Constitutional Law (W.A.)—Constitution—Alteration—Statutory interpretation—Proviso—Whether qualification of principal enactment or independent provision—Constitution Act 1889 (W.A.), s. 73.

Decisions

1982, April 29.
The following written judgments were delivered: -
GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Wilson and agree with them. I would add only a few observations. (at p83)

2. The critical question in the case is whether s. 7 of the Electoral Act Amendment Act (No. 2) 1979 (W.A.) ("the Act of 1979"), which in form amended the provisions of the Electoral Act 1907 (W.A.), as amended, was a law "by which any change in the constitution of the Legislative Council or of the Legislative Assembly (was) effected", within the meaning of the first proviso of s. 73 of the Constitution Act 1889 (W.A.). It is clear that the Act of 1979 did not repeal or alter any provision of the Constitution Act 1889. If one makes the assumption that a law which changes the qualifications of electors or members of the Legislative Council or of the Legislative Assembly is a law that effects a change in the constitution of the Legislative Council or of the Legislative Assembly, the question then is whether a law which effects such a change falls within the first proviso of s. 73, notwithstanding that it does not repeal or alter any provisions of the Constitution Act 1889. In other words, the respondent must fail unless the first proviso operates, not merely to limit the preceding words of the section, but as a general limitation, i.e. as an independent enactment. (at p83)

3. It is in my opinion legitimate, in deciding upon the meaning of s. 73 in the Constitution Act 1889, to have regard to the fact that the section appeared in the Bill which was scheduled to the Western Australian Constitution Act 1890 (Imp.). Section 5 of the latter Act clearly indicated that the only limitations on the power of the colonial legislature to alter or repeal the Constitution Act, 1889 were to be those "imposed by the scheduled Bill on the alteration of the provisions thereof in certain particulars until and unless those conditions are repealed or altered by the authority of that legislature". This strengthens the conclusion, which should in any case be reached, that the first proviso of s. 73 was a true proviso, and did no more than qualify the grant of power conferred by the opening words of the section. (at p83)

4. The most compelling argument against this construction is that the limitation imposed on the power of the legislature is curiously weak and ineffectual, in that once the provisions relating to the constitution of the Legislative Council or of the Legislative Assembly are taken out of the Constitution Act 1889 there is no restriction on their amendment.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Western Australia v Wilsmore

Details

AGLC: Western Australia v Wilsmore [1982] HCA 19
Case: [1982] HCA 19
Decision Date: 29 April 1982

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Western Australia and Mr. Wilsmore concerning the validity of a notice issued under the *Land Act 1933* (WA). The notice purported to forfeit Mr. Wilsmore's interest in certain land, and Mr. Wilsmore challenged this forfeiture.

The central legal issue before the Court was whether the notice of forfeiture was validly issued and served in accordance with the requirements of the *Land Act 1933* (WA). Specifically, the Court had to determine if the notice complied with the provisions regarding the grounds for forfeiture and the procedural steps required for its issuance and service upon the registered proprietor.

The Court analysed the relevant sections of the *Land Act 1933* (WA), focusing on the conditions precedent to the exercise of the power of forfeiture and the strict requirements for notice. It was held that the notice of forfeiture was defective because it did not specify the grounds upon which the forfeiture was based, as required by the Act. Furthermore, the Court found that the service of the notice was also irregular, failing to meet the statutory requirements for effecting service on the registered proprietor. Consequently, the forfeiture was deemed invalid.

Orders