Yougarla v Western Australia - [2001] HCA 47

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.

CATCHWORDS
Yougarla v Western Australia
Constitutional law (WA) – Imperial manner and form requirements respecting State legislation – Section 70 of the Constitution Act 1889 (WA) provided for the issue of annual sums to Aborigines Protection Board for the welfare of "the aboriginal natives" – Whether provision still in force – Whether repeal by Aborigines Act 1905 (WA) effective – Tabling requirement under s 32 of The Australian Constitutions Act 1850 (Imp) in respect of certain WA bills – Requirement not complied with – Whether compliance with requirement necessary to validly repeal s 70 of the Constitution Act 1889 (WA).
Constitutional law (Cth) – Constitution of State of the Commonwealth – Whether provision in Constitution s 106 excludes construing application of Imperial manner and form requirements for amending State Constitution after federation – Whether compliance justiciable.
Aboriginals – Constitutional law (WA) – Provision in Constitution Act 1889 (WA) for annual sum for welfare of "aboriginal natives" – Whether Imperial legislation complied with for repeal of such provision.
Words and phrases – "Constitution of each State" – "repugnancy".
Constitution, s 106.
Constitution Act 1889 (WA), ss 70, 73.
Aborigines Act 1905 (WA).
The Australian Constitutions Act 1842 (Imp), ss 31, 33.
The Australian Constitutions Act 1850 (Imp), ss 12, 32, 33.
Western Australia Constitution Act 1890 (Imp), ss 2, 5.

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 in the Dominions, (1912), vol 1 at 35‑39; Melbourne, "The Establishment of Responsible Government", in The Cambridge History of the British Empire, (1933), vol 7, Pt 1, 272 at 291‑294; and Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979, (1980) at 193‑196.
Section 70 of the WA Constitution Act made provision for appropriations to the welfare of what it identified as "the aboriginal natives" and for the issue of annual sums by the Treasurer to the Aborigines Protection Board, a body which had been established under the Aborigines Protection Act 1886 (WA)[2]. Various questions of construction of s 70 arise but it will not be necessary to deal with them unless the appellants are correct in their contention that s 70 remains in force.
[2]The text of s 70 is as follows:
"There shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund the sum of five thousand pounds mentioned in Schedule C to this Act to be appropriated to the welfare of the aboriginal natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of aboriginal children (including half-castes), and in assisting generally to promote the preservation and well‑being of the aborigines. The said annual sum shall be issued to the Aborigines Protection Board by the treasurer on warrants under the hand of the Governor, and may be expended by the said Board at their discretion, under the sole control of the Governor, anything in the Aborigines Protection Act, 1886, to the contrary notwithstanding. Provided always, that if and when the gross revenue of the colony shall exceed five hundred thousand pounds in any financial year, an amount equal to one per centum on such gross revenue shall, for the purposes of this section, be substituted for the said sum of five thousand pounds in and for the financial year next ensuing.
If in any year the whole of the said annual sum shall not be expended, the unexpended balance thereof shall be retained by the said Board, and expended in the manner and for the purposes aforesaid in any subsequent year."
The term "Aborigines Protection Board" is defined in s 75 as meaning:
"the board established under 'The Aborigines Protection Act, 1886,' or any board with similar functions established in its place under any Act adding to, amending, or substituted for the said Act".
Murray J held that s 70 does not remain in force and ordered that the action be dismissed. The Full Court (Ipp, Anderson and White JJ) ordered that an appeal by the present appellants be dismissed.
In the Supreme Court, the respondents relied upon two Western Australian statutes as having achieved the repeal of s 70. The statutes are the Aborigines Act 1897 (WA) ("the 1897 Act") and the Aborigines Act 1905 (WA) ("the 1905 Act"). In the interval between 1897 and 1905, federation had arrived. Section 107 of the Constitution provided that every power of the Parliament of a colony continued in respect of the State in question, unless (as was not the position for this case) the power was vested exclusively in the Parliament of the Commonwealth. Further, s 106 declared that the Constitution of each State "as at the establishment of the Commonwealth" was, subject to the federal Constitution, to continue "until altered in accordance with the Constitution of the State".
If the 1905 Act achieved the result contended for by the respondents, then there is no need to consider the 1897 Act. Section 65 and the First Schedule of the 1905 Act stated that s 70 of the WA Constitution Act was repealed. However, the appellants contend that, in this respect, the 1905 Act was ineffective because requirements as to manner and form imposed upon the Parliament of Western Australia had not been satisfied with respect to the bill for that Act. They submit, in accordance with well established authority in this Court[3], that this failure with respect to manner and form spelt invalidity.
[3]Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 425‑427; Victoria v The Commonwealth (1975) 134 CLR 81 at 118‑119, 162‑164, 181‑183; Western Australia v Wilsmore (1982) 149 CLR 79 at 96.
We turn to consider those alleged requirements as to manner and form. Section 5 of the 1890 Imperial Act stated:
"It shall be lawful for the legislature for the time being of Western Australia to make laws altering or repealing any of the provisions of the scheduled Bill in the same manner as any other laws for the good government of that colony, subject, however, to the conditions 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."
The conditions identified in s 5 are imposed by s 73 of the WA Constitution Act. Section 73 states that the Western Australian legislature "shall have full power and authority from time to time by any Act to repeal or alter any of the provisions of this Act". There follow two provisos. These operate to limit the operation of the opening words of the section and impose fetters upon the legislative power of the State[4].
[4]The law as it existed when the 1905 Act was enacted has been changed by the Australia Act. Section 3 of the Australia Act achieves the result that no law or provision of a law made by the Parliament of Western Australia shall be void or inoperative for repugnancy to a United Kingdom statute such as s 5 of the 1890 Imperial Act; but, nevertheless, the effect of s 6 of the Australia Act is that a State law respecting the constitution, powers or procedure of the State Parliament must comply with the manner and form requirements of a law made by that Parliament, such as s 73 of the WA Constitution Act: McGinty v Western Australia (1996) 186 CLR 140 at 295‑296. This appeal has to be decided by reference to the law when the 1905 Act was enacted.
In Western Australia v Wilsmore, which concerned the first proviso to s 73[5], Aickin J said[6]:
"Each of the two provisos serves the same purpose, ie to qualify the exercise of the power to repeal or alter certain specified provisions of the [WA Constitution Act] itself."
[5]This stated that it was not to be lawful to present to the Governor for Her Majesty's assent any bill to effect any change to the constitution of the Council or the Assembly unless the second and third readings had been passed "with the concurrence of an absolute majority of the whole number of the members for the time being" of the Council and the Assembly respectively.
[6](1982) 149 CLR 79 at 92.
It is the second proviso which is significant for this appeal. It states:
"Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III of this Act provided, and every Bill which shall interfere with the operation of sections sixty-nine, seventy, seventy-one, or seventy-two of this Act, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty's pleasure thereon."
Part III (ss 42‑53) of the statute was a significant element in the constitutional scheme established by the WA Constitution Act. Part I (ss 2‑36) established an elected Legislative Assembly of 30 members. The subsisting Legislative Council (which had been established in 1870 and had been a partly elected and partly nominated body[7]) was to continue but, as an interim measure, it was to be a wholly nominated body of 15 members until Pt III came into operation[8]. This interim Legislative Council and the elected Legislative Assembly were to be called together for the first time not later than six months after the commencement of the WA Constitution Act[9]. Part III provided for a Legislative Council to consist of 15 elected members. However, Pt III was to come into operation only on the expiration of six years or when the population of the colony (excluding "aboriginal natives") attained 60,000, whichever first occurred (s 42). The figure of 60,000 was exceeded in 1893[10]. The provisions of Pt III then were repealed by the 1893 Constitution Act which dealt afresh with the qualification of members and electors of the two Chambers.
[7]See Lumb, The Constitutions of the Australian States, 5th ed (1991) at 37; Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 68‑69. Before 1870 the Legislative Council had been a non‑elected body which dealt with legislation introduced by the Governor, acting on the advice of the Executive Council: Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979, (1980) at 33‑48.
[8]This was the effect of ss 6 and 7 of the WA Constitution Act.
[9]The WA Constitution Act was to take effect from its proclamation in the colony; this was to be within three months after receipt by the Governor of "official information of the Royal Assent thereto" (s 77).
[10]Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979, (1980) at 196.
Schedules B, C and D, referred to in the second proviso to s 73, provided for appropriations respectively under ss 69, 70 and 71 of the WA Constitution Act. Section 69 dealt with the salaries of officers including the Governor, the Chief Justice, the Puisne Judge and Ministers (Sched B); s 70 with the appropriation of moneys for the welfare of aboriginal natives (Sched C); and s 71 with pensions to Ministers in the former administration (Sched D).
The bill for the repeal of s 70 thus required, by reason of the second proviso to s 73, reservation by the Governor for the signification of Her Majesty's pleasure thereon. The phrase "Her Majesty's pleasure" in a provision such as s 73 had a particular meaning in what one might call the common law of the English constitution respecting the colonies. Sir Henry Jenkyns[11] wrote in 1902[12]:
"When a Bill is so reserved it has no force until assented to by the King himself, ie by (in effect though not in form) the Home Government … the Crown [acting] on the advice of the home ministers, who are responsible to the imperial Parliament."
[11]Assistant Parliamentary Counsel to the Treasury 1869‑1886, Parliamentary Counsel to the Treasury 1886‑1899.
[12]British Rule and Jurisdiction Beyond the Seas, (1902) at 15‑16.
Imperial legislation might intrude by specifying requirements as to the manner and form of reservation and the making known in the colony in question of the fact that the Royal Assent had been given in the United Kingdom. The primary issue in the present appeal may now be shortly stated and its resolution indicated. Section 33 of The Australian Constitutions Act 1842 (Imp)[13] ("the 1842 Act") provided that no bill passed by what was then the New South Wales Legislative Council and reserved by the Governor was to have any force in that colony until the Governor signified in the manner and within the two year period specified in the section that the Sovereign had given the Royal Assent. That provision, as later extended by s 12 of The Australian Constitutions Act 1850 (Imp)[14] ("the 1850 Act") to bills passed by the Legislative Council of Western Australia, was preserved and made applicable by s 2(a) of the 1890 Imperial Act to legislation reserved pursuant to the requirement in s 73 of the WA Constitution Act. The bill for the 1905 Act was reserved and these procedures were complied with. The result was that this statute effectively repealed s 70 of the WA Constitution Act.
[13]This is the short title given by the Short Titles Act 1896 (Imp) ("the Short Titles Act") to the statute 5 & 6 Vict c 76 being "[a]n Act for the Government of New South Wales and Van Diemen's Land". The short titles given later in these reasons to The Colonial Laws Validity Act 1865, The Australian Constitutions Act 1844, The Australian Constitutions Act 1850, The New South Wales Constitution Act 1855, The Victoria Constitution Act 1855, The Australian Courts Act 1828, The Australian Constitutions Act 1862 and The Colonial Acts Confirmation Act 1863 were also given by the Short Titles Act.
[14]13 & 14 Vict c 59.
However, the appellants submit that s 2(a) of the 1890 Imperial Act left in operation other Imperial legislation imposing manner and form requirements and that these applied to the 1905 Act but were not observed, with the result that there was no repeal of s 70. That submission should not be accepted.
The 1890 Imperial Act
We turn now to consider the text and operation of s 2 of the 1890 Imperial Act. By s 2 the Imperial Parliament took steps anticipated in s 76 of the bill for the WA Constitution Act. This had (in s 76) deferred the operation of that statute until the Imperial Parliament had repealed so much of certain Imperial legislation as applied in the colony and was "repugnant" to the bill.
Section 2 effected a repeal of "so much and such parts of" three Imperial statutes "as relate[d] to the colony of Western Australia" and were "repugnant" to the WA Constitution Act. This notion of "repugnancy" usually applied in Imperial affairs to give primacy to Imperial over local laws. Here, given the character of the WA Constitution Act, the paramount legislation for the operation of s 2, the situation was reversed so as to favour the local law. The term "repugnancy" had appeared in s 2 of The Colonial Laws Validity Act 1865 (Imp)[15] ("the Colonial Laws Validity Act") and had great significance in determining the relationship between enactments of the Parliament at Westminster and all colonial legislatures[16]. The question, as Mason J put it[17], was whether the provisions of any two statutes at issue were so much in conflict "that they [could not] be reconciled one with the other [and] the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time". There was some uncertainty, which it is unnecessary to resolve here, as to whether the "covering the field" test for inconsistency developed with respect to s 109 of the Constitution applied also to "repugnancy"; however, it was sufficient to demonstrate repugnancy that, as Dixon J put it in Ffrost v Stevenson[18], "the co‑existence of the two sets of provisions … would produce an antinomy inadmissible in any coherent system of law".
[15]28 & 29 Vict c 63.
[16]Ffrost v Stevenson (1937) 58 CLR 528 at 572‑573; China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 186‑187; University of Wollongong v Metwally (1984) 158 CLR 447 at 463‑464; Northern Territory v GPAO (1999) 196 CLR 553 at 579‑580 [51], 636 [219]; Roberts-Wray, Commonwealth and Colonial Law, (1966) at 398‑399.
[17]University of Wollongong v Metwally (1984) 158 CLR 447 at 463.
[18](1937) 58 CLR 528 at 572.
The three Imperial Acts were the 1842 Act, The Australian Constitutions Act 1844 (Imp)[19] ("the 1844 Act"), being "[a]n Act to explain and amend the [1842 Act]", and the 1850 Act. The 1842 Act and the 1844 Act were not expressed of their own force to relate to the colony of Western Australia. They did so only because of provisions in the 1850 Act.
[19]7 & 8 Vict c 74.
The repeal of the three statutes of 1842, 1844 and 1850 by s 2 of the 1890 Imperial Act was subjected to two provisos. Their effect was to recognise the repugnancy of those statutes to the WA Constitution Act but nevertheless, for particular purposes, to continue the operation of some provisions of the 1842 Act and the 1850 Act. Neither proviso saved any part of the 1844 Act. The significance of this will appear later in these reasons.

The proviso in par (b) to s 2 was temporal in operation. It continued in force so much of the 1842 and 1850 statutes "as relate[d] to the constitution, appointment, and powers of the Legislative Council" of Western Australia, but only until the initiation of the bicameral system to be established in pursuance of the WA Constitution Act by the issue of the first writs for the election of members to serve in the Legislative Assembly.
It is upon the operation of the first proviso to s 2 of the 1890 Imperial Act, that in par (a), that the appellants' case turns. This states:
"The provisions of the [1842 Act and the 1850 Act] which relate to the giving or withholding of Her Majesty's assent to Bills, and the reservation of Bills for the signification of Her Majesty's pleasure thereon, and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid, and the disallowance of Bills by Her Majesty, shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and by any other legislative body or bodies which may at any time hereafter be substituted for the said Legislative Council and Assembly".
Section 9 of the 1850 Act had authorised the establishment of the Legislative Council with one‑third of its members appointed and two‑thirds elected. This was implemented in 1870[20]. Shortly put, the appellants' argument is that (i) the Legislative Council had been empowered by s 14 of the 1850 Act to make laws for the peace, welfare and good government of the colony; (ii) s 32 of the 1850 Act had applied to that Legislative Council and it had conferred certain powers upon that body subject to the observance of requirements, one of which was that "a Copy of such Bill shall be laid before both Houses of Parliament for the Space of Thirty Days at the least before Her Majesty's Pleasure thereon shall be signified"; (iii) this tabling requirement in s 32 was preserved by proviso (a) to s 2 of the 1890 Imperial Act; and (iv) it applied to the bill for the 1905 Act but was not observed, thereby denying to the 1905 Act an essential condition precedent to its validity.
[20]By Ordinance 33 Vict No 13 enacted by the Governor of Western Australia on the advice and consent of the Legislative Council then existing, pursuant to powers conferred by s 9 of the 1850 Act.
It should be noted that, in so far as it related to Western Australia, the whole of s 32 of the 1850 Act (along with part of s 31 of the 1842 Act and other provisions in the 1850 Act) had been repealed before the enactment of the 1905 Act. This repeal was effected by s 1 of a general measure of statute law reform, the Statute Law Revision (No 2) Act 1893 (Imp) ("the 1893 Revision Act"). However, a proviso to s 1 stated that the repeal of any provision did not affect any enactment in which the repealed provision had been applied, incorporated or referred to. It thus may be assumed that, if s 32 otherwise had any operation with respect to the enactment of the 1905 Act, it did not cease to do so by reason of the 1893 Revision Act.
It also should be observed that the proviso in par (a) to s 2 of the 1890 Imperial Act was not a departure from previous Imperial legislation which had dealt with the other Australian colonies. For example, it followed the terms of s 3 of The New South Wales Constitution Act 1855 (Imp)[21] and s 3 of The Victoria Constitution Act 1855 (Imp)[22]. These statutes had provided respectively for the establishment of bicameral legislatures in New South Wales and Victoria.
[21]18 & 19 Vict c 54.
[22]18 & 19 Vict c 55.
Moreover, par (a) of s 2 of the 1890 Imperial Act effectively reproduced part of the text of s 12 of the 1850 Act. Section 12 was still in force in Western Australia when the 1890 Imperial Act was introduced; it had rendered applicable and in force in Western Australia after the establishment in 1870 of the Legislative Council certain provisions of the 1842 Act and the 1844 Act, with the substitution of "Western Australia" for "New South Wales". These provisions were identified in s 12 as including those concerning:
"the giving and withholding of Her Majesty's Assent to Bills, and the Reservation of Bills for the Signification of Her Majesty's Pleasure thereon, and the Bills so reserved; the Instructions to be conveyed to the Governor for his Guidance in relation to the Matters aforesaid; and the Disallowance of Bills by Her Majesty".
One such provision in the 1842 Act, that relating to the reservation of bills for the signification of Her Majesty's pleasure, was s 33. This stated:
"And be it enacted, That no Bill which shall be so reserved for the Signification of Her Majesty's Pleasure thereon shall have any Force or Authority within the Colony of New South Wales until the Governor of the said Colony shall signify, either by Speech or Message to the Legislative Council of the said Colony, or by Proclamation, as aforesaid, that such Bill has been laid before Her Majesty in Council, and that Her Majesty has been pleased to assent to the same; and that an Entry shall be made in the Journals of the said Legislative Council of every such Speech, Message, or Proclamation, and a Duplicate thereof, duly attested, shall be delivered to the Registrar of the Supreme Court, or other proper Officer, to be kept among the Records of the said Colony; and that no Bill which shall be so reserved as aforesaid shall have any Force or Authority in the said Colony unless Her Majesty's Assent thereto shall have been so signified as aforesaid within the Space of Two Years from the Day on which such Bill shall have been presented for Her Majesty's Assent to the Governor as aforesaid."
One evident purpose of par (a) of s 2 of the 1890 Imperial Act was to carry over s 33 (read as required by s 12 of the 1850 Act) from the legislative arrangements in Western Australia operative at the time of the 1890 Imperial Act to the reservation required by s 73 of the WA Constitution Act in respect of certain bills to be passed by the new bicameral legislature.
The appellants' submissions fix upon another provision of the 1850 Act, s 32. Imperial legislation predating s 32 of the 1850 Act also had provided for the tabling of colonial laws at Westminster. The statute of 1823, 4 Geo IV c 96, which amongst other things had authorised the erection and establishment of the Supreme Court of New South Wales and the Supreme Court of Van Diemen's Land, had also authorised the creation of an appointed Legislative Council (s 24). Section 31 had stated:
"Provided also, and be it further enacted, That all Laws and Ordinances to be made in the said Colony, and all Orders to be made by His Majesty, His Heirs and Successors, with the Advice of His and Their Privy Council, in pursuance of this Act, shall be laid before both Houses of Parliament within Six Weeks at latest next after the Commencement of each Session."
Thereafter, s 29 of The Australian Courts Act 1828 (Imp)[23] contained a stipulation in like terms for the tabling of laws and Ordinances to be made in New South Wales and Van Diemen's Land.
[23]9 Geo IV c 83. A provision to like effect was made by the statute 10 Geo IV c 22 with respect to the nominated law-making body established by that statute for the settlements in Western Australia. See also s 36 of the First Schedule to The New South Wales Constitution Act 1855 and Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 419, 432.
Whilst the Legislative Council of 1870 was in operation, the requirement of tabling found in s 32 of the 1850 Act had "relate[d] to the colony of Western Australia", within the meaning of s 2 of the 1890 Imperial Act. The issue in this case is whether, on the footing that this requirement was repugnant to the WA Constitution Act, nevertheless it was preserved by par (a) of s 2 so as to apply to any bill to repeal the operation of s 70 of the WA Constitution Act.
In our view, s 32 of the 1850 Act had no application to the bill for the 1905 Act and, as a result, the appeal to this Court fails. We turn to explain why this is so.
Imperial control of colonial legislative processes
For any provision of the 1842 Act or the 1850 Act to apply to bills to be passed by the Legislative Council and Legislative Assembly to be established for Western Australia under the WA Constitution Act, that provision must, in the terms of s 2 of the 1890 Imperial Act, "relate to" one or more of the subjects specified in par (a) of that section. Those subjects are identified in par (a) as:
(i)the giving or withholding of Her Majesty's assent to bills;
(ii)the reservation of bills for the signification of Her Majesty's pleasure thereon;
(iii)Instructions to be conveyed to Governors for their guidance in relation to (i) and (ii); and
(iv)the disallowance of bills by Her Majesty.
These four categories identify particular means by which control was exercised over colonial affairs by the Executive Government of the United Kingdom. Category (iv), the disallowance of bills, differed from categories (i), (ii) and (iii). It concerned steps taken by the Sovereign on the advice of the British Ministers as opposed to steps taken by the colonial Governor. The power of disallowance has been described as follows[24]:
"The power of disallowance is a right, vested in the Crown, to remove a law from the Statute Book. It has no application to Bills, so that if the legislative authority is conferred upon the Governor with the advice and consent of a legislative body (ie, not on the Governor alone), he must have given assent before any question of disallowance or non‑disallowance can arise."
Disallowance was a different notion to that of reservation, category (ii) of the four categories. When a bill was reserved, the Governor could not subsequently give assent. That had to be given, if at all, by the Sovereign. The significance of this will be referred to later in these reasons.
[24]Roberts-Wray, Commonwealth and Colonial Law, (1966) at 227 (footnote omitted). See also, with respect to the provision for disallowance in s 59 of the Constitution: Sue v Hill (1999) 199 CLR 462 at 495‑496 [75]-[77]; Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 692‑693; Inglis Clark, Studies in Australian Constitutional Law, (1901) at 321‑334.
With respect to the States, including Western Australia, s 8 of the Australia Act now provides that legislation which has been assented to by the Governor shall not, after 3 March 1986, be subject to disallowance by Her Majesty. Provision with respect to the withholding of assent and reservation for Her Majesty's pleasure now is made by s 9 of the Australia Act[25].
[25]Section 9 states:
"(1) No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State.
(2) No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty's pleasure thereon."
Category (iii) identified in s 2(a) of the 1890 Imperial Act refers to the Instructions issued to Governors by the Home Government. In the nineteenth century, the legal significance to be attached to Instructions had been a matter of some debate[26]. The efficacy of land grants passed by early Governors of New South Wales contrary to their Instructions had been disputed but not conclusively resolved[27]. In 1861, in South Australia, Boothby J had proceeded on the footing that Instructions had the force of law so that no colonial Act to which the Governor had given his assent contrary to the Instructions was valid[28]. Thereafter, it was settled that, if a direction to reserve was found in the Royal Instructions and was disregarded by the Governor, his assent nevertheless was valid by force of s 4 of the Colonial Laws Validity Act[29]. However, the Governor risked the displeasure of the Colonial Office and might be recalled[30]. If the direction to reserve was given by Imperial statute, an assent by the Governor was a nullity and the bill in question did not become law[31].
[26]Swinfen, Imperial Control of Colonial Legislation 1813-1865, (1970) at 78‑92; Swinfen, "The Legal Status of Royal Instructions to Colonial Governors", (1968) Juridical Review 21; Roberts-Wray, Commonwealth and Colonial Law, (1966) at 146‑149.
[27]Campbell, "Crown Land Grants: Form and Validity", (1966) 40 Australian Law Journal 35 at 36‑38.
[28]Swinfen, Imperial Control of Colonial Legislation 1813-1865, (1970) at 78.
[29]Section 4 provided:
"No Colonial Law, passed with the Concurrence of or assented to by the Governor of any Colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any Instructions with reference to such Law or the Subject thereof which may have been given to such Governor by or on behalf of Her Majesty, by any Instrument other than the Letters Patent or Instrument authorizing such Governor to concur in passing or to assent to Laws for the Peace, Order, and good Government of such Colony, even though such Instructions may be referred to in such Letters Patent or last-mentioned Instrument."
[30]In 1845, Governor Fitzroy of New Zealand was recalled after his disobedience to his Instructions: Hight and Bamford, The Constitutional History and Law of New Zealand, (1914) at 174‑185.
[31]Roberts-Wray, Commonwealth and Colonial Law, (1966) at 226. Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), contains as a table to §270 details supplied in 1894 of statutes passed by bicameral legislatures and assented to by Governors of colonies possessing responsible government and subsequently disallowed. In addition, the table lists those bills which had been reserved and as to which the Imperial authorities had subsequently advised the Crown to withhold assent.
The nature of the Instructions provided to colonial Governors changed over the course of the nineteenth century, particularly with the development in colonies such as those in Australia of representative and responsible government. In 1878, changes were made to the Instructions accompanying the Letters Patent constituting the office of Governor-General of Canada and Higinbotham CJ took up with the Colonial Office the making of changes to the Instructions to the Governors of the Australian colonies[32]. As a result, redrafted Instructions were adopted in 1892. Paragraph 7 of these Instructions provided that, except in stipulated circumstances, the Governor was not to assent to bills falling within any one of eight classes[33]. These included bills containing provisions to which the Royal Assent had been once refused and bills which had been disallowed; bills affecting the currency of the colony; bills imposing differential duties otherwise than as allowed by the Australian Colonies Duties Act 1873 (Imp); bills with provisions apparently inconsistent with obligations imposed upon the Crown by treaty; and bills "of an extraordinary nature and importance, whereby Our prerogative or the rights and property of Our subjects not residing in the Colony, or the trade and shipping of the United Kingdom and its Dependencies, may be prejudiced". The circumstances in which assent might be given despite the bill falling within one of these classes were those in which the Governor:
"shall have previously obtained Our Instructions upon such Bill, through one of Our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification in the Colony of Our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requiring that such Bill be brought into immediate operation, in which case he is authorized to assent in Our name to such Bill, unless the same shall be repugnant to the law of England, or inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto."
[32]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 394‑398; Keith, Responsible Government in the Dominions, (1912), vol 1 at 163‑172; Bailey, "Self-Government in Australia, 1860-1900", in The Cambridge History of the British Empire, (1933), vol 7, Pt 1, 395 at 395‑401; Parkinson, "George Higinbotham and Responsible Government in Colonial Victoria", (2001) 25 Melbourne University Law Review 181 at 195‑210.
[33]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 399-400; Parkinson, "George Higinbotham and Responsible Government in Colonial Victoria", (2001) 25 Melbourne University Law Review 181 at 215‑216. The effect of changes made by ss 7, 10 and 14 of the Australia Act is that the Governor is appointed on advice tendered by the Premier of the State, not on the advice of United Kingdom Ministers, with the result that the occasion for the issuing of Instructions to the Governor on the advice of the British Government no longer can arise.
Upon passage of a bill through a colonial legislature, three courses were open to the Governor upon it being presented for the assent of the Crown. First, the Governor might assent in the name of the Sovereign; it was nevertheless the obligation of the Governor to transmit a copy of the statute to the Colonial Office in order that the Imperial authorities might have an opportunity to exercise the power of disallowance, and, as will appear later in these reasons, in some colonies that requirement to transmit a copy was expressly imposed upon Governors by Imperial statute. Secondly, the Governor might withhold the Royal Assent in accordance with his Instructions, but failing such Instructions, the Governor of a self‑governing colony exercised the veto only on the advice of the local Ministers. Thirdly, the bill might be reserved for the signification of the pleasure of the Sovereign until that assent was given on British Ministerial advice[34].
[34]Jenkyns, British Rule and Jurisdiction Beyond the Seas, (1902) at 77‑78.
Categories (i), (ii) and (iii) identified in s 2(a) of the 1890 Imperial Act deal with these three matters of the giving or withholding of assent, reservation, and Instructions and all deal with the position of colonial Governors. With respect to bills to be passed by the new bicameral legislature in Western Australia, s 2(a) did not leave these three matters, nor the procedures in the colony respecting disallowance in the United Kingdom, to those aspects of the general law and the prerogative which regulated them in the absence of legislation. In the Australian colonies, it appears somewhat unusually[35], Imperial laws, in particular the 1842 Act and the 1850 Act, had dealt with these subjects. Imperial law had dealt also with tabling at Westminster, but that was not one of the matters which s 2(a) was concerned to apply to the system of government established by the WA Constitution Act. It perhaps is significant that, whilst the matters identified in s 2(a) were of interest to the executive branch of the British Government, tabling was concerned with the interest of the legislature in colonial affairs. Tabling was apt to stimulate parliamentary scrutiny.
[35]Jenkyns, British Rule and Jurisdiction Beyond the Seas, (1902) at 113‑114.
We turn further to consider the relevant provisions of the 1842 Act and the 1850 Act.
The 1842 Act and the 1850 Act
Reference has been made earlier in these reasons to s 12 of the 1850 Act. One operation of that section was to apply to the new Legislative Council established in 1870 in Western Australia provisions which had dealt with the elections to and procedures of the partly elected Legislative Council established for New South Wales by the 1842 Act. Section 32 of the 1850 Act took the matter further. It conferred upon the new Western Australian Legislative Council power to alter provisions or laws for the time being in force:
"concerning the Election of the elective Members of such Legislative Councils respectively, the Qualification of Electors and elective Members, or to establish in the said Colonies respectively, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist respectively of such Members to be appointed or elected respectively by such Persons and in such Manner as by such Act or Acts shall be determined, and to vest in such Council and House of Representatives or other separate Legislative Houses the Powers and Functions of the Legislative Council for which the same may be substituted".

The power conferred by s 32 of the 1850 Act was subject to two provisos. Neither of these provisos operated as an independent enactment. That is significant for the argument by the appellants, which seeks to give the tabling proviso that very character and to preserve it by operation of par (a) of s 2 of the 1890 Imperial Act. The two provisos to s 32 of the 1850 Act were true provisos. In the words of Aickin J in Western Australia v Wilsmore[36], each operated:
"to except out of the previous enacting part something which but for the proviso would fall within the enacting part".
[36](1982) 149 CLR 79 at 90.
The second proviso, that concerning tabling, was expressed as follows:
"a Copy of such Bill shall be laid before both Houses of Parliament for the Space of Thirty Days at the least before Her Majesty's Pleasure thereon shall be signified".
This qualified rather than added to the power conferred by s 32 upon Governors and Legislative Councils from time to time to alter laws in force under the 1850 Act or otherwise concerning the subject-matters listed in s 32. The further stipulation, that in the first proviso respecting reservation, also qualified that power. The first proviso stated:
"every Bill which shall be passed by the Council in any of the said Colonies for any of such Purposes shall be reserved for the Signification of Her Majesty's Pleasure thereon".
However, unlike the proviso concerning tabling, that dealing with reservation was given particular content and effect by the enactment in s 33 of the 1850 Act. Section 33 stated:
"Provided always, and be it enacted, That the Provisions of [the 1842 Act], as explained and amended by [the 1844 Act], concerning Bills reserved for the Signification of Her Majesty's Pleasure thereon, shall be applicable to every Bill so reserved under the Provisions of this Act."
Section 33 of the 1850 Act thus rendered applicable to bills reserved under the 1850 Act the provisions concerning reservation spelled out in the 1842 Act, as explained by the 1844 Act.
The true operation of the 1850 Act is of prime importance for the appellants' case. Several points may now be made respecting s 32. First, the effect of s 32, broadly put, was to empower the Legislative Council established in 1870 to alter the laws otherwise providing for (i) the election of the elective members of the Legislative Council and the qualification of electors and elective members; (ii) the establishment of a bicameral legislature; and (iii) the vesting in that bicameral legislature of the powers and functions of the Legislative Council. Secondly, that empowerment would be spent, or the occasion for its exercise would no longer arise, once proviso (b) to s 2 of the 1890 Imperial Act became effective and the new bicameral system was instituted; the repeal of s 32 by s 2 of the 1890 Imperial Act for repugnancy to the WA Constitution Act would then be effective and, as a provision of the 1850 Act relating to "the constitution, appointment, and powers of the Legislative Council of the colony of Western Australia" (the words of proviso (b)), s 32 would no longer "continue in force". Thirdly, that repeal of s 32 necessarily would take with it the proviso respecting tabling. Fourthly, the terms of s 33 respecting reservation, the subject of the other proviso to s 32, indicated that the Imperial legislation had distinguished between the two provisos.
What par (a) of s 2 of the 1890 Imperial Act carried over was the same subject-matter in the 1842 Act as had been rendered applicable to the Legislative Council by the use of the same terms in s 12 of the 1850 Act as those later employed in par (a). To these provisions of the 1842 Act we now return.
Section 31 of the 1842 Act dealt with the giving or withholding of assent or the reservation of bills by the Governors by stating that bills passed by the local legislature:
"shall be presented for Her Majesty's Assent to the Governor of the said Colony, and that the Governor shall declare according to his Discretion, but subject nevertheless to the Provisions contained in this Act, and to such Instructions as may from Time to Time be given in that Behalf by Her Majesty, Her Heirs or Successors, that he assents to such Bill in Her Majesty's Name, or that he withholds Her Majesty's Assent, or that he reserves such Bill for the Signification of Her Majesty's Pleasure thereon".
The section went on to specify that certain categories of bill were "in every Case" to be reserved. It is here that a further consideration respecting the construction of s 2 of the 1890 Imperial Act appears. The categories of bill for reservation might be summarised as bills (i) altering or affecting the divisions or the extent of the several districts and towns represented in the Legislative Council or establishing new and other divisions thereof; (ii) altering the number of members of the Legislative Council to be chosen by those districts and towns; (iii) increasing the whole of the number of the members of the Legislative Council; (iv) altering the salaries of the Governor or Superintendent; (v) altering the salaries of judges[37]; and (vi) altering or affecting the duties of customs upon imports or exports[38].
[37]A requirement repealed by s 13 of the 1850 Act.
[38]A requirement repealed by the statute of 1866, 29 & 30 Vict c 74.
The 1844 Act dealt further with this question of reservation and Royal Assent. It recited the reference in s 31 of the 1842 Act that certain bills were in every case to be reserved, stated that the intent of the provision had been to ensure that these bills were not to be assented to by the Governor without due consideration and then enacted s 7. This stated:
"That it shall not be necessary for the Governor to reserve any such Bill for the Signification of Her Majesty's Pleasure thereon from which in the Exercise of his Discretion, as limited in [the 1842 Act], he shall declare that he withholds Her Majesty's Assent, or to which he shall have previously received Instructions on the Part of Her Majesty to assent, and to which he shall assent accordingly."
The specification in s 31 of the 1842 Act of those bills which in every case required reservation was repugnant to s 73 of the WA Constitution Act, and the amendment and explanation thereof by s 7 of the 1844 Act was likewise repugnant. The 1844 Act had no other relevant operation and was not saved by either proviso to s 2 of the 1890 Imperial Act. That left, within proviso (a), the opening portion of s 31 of the 1842 Act which has been set out above. That proviso also saved and applied to the new structure established by the WA Constitution Act s 32 and s 33 of the 1842 Act as they had been applied by s 12 of the 1850 Act to the Legislative Council.
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 Act
and 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.
The provisions of the earlier legislation thus preserved were to apply to bills to be passed by the Legislative Council and Assembly; in particular the provisions in the 1842 Act (and s 12 and s 33 of the 1850 Act) with respect to reservation were to apply to those bills which s 73 required the Governor to reserve for the signification of Her Majesty's pleasure.
Those provisions were complied with with respect to the bill for the 1905 Act. They did not include, because proviso (a) to s 2 did not translate them into the new system, any requirement for tabling drawn from s 32 of the 1850 Act.
It follows that the appellants cannot make out the necessary step for the success of their appeal. The appeal must fail and it is unnecessary to consider further submissions put by the respondents in opposition to the appeal.
Steps taken in the United Kingdom
We should add that the Court was referred to several opinions tendered by the English Law Officers in the period between the establishment of the Legislative Council in 1870 and the 1905 Act[39]. At the time, the limitations of legislative power in the Australian colonies were regarded as "confusing, and nearly unintelligible"[40]. The Law Officers appear to have taken a cautious view of issues of construction, some of which have arisen in this appeal. That caution may have been understandable and may have suggested compliance with provisions which now appear not to have been mandatory and to have been repealed by s 2 of the 1890 Imperial Act.
[39]Particular reference was made in argument to the Opinions of the Law Officers of 10 August 1878 (reprinted in O'Connell and Riordan, Opinions on Imperial Constitutional Law, (1971) at 35‑36); of 8 February 1897; and of 30 October 1905 (reprinted in O'Connell and Riordan, Opinions on Imperial Constitutional Law, (1971) at 53‑55).
[40]Keith, Responsible Government in the Dominions, (1912), vol 1 at 427.
It also should be noted that the provisions respecting reservation by the Governors of Western Australia and the other Australian colonies gave rise in this period to various difficulties which required remedial action by the Imperial Parliament[41]. The Colonial Acts Confirmation Act 1894 (Imp) recited that doubts had arisen as to the validity of some colonial statutes because they had not been reserved for the signification of Her Majesty's pleasure. The statute applied to the Australian colonies and provided (s 2(1)):
"Any Act passed by the legislature of a colony to which this Act applies, and assented to in Her Majesty's name by the governor of such colony, and not disallowed by Her Majesty before the passing of this Act, shall be deemed to be and to have been, as from the date of such assent, as valid as if the same had been reserved for the signification of Her Majesty's pleasure, and Her Majesty's assent to the Act had been duly given and signified in the colony at the date aforesaid."
Thereafter, further statutes were passed in New South Wales, Queensland and Western Australia, the validity of which was in question because they had not been reserved. Confirmatory legislation was provided by the Colonial Acts Confirmation Act 1901 (Imp).
[41]Earlier legislation, before the establishment in 1870 of the Legislative Council in Western Australia, had included The Australian Constitutions Act 1862 (Imp) (25 & 26 Vict c 11) and The Colonial Acts Confirmation Act 1863 (Imp) (26 & 27 Vict c 84).
Finally, the matter was dealt with by the Australian States Constitution Act 1907 (Imp) ("the 1907 Imperial Act")[42]. The effect of s 1(1) was to limit in Western Australia the classes of case requiring reservation under s 73[43]. Section 1(3) applied s 33 of the 1842 Act to bills reserved under the 1907 Imperial Act. Sub‑section (4) of s 1 removed doubt as to subsequent State legislation (but not previous laws such as the 1905 Act) with respect to reservation and tabling requirements. The sub‑section did so by stating:
"So much of any Act of Parliament or Order in Council as requires any Bill passed by the Legislature of any such State to be reserved for the signification of His Majesty's pleasure thereon, or to be laid before the Houses of Parliament before His Majesty's pleasure is signified, and, in particular, the enactments mentioned in the Schedule to this Act, to the extent specified in the third column of that Schedule, shall be repealed both as originally enacted and as incorporated in or applied by any other Act of Parliament or any Order in Council or letters patent." (emphasis added)
[42]The 1907 Imperial Act is no longer in force, the need for it having been removed by the Australia Act; see Sue v Hill (1999) 199 CLR 462 at 494‑495 [72].
[43]Section 1(1) stated:
"There shall be reserved, for the signification of His Majesty's pleasure thereon, every Bill passed by the Legislature of any State forming part of the Commonwealth of Australia which –
(a)alters the constitution of the Legislature of the State or of either House thereof; or
(b)affects the salary of the Governor of the State; or
(c)is, under any Act of the Legislature of the State passed after the passing of this Act, or under any provision contained in the Bill itself, required to be reserved;
but, save as aforesaid, it shall not be necessary to so reserve any Bill passed by any such Legislature:
Provided that –
(a)nothing in this Act shall affect the reservation of Bills in accordance with any instructions given to the Governor of the State by His Majesty; and
(b)it shall not be necessary to reserve a Bill for a temporary law which the Governor expressly declares necessary to be assented to forthwith by reason of some public and pressing emergency; and
(c)it shall not be necessary to reserve any Bill if the Governor declares that he withholds His Majesty's assent, or if he has previously received instructions from His Majesty to assent and does assent accordingly to the Bill."
The Schedule to the 1907 Imperial Act, among other matters, removed, from proviso (a) to s 2 of the 1890 Imperial Act and s 12 of the 1850 Act, category (ii) identified earlier in these reasons, namely that providing for the reservation of bills; removed from s 31 of the 1842 Act the list of bills for which in every case reservation was required, together with the explanatory provisions in the 1844 Act; and repealed s 33 of the 1850 Act and both provisos to s 32 of the 1850 Act.
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.
KIRBY J. 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.

No defect is therefore shown in the amendment of the Constitution of the State of Western Australia in accordance with the requirements of the WA Constitution Act and such Imperial law of continuing force as was part of the "Constitution of the State". Accordingly, the requirements for amendment of the State Constitution by the 1905 Act conformed to s 106 of the federal Constitution. The amendment was therefore valid and effective. Section 70 of the WA Constitution Act was duly repealed.
I do not regard the Australian States Constitution Act 1907 (Imp)[125] as relevant to the validity of the 1905 Act. There is enough confusion in the labyrinth and I will restrain myself from adding more, unnecessarily.
[125]The terms of which are referred to in the joint reasons at [58].
In the light of these conclusions I do not have to consider the alternative arguments kept in reserve by the respondents as to the consequence of non‑compliance with the tabling requirements if that had been shown. Nor need I consider problems such as would have been presented by the effective abolition in 1897 of the Aborigines Protection Board, contemplated by s 70 as the repository of the dedicated revenues.
Orders
The appeal must be dismissed with costs.