possession. The daughter of the deceased lessee who had died in 1958, and in respect of whose estate there was no grant of probate or letters of administration, was held to be within the class protected by s 83A as it was enacted at the time of her father's death, but would not have been entitled to continue in possession of the premises if he had died after the amendment of 1968 came into operation. It was held that the daughter's right to remain in possession of the premises was not divested by the amending Act of 1968.
Barwick CJ at 5 emphasised that s 4(h)(i) of the amending Act did no more than add words to the existing provision and did not in terms repeal it. It amended the provision as from the date of commencement of the amending Act. On its proper construction, the provision could not be read as making its operation depend upon the condition that the lessee should have died after the commencement of the amending Act. In terms, it said nothing about the operation of the section which had already taken place in respect of lessees. In addition, the Chief Justice said at 6:
"Nor, in my opinion, is it necessary to imply a repeal of the 1952 provisions in order to give effect to the 1968 amendment. I see no difficulty in the continued operation of the provisions of the 1952 Act with respect to children of lessees who died after the commencement of the amendment effected by that Act and before the commencement of the amendments effected by the Act of 1968. These latter amendments do not purport to have any retrospective operation and I can see no ground to imply such an operation. Consequently we are not concerned here to decide in relation to a repealed provision whether rights acquired under it fall within the terms of s 8(b) of the Interpretation Act of 1897. It follows that, in my opinion, the case is not concerned with the operation of s 8 of the Interpretation Act and that it is not governed by the decision of the Supreme Court in Boyce v Hughes (1970) 91 WN (NSW) 171.
However, if contrary to my own opinion, the Act of 1968 did repeal the relevant provisions of the Act of 1954, Boyce v Hughes … was, in my opinion, rightly decided."
McTiernan J agreed with Barwick CJ. Menzies J at 8 concluded that s 4(h)(i) of the amendment Act of 1968 did not destroy the right to possession which the respondent obtained upon the death of her father in 1958. Her right to continue in possession of the premises was still to be measured by the right that her father would have had if he had not died.
Windeyer J at 9 – 10 approached the matter as one of statutory construction and of the effect of the Interpretation Act 1897 (NSW). Section 8 of the Act provided that:
"8.Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not –
(a)affect the previous operation of an enactment so repealed, or anything duly suffered, done, or commenced to be done under an enactment so repealed; or
(b)affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed."
Windeyer J said at 9 – 10:
"It was contended for the appellant that these provisions were not applicable, because, it was said, the alteration that the 1968 Act made in s.83(1) par.(b) – the paragraph under which the respondent acquired the right she relies upon – was not covered by the introductory words of s.8 'where an Act repeals in the whole or in part a former Act'. It was said that the 1968 Act effected an amendment not a repeal. I cannot accept that proposition or the distinction supposed. The words 'an Act which repeals in the whole or in part a former Act' in s.8 of the New South Wales Interpretation Act have, in my view, the same effect as that which in the United Kingdom Interpretation Act 1889, s.38(2) is expressed by the words 'where any Act repeals any other enactment'. English cases are thus in point. That is because an enactment may mean either a statute as a whole or any provision of a statute. Every section of an Act takes effect as a substantive enactment. Interpretation Acts commonly so provide. In New South Wales it has been so since 1852: Acts Shortening Act, 16 Vict No 1. And, as I understand it, if an enactment radically alters the effect of an earlier enactment so that the two cannot stand together, it amounts to a repeal by implication of that earlier enactment. In Victoria the Acts Interpretation Act 1958 does not in s.7(2), corresponding to s.8 of the New South Wales Act – speak of an 'Act which repeals in the whole or in part any other Act'. Its words are 'where any Act repeals or amends any other enactment'. This difference of verbiage is interesting, but in my opinion is not significant. It cannot, I think, be invoked to support a notion that s.8 of the New South Wales Interpretation Act and s.8 of the Acts Interpretation Act 1901‑1966 (Cth) – which are in the same terms – apply only to express repeals and not to implied repeals resulting from amendments. For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter is sometimes called. But an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part. That is because after the amendment the statute no longer operates as it formerly did; and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary statute; or by something that was made a condition of its continued operation coming to an end. An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say 'in part'. Provisions of a later Act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them. That has been recognised in this court since its early days: see Goodwin v Phillips (1908) 7 CLR 1. An amendment of that kind operates to simultaneously repeal an old enactment and put a new one in its place. That seems to me to be the result of parliamentary legislation according to the theory of our law. It is a result not to be obscured by merely literal refinements or made to depend on the use of particular legislative formulae. As Dixon CJ, McTiernan and Taylor JJ observed in Ku-ring-gai Municipal Council v. Attorney-General (NSW) (1957) 99 CLR 251, at p 265; 2 LGRA 268, at p 282, the form of an amendment may bring out the fact that it is at once an abrogation of an old provision and the introduction of a new one. What counts in determining whether an enactment involves a repeal of earlier legislation is the substantial effect it produces, not the linguistic method by which it produces it. Expressly to omit the old and insert the new is one manner of amendment. But the same result may flow from other legislative forms ; for old provisions must always be in effect removed if they are to make room for new. In the present case the alteration in 1968 of par (b) of s.83A(1) was accomplished by simply adding words to the existing provision. But this radically changed its effect. The former paragraph was in the result displaced by a new and different provision."
Windeyer J went on to cite at 11 a number of cases in which provisions similar to s 8 of the New South Wales Interpretation Act were held to be applicable in the case of an amendment effecting a repeal by implication as in the case of an express repeal: Heston & Isleworth Urban District Council v Grout [1897] 2 Ch 306 at 313; Moakes v Blackwell Colliery Co Ltd [1925] 2 KB 64 per Scutton LJ; and Briggs v Thomas Dryden & Sons; Talbot v Vickers Ltd [1925] 2 KB 667 at 673.
The successive versions of the Interpretation Act of this State each contain provisions equivalent to s 8 of the New South Wales Act to the effect that every section of an Act takes effect as a substantive enactment: see Interpretation Act 1898 (WA), s 4; Interpretation Act 1918 (WA); and the Interpretation Act1984 (WA).
Mathieson v Burton (supra) was considered by the High Court in Kartinyeri v The Commonwealth (1998) 195 CLR 337 which was concerned with the validity of the Hindmarsh Island Bridge Act 1997 (Cth). Brennan CJ and McHugh J noted at par [9] that the "Bridge Act" (as it was referred to in the judgment) was an instance of an "indirect express amendment" in that it effected a partial repeal of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), although the text of the Act was unchanged. Their Honours cited with approval the passage in the judgment of Windeyer J in Mathieson v Burton (supra) including, in particular, the proposition that an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part. Their Honours went on to say at [9]:
"In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of the earlier Act remains unchanged. It is the operation and effect in substance of the impugned Act which are relevant to its validity, whether or not the text of the earlier Act is changed."
Gaudron J at par [48] concluded that the Bridge Act affected a Commonwealth law, namely, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), by limiting its field of operation. Because it limited the field in which the Act operated, it operated, to that extent as a repeal of it.
Gummow and Hayne JJ said at par [67]:
"In ordinary usage (apart from any special statutory meaning) to amend a statute 'is to alter its legal meaning' - (Bennion, Statutory Interpretation, 3rd ed (1997) at 210) in particular its territorial, temporal or personal dimension (ibid at 130). An amendment may take the form of, or include, a repeal. Thus, if a section is deleted it can be said that it has been repealed whilst the statute itself has been amended (ibid at 211). Amendment may be effected by implication where, although the later statute contains no textual identification of the earlier law, 'actual contrariety is clearly apparent' (Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 275; South Australia v Tanner (1989) 166 CLR 161 at 171)."
Their Honours went on to say at par [68] that the earlier statute will also be amended by a law which does not specifically identify the text it amends, but produces a need to "conflate" the two texts to arrive at the combined legal meaning. They concluded that the Bridge Act was such a law, notwithstanding that it did not specify any particular provision of the Heritage Protection Act, the operation of which it qualified. Further, their Honours said in par [69]:
"In this way, the Bridge Act is to be 'construed as part of' the Heritage Protection Act, as indicated by s 15 of the Interpretation Act."
Section 15 of the Acts Interpretation Act 1901 (Cth) provides that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it. Section 6 of the Interpretation Act 1984 (WA) provides that:
"Definitions or rules of interpretation contained in a written law apply to the construction of the provisions of the written law that contain those definitions or rules of interpretation as well as to other provisions of that written law."
Kirby J in a dissenting judgment, but in agreement on the interpretation issue said at [174]:
"From the early days of this Court, (Goodwin v Phillips (1908) 7 CLR 1 at 7), it has been recognised that a later Act may sometimes effect an implied repeal (or amendment) of an earlier one by dealing with a subject matter in a way which is irreconcilable, or inconsistent, with the provisions of an earlier Act. Whether a repeal or amendment is made is thus not dependent upon the use of a particular legislative formula (Mathieson v Burton (supra)) any more than the constitutionality of a statute is decided by the "badge" of the verbal description which the statute wears (Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7). However, care must be taken in the use of observations made by the Court as to the character of a law as a "repeal" or "amendment" having regard to the different contexts in which the question may be raised … Absolute statements should be avoided for they are likely to produce error … "
I agree with Steytler and Parker JJ that, at least in the context of a partial repeal, the question whether an enactment involves the repeal or amendment of earlier legislation is a question of substance rather than of form and much may depend upon the precise context in which the question is asked. Where a particular section of an Act is deleted by way of language referring to "repeal" or "amendment", I consider that the result is that the Act is amended, even though by s 29 of the Interpretation Act each section is an Act to take effect as a substantive enactment. The repeal of an Act has the effect that the statute ceases to have legal force or effect because it is revoked or annulled. In such a case, it would not be appropriate to say that the Act had been amended.
When an Act is repealed and re‑enacted with amendments, I agree with Steytler and Parker JJ that, as a matter of form, there may not have been an amendment of the former Act because it had been repealed. As a matter of substance, however, it had only been amended.
Whether the effect of the two Bills in the present case is to "amend" the 1947 Act, within the meaning of s 13 is, as Steytler and Parker JJ have concluded, a question which involves the proper interpretation of s 13 of the 1947 Act. In my opinion, their Honours have correctly concluded that s 13 was intended by the Parliament which enacted it to be an entrenched provision, only capable of amendment by the enactment of a Bill being passed by an absolute majority of the members in each of the Houses of the Parliament.
Further, I agree with Steytler and Parker JJ that the legislative history of the 1947 Act provides a substantial basis for the conclusion that Parliament intended the word "amend" in s 13 to encompass or comprehend a repeal of the Act and its replacement by other legislation inconsistent with the present legislation. In these circumstances, it is unnecessary for me to repeat the legislative history, which is fully set out in the detailed reasons of Steytler and Parker JJ.
I also agree with Steytler and Parker JJ that, in the context of the application of s 13, it is necessary to look at the combined effect of the Amendment Bill and the Repeal Bill. Consequently, I reject the contention on behalf of the defendants that it is only necessary in the context of s 13 to look at the Repeal Bill and, in effect, to ignore the Amendment Bill, because only the former is concerned with the 1947 Act. As Steytler and Parker JJ have pointed out, this, as Viscount Maughan said in W R Moran Pty Ltd v The Deputy Federal Commissioner of Taxation (NSW) (1940) 63 CLR 338 at 3436, would be "to turn a blind eye to the real substance and effect" of what is proposed.
For these reasons, I am of the opinion that the result of the passage of the Repeal Bill and the Amendment Bill is an amendment of the 1947 Act, within the meaning of s 13 of that Act. In addition, I agree with Steytler and Parker JJ, for the reasons they have expressed, that in repealing the 1947 Act, and enacting the Amendment Bill, Parliament did not intend to revoke or annul the provisions of the 1947 Act, but to effect a change in the provisions of that Act by providing a different basis for the division of the State into electoral districts, but otherwise continuing the pre‑existing regime. The two Bills are clearly related and the intention of Parliament and the effect of the two Bills must be looked at for what they really are, namely, two proposed statutes that are so closely related as to constitute a single legislative scheme which, in substance, involves an amendment for the purposes of, and within the meaning of, s 13 of the 1947 Act.
Finally, on this aspect of the case, I agree with Steytler and Parker JJ that the effect of cl 5(2) of the Repeal Bill, looked at in isolation, quite apart from cl 3, which would effect the repeal of s 13 of the 1947 Act, preserves the existing electoral provisions in respect of the Legislative Assembly and the Legislative Council for the first election held after the commencement of the Act before the first general election. The substantive effect of cl 5(2) is to continue in force, with amendment, at least one of the provisions of the 1947 Act, namely, s 11, but as amended. Hence, the Repeal Bill also "amends" the 1947 Act, by altering its meaning, because the text of the original provision and that of the amended provision effect an amendment of the 1947 Act, although as a matter of form it has not done so expressly. The amendment is effected by implication, even though there is "no textual identification of an earlier law, because 'actual contrariety' is clearly apparent", as stated by Gummow and Hayne JJ in Kartinyeri v The Commonwealth (supra) at [68] – [69].
Implied replied of s 13 of the 1947 Act
Independently of and in addition to the submissions to which I have earlier referred, the defendants contend that s 13 of the 1947 Act has been repealed by implication by the Acts Amendment (Constitution) Act 1978 (WA). Consequently, it was contended that s 13 was no longer of any force and effect and provided no obstacle to the presentation of the two Bills in question to His Excellency the Governor for assent. On this aspect of the case I need say no more than that I agree with Steytler and Parker JJ, for the reasons their Honours have expressed, that s 13 of the 1947 Act was not impliedly repealed by s 2(3) of the Acts Amendment (Constitution) Act 1978 (WA) ("the 1978 Constitution Amendment") and had not ceased to have force and effect when the Repeal Bill and the Amendment Bill were considered by the Parliament and will not cease to have any force and effect when each of the Bills is presented to His Excellency the Governor for his assent.
Prior to the 1978 Constitution Amendment, s 73 conferred on the Parliament of the State the legislative power, by any Act, to repeal or alter any provisions of the Constitution Act itself. This was a provision in the Constitution Act as originally enacted, but expressed to be subject to the following proviso:
"Provided always, that it shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, 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."
While the proviso was carried forward as s 73(1) following the 1978 Constitution Amendment, it became s 73(1) of the Constitution Act, subject to additional provisos in five new subsections which were added by the 1978 Constitution Amendment. Section 73(2) provided that a Bill which expressly or impliedly provided for:
(a)the abolition of or alteration in the office of Governor;
(b)the abolition of the Legislative Council or the Legislative Assembly;
(c)the Legislative Council or the Legislative Assembly to be composed of members other than members chosen directly by the people;
(d)a reduction in number of the members of either House;
(e)…
should not be presented for the Royal assent unless the second and third readings had passed with the concurrence of an absolute majority of the whole number of the members of each House and that the Bill had "also prior to such presentation been approved by the electors in accordance with this section."
Finally, it was provided that a Bill "assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act".
The machinery for the submission of a Bill of the kind contemplated to the electors for their approval as required by s 73(2) is set out in subs (3) and (4). In that context, s 73(5) provided that:
"If a majority of the electors voting approve the Bill, it shall be presented to the Governor for assent by or in the name of the Queen."
Any person entitled to a vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court to enforce the provisions of s 73: s 73(6).
It is significant that the effect of the legislation was that a Bill presented for the assent of the Governor in contravention of s 73(2) was expressed to be of no effect as an Act, notwithstanding that it might have been passed by a simple majority of each House and had received the Royal assent.
In my view, the effect of s 2(3) of the Constitution Act is to require a Bill which has been passed by the requisite majority of both Houses to be presented to the Governor for the Royal assent. This means that the Clerk of the Parliament has a constitutional duty to present the Bill to the Governor for his assent and that the Executive has no constitutional power to prevent such presentation.
It was submitted, however, that s 13 had been impliedly repealed. In this context, that contention is based upon giving "passage" in s 2(3) of the 1978 Constitution Amendment a meaning that the Bill had received the support of not less than a simple majority of members then present and voting on the Bill. I would reject this submission because it fails to take into account the requirement of an absolute majority of the whole number of the members of each House at the second and third readings required by s 73(1) following the 1978 Constitution Amendment. The consequence is that, having regard to s 73(1) and (2), a Bill of a kind the subject of either subsection cannot be said to have completed its "passage" within the meaning of s 2(3) unless it has been passed by an affirmative vote of an absolute majority in both Houses. The argument to the contrary is that the view just expressed cannot be correct because it would render the phrase in s 2(3) "subject to s 73" in s 2(3) otiose. In my opinion, those words make it absolutely clear that in relation to legislation falling within the ambit of s 73(1) or (2) of the Constitution Act an affirmative vote of an absolute majority is required.
Similarly, s 13 of the 1947 Act requires an affirmative vote of an absolute majority of the whole numbers of the members of each House to the second and third readings of a Bill within its scope.
In my opinion, once it is accepted that the "passage" of a Bill in s 2(3) of the Constitution Act requires an absolute majority, the basis of the submission that the 1978 Constitution Amendment had the effect of an implied repeal of s 13 disappears. In my opinion, the word "passage" in s 2(3) of the Constitution Act means a Bill duly passed either by a simple majority or an absolute majority, whichever is required to result in a valid enactment. It follows that I agree with Steytler and Parker JJ for these reasons and for the reasons their Honours have expressed for reaching the same conclusion.
Australia Act 1986, s 6
The defendants contended that s 13 of the 1947 Act does not bind the Parliament as at present constituted. The argument in support of this submission was that because the State Parliament was vested with plenary legislative powers that may be exercised at any time, it was not competent for the Parliament to bind itself or a future Parliament in the way s 13 of the 1947 Act seeks to do. In this context, reliance was placed on the proposition stated by Brennan CJ and McHugh J in Kartinyeri v The Commonwealth at [16], namely that:
"The power to repeal a law may be exercised from time to time as the Parliament chooses. One Parliament cannot deny or qualify the power of itself or of a later Parliament to exercise that power. The Parliament cannot bind itself or its successor Parliaments not to amend the laws it makes. (Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 422; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 617; Magrath v The Commonwealth (1944) 69 CLR 156 at 169-170, 183; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597.)"
In my opinion, it follows from the plenary power of the State Parliament as a sovereign legislature that Parliament is not able to entrench a particular provision so as to protect it from repeal or amendment. It does not follow, however, that it cannot enact a manner and form provision requiring a particular majority for amendment or repeal: cfClayton v Heffron (1960) 105 CLR 214 at 250 – 251 per Dixon CJ, McTiernan, Taylor and Windeyer JJ.
In this context it was common ground that s 13 of the 1947 Act is binding on the present Parliament. This is the result of s 6 of the Australia Act 1986 of the Commonwealth of Australia and the United Kingdom. It was submitted on behalf of the defendants that the latter provision had no application either to the Repeal Bill or the Amendment Bill because s 6 only can change the power of the Parliament to make laws "respecting the constitution, powers or procedure of the Parliament", and the Repeal Bill and the Amendment Bill are not of that character. Consequently, it was further submitted that s 6 of the Australia Act does not operate to give any binding force to s 13 in respect of either Bill. Section 2 of the Australia Act provides that the legislative powers of the State Parliament include all legislative powers that the United Kingdom Parliament might have exercised before the commencement of the Australia Act for the peace, order and good government of the State. There is one exception not presently relevant. In form, s 2 of the Australia Act is expressed both as a declaration and as a positive enactment so that whatever may have been the position in the past, there is insofar as it may have been necessary, a new and full conferral of plenary legislative power in such a manner as to make it immaterial whether the present grant of power was wider in scope than any previous grant.
This new grant of power does not appear to have made any substantive change to the constitutional position regarding legislative power which existed before the Australia Act. Steytler and Parker JJ have set out the relevant authorities. These powers were subject to the limitation in s 5 of the Colonial Laws Validity Act 1865 (UK), which was repealed insofar as it might otherwise have applied to a law made after the commencement of the Australia Act by the Parliament of a State: Australia Act, s 3(1). Section 5 of the Colonial Laws Validity Act contained a proviso to the effect that a relevant law shall have been passed in accordance with the manner and form requirements of:
" … Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony."
While the Colonial Laws Validity Act, so far as it applied in Western Australia, was repealed by s 3(1) of the Australia Act in respect of a law made after the commencement of those Acts by the Parliament of the State, this was subject to a new provision in s 6, namely:
"Notwithstanding sections 2 and 3 (2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.
The result is that s 6 of the Australia Act is to the same effect as the proviso to s 5 in the Colonial Laws Validity Act: McGinty v Western Australia (1996) 186 CLR 140 at 253 per McHugh J; and per Gummow J at 295 – 296; and see Attorney‑General (NSW) v Trethowan (supra) at 417 per Rich J and at 429 – 430 per Dixon J. In particular, Dixon J went on to say at 432 ‑ 433:
"The more natural, the wider and the more generally accepted meaning includes within the proviso all the conditions which the Imperial Parliament or that of the self-governing State or Colony may see fit to prescribe as essential to the enactment of a valid law. Upon this interpretation a full constituent power is given to the representative legislature, but it may determine what shall be necessary to constitute an exercise of that or any other legislative power."
These decisions as well as the other cases cited by Steytler and Parker JJ fully support the efficacy of the manner and form requirements contained in s 13 of the 1947 Act in relation to any law "respecting the constitution, powers or procedure of the Parliament" within the meaning of s 6 of the Australia Act. So far as the scope and effect of s 6 of the Australia Act is concerned, I am content to express my agreement with Steytler and Parker JJ regarding the scope of s 6 of the Australia Act in relation to the constitution and other matters relating to the "Parliament of the State" which, in the case of a bicameral legislature may be distinguished in some respects from the constitution of either of the two Houses of Parliament and include matters relating to the nature and composition of either of the Houses of a Parliament. I also agree that the view of O'Bryan J in McDonald v Cain (supra) at 444, who concluded that the constitution of the Legislative Assembly of Victoria extended to include the qualification of electors and members, cannot be accepted. As Steytler and Parker JJ have pointed out, this conclusion was based upon the erroneous view that Clydesdale v Hughes (1934) 51 CLR 518 was not a contrary authority. The basis for the conclusion appears to have been that the Constitution Acts Amendment Act 1933 (WA), which was considered in Clydesdale v Hughes, was declaratory and did not purport to alter the law relating to the qualification of members. In my opinion, the view expressed by O'Bryan J, cannot now be accepted in the light of the conclusion expressed by Wilson J in Western Australia v Wilsmore (1982) 149 CLR 79 at 102 that:
"In my opinion, the judgment of this Court in Clydesdale v. Hughes is clear authority, unless and until it is reversed or departed from by this Court, for the proposition that a law which merely changes the qualifications of members of the Legislative Council does not effect a change in the constitution of that body within the meaning of s. 73 of the 1889 Act."
The latter is a reference to the Constitution Act 1889 (WA). Both Gibbs CJ at 83 and Mason J at 85 concurred with the judgment of Wilson J as did Stephen J at 85, although his late Honour stated a particular reservation which might be understood as extending to the comments made by Wilson J in relation to Clydesdale v Hughes. That case was concerned with the application of s 38 of the Constitution Act which provided that the seat of a member would be vacated upon the acceptance by the member of an office of profit under the Crown. In Clydesdale v Hughes, a member of the Legislative Council was appointed a member of the Lotteries Commission which was a remunerated office under the Crown. The difficulty with s 38 was sought to be overcome by an amendment to the Constitution Act by the Constitution Acts Amendment Act 1933 (WA) which provided that, notwithstanding s 38, no disqualification should be incurred by any person "who is at present both a member of" Parliament and of the Commission, but no such office or emolument arising therefrom shall be held or enjoyed beyond 31 December 1934. Clearly, this altered the qualification for membership of the Legislative Council. I agree with the comments made by Steytler and Parker JJ regarding the basis of the decision in Clydesdale v Hughes as identified in Western Australia v Wilsmore. It may be that the precise scope of the decision in Clydesdale v Hughes may need to be considered at some future date but, for present purposes, the decision should be accepted by this Court as authority for the proposition that a law which changes the qualification of members of a House of the State Parliament, does not affect a change to the constitution of that House for the purposes of s 73(1) of the Constitution Act.
I specifically wish to express my agreement with what Steytler and Parker JJ have said regarding "the constitution, powers and procedures" of Parliament as referred to in s 6 of the Australia Act so that the constitution of the Parliament at least comprises the composition, nature and make up of each House. The latter would include those provisions which regulate, in respect of each House of the Parliament, the number of members; whether the electorate of the State votes as a whole to elect them or whether the electorate is divided into divisions of one form or another for the purpose of voting; and, if so, how and on what basis the division is to be made, and the number of members to be returned from each electoral division. I also agree with Steytler and Parker JJ that having regard to the purposes of s 6 of the Australia Act, as was the case with respect to s 5 of the Colonial Laws of Validity Act, the constitution, powers or procedures of the Parliament are not necessarily confined to matters to be found within the four corners of the Constitution Act. I also agree with their Honours that, given the legislative sources of the State constitution, the constitution of its Parliament and of the other organs of government, no significance should be attached to the fact that a number of the relevant statutory provisions are not now to be found in the Constitution Act or the Constitution Amendment Act. In McCawley v The King (1918) 26 CLR 9 at 52 Isaacs and Rich JJ said:
"… the Constitution of a colony … may be looked for wherever any provision is made for the Constitution of any of its great organs of legislation, judicature, or executive power. The Supreme Court Acts of Queensland, though not contained in the document labelled 'Constitution,' are in a legal sense as much part of the Constitution of the State as the Acts relating to the State Parliament. There is no law of Queensland which draws a distinction between the comparative authority of the two classes of enactments.
Consequently, there is nothing sacrosanct or magical in the word 'Constitution'; the expression itself not indicating how far, or when, or by whom, or in what manner the rules composing it may be altered. All those things must depend upon the rules themselves."
Their Honours went on to point out that s 5 of the Colonial Laws Validity Act was itself a component part of the constitution of Queensland "and every other part of the King's dominions to which it applies". Their Honours noted that "full power" was given to make laws, subject to any legal requirement as to "manner and form".
I also agree with what Steytler and Parker JJ have said concerning any supposed distinction between the "Constitution" and the "constitution". As their Honours have pointed out, the statutory and other usage in the late nineteenth century contains many examples of the use of a capital letter for the first letter of words of significance. There is, of course, a valid distinction between the constitution of the Legislative Assembly and the Legislative Council as referred to in s 3 of the Constitution Act and the constitution, powers or procedures of a Parliament which is the subject of s 6 of the Australia Act. In addition, these are in turn to be distinguished from the constitution of a State: see for example Yougarla v Western Australia (1999) 21 WAR 488 at [56] per Ipp J; [133] per Anderson J; and [214] per White J; and see McGinty v Western Australia (supra) at 253 in which it was said by McHugh J that it was not open to doubt that the Acts Amendment (Electoral Reform) Act 1987 (WA) was a law "respecting the constitution, powers or procedure" of the Parliament within the meaning of s 6 of the Australia Act. McHugh J did not, however, identify in what respects the 1987 Act was such a law. The 1987 Act not only amended the 1947 Act in a manner which affected the division of the State into electoral regions and districts, but also the number of such regions and districts and how they would be divided. The 1987 Act not only amended the Constitution Act, albeit not in a substantive way, but also amended the Constitution Amendment Act and the Electoral Act.
McHugh J did not, however, identify in what respects the 1987 Act was such a law. His Honour also considered that it was "not open to doubt" that the 1987 Act was invalid, if it expressly or impliedly provided that the Legislative Council or the Legislative Assembly should be composed of members other than members chosen directly by the people. The issue in McGinty, of course, was whether s 73(2)(c) required equality of numbers in the electoral districts and regions of the State so that each vote cast should be of equal value.
Gummow J accepted that the question whether a law of a State was enacted in a manner and form which did not satisfy s 73 was a question which arose under s 106 of the Commonwealth Constitution, citing Western Australia v Wilsmore (supra) at 184 per Burt CJ. His Honour went on to say in McGinty (supra) at 297 – 298 that:
"Accordingly, in my view, the presently binding effect of s 73 is derived from s 6 of the Australia Act … It was not, as I understand it, seriously contested first that the Bill for the 1987 Act was one respecting the constitution, powers or procedure of the Parliament of the State, within the meaning of s 6 of the Australia Act and, secondly, that s 73(2), again within the meaning of s 6, placed a requirement as to manner and form of the making of laws of the description identified in it (cfClydesdale v Hughes (1934) 51 CLR 518 at 528 – 529; Western Australia v Wilsmore (1982) 149 CLR 79 at 102 – 103.)"
I am unable to discern from the reasons of either McHugh J or Gummow J that the 1987 Act was a law respecting the constitution, powers or procedure of the Parliament by virtue only of the changes affecting electoral regions and districts established pursuant to the 1947 Act.
The Repeal Bill
On this part of the case I agree for the reasons to be published by Steytler and Parker JJ that by virtue of s 6 of the Australia Act and s 13 of the 1947 Act, it would be unlawful to present the Repeal Bill to the Governor for assent.
The Amendment Bill
It was common ground that without the valid enactment of the Repeal Bill, the Amendment Bill is a law to which s 13 of the 1947 Act applies. In these circumstances, without the valid repeal of s 13 of the 1947 Act being first enacted, it would be unlawful to present the Amendment Bill to the Governor for assent.
It follows that I would answer both of the questions raised in these proceedings "no".
ANDERSON J: At present 34 of the 57 members of the Legislative Assembly are returned by electoral districts within the Perth metropolitan area: Constitution Acts Amendment Act 1899, s 18, s 19; Electoral Distribution Act 1947, s 6(1). It is proposed that two items of legislation will be passed which will have the effect that 45 of the 57 members of the Legislative Assembly will be returned by electoral districts within the metropolitan area. This significant change in the balance (or imbalance) between country and metropolitan representation is opposed by various bodies. The two Bills which have passed through Parliament and which are designed to bring about this change are ready to be presented by the Clerk of the Parliaments of Western Australia to the Governor for assent. The Clerk, who is the plaintiff, is aware that in some quarters there is a view that it is not lawful for him to present the Bills. The Clerk wishes to have a determination as to whether it is lawful for him to do so.
The two Bills are the Electoral Distribution Repeal Bill 2001 (the "Repeal Bill") and the Electoral Amendment Bill 2001 (the "Amendment Bill"). The first of these Bills, in its terms, provides for the repeal of the Electoral Distribution Act 1947. The second of the Bills provides for the
amendment of the Electoral Act 1907 and the Constitution Acts Amendment Act 1899.
The amendment to the Electoral Act 1907 will transfer to that Act all of the work done by the Electoral Distribution Act 1947, but with substantial changes to the basis on which the State is to be divided into electoral districts, the changes having the effect already mentioned, namely that a greater proportion of electoral districts will be in the metropolitan area. The amendment to the Constitution Acts Amendment Act 1899 will increase the number of members of the Legislative Council from 34 to 36.
Because the two Bills are still in the process of becoming law, a question arises concerning both the authority of this Court to make a pronouncement on the issue whether it is lawful for the Clerk to present the Bills for assent and the propriety of so doing, assuming that the Court does have jurisdiction. The point of objection is, broadly speaking, that the judiciary cannot, or if it can, it should not, interfere in the making of legislation as to do so is an interference with the rights, powers and privileges of Parliament and an interference in matters which are within the exclusive authority of the legislature.
In their judgment, which I have read, Steytler and Parker JJ have concluded that the Court does have jurisdiction to adjudicate the matter presented for consideration in these two cases because Parliament has itself strongly indicated in the Electoral Distribution Act that it will be proper for the Court to intervene to prevent the unlawful presentation of Bills having a certain effect. I respectfully agree with that conclusion and with the reasons of Steytler and Parker JJ for reaching it. Steytler and Parker JJ also are of the opinion that this is a case in which the Court need not refrain from exercising its jurisdiction. They give four reasons in their judgment, each of which I respectfully consider to be valid and entirely persuasive.
An important discretionary consideration, to my mind, is that in the process of the passage of these two Bills through Parliament there are clear indications that Parliament itself apprehended that the legality of the passage of the Bills would be questioned in this Court and considered it to be appropriate that the question be determined by this Court. As Steytler and Parker JJ have pointed out, the President of the Legislative Council gave as one of his reasons for not ruling on the validity of the passage of the Repeal Bill through that House that "it is not my intention to make ruling from the Chair that would preclude or prevent the Supreme Court from determining the validity of the" two Bills (Case Book p 24). There would, therefore, seem to be no question that the Court's intervention is unwelcome or might be regarded as an affront or as a lack of respect on the part of the judiciary for the authority of Parliament. The Solicitor‑General, appearing for the Attorney‑General of Western Australia and the State, made no such submission. On the contrary, the Solicitor‑General made it clear that the defendants wished the Court to hear and determine the applications.
The numbers which make up each of the Houses in the Parliament and the question of who is to elect them are matters provided for in the Constitution Acts Amendment Act 1899 and the Electoral Distribution Act 1947. The first of these Acts provides for the Legislative Council to consist of 34 members and for the Legislative Assembly to consist of 57 members. It is provided in the Constitution Acts Amendment Act that the members of the Legislative Council are returned by six electoral regions. The regions are named and it is provided that two of them are to return seven members each and the other four are to return five members each. It is also provided that the boundaries of the electoral regions are to be as determined under the Electoral Distribution Act. It is provided in the Constitution Acts Amendment Act 1899 that the 57 members of the Legislative Assembly are to be returned by 57 electoral districts, the boundaries of which are also to be determined under the Electoral Distribution Act 1947. The latter Act regulates the division of the State into electoral regions and districts and provides for the basis on which the electoral Commissioners are to divide the State into electoral regions and districts.
It goes without saying that this aspect of the constitutional structure of Western Australia should be stable. To this end, no doubt, there is a manner and form provision in the Electoral Distribution Act placing a condition on the making of any amendment to that Act. It is in s 13 which provides:
"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 of the members for the time being of the Legislative Council and the Legislative Assembly respectively."
It is contended by those parties who have appeared in these cases as amici curiae that the two Bills in question are to be regarded as one legislative package and are Bills which together have the effect of amending the Electoral Distribution Act 1947 and, hence, they are Bills which it is not lawful to present for assent unless passed by an absolute majority of both Houses of Parliament. It is not disputed that, whilst both Bills were passed by an absolute majority in the Legislative Assembly, an absolute majority was not obtained for their passage in the Legislative Council. In that House the Bills passed the second and third readings by a simple majority only.
The Solicitor‑General presented an argument to the effect that neither of the Bills in question "amend" the Electoral Distribution Act. Nor can they together be regarded as a legislative scheme which amends that Act within the meaning of s 13, so that the manner and form requirements in s 13 do not apply.
The first question is whether the word "amend" in s 13 is to be understood in the narrow sense of making an alteration to the provisions of an Act which continues in force as an Act, or whether it is to be understood in a broader sense encompassing the concept of repeal and re‑enactment of a new and different instrument, or of new provisions forming part of another Act.
I think it is plain that s 13 was enacted in order to entrench in law the basis on which the State is divided into electoral districts. It is, of course, a fundamental element in the constitutional structure of Western Australia that there should be a division of the State into electoral districts and electoral regions and there cannot be an effective division unless the basis for division is laid down. It could not have been in the contemplation of the Parliament that it might be convenient at some time to have no electoral districts or regions. A repeal in that sense was always out of the question. It is therefore not possible to make too much of the fact that only the word "amend" rather than the phrase "repeal or amend" appears in s 13. The law provided for in the Act is an essential law respecting the makeup of the Parliament and this is an important part of the context in which s 13 is to be construed. To my mind, the entrenching provision must be taken to be aimed at protecting the substantial effect of the Act from change unless a certain level of consensus is reached in favour of change. I cannot for myself see any good reason why the legislature of the time might have intended to limit the power of Parliament to make changes to the Act in the form of piecemeal amendment, yet did not intend to limit the power of Parliament to make changes by the method of repeal and re‑enactment, ie, by the method of substitution. The two are simply different methods of doing the same thing.
In my opinion, the word "amend" in s 13 is to be given a meaning which includes a legislative transaction such as the one adopted in this case - change effected by repealing and re‑enacting in a form which brings about the change.
It was submitted on behalf of the defendants that s 13 of the Electoral Distribution Act was repealed by the Acts Amendment (Constitution) Act 1978. The repeal contended for is an implied repeal said to have been brought about by the enactment of a provision in the Acts Amendment (Constitution) Act wholly inconsistent with s 13. I would not accept this submission for the reasons given by Steytler and Parker JJ and also by Wheeler J to which there is nothing I can usefully add.
On behalf of the defendants, the Solicitor‑General submitted that s 13 of the Electoral Distribution Act could not operate to bind subsequent Parliaments as that would offend the general principle that a plenary power to legislate with respect to a matter "carries with it the power to repeal or amend existing laws on that topic or with respect to that subject matter": Kartinyeri v The Commonwealth (1998) 195 CLR 337 per Gaudron J at 368 ‑ 369. The grant of plenary legislative power is contained in s 2 of the Australia Acts 1986, whatever may have been the position prior to their enactment, as to which see McCawley v The King [1920] AC 691\; (1920) 28 CLR 106 (PC) at 217 and Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14. The full legislative power of the Parliament of a State is limited by s 6 of the Australia Acts, which provides:
"6.Notwithstanding section 2 … above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act."
On behalf of the defendants, it was submitted that neither the Repeal Bill nor the Amendment Bill are for a law "respecting the constitution, powers or procedure of the Parliament of … " Western Australia within the meaning of s 6, so that s 6 has no application and effects no limitation on Parliament's power to pass those Acts. I agree with Steytler and Parker JJ that both the Repeal Bill and the Amendment Bill are for laws
respecting the constitution of the Parliament. If enacted, each would effect an alteration to the law respecting the make‑up of the Parliament. Insofar as the Repeal Bill is for the repeal of the manner and form requirements of s 13, it would also be a law respecting the procedure of the Parliament. A law which governs the legislature in the exercise of its powers to amend or repeal its own laws is a law respecting its procedure: Attorney‑General (NSW) v Trethowan (1931) 44 CLR 394 per Dixon J at 430.
Constitutional Context of s 13
Looking at s 13 in its constitutional context, it is difficult to see it as a significant provision in the constitution of the State, which requires a broad reading, particularly when one compares the subject matter of the Electoral Distribution Act with the many significant, and related, constitutional provisions which the legislature has been content not to protect by any manner and form provisions. The Constitution Acts Amendment Act provides, as I have noted, for the number of members to be elected by each of the electoral regions and districts and, so long as the numbers of members are not reduced and the members are chosen "directly by the people" (s 73(2)(c) and (d) Constitution Act) the numbers of members of the Houses can be altered and the numbers of members to be returned by each region and district can be altered. The qualifications of members of either House could be significantly altered without following any particular manner and form. The manner in which votes are counted to elect members of Parliament is plainly capable of having a significant effect on the composition of the Houses; these are provided for in the Electoral Act 1907 and are not protected by any manner and form provisions. Matters dealt with in the Constitution Acts Amendment Act which significantly affect the manner in which each House exercises its functions, and the relations between the Houses are likewise not protected by any manner and form requirement.
It seems unlikely that a legislature which intended by, s 13, to restrain any alteration in the law relating to electoral distribution, would have failed to consider the very significant practical effect upon the resulting composition of the Houses and the balance of power between them which could be obtained by altering some of the unentrenched provisions to which I have referred. The constitutional context of s 13 affords no help in ascertaining its purpose.
Legislative History of s 13
At this stage it is desirable to mention the difficulties its history puts in the way of any "purposive" reading of s 13. When one looks for a parliamentary intention, the search is not for the actual subjective purpose, if any, of individual members of Parliament or even of a majority of them. In going to the detail of the debates which were tendered relating to the Bill which became the Redistribution of Seats Act 1904, in which the predecessor of s 13 was for the first time inserted, the amici gave the impression that their submission was that the Court should consider the subjective views of those proposing the amendment. The reference to the "underlying purpose" of s 13, in the submission I have quoted, also tends to suggest a search for a parliamentary motive. Not only is that not the correct approach to the search for legislative purpose but, in the present case, consideration of the parliamentary debates in my view serves only to confuse. The confusion arises in the following way.
Originally, the initial electoral distribution for the Colony on its achievement of responsible government was to be found in the Constitution Act. The manner and form provision which protected that distribution, if and to the extent that it was protected, was s 73 of that Act, which relevantly provided:
"The Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, 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.
Three things should be noted about this provision. First, the proviso was a true proviso, and only applied to amendments to the Constitution Act and to no other Act. Second, s 73 was not itself entrenched, so that it was able to be repealed by a simple majority of members of each House in the usual way. Both of these propositions are established by Western Australia v Wilsmore (1982) 149 CLR 79. Third, it is by no means certain that the expression "Constitution of the Legislative Council ... " encompassed the electoral distribution. The draft of the Constitution Bill first transmitted by the Governor to the Imperial authorities had contained two manner and form provisions, being cls 56 and 57 respectively. Clause 56, which had the sidenote "Power to alter system of representation" expressly conferred power on the Parliament of the Colony to alter the divisions and extent of the electoral divisions and districts for the Council and the Assembly but provided that it was not to be lawful to present a Bill "by which the number or apportionment of representatives" in either House was altered unless there had been absolute majorities. Clause 57 was the clause closely resembling s 73 as ultimately enacted. (No 152 Despatches ... Relating to Responsible Government, supra.) A distinction between electoral distribution on the one hand and "constitutional" matters on the other (which encompassed such matters as whether the House was elected or nominated, and how many members it had), which is suggested by cls 56 and 57 of the original Bill, also appears to be assumed in the writings on colonial constitutional matters of the later part of the nineteenth and earlier part of twentieth century: for example Todd, Parliamentary Government in the British Colonies (1894) at 700 – 707, Tarring, Law Relating to the Colonies (1913) at 47 – 51. Although it is not necessary to decide the point for the purpose of the present question, it seems likely that the manner and form provision in s 73 did not extend to the electoral distribution contained in the Constitution Act 1889.
In 1893 and 1896 Constitution Acts Amendment Acts were passed which dealt with questions of electoral distribution. There was express provision in each of those Acts that each was to be "read and construed with" the Constitution Act 1889, so that it may well be that the protection, if any, of s 73 extended to the electoral distribution contained in those statutes. However in 1899, the Constitution Act Amendment Act was created as a separate enactment dealing with a variety of matters relating to the constitution of the State. It dealt with the electoral distribution. It contained, and was governed by, no manner and form provisions.
It was against the statutory history which I have described, that the Redistribution of Seats Act 1904 came to be enacted. It was a very brief Act, in its operative parts. It created 10 electoral provinces, the names and boundaries of which were to be found in the First Schedule. It divided the State into 50 electoral districts, each returning one member to the Assembly. Section 5 provided that the 50 electoral districts should "until otherwise determined by Parliament" be designated by the names stated in the Second Schedule and that their boundaries should be the boundaries described in the Second Schedule. The expression "until otherwise determined by Parliament" is a curious one, since it is difficult to see how any of the matters provided for in the Act could be altered unless Parliament so determined. It echoes the language of certain of the provisions of the Australian Constitution, which are to be understood against the inability of the Parliament to alter the provisions of that Constitution otherwise than by the procedure prescribed in s 128. Nothing turns on the construction of those words for the purpose of the present matter, but their presence in the statute does tend to suggest that Parliament may not have been altogether clear at the time about the means by which electoral laws could be altered.
What became s 6 of the Redistribution of Seats Act 1904 was added in committee in the Legislative Council. It is in identical terms to s 13. The member moving it is recorded in the Parliamentary debates for 9 December 1903 as saying that "It was almost a formal matter, and simply retained the power the Constitution gave at present to insist that any Bill that fundamentally altered the Constitution should be agreed to by a majority of both Houses". (Votes and Proceedings p 2587). There appears to have been no debate on the clause at that time and the amendment was agreed to. There is nothing in the record of proceedings in either House at a subsequent time which sheds light on the meaning which members either individually or collectively attributed to the amendment although it appears that members of the Legislative Assembly accepted it with reluctance. It is odd, in the light of the comment made on the introduction of the manner and form provision, that there is no record of the 1904 Act itself receiving an absolute majority at any stage in its passage through the Legislative Council.
If the amendment inserted into what became the 1904 Act was intended to maintain what had been the status quo then it must be interpreted against the understanding that the status quo involved entrenching provisions which either did not protect this subject matter at all, or were of a weak kind and were able to be avoided by legislation passed by ordinary majorities.
The provision inserted in the 1904 Redistribution of Seats Act was continued in later electoral distribution statutes. We were not referred to any subsequent parliamentary consideration of the purpose or effect of the provision.
It does appear that subsequent repeals and re‑enactments of electoral distribution legislation were recorded as passed by absolute majorities in each House. I do not think that this sheds light on the meaning of the word "amend". If one assumes such a parliamentary practice to be relevant, it may be attributable to a settled understanding of the word "amend", or it may reflect a natural caution in dealing with the difficult area of manner and form legislation.
I note that the current Legislative Council Standing Orders appear to require the recording of absolute majorities in respect of changes to the constitution of either House; this standing order (no 277) appears either to be based upon a mistaken view that s 73(1) of the Constitution Act applies to all such amendments, whether they be amendments to that Act or not, or to be so drafted out of an abundance of caution. In either case, it illustrates the problems inherent in turning to parliamentary practice for guidance.
In my view, the history of 13 in the Parliament does not support the amici's characterisation of its purpose.
"Legislative Scheme" of amendment
As I have noted earlier, the amici have submitted that the two Bills must be seen as creating a "legislative scheme" of amendment. I have already discussed some difficulties with that approach. Considering the question of "legislative schemes" more broadly, it may be that it is in some circumstances open to a court to have regard to the combined effect of a number of statutes. Of course, any statute must be read, for an understanding of its meaning and effect, against the background of the law existing at the time. The relatively few cases in which legislative schemes have been argued to be invalid provide some useful guidance about the circumstances in which that distinct concept may be of relevance.
In Deputy Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, the High Court had occasion to consider a "scheme" of legislation consisting of Commonwealth Acts, (some of which were with respect to taxation and some passed pursuant to s 96 of the Constitution) and a State Act. The question was whether the scheme as a whole contravened the prohibition on discrimination between States or parts of States in s 51(ii) of the Constitution. A majority of the Court took the view that the "scheme" was not in any event a discriminatory one, but it seems clear that Latham CJ, with whom Rich and McTiernan JJ agreed, was inclined to read each statute separately for the purpose of determining whether there was any discrimination by a law with respect to taxation (at 760). Starke J commented that co‑operation on the part of the Commonwealth and States may well achieve objects that neither alone could achieve, but it is clear that the achievement of such a result was not regarded by his Honour as rendering any legislation which is part of such a scheme invalid (at 774). Evatt J took a different view. In the Privy Council, their Lordships said that:
"where there is admittedly a scheme of proposed legislation, it seems to be necessary when the 'pith and substance' or 'the scope and effect' of any one of the Acts is under consideration to treat them together and to see how they interact" (W R Moran Pty Ltd v Deputy Commissioner of Taxation(NSW) [1940] AC 838 at 849).
Their Lordships went on to caution that the court does not seek out the objects or purpose, and still less does it seek out the intentions, of the members of Parliament, but they considered that in that case it was necessary to have regard to the ultimate effect of the scheme. It is not clear how far their lordships were influenced by the particular nature of taxation legislation, which is usually found in separate taxing and assessment Acts.
A "scheme" was later considered in the first uniform tax case (South Australia v The Commonwealth (1942) 65 CLR 373). Somewhat different approaches were taken by different members of the High Court, but those Justices who did consider it necessary to examine the alleged scheme made some observations as to when a relevant legislative scheme could be found to exist, and the way in which such a scheme should be approached.
The scheme alleged was one created by the Income Tax Act 1942 and the State Grants (Income Tax Reimbursement) Act 1942, and perhaps two other Commonwealth taxation related statutes. Broadly, the effect of the two Acts referred to, combined, was that the Commonwealth Parliament imposed a substantial income tax burden and granted financial assistance to the States on condition that a State receiving such assistance abstained from imposing income tax of its own. Latham CJ, (at 411), expressed some reservations about the concept that an Act which did not refer to or incorporate any other Act, and which was valid when considered by itself, could be held to be invalid by reason of the enactment of other Acts. His Honour also, at 424 – 425, discussed the relevance of questions of legislative motive to validity. His Honour observed that even if an indirect consequence of an Act, which could not be directly achieved by the legislature, was contemplated and desired by Parliament, that fact was not relevant to validity. The proposition that a parliament "cannot do indirectly what it cannot do directly", his Honour noted, was of value when it was contended that an Act was colourable in character, particularly in the Canadian context where it was necessary for a court to make a choice as to the category to which a law should be assigned. It was also of relevance where a power was defined by reference to purpose or where there was prohibition against obtaining a result by any method whatever. (at 426). His Honour regarded Moran's case as an example of a case falling within those latter categories. The Chief Justice did not regard the proposition as applicable wherever legislative power was in issue. Rich J agreed with those observations of the Chief Justice.
Starke J appeared to regard the question in the case under consideration as largely revolving around questions of severability. His Honour observed that the invalidity of one of the statutes, which he did find to be invalid, did not render the others invalid, as the others were not connected with nor dependent upon the validity of that found to be invalid. His Honour considered that the question of whether a legislative scheme existed was unimportant unless "the legislation is connected together and the provisions of the legislative Acts are dependent the one upon the other" (at 447 – 448). A somewhat similar view appears to have been taken by McTiernan J who observed (at 456) that "It is a mistake to say that the Income Tax Acts and the States' Grants Act are interdependent parts of a law for the collection and disbursement of taxation. The relation between the Acts is that the State Grants Act is consequential upon the Income Tax Acts." The broadest view was that of Williams J, who considered that where there were several Acts having "a clear interaction" the court was entitled to investigate the "substance and purpose" of each Act in the light of knowledge disclosed by them all (at 462).
The principles which I think may be distilled from the cases discussed above are these. It is open to the court to consider statutes forming part of a legislative scheme in the light of other statutes forming part of that scheme where the Acts are "dependent the one upon the other". The purpose of such an examination is less clear. It may be that it is permissible only where there is a legislative power or a prohibition of legislation, which power or prohibition is defined by a reference to purpose or result, or it may be that it involves some wider investigation of the "substance" of the statutes. In any event, questions of the motive of the legislature, or of any desire to achieve a particular result, are not of relevance.
If the Bills in question here are considered to be "interdependent", then for the reasons which I have already expressed, s 13 is not a provision directed to prohibiting legislation having a particular purpose or achieving a particular result. The argument that the scheme indirectly achieves the "result" prohibited by s 13, involves in my view the proposition that s 13 is aimed at prohibiting any alteration of the existing electoral distribution. Since I have rejected the premise that that is the purpose of s 13, I must reject the conclusion that this "scheme" offends it. I would in any event doubt, for the reasons mentioned in discussing whether repeal and substitution constituted an amendment, that the two Bills are "interdependent" in the relevant sense. It is clear that the two could have been combined – and perhaps more simply – in one Bill, but that is not the test.
Continuation of existing distribution
Finally, the amici assert that because the transitional provisions of the Repeal Bill provide that the existing electoral distribution continues to apply until the first general election after the coming into force of the Bill, and that the representation of districts and regions by members of the Legislative Assembly and Council elected prior to that time continues, the Repeal Bill itself "continues the operation of the 1947 Act" and there is therefore no repeal, but a major amendment. In my view this argument cannot be sustained. It cannot be the case that merely because there are transitional provisions, an Act has not been repealed. Section 37 of the Interpretation Act has the effect of preserving rights, interests, duties, and status (among other things), created or acquired under repealed legislation. It cannot be that by reason of s 37, no legislation creating any right, interest, duty or status is ever truly repealed. Indeed, it is arguable that the transitional provisions of the Repeal Bill do no more than s 37(1)(c) would have done in any event in relation to the status of members of the Council and members of the Assembly as representing the districts and regions under the repealed legislation.
Conclusion – amend/repeal
The proposition that the concepts of amendment and repeal are distinct ones, and that a statute which refers to amendment means what it says, rather than also meaning something in addition to what it says, are simple ones. The difficulty in applying those simple concepts in this case stems primarily from two sources. The first is that the concept of an amendment as distinct from a repeal will sometimes be one which is attended by some technical difficulty. The second is that on one view the purpose of the legislature in using the word "amend" is such that that purpose would not be served by failing to read it in a special and unusual sense. I acknowledge both of those difficulties. However, it is my view that in this case the Repeal Bill is no more than a Bill to repeal rather than to amend, and that the purpose which the amici seek attribute to the legislature cannot justifiably be attributed to it.
For these reasons, I would answer the question posed in CIV 2949 (as to the Repeal Bill) "yes". The answer to the question in CIV 2965 of 2001 would depend upon whether the Repeal Bill has been assented to at the relevant time.
- AGLC
- Marquet Clerk of the Parliaments of Western Australia v The Attorney-General of Western Australia [2002] WASCA 277
- Case
- [2002] WASCA 277
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the manner and form provision in the Act, which required absolute majorities in both Houses for Bills to amend the Act, was binding on the current Parliament and whether the Bills in question could be considered amendments to the Act. The court also needed to determine whether the subsequent enactment, which required every Bill to be presented for Assent after its passage, impliedly repealed the earlier provision requiring absolute majorities.
The court held that the manner and form provision in the Act was binding on the present Parliament. It concluded that the subsequent enactment did not implyly repeal the earlier provision because it did not expressly address the requirement for absolute majorities. The court found that the Bills were intended to amend the Act's provisions, as they sought to repeal and re-enact the Act with changes. Consequently, the court ruled that the Bills could not be presented for Royal Assent until they had been passed by absolute majorities in the Legislative Council.
The final orders of the court declared that the Bills could not be presented for Royal Assent until they were passed by absolute majorities in the Legislative Council. The court also declared that the manner and form provision in the Act remained binding on the present Parliament, and the subsequent enactment did not implyly repeal the earlier provision requiring absolute majorities.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: ANDERSON J
Full text does not contain this section.