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Yougarla v Western Australia

Yougarla v Western Australia

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
CROW YOUGARLA & ORS APPELLANTS
AND
THE STATE OF WESTERN AUSTRALIA & ANOR RESPONDENTS
Yougarla v Western Australia [2001] HCA 47
9 August 2001
P60/2000
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
D F Jackson QC with S C Churches and P W Johnston for the appellants (instructed by Dwyer Durack)
R J Meadows QC, Solicitor-General for the State of Western Australia with G R Donaldson and J A Thomson for the respondents (instructed by Crown Solicitor for the State of Western Australia)
Intervener:
H C Burmester QC with G M Aitken intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ. The appellants instituted an action in the Supreme Court of Western Australia seeking, with other relief, a declaration that s 70 of the Constitution Act 1889 (WA) ("the WA Constitution Act") remains in force. The WA Constitution Act appeared as the First Schedule to an Imperial statute, the Western Australia Constitution Act 1890 (Imp) ("the 1890 Imperial Act"). Section 2 of the WA Constitution Act stated that, in place of the Legislative Council then subsisting, there was to be a Legislative Council and a Legislative Assembly and that it was to be lawful for Her Majesty, by and with the consent of the Council and the Assembly, "to make laws for the peace, order, and good government of the colony of Western Australia". Shortly put, the appellants contended that two attempts by that legislature, in statutes passed in 1897 and 1905 respectively, to repeal s 70 of the WA Constitution Act were invalid for failure in compliance with certain manner and form provisions.
The WA Constitution Act
The WA Constitution Act was described by Wilson J in Western Australia v Wilsmore[1] as the "keystone of the present constitution of Western Australia". It provided for representative and responsible government of the colony. The statute has been amended from time to time, beginning with the Constitution Act Amendment Act 1893 (WA) ("the 1893 Constitution Act"), which itself was repealed by the Constitution Acts Amendment Act 1899 (WA) ("the 1899 Constitution Act"). In its then amended form, the WA Constitution Act was further amended by the Australia Act 1986 (Cth) ("the Australia Act"). It will be convenient to refer later in these reasons to various provisions of the Australia Act, but this appeal is to be decided by reference to the law as it stood before the enactment of the Australia Act.
[1](1982) 149 CLR 79 at 93. The events in the United Kingdom and Australia leading up to the enactment of the 1890 Imperial Act and the WA Constitution Act are detailed in Keith, Responsible Government…

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.

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Details

Case: [2001] HCA 47
Decision Date: 9 August 2001

CaseChat Overview and Summary

The High Court of Australia considered a constitutional challenge brought by Yougarla against the State of Western Australia concerning the validity of the *Aborigines Act 1905* (WA). The dispute centred on whether section 70 of the *Constitution Act 1889* (WA), which mandated an annual appropriation for the welfare of Aboriginal natives, had been effectively repealed by the 1905 Act. A key element of the challenge was the assertion that the repeal was ineffective due to non-compliance with Imperial manner and form requirements, specifically the tabling of the bill before both Houses of the Imperial Parliament as stipulated by section 32 of the *Australian Constitutions Act 1850* (Imp).

The legal issues before the Court were whether section 70 of the *Constitution Act 1889* (WA) remained in force, and consequently, whether the *Aborigines Act 1905* (WA) was validly enacted. This involved determining whether the repeal of section 70 was subject to, and had complied with, specific Imperial manner and form requirements, including the tabling of the bill in the Imperial Parliament. The Court also considered whether section 106 of the Commonwealth Constitution excluded the application of such Imperial manner and form requirements to the amendment of State Constitutions after federation, and whether compliance with these requirements was justiciable.

The Court reasoned that while section 73 of the *WA Constitution Act* empowered the Western Australian legislature to repeal or alter provisions of the Constitution, this power was subject to provisos, including the requirement for bills to be reserved for Her Majesty's pleasure. The Court found that the *Aborigines Act 1905* (WA) was enacted in accordance with the relevant Imperial legislation, which specified the manner and form requirements for such legislative processes. Crucially, the Court determined that the *Aborigines Act 1905* (WA) was not invalid due to any failure to comply with the tabling requirement under section 32 of the *Australian Constitutions Act 1850* (Imp), as this specific requirement was not applicable to the bill in question. The Court also rejected submissions that compliance with such requirements was non-justiciable or that section 106 of the Commonwealth Constitution excluded the application of Imperial manner and form requirements.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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

HUGH, GUMMOW, HAYNE AND CALLINAN JJ KIRBY J

Finally, s 2 of the 1907 Imperial Act confirmed, in general terms, the validity of colonial and State statutes to which the Governor had given the Royal Assent and which had not been disallowed. The validity thus conferred was effective, in the terms of s 2(1), "notwithstanding that [the law in question] ought to have been but was not duly laid before both Houses of Parliament". However, s 2(1) would not have cured any invalidity which otherwise infected the 1905 Act. Section 2 applied only to statutes to which the Governor had given the Royal Assent. The Governor had not given the Royal Assent to the bill for the 1905 Act. Rather, as indicated earlier in these reasons, the bill had been reserved, in accordance with the second proviso to s 73 of the WA Constitution Act.Conclusion The effect of the decision in this appeal is that the 1905 Act did not miscarry by reason of any requirement preserved or imposed by s 2 of the 1890 Imperial Act. The respondents succeed in their submission that the 1905 Act was effective because there had been no necessity under any Imperial law that the bill for that Act be laid before both Houses of Parliament at Westminster. This result makes it unnecessary to rule upon further submissions made in the concluding paragraphs of the respondents' written outline. It is sufficient to say that each submission appears to be at odds with earlier judgments in this Court. One submission was that the question of compliance with the tabling requirement was "non‑justiciable" because it involved an aspect of the procedures of the Parliament at Westminster[44]. However, what is at stake here is the validity of the 1905 Act, a statute of Western Australia, not the United Kingdom. In Attorney-General (NSW) v Trethowan[45], both Rich J and Dixon J treated manner and form requirements binding subordinate legislatures as requiring fulfilment of every requirement imposed upon the process of law‑making, including the laying of colonial bills before the Houses of the Imperial Parliament.[44]cf British Railways Board v Pickin [1974] AC 765; Manuel v Attorney-General [1983] Ch 77.[45](1931) 44 CLR 394 at 418‑419, 432‑433. The other submission was that the reference in s 106 of the Constitution to "[t]he Constitution of each State", as applicable to Western Australia, is confined solely to the legislation of that State, to the exclusion of any manner and form requirement which at the time of the 1905 Act was imposed by Imperial legislation. Acceptance of that submission would require the rejection of what has been said in various decisions, including those most recently referred to by Brennan CJ in McGinty v Western Australia[46].[46](1996) 186 CLR 140 at 171‑173. The appeal should be dismissed with costs. This appeal[47] presents for decision a contested assertion that the State of Western Australia ("the State") has for a century been in breach of a provision of the State Constitution. The provision in question is said to require the State to pay to the Crown an annual sum "to be appropriated to the welfare of the aboriginal natives [being] an amount equal to one per centum on [the] gross revenue"[48] of the State.[47]From a judgment of the Full Court of the Supreme Court of Western Australia: Yougarla v Western Australia (1999) 21 WAR 488.[48]Constitution Act 1889 (WA) ("the WA Constitution Act"), s 70. The WA Constitution Act was enacted as the First Schedule to the Western Australia Constitution Act 1890 (Imp) (53 & 54 Vict c 26) ("the 1890 Imperial Act"). The full text of s 70 is set out in the reasons of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ ("the joint reasons") at [3], fn 2.

Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW, HAYNE AND CALLINAN JJ, KIRBY J

As indicated earlier in these reasons, s 33 of the 1842 Act dealt further with the consequences of the reservation by the Governors of bills for Her Majesty's pleasure; it required proclamation or other announcement in the colony once the bill had been laid before Her Majesty in Council and had received her assent. Section 32 of the 1842 Act contained provisions respecting the transmission by the Governor of a copy of each bill to which the Governor had given the Royal Assent, the disallowance thereof by Her Majesty at any time within two years after receipt by the British authorities, and the annulment of the law upon the promulgation in the colony of the disallowance.The operation of s 2 of the 1890 Imperial Actand s 73 of the WA Constitution Act Section 73 of the WA Constitution Act, supported by s 5 of the 1890 Imperial Act, empowered the legislature to be constituted by the WA Constitution Act to repeal or alter any of the provisions of the WA Constitution Act. This was subject to provisos, the second of which used the expression "shall be reserved by the Governor for the signification of Her Majesty's pleasure thereon". What was involved in reservation might have been left for the general law and the prerogative as it affected colonies. However, in the Australian colonies, as indicated by the 1842 Act and the 1850 Act, the practice had been to specify in legislation the elements of manner and form involved in the process of reservation. The WA Constitution Act itself did not deal with those matters. Nor did it deal with the matters of disallowance or the giving or withholding of assent by Governors and their Instructions. For that, provision was made in proviso (a) to s 2 of the covering legislation, the 1890 Imperial Act. The terms of proviso (a) stated that the relevant provisions of the earlier Imperial legislation "shall apply to Bills to be passed by the Legislative Council and Assembly". To what bills? The exercise of the power vested in the Imperial authorities with respect to disallowance might apply to any legislation passed by the legislature of Western Australia. However, no question of disallowance arose with respect to the 1905 Act. Nor did any question arise respecting the giving or withholding by the Governor of the Royal Assent, or the Instructions concerning that assent. Another method of Imperial control, namely reservation, was specifically attached as a proviso to the power of alteration and repeal conferred by s 73 of the WA Constitution Act. To laws to which s 73 applied, including the 1905 Act, content was given to the obligation of reservation imposed by s 73 by what was to be found in earlier Imperial legislation. This Imperial legislation was that identified in proviso (a) to s 2 of the 1890 Imperial Act. However, there was a threshold difficulty in assimilating to the operation of the system of government instituted by the WA Constitution Act the provisions of the 1842 Act, the 1844 Act and the 1850 Act. For example, the specification in s 31 of the 1842 Act of the categories of bills for which reservation was required differed from that in s 73 of the WA Constitution Act. If s 31 were to be preserved alongside s 73, there would be repugnancy between them. Instances of this were the portion of s 31 of the 1842 Act to which reference has been made, and s 32 of the 1850 Act. The conflict was resolved by the opening words of s 2. This brought about repeal of the earlier laws to the extent of such repugnancy but preserved and excepted from that repeal provisions of the earlier legislation which dealt with the four categories of Imperial control listed in the proviso and supplied manner and form for such methods of Imperial control.