Yougarla v Western Australia

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Act 1889* (WA), which mandated an annual appropriation for the welfare of Aboriginal natives, had been effectively repealed by the 1905 Act.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.