The Honourable Marie May Bignold v Dickson

[1991] HCATrans 132

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S61 of 1991

B e t w e e n -

THE HONOURABLE MARIE MAY

BIGNOLD

Applicant

and

EDWARD IAN DICKSON

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

THE HONOURABLE JOHN RICHARD

JOHNSON

Third Respondent

THE HONOURABLE GORDON RAYMOND

IBBETT

Fourth Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

Bignold 1 4/6/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 JUNE 1991, AT 2.30 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friends, MR G.R. JAMES, QC, and

MR T.G.R. PARKER, for the applicant. (instructed

by Holman Webb)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR L. KATZ, for the

first, second and third respondents, the second

respondent being in opposition to the grant of

special leave, the others being submitting parties.

(instructed by the Crown Solicitor for New South

Wales)

MR J. McCARTHY, QC:  May it please Your Honours, I appear

with my learned friend, MR J. HATZISTERGOS, for the

Honourable Gordon Ibbett, who is a party to these

proceedings, having been joined by the Court of

Appeal and has the status of an intervener.

(instructed by Messrs McClellands)

MASON CJ: Yes, Mr Bennett.

MR BENNETT: If the Court pleases, Your Honours have our

written submissions. The fact that there was some

doubt about the decision was recognized by

His Honour the President at page 66 of the appeal book where His Honour referred to at least one of the arguments as being "far from meritless".

We would submit that the decision of the Court

of Appeal is the subject of serious doubt and that
the issues are of very great importance, not only

for the immediate results as to the validity of the

referendum, but also as to the long-term results as

to the ways in which the Constitution can be

amended.

The point is a very short one. Under the New

South Wales Constitution Act, the Legislative

Council has been entrenched by provisions of

section 7A and that section provides, as is well

known, that it cannot be altered and various

aspects of the council's constitution cannot be

Bignold 2 4/6/91

altered, except in the manner provided by this
section. That manner involves a referendum.

Subsection (3) has a single sentence which states:

Such day shall be appointed by the

Legislature.

That is, the day for the referendum.

That appears in the context of a provision

which states that:  ·

On a day not sooner than two months after the

passage of the Bill through both Houses of

the Legislature the Bill shall be submitted to

the electors -

What has been done appears from the application

book, and it is on page 27. Your Honours will see

there at line 20 that, in an Act called the

Constitution (Referendum) Act 1991 they have said:

The day appointed for the taking of the votes

of the electors at the referendum is the day
named for the taking of the poll in the writs
issued for the general election of the Members
of the Legislative Assembly held next after

the commencement of this Act.

Then that only applies if it is within two months

of the passage of the bill through both Houses.	It
was not within two months.

So what has been done, we would submit, is not

to appoint a day but to nominate a formula which

has the effect of delegating the appointment of the

day to the Governor on the advice of the Executive

Council when he appoints the date for the next

election.

Before I leave the provisions, I should remind

Your Honours briefly of one or two other provisions
of the Constitution.	Your Honours will see
section 7B deals with:

Bills with respect to Legislative Assembly -

and that provides that, Your Honours will see, in

paragraph (2):

On a day not sooner than two months ..... the

Bill shall be submitted to the electors -

that is similar to the provision in section 7A, but

it then says:

Bignold 4/6/91

The day referred to in subsection (2) shall be

appointed by the Governor under and in

accordance with -

an Act. So that section gave the power as

specifically to the Governor. Similarly,

section SB, which deals with disagreements,

provides in subsection (2) for a referendum, which

is simply to be held in accordance with the
legislation concerning referenda, with no specific

provision for a date there, but subsection (5),

which deals with the situation where there is a

bill to which both section 7A and section SB apply,

that is a bill where there is both a disagreement

between the two Houses and, it either abolishes or

relevantly affects Legislative Council. So it has

both sets of provisions.	Then subsection S(b)
provides that:

the referendum under this section shall ..... be

held upon a day which shall be appointed by

the Governor.

Those provisions were added in 1932, which is after

section 7A, but they are of significance, we will

be submitting, when one comes to construe the

Constitution as a whole.

Now, Your Honours, our submissions can be

summarized in this way. First, the word "appoint"
is a word which has various meanings. It has

different meanings in different contexts. We have

cited two cases in the submissions which say no

more relevantly than that it has different meanings

in different contexts, and they will not take Your

Honours to those cases.

There may be a remote analogy in relation to the price fixing cases during the war - again,

Your Honours need not go to them - but Your Honours

will recall in Vardon v The Commonwealth a

regulation where the Minister had power to fix a

price and he fixed cost price plus 20 per cent.

That was held not to be fixing a price and that was

distinguished in slightly different circumstances

in Bendixen's case.

But the real vice with what has been done here

is not merely that a formula is laid down because,

of course, there is the certurn est maxim. The real vice is that what has been done here is to lay down

a formula which does not enable the date of the

referendum to be determined until much later, and

the secondary consideration is that it relegates it

to the Governor.

Bignold 4 4/6/91

But as at the time of the passing of the

Constitution (Referendum) Act one could not

determine on what date the referendum would take

place. One could not determine whether it would

take place at all, because if an election were

called within the next two months it would not take place at all, pursuant to section 4(2), on page 27.

So what was set up was a contingent referendum

to be held on a date which the Governor would

appoint in a situation where the delicate balances

of these provisions have specifically said that it
is for the legislature and not the Governor to
appoint the date.

Now, the purpose of the provision concerning appointment was, no doubt, to ensure that the

legislature had the control over the date. It was

a matter concerning very much the privileges of the
legislature, the possibility of the abolition or
alteration of the composition of one House, and the

approach taken was that that date should be fixed

by the legislature.

It was also important that it be fixed at least two months off and there is set out in the

judgment a short passage from Hansard which shows

the discussion giving rise to this. That is at

page 45 of the judgment where, during the second

reading speech, Mr Boyce puts the matter this way:

The point of that is, that the people of

the State are to know all about it before they

are asked to vote. It is not to be sooner

than two months. It does not say "within two

months". It is "not sooner than" two months.

There must be two months, at the least, in which this bill may be canvassed throughout

the country, so that the people may know

exactly what is the position.

Then, that is repeated after a short exchange.	So,
the purpose was to ensure two months' notice.

If the decision of the Court of Appeal is

right, it would be open to the legislature to say,

"We decide, we appoint that this bill will go

before the people on the date of the next

election", and they could say that in a bill passed

at the beginning of a four year term of government.

Three and a half years later, the government could call an election on two or three week's notice -

whatever the minimum period of notice is - I think

this election was 22 days - and the matter would
then come before the people after considerably less

than two months was available.

Bignold 4/6/91

Now the Court of Appeal's answer to that is to

say, "Well, in that situation, you have had all the

time since the bill was passed". The reality,

however, is that one does not have all that time at

all. First of all, in the present case, the first

two months were a period during which the bill

might never come before the people, so it is

unlikely that anyone is going to canvass in

relation to a referendum which may never occur, and

if the election occurred within that two months it

would not occur, and secondly, the matter is not

presently to mind in the way that it is when a date

is fixed and, in our respectful submission, one of

the purposes of this provision, as is made clear by

Mr Boyce's answer, is that it is to enable the bill

to be canvassed throughout the country, to allow

realistic opportunity for debate on the bill before

the referendum.

BRENNAN J: It is a matter of language that the legislature

could appoint tomorrow as the polling day, could

it?

MR BENNETT:  Yes, Your Honour, but we would have to allow

two months.

BRENNAN J:	Not from the date of the appointment.
MR BENNETT:	No, not from the date of the appointment, that

is so, Your Honour. As a matter of language, the

two months relates only to the date after the

passage of the bill - - -

BRENNAN J: Quite?

MR BENNETT:	- - - not from the date of the appointment. That is so. So, certainly, Your Honour, I have to
concede, it would be possible for the legislature
to pass the bill, wait two months and then some
time after the two months say, "The referendum will
be tomorrow", that is certainly so, subject to the exigencies of the machinery and the provisions of the referendum legislation about writs and so on,
and advertisements, but subject to that, yes. But,
it is our submission that the fact that that vice
exists is no reason why one should extend it, and
one of the purposes of requiring the day to be
appointed by the legislature was to ensure that
there was a date nominated and laid down from which
people could work for the purpose of knowing when
the referendum would be held.

The other purpose is that of ensuring that it

is legislature itself which does it and not some

other body and, as I say, we draw attention to the
distinction between section SB and section 7B on

the one hand, which provide for the Governor to

Bignold 6 4/6/91

appoint the date, and this provision which requires

legislature to appoint the date.

The principal argument on which the Court of

Appeal relied, and the principal matter put by my

learned friend in his submissions below was this,

that historically, prior to 1931, there had been

many occasions when elections and referenda had

been simultaneous; that it was desirable, in the

public interest, matters of economy and convenience

and so on, that referenda and elections be

simultaneous. It was submitted that if the formula

of the type used in this case was not permissible

then it would not be practicable to ensure that the

referendum and the election are simultaneous and

the legislature in 1930 could not have intended

that, it must have intended to preserve the ability

to have the two on the same day.

That was the argument put against me, and we

put three principal matters in answer to that: the

first is, we say, in any event, it is possible to

achieve the result of having a simultaneous

election if one really wants one without doing it

in the way it was done in this case. There are a number of ways suggested which are referred to in the judgment. The simplest and easiest way is to

do exactly what appears to have been done in 1981.

But, if I could just give the simplified version

first, then tell Your Honours what happened in

1981.

The simple way of doing it is for the Premier

to see the Governor, in effect to sound him out as

to whether, if he were to ask him next week to call

an election for a particular date, he would regard

that as an acceptable date for an election. The

Governor gives a general indication that while he

cannot bind himself, other things being equal, his

present intention would be to agree to such a

request.	The Premier goes back to the House, the
bill is passed with that date in it and then

Parliament is dissolved and the Governor is advised

to select that date and does so.

Now, the Court of Appeal said there was

nothing improper in that procedure, and indeed

there is nothing improper about it. It is a simple

way in which in a practical sense one can assure

that result.

There are other ways. One can take the view

that it is highly unlikely that a Governor is going

to refuse an election for a particular date,

particularly towards the end of a government's term

of office, and one can rely with some safety on

that assumption. The Court of Appeal pointed out

Bigold 7 4/6/91

it was something like 70 years since an election

had been refused for a particular date by a State

Governor.

So there are various ways it can be achieved.

But there are more fundamental objections to the

argument. As a matter of legal interpretation,

there is a fundamental objection that it looks to

the specific result. It looks to the example, not

to the principle. One looks at parliamentary

intention and extrinsic material in order to

ascertain the meaning of the words used, not to

ascertain the application Parliament would have desired to a particular set of facts if it were deciding the case in a court.

One can think of many examples of cases where one would not construe parliamentary intention in

relation to the facts of a particular case. If one

was looking to see, for example, to take an example

from a case before this Court some years ago, if

the question is whether a particular group is a

religion for the purpose of an exemption from

taxation, one sees the word "religion" in a statute

and has to construe it. One is entitled to look at

various aids to see what Parliament intended. One

would not be entitled to look at other legislation

passed by that Parliament around the same period in

which it was indicated that the Parliament had some

opposition to the particular group concerned and say, "Well, it follows from that that Parliament

would never have intended that group to be regarded as a religion". That would be a totally irrelevant

consideration because the question is what

Parliament meant by "religion", not whether it

thought that a particular group was a religion.

And in the same way here the question is not

would Parliament have thought it was a good idea

for a government in the future to be able to

achieve, as a matter of certainty rather than

likelihood, simultaneity of elections and
referenda. That is not the question. The question
is: did Parliament intend that the date should be
appointed or that there should be the ability to
lay down a formula which would not be certain at
the time but become certain at some future date.

In our respectful submission, my friend's argument does not assist in answering the second question.

There is an even clearer reason why my

friend's argument fails. A third reason.	That is,
if Your Honours go to section SB again, and

Your Honours see subsection (S)(c) - and this is

again dealing with bills to which both SB and 7A

apply - Your Honours will see that:

Bignold 8 4/6/91

the day so appointed shall, notwithstanding

anything contained in subsection(2), be a day

during the life of the Parliament and not

sooner than two months after the Legislative

Assembly has passed a resolution -

It must be during the life of the Parliament.	So
it cannot be, under that provision, an election
day.

Now, might I hand to Your Honours an extract

from Hansard, when that provision was debated.

This is 28 September 1932, page 593. I apologize

for the quality of the combination of fax and photocopier but Your Honours see in the first

column, Mr Manning moves the addition of paragraph
(c) to subsection (5) and he says:

The insertion of this paragraph is intended to prevent two things happening simultaneously,

namely, a general election and the holding of

a referendum for the purpose set out in

section 7(a) of the Constitution (Legislative

Council) Amendment Act 1929. This is a machinery bill to provide a constitution for

the Parliament of the State, and it is thought
that a referendum is such an important matter

that it should be held at a time when the

minds of the electors are not confused by a

multitude of subsidiary issues. When such an

important matter as an alteration in the

machinery of government is to be dealt with by

the electors it should be the sole matter
presented for their consideration. Obviously,
the appropriate time for dealing with such a
matter is when their minds are not occupied

with subsidiary issues.

Such as electing a government. Now, the amendment

was agreed to and that became (5)(c).

Now, that was within a very short time of the

amendment to section 7A. It is true that it was

after it and one must ask the question, "Why was

not section 7A correspondingly amended?" And we

submit the reason is that the legislature took the

view that it could not arise. The fact that the

date was being appointed by the legislature under

that section would mean, they may well have

assumed, that it would be during the term and that

it would not be based on some formula such as the

next election.

But the real point of this passage is, it

negates the argument put by my learned friend and

accepted by the Court of Appeal, that no one could

possibly have wished to prevent the wholesome

Bignold 9 4/6/91

practice continuing of having referenda and

elections simultaneously. It is something which

was not as clear as that and which was, when a very

similar provision was being enacted within a couple
of years, regarded as sufficient to justify a

specific exclusion which was not thought necessary

in relation to section 7A. So, in our respectful

submission, those matters show very clearly the

intention of the legislature the other way.

Now I should briefly remind Your Honours of

one decision in relation to interpretation of

statutes; it is a well-known case and that is the

decision of the House of Lords in Ormond Investment

Co v Betts, (1928) AC 143. I hand copies of that

to Your Honours. At page 156, at the end of the

speech of Lord Buckmaster, he cites with approval a

statement of Lord Sterndale in the Court of Appeal,

which says:

"I think it is clearly established in

Attorney-General v Clarkson that subsequently

legislation on the same subject may be looked

to in order to see the proper construction to

be put upon an earlier Act where that earlier

Act is ambiguous. I quite agree that

subsequent legislation, if it proceed upon an

erroneous construction of previous

legislation, cannot alter that previous

legislation; but if there be any ambiguity in

the earlier legislation then the subsequent

legislation may fix the proper interpretation

which is to be put upon the earlier."

This is, in my opinion, an accurate expression

of the law, if by "any ambiguity" is meant a

phrase fairly and equally open to divers

meanings, -

and it goes on then to other matters.

Now, this case is much stronger than that,

because here one has an amendment to the same Act,

within a very short period and the Act, of course,

must be read as a whole, and as a whole, one sees

an Act which says, "the Governor", in section

5B(5); "the Governor" in section 7B; "the

legislature" in section 7A, and which has a

provision in section SB specifically to the effect preventing simultaneous elections and referenda and something that was not thought necessary at the
that the day has to be during the life of

time to be added to section 7A. And we submit

there is only one reason why it was not thought

necessary and that is because of the correctness of

our general submission.

Bignold 10 4/6/91

BRENNAN J: It would be right to say that the Legislative

Assembly plays no part in the fixing of a day for

an election, is that correct?

MR BENNETT: That is correct, Your Honour, yes.

BRENNAN J: Then, in looking at SB(S) one is conscious that

that is an inhibition upon the Governor's power to

fix the date.

MR BENNETT:  No, Your Honour, Your Honour's question related to the date for an election. The date for a

referendum is defined by each of the four separate

provisions of the Constitution that calls for a

referendum.

BRENNAN J: Yes. I am sorry, I have misstated the question.

The question really is this:  how could a

legislature appoint a day for the holding of a

referendum that would be coincident with a polling

day for the election otherwise than in the manner

which was adopted in this case?

MR BENNETT: There were four ways it could be done,

Your Honour. The first is the method of sounding

out the Governor, as I described it. In other words, the Premier talks to the Governor, says "Would you be prepared to accept that date if I

advise it in a few days?", having got the agreement

goes back. The date is then fixed by Parliament

and then he goes back to the Governor and obtains

the matter. The second is to rely on the fact that

towards the end of the term of a government, it is

virtually inconceivable that a Governor would

refuse an election for a date advised by a Premier

and he could again rely on that.

Indeed, in 1981 - and this is referred to at

page 68 of the application book - there was a

referendum bill. The bill provided - and this was

done - for the date for the referendum to be the	the first and only other time when this has been	same as the date of the next election. There was
then an announcement that there was to be a
dissolution of Parliament and an election on a
particular day and on virtually its last day of
office the Parliament amended its previous Act and
said in lieu of the provision requiring it to be
the date nominated for the next election it shall
be 24 May, or whatever the date was. So, obviously
they had some doubt about the validity of the provision and they did it in the more direct way
and that achieved the result.

BRENNAN J: Let me put the question to you another way: is

it possible for the legislature to fix the election

day, the polling day for the elections of the

Bignold 11 4/6/91

assembly, as the date for the referendum in advance

of the exercise by the Governor's power to fix that

day?

MR BENNETT:  I am sorry. My submission is no, Your Honour.

My submission is that it must appoint a day which,

at the time of the appointment, is either a fixed

day, certain, or as at that date, capable of

ascertainment. I suppose it could say, the third

Sunday after Epiphany; it could lay down something like that which one could look up in an almanac and identify, but what it must not do, we would

respectfully submit, is lay down a formula which

does not enable, at that time, the date to be

identified, and that is what has happened here.	So
I would answer Your Honour's question in the
negative.

On page 4 of the submissions I have referred

a nominated date. There was one

to what has happened on previous occasions, and always had

occasion in 1977, which is discussed at

pages 66 to 67, where what was done was to have a

single alternative. That is at the bottom of

page 66. The necessity for that arose out of a

provision of Commonwealth law which prohibits the

holding of a State election on the same day as a

federal election, and it also prohibits a State

referendum on the same day as a federal election,

and there was apparently some talk of a federal

election at the time, so the Act is passed. It

appears at the bottom of 66, it said:

The day appointed for the taking of the

votes ..... is -

(a) except as provided in paragraph (b)

10th June 1978; or

(b) where any law of the Commonwealth

precludes a referendum of the State from being

held on 10th June -

then -

17th June.

That was never tested because, for various

reasons, the bill lapsed, or at least it did not go
ahead in accordance with that provision. But the

use that was made of it was to suggest that that

indicated that there was some validity in the

conditionality. We would submit, that it does not

indicate that. It is, in any event,

distinguishable from the present case and we simply

submit that on every other occasion it has been

Bignold 12 4/6/91

done by identifying a date and that is the correct

way.

I should also refer Your Honours to the terms

of the Governor's writ very briefly. The

Governor's writ is at page 12 of the appeal book,

and Your Honours will see it is headed, "Writ for a
Referendum" and it says, about half-way down:

WE APPOINT the following dates for the purpose of the said submission:

1. For taking the votes of the electors,

Saturday, 25th May, 1991.

So, the writ itself was one in which the Governor appears to have assumed that he had the power

delegated to him. The Court of Appeal held that

that was a wrong assumption and that the wording

was inappropriate, but nevertheless that did not

indicate that there had been a breach. It was

something which simply provided a forensic tool,

Their Honours said, to the present applicant.

We would submit it may provide merely a

forensic tool but it is a useful indication of the

true nature of what was done.

Certainly, one, as a matter of words can

characterize what was done as fixing - as

appointing a day by reference to a future event

which will become certain. If one says,"I appoint

the next election day", in one sense one can

certainly characterize that as simply appointing

something to become certain.

But there is another characterization which we

submit is rather more appropriate in this case and

that is the characterization of the "as a

delegation", because what has really happened is,

appoint the day, we will leave it to the Governor	in substance, that Parliament has said, "we won't
to appoint the day, provided that he makes it the
same day as the next election, when he appoints
that". In our respectful submission, that is the
power which is not given.

One could also, of course, regard it simply as

an abdication. It is not a case where one has

delegated part of a power; it is rather a case

where one has delegated the whole of the power,

because the power is simply to appoint the date.

As at the time of the passing of the

(Referendum) Act in March no date was appointed.

All that was appointed was a statement that it

Bignold 13 4/6/91

would be some other date when that date was

appointed, and what, we ask rhetorically, is the
difference between saying "the date of the next

election" and "a date to be appointed by the

Governor"?	We would submit that either are equally
invalid.
Your Honours, those are the arguments. not dealt with the question of judicial	I have

intervention which was raised by the defendants

below and no doubt will be raised here if - - -

MASON CJ: Well, we are considering it from the point of a

special leave application at this time.

MR BENNETT:  Yes. The simple submission is the importance

of the - I have given Your Honours the reason why

we submit the decision was wrong. The importance

of it is first, the importance to the present
applicant who, on the basis found by the court of
appeal, would lose her membership before the expiry

of the term.

Secondly, the importance of the legislation

being passed, which affects the Constitution of the

Upper House in New South Wales, and thirdly, the

importance, from the point of view of

constitutional law, of knowing in what manner it is

permissible for the legislature in future to fix

the dates for referenda. All those matters, we

would respectfully submit, are important, and

justify a grant of special leave.	May it please
the Court.

MASON CJ: Thank you, Mr Bennett. Yes, Mr McCarthy.

MR McCARTHY:  Your Honours, on behalf of the intervenor I

rise to support the submissions that have been put

by Mr Bennett for the appellant. I do not wish to trouble the Court long with further submissions of the same vein, but Your Honours, there are two

matters that I would wish to draw the Court's

attention to and to add, I hope, in support of the

case that has been presented by Mr Bennett for

special leave.

Your Honours, I would respectfully draw your

attentions to page 54 of the appeal book in the

judgment of His Honour the President in the court

below as to the approach that a court should adopt

in relation to legislation of this sort. The part that I refer to in particular is at about line 12:

In the present case, a particularly strict

construction of the requirements laid down
would be reinforced because the result of

terminating Mrs Bignold's membership of the

Bignold 14 4/6/91

Council (and possibly that of Mr Ibbert and one other) concerned not only those Members but also the electors who had voted for them

upon the assumption that they would hold or

attain office as the law then provided for the

full term then applicable.

The Solicitor General, for the contesting

defendants, conceded that the requirements of
s7A of the Constitution Act had to be strictly

complied with. But he urged that the adoption

of a strict approach did not warrant the

assumption of a pedantic or narrow view of the

words of the Constitution Act.

Your Honours, I would also take you in terms of the

President's judgment to what is, in my submission,

the central part of what, I think, the appellant

and the intervenor would characterize as the error

in the President's judgment in the court below, and
that is the section under the heading "Contingent

referendum", and I read this for the purpose of

drawing Your Honours' attention to what is really

uncontested fact as to the nature of the

legislation that Your Honours are considering

today. It is the reference beginning at line 30 on

page 74:

It was suggested that section 4(1) was

invalid because it envisaged a contingent

referendum - one which might be postponed to

the very end of the life of the Assembly or -

and I emphasize the_se words -

one which might not be held at all, if the

writs were issued for the general election of than two months after the passage of the Bill

which became the Constitution (Referendum) Act

1991 through both Houses of the Legislature.

It was said thats 7A did not envisage such a

contingent arrangement. Instead, it envisaged

a fully formulated proposal for the abolition,

dissolution or alteration of powers of the

Legislative Council which was such as to be

suitable to be submitted to the electors
qualified to vote. Certainly, it is clear

that the current proposals for amendment of

the Constitution Act were advanced towards

approval at referendum upon a contingent

basis. So much is plain bys 4(2) of the

Constitution (Referendum) Act 1991. It

ensured that the day appointed pursuant to

s 4(1) would not be "sooner than 2 months

Bignold 15 4/6/91

after the passage of the Bill" through both

Houses of the Legislature.

Your Honours, in the next paragraph I think is

the centre of the case that is against us and the

case that is presented by the appellant and

supported by the intervener as to where the error

may be:

I confess to having had some difficulty in

understanding this last argument. It is true

that most proposals of a kind requiring

compliance withs 7A will be such as to

contemplate an actual proposal, not a

contingent one. However, I can conceive no

reason as to why Parliament should be

disqualified from enacting a proposal for a

referendum which, in certain eventualities,

may not proceed because of the requirements of

s 7A(3) of the Constitution Act. Those

requirements are designed to be protective of

the time for public debate. If the result of

their application is that the remaining time

for debate is insufficient, it is not a

frustration, but an application, of those

provisions that the referendum cannot then

proceed.

Your Honours, in our submission, the answer to

that argument is this: if I might take Your

Honours to the Constitution Act 1902 section 7(3).

Your Honours, in the first clause or sentence of

that provision it says this:

On a day not sooner than two months after the

passage of the Bill through both Houses of the

Legislature the Bill shall be -

presented -

to the electors qualified to vote -

Your Honours, a bill that may not be presented, a

bill that on its face in terms of its date does not

include an appointment certain with the electorate
is not, in our submission, a bill for the purpose
of section 7A.

Your Honours, there is, as the learned President has shown, no doubt that in the period

between 25 March and 25 May it may have been the

case that the Governor could have called an

election under Part X and, Your Honours, as a

result of that, that referendum would not have been

held. There is no doubt that in the language in

the Cons ti tut ion (Referendum) Bill, .it included a

Bignold 16 4/6/91

date that was not a date that would bring about a

referendum for the purposes of section 7A(3).

In those circumstances, Your Honours, we have

a date whether it is called appointed by the
legislature or not which would fall, or may fall,

within a period that is constitutionally prohibited

by section 7A(3). If there is going to be strict

compliance as the President says with

section 7A(3), given the consequences of this

referendum, given, Your Honours, that it is a part

of the law-making process of New South Wales, the

constitutional arrangements, then all parts of

section 7A(3) must be complied with and that means

that the bill is one that the electorate of New

South Wales knows, when it has passed through both

Houses of Parliament, shall be submitted to the people.Your Honours, that is the problem in

relation to the date that was set here.

Your Honour Mr Justice Brennan raised the question of, how do you bring about a referendum

and an election at the same time. The answer to

that in New South Wales is that that has eventuated

in 1981 with the arrangement for a referendum and a

general election on 19 September 1981 and that was

done by a bill having passed through both Houses in

May of 1981 and then a date being set at a later

time so that when a date was put, it was a date,

Your Honours, that had already been arranged or

announced by the Premier as being for a referendum.

Your Honours, it is, in our submission,

therefore the case that this bill has not complied

with all the relevant parts in terms of intent of
the Constitution for recognition as being a bill

for the purpose of section 7A. That that is also

so is recognized in the judgment of His Honour

Mr Justice Priestley in this matter, and I refer

Your Honours to page 90 of the appeal book, where

at line 20 His Honour says, referring to:

the "entrenched"

provisions and their -

requirements.

In the present case, those requirements will

be substantially met, as Mr Justice Samuels

has explained, if the referendum goes forward.

I would also draw Your Honours' attention to his remarks at the bottom of that page:

In constitutional terms, the removal of

members of parliament during their term of

Bignold 17 4/6/91

office is a matter of fundamental

significance.

So fundamental we submit, Your Honours, that it

must strictly comply with section 7A.

Your Honours, the point of drawing the Court

to Mr Justice Priestley's judgment is to emphasize

that it was recognized by the court below that there

had not been strict compliance with section 7A and

that was a fact, either if it was described as

substantial compliance or as a contingent

referendum.

Your Honours, other than in relation to that

point and to the separation of powers which my
learned friend also referred to, I would support

his submissions in relation to special leave.

MASON CJ:  Thank you, Mr McCarthy. Mr Solicitor?

MR MASON:  Your Honours, in our submission, special leave

should be refused because the judgment below was

clearly correct. The essential point which the

applicant seeks to derive from section 7A(3) is a

requirement that when the legislature appoints a

day for the referendum, that must be a day which at

the time of the appointment is capable of immediate

ascertainment. That requirement, in our

submission, is a gloss which the words do not bear.

If one looks at it from the point of view of

the purpose for which 7A was designed, namely, to

guarantee the participation of the Legislative

Council in matters affecting its own interests,

that purpose is not assisted by such a gloss.	If
one looks at the words of 7A(3), then it is

apparent, in our submission, that that is a gloss

which the words do not require.

As my learned friend conceded, 7A(3) would be

satisfied by a bill for an amendment to the

Constitution affecting the Upper House being passed through both Houses, lying there on the table for, say, 12 months, and for the legislature then to

pass an appointing Act which fixed the following
day, as an absurd example, as the day for the

referendum. That shows, in our submission, that

any argument based upon construing the second

sentence of 7A(3) as if it imported a purpose. of

guaranteeing two months debate from the day of

appointment, is to ask the words to carry a weight

which they cannot bear. In the application book,

Your Honours, there are two bills, just to see how

this matter proceeded through Parliament,
concurrently: one is at page 19, which is the bill

to amend the Constitution, and it made a number of

Bignold 18 4/6/91

provisions affecting the role of the Legislative

Council, not just so far as touched the interest of

the applicant. It passed through both Houses, but

consistent with the requirement of 7A, it could not

be presented - 7A(2) in particular - for assent

until approved by the electors in accordance with

the referendum requirements. The appointing Act is

at 26 and 27, which was passed concurrently and

received immediate assent and purported, we say

validly, by section 4 to fix the day for the

referendum.

Section 7A(3) of the Constitution Act, in so

far as it has a minimum time limitation in the

first sentence, addresses the former bill not the

latter and it fixes the two month period by

reference to the day in which that bill passed

through both Houses and said that that bill, the

one to be approved at referendum, should not go to

the referendum until two months had elapsed.

That is the matter to which, in the debates

in 1929, the reference was made as to the need to

ensure two months debate. One did not, in our

submission, need to go to the debates for that.

The first sentence of subsection (3) is crystal

clear there.

The second sentence really addresses a

different matter and that is the question of who

appoints the day in order that it will be a day

that will satisfy 7A and by providing it is the

legislature there is a guarantee that the
Legislative Council participates together with the

Assembly in the fixing of the appropriate day.

Your Honours, my learned friend in his

submissions and in his written submissions drew

attention to other provisions of the Constitution

which confer the power of nominating the referendum

date upon the Governor. Section SB(S) was added

in 1933 and our principal argument is that one

cannot construe section 7A by reference to

something that occurred later, but it was in a

different context in any event. Section SB deals

with bills in which the two Houses cannot reach

agreement. Some of those bills will affect the

interests of the Legislative Council in its

entrenched rights, others will not.

Section SB(S) deals only with deadlock bills

which affect the interests of the Legislative

Council. In that situation where, ex hypothesi,

the two Houses of Parliament cannot agree on what
the law is, it is not surprising that they would

not be able to agree to appoint a day for a

referendum and it is in that context that SB(S)(b)

Bignold 19 4/6/91

permits that the Governor in that unusual

circumstance will appoint the day.

My learned friend seeks to draw some support

from 5B(S)(c) and the portion of the debates in

1932 that he handed to the Court this afternoon.

Again, that does not help him, firstly, because it

is a later provision but, secondly, if one really

wanted to we could say that Parliament saw the need

to provide that the referendum must take place:

during the life of the Parliament -

and having seen that need legislated against it in

SB(S)(c), they did not in 7A, therefore.

The other provision my friend refers to is

7B(3) which deals with bills with respect to the

entrenched position of the Legislative Assembly.

7B was inserted in 1979 and, again, we submit that

on no appropriate canon of interpretation can one

read that back into a construction of 7A(3). And,

again, in so far as 7B deals with the entrenched

rights of the Assembly and where the Governor, and
the Governor is defined in the Interpretation Act
as being the Governor acting on the advice of the
executive council, the Governor would clearly act

on the advice of the party controlling the

Assembly. So, there is nothing unusual and

everything to be said for conferring the power upon

the Governor with respect to 7B bills.

In paragraph (d) of his written submissions,

my learned friend suggests that:

The principal argument relied upon by the

Court of Appeal was -

this argument from history and convenience, and

without in any way resiling from what we seek to

gain from that argument, it was not the principal

argument; it was certainly one of the arguments

that Mr Justice Kirby relied upon, but it was not

any part of the reasoning of the other two judges.

We submit that what is really an issue is

whether Parliament intended when it passed 7A(3) -

and 7A was passed just as an ordinary Act of

Parliament - whether Parliament had intended by

that provision to deny itself the capacity to have

referenda coincident with general elections.

We do not dispute the suggestion that it may

be appropriate in some circumstances that they
occur separately but at issue is whether Parliament
had denied itself the capacity to do so. The

reason why Parliament, on my learned friend's

Bignold 20 4/6/91

argument, has denied itself the capacity, flows

from two sections: in the Constitution Act itself,

llA, which provides that a general election for the

Assembly must be held pursuant to writs issued by

the Governor, and 73 of the Parliamentary

Electorates and Elections Act 1912, which provides

that:

The polling-day for every Assembly general

election shall be so appointed that the

election shall take place on a day not later

than the fortieth day from the date of the

issue of the writs.

So you cannot appoint the election day until after

Parliament has been dissolved. Whilst my learned

friend then said, "Well, you can achieve the same

result by four alternative means", none of those

means would guarantee to Parliament and to the

council in particular the right to have the

referendum conducted on the day of its choosing.

My learned friend's argument would deny the council

that right by effectively precluding it from so

moulding the legislation, as it did here, to make

the referendum and the general election coincident.

The notion that one could sound out the

Governor is certainly a possibility but we are

dealing with a provision that was inserted in 1929 where the council and the assembly could very well

be at loggerheads with each other - that is not put

very well. It is all very well to talk about

sounding out the Governor when the one party

controls both Houses, but the purpose behind 7B was

to ensure the council's function even if it was not

in control of the party of government.

But there is something, in our submission,

inherently inappropriate with having, in effect, to

hold a gun at the Governor's head; to say to the

Governor, "Well would you, if I ask you to dissolve

Parliament, dissolve Parliament and would you then

and thereafter, issue a writ for an election on a

particular specified date? Please tell me the date

now and then we will pass legislation through both

Houses to make sure that the date you have

indicated you will nominate, we will put into the

legislation." There is something constitutionally inappropriate, in our submission, that that should

be the necessary and only way in which one could

achieve this desire on the assumption that this is

what the council desires to occur.

My learned friend mentioned the one instance

where this did happen, in 1981. That was a

situation where the Wran Government controlled both

Houses of Parliament; the legislation in its

Bignold 21 4/6/91

initial form was in the same form as the provision

now under attack. Mr Wran, towards the very end of

the session of the Parliament, indicated that he
proposed next Friday to go to the Governor and

advise him to dissolve Parliament and call an

election on X date. Thereupon, the bill that had
been passed was recommitted and X date was written

in. Now that was a way of achieving the result in the practical circumstance of that date that there prevailed, but it was no way of guaranteeing the

result in that the Governor would not have been

bound by that situation.

The three other instances my friend refers to

where a specific date was appointed, were instances
where the date was chosen deliberately so it would

be mid-term, and these were mid-term referenda.

We accept that there may be practical reasons

why you do not want to have a referendum concurrent

with a general election. The question is whether

you are precluded from that right.

My learned friend, at the bottom of page 2,

poses, in our submission, a false dichotomy. It is

a dichotomy which, in effect, denies the capacity

of the court to resort to arguments from

convenience.

In our submission, every question of construction of words, from the compiler of

Dr Johnson's dictionary onwards, can look at

applications of that construction, that

interpretation, as a means of testing the intent of

the phrases and words used, and the example about

religion that my friend used we submit is just

wrong. If Parliament in the course of its debates

indicates what it thinks is a religion and what is

not, then that may be an appropriate matter to look

at in determining the meaning of religion in the

particular context the Parliament used.

Your Honours, the historical material as well

as the argument from convenience supports the
submission that we put and the court, particularly

Mr Justice Kirby, accepted. In 1903 in New South

Wales there was a constitutional referendum and

that took place by the will of Parliament on the

day that coincided with a Senate election, the

Senate election being fixed by the Governor under

the legislation. And as Mr Justice Kirby points

out also, in the great majority of federal

elections that had preceded 1929 there had been a

referendum taking place concurrent with the general

election.

Bignold 22 4/6/91

The legislation in the Commonwealth that deals

with the holding of constitutional referenda under

section 128, an Act of 1906, provides specifically
for the referendum to take place on the day of a

general election, and certain consequential matters

that flow from it. It is not lightly, we submit,
to be inferred that Parliament intended to forego

the right at its choosing to do that.

DEANE J:  Mr Solicitor, would the position, in your

submission, be any different if the Act had simply

said, "The date appointed for the purposes of
section 7A(3) will be the date appointed by the

Governor" for the purposes of that section?

MR MASON:  I do not have to go that far, but I am happy to

do so, and I intend to do it in the alternative.

The principal submission is that this is - in this

case, what Parliament has done is used a formula to

identify a date which must necessarily occur

because the life of the assembly is fixed, and
there is an obligation to call a general election

for the assembly at the latest, within a certain

time after the effluxion of time, and therefore the

particular context we are in here is one where the

Governor has, under section 11 - - -

DEANE J: Well, do not let me take you out of your course.

MR MASON:  No, I am quite happy, with respect, to do so.

Under section llA of the Constitution Act, the

Governor has a statutory power to issue the writs

for the general election, and nominating the date
for that general election. There is no suggestion
that the Governor, in exercising that power in this
case, or any other case, acts other than properly
and with reference to the task at hand, namely the

date for the elections. That decision having been

made, what happens here is that the Parliament here

fixes upon that date thus identified; that date

which is certain to happen in the foreseeable

future, and says, "Well, that day is good enough

for us as well".

DEANE J: Yes, except you are inverting the procedure. You

said, that decision having been made, the

Parliament fixes on it.

MR MASON: That decision, when it is made. It is not when

and if, but when the decision is made by reference

to a power conferred for another purpose, then

Parliament is saying now, that that date, when

identified by reference to those events, will be

the date which we wish now will be the date for the

referendum.

Bignold 23 4/6/91

DEANE J:  I mean, it is all very interesting and, no doubt

of assistance, but ultimately you get down to the

meaning of five words, do you not?

MR MASON:	Yes.
DEANE J:	And query whether the day after this Act was

passed by the Parliament if somebody had said,

"What is the day appointed for the referendum?",

whether the answer would be, "The day appointed by

the Governor for the general election", or, "No day

has been appointed as yet". I am not suggesting which way the answer is, but ultimately it comes

down to that, does it not?

MR MASON:	Yes, but in making that choice, we submit, you have regard to the purpose being intended to be
served by 7A and the other factors.  This perhaps
is a convenient point to take the more extreme
example Your Honour has put to me: what if Parliament had said here, "The day for the
referendum shall be such day as the Governor shall
appoint".
DEANE J:	I put that question to you because while it does

not seem to me this Act does that, it does test all

the arguments on one side and another about policy
because if those arguments are right on either side

they would apply equally to that.

MR MASON:  Yes. Well, if I may make it plain as I hope I

have that this is an alternative approach that

assumed that the Act so provided, it would still,

in our submission, be an appointment by the

legislature. For the reasons that I have already

put one sets aside a dichotomy which might at first

blush arise from the provisions in SB and 7B where

it says "appoint by the Governor" because those

provisions came later.

May I take Your Honours to the decision of

Powell v Apollo Candle Company, (1885) 10 AC 282.

This is, of course, one of the trilogy of cases,

Burah's case and Hodge's case being the other two

in the trilogy which are usually cited as authority

for the proposition as to the plenitude of the

powers of colonial parliaments but it is also

authority for a more specific proposition perhaps

of present relevance. On page 288 of the report

about point 4 there is a reference made to

section 45 of the then Constitution Act of New

South Wales which provided that:

Subject to the provisions of this Act, and notwithstanding any Act or Acts of the Imperial Parliament now in force to the contrary, it shall be lawful for the

Bignold 24 4/6/91

Legislature of the Colony to impose and levy

such duties of customs as to them may seem

fit, on the importation into the Colony of any

goods -

and wares.

On page 286, Your Honours, about point 5, is

the means whereby the legislature exercised that

constitutional power. Section 133 of the

Customs Regulation Act of 1879:

"Whenever any article of merchandise then

unknown to the collector is imported, which,

in the opinion of the collector or the
commissioners, is apparently a substitute for

any known dutiable article, or is apparently

designed to evade duty ..... it shall be lawful

for the Governor to direct that a duty be

levied on such article at a rate to be fixed -

and there was a sort of a pro-rata type provision.

Returning to page 288, if I may, about point 6,

Their Lordships say:

It was held by the Supreme Court in the Colony

that, under the terms of the Constitution Act
the Legislature had not the power to enact the

clause in question. And the argument before

us has been based on very much the same
grounds as the judgment, namely, that the

Colonial Legislature had defined and limited powers which they could not exceed; that the

power given tq them to impose duties was to be

executed by themselves only, and could not be

intrusted by them wholly or in part to the

Governor or any other person or body.

And there is a discussion of Burah's case and

Hodge's case, which deals in the more general terms

with the plenary arguments, but at page 291,

point 2: 

It is argued that the tax in question has been

imposed by the Governor, and not by the
Legislature, who alone had power to impose it.

But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or

altering the power which they have entrusted

to him.  Under these circumstances

Their Lordships are of opinion that the

judgment of the Supreme Court was wrong in

declaring section 133 of the Customs

Bignold 4/6/91

Regulation Act of 1879 to be beyond the power of the Legislature.

Now that was, as it were, part of the

constitutional background against which

section 7A(3) was enacted, and if I may leap

forward to Cobb & Co. 's case, admittedly later, but

the same principle being discussed. Cobb & Co.Ltd.

v Kropp, (1967) AC 141 and particularly at page 156 and 157. At page 156, the passage I have just read from Powell's case is set out and at page 157, just

below line C, Their Lordship said:

The legislature -

this is the Queensland Parliament

were entitled to use any agent or any

subordinate agency or any machinery that they
considered appropriate for carrying out the

objects and purposes that they had in mind and

which they designated. They were entitled to

use the Commissioner for Transport as their

instrument to fix and recover the licence and

permit fees. They were not abrogating their

power to levy taxes and were not transferring

that power to the commissioner. What they

credited by the passing of the Transport Acts

could not reasonably be described as a new

legislative power or separate legislative body

armed with general legislative authority. Now

did the Queensland legislature "create and

endow with its own capacity a new legislative

power not created by the Act to which it owes

its own existence". In no sense did the

Queensland legislature assign or transfer or

abrogate their powers or renounce or abdicate

their responsibilities. They did not give

away or relinquish their taxing powers. All

that was done was done under and by reason of

their authority.

Your Honours, that process which deals with

the legislative functions of colonial later State
parliaments leads, in our submission, to the

argument that even if the legislature had appointed

the day by the means Your Honour Mr Justice Deane

is putting to me, it would be valid within 7A(3).

DEANE J:  But if you follow it on, it really means that the

sentence does nothing.

MR MASON:  No.

DEANE J: Because all those things - - -

Bignold 26 4/6/91

MR MASON:	No, not at all, with respect, because the legislature can choose how tight or loose a
definition of the date it wishes.

DEANE J: But all those things you are saying would apply if

that sentence were not there.

MR MASON:	No, because
DEANE J:	The legislature could - by an Act, the Parliament

could do what it liked.

MR MASON:  With respect, no. If that sentence were not

there there would be a doubt. In fact, there would be no provision as to how the day of the referendum

would take place.

DEANE J: It would be for the legislature to provide.

MR MASON:	Well, maybe not. The argument could be that as long as the day was two months plus after the
passage of the Act, it could be any day that the
Governor could provide.  One would not necessarily
have to have a legislative mandate for the manner
or the date of the referendum.  The second sentence
in 7A(3) ensures that there is.
DEANE J:	It would still remain under the control of the

legislature, in exactly the same way as they are

talking about in Cobb's case.

MR MASON: Well, if Your Honour is putting it to me in a

sort of a negative way, they by doing nothing would

let the Governor do it, whereas under my argument

mark II they at least have to positively confer or

positively address the matter.

DEANE J:  On your argument, the Parliament could say, "Have

a raffle about the days".

MR MASON:	Have a raffle?
DEANE J:	Have a raffle to determine the day;	spin one of

those - what do you call them - those wheels?

MR MASON:	On my fall-back second argument, if that seemed good to Parliament, including the Council, that
would be appropriate.
BRENNAN J:	The essential question is whether when one sees

the word "appoint", that means appointing a day by

reference to its date or name or by some other

descriptive method, is it not?

MR MASON:  Yes.

Bignold 27 4/6/91

BRENNAN J:  The specificity of description is what is in

issue. Can you tell me - - -

MR MASON:  That is the question. We say that if one goes to

page 27 of the application book there is an

appointment, and the question is whether - one has

to know immediately it is passed. I am getting out

my calendar - what day is it going to be - and that

is really to restate the question, perhaps rather

than to advance.

DEANE J: It is rather the ascertainability of the object of

the appointment at the time of the

appointment.

MR MASON:  Yes. Your Honours, we submit that reference to

what happened in 1981 is not really any help. That

sort of argument does not lead anywhere because if

one took it to its logical conclusion we could

argue that what happened in 1991 is evidence of the

appropriateness of the present method of doing it.

We do not rely upon the Governor's writ as an

appointment by His Excellency, although we would

defend it as being appropriate notwithstanding. At

page 27 of the application book the appointing Act,

as I will presumptively call it, provides that:

The referendum is to be conducted in accordance with -

this 1930 Act. Section 6 of the 1930 Act says

that:

a writ for the referendum may be issued by the

Governor.

And section 7 provides a form of that writ and in

it the Governor says I appoint, and that is what

the Governor did here. It does not follow,

however, that the Governor, necessarily, is

exercising some independent discretion. Either

there was a valid appointment on the date of assent

of the Act on page 27 or there was not. If there

was, the fact that the Governor later used that to
fill in a prescribed form of writ does not take the

matter any further in advance or in retreat, in our

submission.

BRENNAN J:  I am sorry, I am not quite with you.

Section 7(1) of the 1930 Act speaks of the appointing of a day, is that right?

MR MASON:  Yes.

BRENNAN J: That is a Governor's appointment, is it?

Bignold 28 4/6/91

MR MASON: This 1930 Act governs all forms of constitutional

referenda and as Your Honours will have seen

already some of those are to be, in truth,

appointed by the Governor, others to be appointed

by the legislature. But here the legislature said

in section 5 of its appointing Act that the 1930

Act was to govern the conduct of the referendum,

and it was no doubt pursuant to that, and for more

abundant caution, and feeling that there was no

difficulty in marrying the two.	Form A in the 1930
Act was used as the form of the writ.	The date

that was filled in was, in fact, the date
ascertained by reference to the formula in the

appointing Act.

BRENNAN J: Is the 1930 Act entrenched?

MR MASON:  No, it is not.

BRENNAN J: Subject to an Act which may impliedly repeal it,

so long as	it stands, it seems	to require
conformity	with its provisions	additional to
conformity	with the provisions	of the Constitution
Act 1902.	Is that correct?

MR MASON: Well, section 7A(4), for example, of the 1902 Act

contemplates that the legislature will prescribe

the manner of the taking of the vote. The 1930 Act

satisfies that purpose with respect to 7A

referenda. I do not know whether that is meeting

the thrust of Your Honour's question, however.

BRENNAN J: Yes, I just wonder if you read together 7A(3) of

the 1902 Act and section 7(1) of the 1930 Act it

seems that the legislature must have contemplated,

on the enactment of the last of those provisions

whichever it was, that there would be an

appointment by both the legislature and by the

Governor which should coincide.

There was plenty of work to do for section 7

of the 1930 Act in that there are constitutional

referenda which the Governor shall appoint. One

possibility is that section 7 has no application

with respect to the day of appointing the

referendum, if it is a referendum under section 7A. Another is that provided the two can be married in

together it perhaps does not matter.

Mr Justice Samuels looked at this matter at

page 85 of the application book and about line 19:

At first sight therefore, power to

appoint the day for a referendum seems to

reside in both the Legislature and the

Governor. This can hardly be so. At least,

each of them cannot enjoy equal originating

Bignold 29 4/6/91

power to prescribe a draught about whose

contents they might differ. The answer is

that the Bills characterized by section 7A(l)

of the Constitution form an exceptional

category. In their case the Legislature and

not the Governor appoints the day. But even

so these procedural exigencies require the

Governor to issue a writ for a referendum to

be held on the day appointed by the

Legislature. In this case therefore the

Governor, using his traditional language of

command, on 3 May 1991 appointed the date

already appointed by the Legislature by dint

of section 4(1) of the Referendum Act which,
of course, had come into force on

25 March 1991.

Mr Justice Kirby was not so confident that one

could reconcile the two provisions. He looked at

the matter at page 72 and following and on page 73

line 20:

I can understand the reasons which led to

the preparation of the writ. Section 5 of the
Constitution (Referendum) Act 1991 provides
that the referendum is to be conducted in

accordance with the provisions of the

Constitution Further Amendment (Referendum)

Act 1930. The latter Act, by section 7(1),

provides for a writ of referendum in the form

adopted. In the conduct of democratic

polls ..... it would be normal for the Election

Commissioner to receive a writ. Such has been

the tradition of this country ..... To the

extent that there is inconsistency between

section 7(1) of the 1930 Act and section 7A(3)

of the Constitution Act, the latter must

prevail. So much was conceded for the

defendants -

and we still make that concession. Ultimately, in

our submission, while it is perhaps a curiosity

that does need some greater attention, we do not

say that the active appointing power resides in the

Governor. We say it resides and was exercised by

the legislature through section 4 of the Act on

page 27 and the fact that the Governor has issued a

document that coincides is not ultimately

determinative.

Your Honours, my learned friend Mr McCarthy

put an argument based upon what he described as a

contingent referendum. It would appear, in our

submission, that again that argument does not

really go anywhere. If Parliament has not

appointed a date, either because they have

appointed one that is too soon, or that they have

Bignold 30 4/6/91

appointed one that in the event that occurs is too

soon, well, they have not appointed one, and if the

bill is to go to referendum, then the date is still

to be appointed but that does not really cast any

light on whether they have, in fact, appointed the

date, and got it right in picking what ultimately

became 25 May 1991.

Your Honours, we would wish to say something about the appropriateness of judicial intervention

if otherwise appropriate this side of the granting

of royal assent. Does Your Honour wish me to

develop that at this stage? What I have said so far is all I wish to say on the grant of special

leave.

MASON CJ:	No, we will confine our consideration of the case to the application for special leave at this stage,
Mr Solicitor.

MR MASON: Well, that is all I wish to say on that, if

Your Honours please.

MASON CJ:  Thank you. Mr Bennett.

MR BENNETT:  My learned friend submitted that one could not

construe section 7A in the light of subsequent
provisions. First of all, I took Your Honour to
authority in relation to that, but more
importantly, one must read the Constitution as a

whole, and if the Constitution as a whole reads in

a particular way, one must take the result that

flows from it. He then submitted that in relation

to section SB there was a different policy taken

and he took the expressio unius approach in

relation to the fixing of the date, but what my

learned friend was not able to answer is, why there

should be a difference between section SB and

section 7A in relation to the question of whether

there can be a simultaneous election.

Why does the fact that there has been a

difference between the two Houses, one asks

rhetorically, make any difference to the importance

of the issue to the people or to the question as to

whether the election should be heard at the same

time?

In my respectful submission, it comes back to

what I submitted in-chief, which is that the

draftsman of section SC must have deliberately

refrained from amending section 7A on the

assumption that the result could not follow.

My learned friend described my solution of

sounding out the Governor as being a gun at the

Governor's head. That, with respect, is an unfair

Bignold 31 4/6/91

way of describing it.	The Governor is not bound in
any way by the request.	The point is, the Premier

goes to the Governor, giving him the complete

opportunity to say yes or no as to whether a

particular date is appropriate, and he simply says

to him, "I appreciate that you can't give me any

guarantees, but if you indicate it is appropriate

I'll try and get back to you in the next few days", and if he does that and there is no major change,

there is simply no reason why the Governor should

change his views. It is a sensible, practical

expedient if one wishes to achieve that result.

Finally, in relation to section 7B, my learned

friend submitted that there was a reason why
section 7B provided for the Governor rather than

the legislature and that was that where section 7B

was involved the government, which of course
controls the Lower House, would be in a position to

fix the date in any event.

But again, one asks rhetorically, "Why is the

position different in relation to section 7A?"

Section 7A assumes agreement between the two Houses

on the desired objective. If there is agreement

between them on the desired objective, why should

they not be able to reach agreement on the date

just as easily?

So we would submit that one cannot find in

that a reason for the distinction and,

Your Honours, we submit it is a case where special

leave should be granted.

MASON CJ: Thank you, Mr Bennett. Mr McCarthy, do you wish

to say anything in reply?

MR McCARTHY:  Your Honours, the Solicitor-General directed

two arguments against submissions that I had made,

basically saying that the contingency argument went

nowhere. Well, Your Honours, the place to judge

had passed the Parliament or the date on which it	from where it went is the date on which the bill
received the royal assent in March 1991.

As Mr Justice Deane asked the

Solicitor-General, when one looked at the bill, and by that I mean the referendum bill which, in conjunction with the amending Constitutional Bill

itself, provides the totality of the legislation

for section 7A(3), if one asked at that date, "Is that a bill for the purposes of section 7A?", the

answer would be, in our respectful submission, that

it is not because it is not a bill that may be

submitted to the electorate at that time.

Bignold 32 4/6/91

While the question of immediately

ascertaining - which is the other issue I wanted to

raise - the date of the election may not be

something that is found in the Constitution

Amendment Bill itself, for the purposes of

section 7A, when one is judging that particular

amendment, one looks at what is the bill for the

referendum also, and at that time, Your Honours,

that is in March 1991 for this particular

amendment, the date was not a date that could be

immediately ascertained.

Your Honours, the New South Wales Parliament

under section 5 can pass bills for referenda on any
time at any occasion that it so chooses under its

plenary powers. However, whether that is a bill for the purposes of section 7A is another matter

and, in our submission, this was not such a bill

because it did not fulfil all parts of the

lawmaking process. Those are our submissions,

Your Honours.

MASON CJ:  Thank you, Mr McCarthy. The Court will take a

short adjournment in order to decide what course it

will take in this matter.

AT 4.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.14 PM:

MASON CJ:	The Court is not persuaded that the decision of the Court of Appeal is attended with sufficient
doubt to justify the grant of special leave to
appeal. The application is therefore refused.

MR MASON:  I seek costs, if Your Honours please.

MASON CJ: Is the application opposed, Mr Bennett?

MR BENNETT: Well, Your Honour, it is a constitutional

matter; it is a matter which arose out of an

ambiguity in the Constitution; it is matter of

importance to the State; it is in Your Honour's

discretion.

MASON CJ:	Do you wish to say anything?
MR McCARTHY:

MASON CJ: Is that so, Mr Solicitor?

Bignold 33 4/6/91

MR MASON:	I am certainly content with the order that was made below. There is some discussion about it at
about page 79 of the application book.
MASON CJ:	Mr McCarthy, did you wish to say anything else?
MR McCARTHY:	No, Your Honours.
MASON CJ:	The application for special leave is refused,

with costs. There will be no order as to the costs

of the intervener.

AT 4.17 PM THE MATTER WAS ADJOURNED SINE DIE

Bignold 34 4/6/91