Taylor v Attorney-General of Queensland [1917] HCA 45

High Court of Australia|1917-07-01|Before: Rich JJ, Per Isaacs J

Law (Qd.) - Amendment of Constitution - Validity of Act - Act of H.C. or A. Royal assent - Assent by Governor - Powers of Queensland Parlia- 1917.

Bill passed by Legislative Assembly and rejected by Legislative Council - =» - ~ ndum on Bill - Validity of Referendum Act - Power to abolish Legislative BRISBANE,

wuncil. Australian States Constitution Act 1907 (Imperial) (7 Edw. VII. aah 10, 18,

_ The Australian States Constitution Act 1907 (Imperial), by sec. 1 (1), provides Rich JJ. alia) that it shall not be necessary to reserve, for the signification of His

jesty's pleasure thereon, any Bill passed by the legislature of any of the

if the Governor has previously received instructions from His Majesty

Hea, that the Constitution Act Amendment Act of 1908 (Qd.) is a valid and stive Act of Parliament, as the Governor of Queensland had, before assent- the Bill, received instructions from His Majesty authorizing him to | to it.

Colonial Laws Validity Act 1865 (Imperial), in sec. 5, contains a pro- 'that "every representative legislature shall, in respect to the colony its jurisdiction, have, and be deemed at all times to have had, full pow to make laws respecting the constitution, powers, and procedure of such I ure; provided that such laws shall have been passed in such manner n as may from time to time be required by any Act of Parliament, Order in Council, or colonial law for the time being in force in

same two sessions been rejected by the Legislative Couneil, it may mitted by referendum to the electors, and, if affirmed by them, shall be sented to the Governor for His Maj2sty's assent, and upon receiving su the Bill shall become an Act of Parliament in the same manner as if by both Houses of Parliament, and notwithstanding any law to the con

Held, that the Parliamentary Bills Referendum Act of 1908 was a effective Act of Parliament by virtue of the power conferred Legislature of Queensland by sec. 5 of the Colonial Laws Validity Act.

Held, further, that there is power to abolish the Legislative Coun Queensland by an Act passed by the Legislative Assembly and affirmed electors in accordance with the provisions of the Parliamentary Bills dum Act of 1908. se

the Colony of Queensland shall have full power and authority from ti

time to make laws altering or repealing all or any of the provisions Order in Council in the same manner as any other laws for the good ment of the Colony," &c.

Per Isaacs J.: Authority to pass the Parliamentary Bills Refer 1908 was also conferred upon the Parliament of Queensland by ela the Order in Council.

Decision of the Supreme Court of Queensland: Taylor v. Allorney- (1917) S.R. (Qd.), 208, reversed.

Court. 2 By a writ issued on 12th April 1917 in the Supreme ( Queensland by William Frederick Taylor, Bartley Fahey and Stephens against the Attorney-General of Queensland and W James Gall, Richard Joseph Cole, William Bradshaw Henry Taylor Macfarlane and Frederick Bennett, the claimed declarations (inter alia) that the Constitution Act Ai

Bill called A Bill to Amend the Constitution of Queensland by r ing the Legislative Council, and that the provisions of that Bi in contravention of the Constitution of the Commonw

and of the Constitution of the State of Queensland, and y virtue of the provisions of the Commonwealth Electoral (War- ct 1917 any referendum or vote of the electors of the State nd on 5th May 1917 was prohibited and unlawful. They

otion by the plaintiffs for an injunction as prayed in the writs been referred, on 19th April 1917, to the Full Court of the el ne Court of Queensland by Cooper C.J., that Court granted an ocutory injunction in each case, on 28th April 1917, restraining

mts, by special leave, appealed to the High Court, and on iy the High Court ordered that "'on the Attorney-General id consenting that the question under sec. 14 of the Electoral (War-time) Act be raised in the case here-

ereupon removed into the High Court a case embracing in the action as originally indorsed on the said writ shall by the parties for the determination of the Full Court Court and the Attorney-General for Queensland

: plained of and all parties undertaking to take such steps as the Cou

may direct for the purpose of enabling all matters raised to | determined this appeal be allowed and the interlocutory injunctio be dissolved and the costs of the motion before the Supreme Cour of Queensland and of this appeal be costs of the action."

The special case, dated 21st July 1917, which was stated by parties for the opinion of the Full Court of the High Court under an in accordance with the above-mentioned order of 4th May, substantially as follows : -

The plaintiffs are and were at all material times Members of Legislative Council of Queensland, and are electors of and pro, holders in the State of Queensland and electors of the Common wealth of Australia. Fe

The plaintiff William Frederick Taylor is Chairman of Com mittees in the Legislative Council of Queensland, and by virtue such office is entitled under the Constitution Act Amendment Act 1896 to and is in receipt of a salary of £500 per annum.

2, The defendant William James Gall is the Under Seer to the Home Secretary's Department of Queensland, and is returning officer appointed as hereinafter stated by the Gov in Council for the taking of the referendum poll directed to be under the Parliamentary Bills Referendum Act of 1908, and defendants Richard Joseph Cole, William Bradshaw Hard: Henry Taylor Macfarlane and Frederick Bennett are the assist returning officers appointed as hereinafter stated by the Gov in Council for the electoral districts of Brisbane, Fortitude Vall South Brisbane and Toowong, respectively, for the taking of said referendum poll. The defendants Frank McDonnell and Alf James Jones are also Members of the said Legislative Council, are the persons appointed by an order of his Honor the Chief Ji of Queensland to be joined as defendants on behalf of themsel

other persons having the same interest as themselves in this

he Act entitled the Constitution Act Amendment Act of 1908 ed and assented to by His Excellency the Governor on 3rd ril 1908. The second reading of the said Act was passed in the tive Council on a division by 17 to 15 votes in a House con- g of 44 members, as appears in the Journals of the House of and the third reading of the said Act was passed in the said tive Council without division, as appears in the Journals of use of 1908, at which sitting of the said Legislative Council bers were present. The second reading of the said Act was in the Legislative Assembly without division, at which of the said Legislative Assembly 64 members were present, the third reading by 41 votes to 19 in a House consisting of nbers, as appears in the Journals of the House of 1908.

The Act entitled the Parliamentary Bills Referendum Act of was passed and assented to by His Majesty on 19th August 8. The said Act passed the second and third readings in the gislative Assembly without division, at which sittings 63 members id 71 members respectively were present, and passed the second third readings in the Legislative Council without division, at +h sittings 31 members and 30 members respectively were present, s appears in the Journals of the House of 1908. The Legislative ly at the time of the passing of the second and third readings of 72 members and the Legislative Council of 44 members.

On or about 19th November 1915 the Legislative Assembly of land passed a Bill entitled A Bill to Amend the Constitution land by Abolishing the Legislative Council. The second

itive Council of Queensland by 26 votes to 3. or about 15th September 1916, in a House consisting of bers, the said Legislative Assembly again passed the second the said Bill by 35 votes to 15 votes, and on or about 19th

On or about 15th November 1916 the said Legislative Co un again rejected the said Bill by 19 votes to 3, as appears in the Journa of the House of 1916.

On 3rd April 1917 His Excellency the Governor of Queens! with the advice of the Executive Council, made and issued a clamation directing that the said Bill should be submitted to referendum of the electors under the provisions of the Parliamer Bills Referendum Act of 1908. The Proclamation aforesaid ¥ published in the Government Gazette on 3rd April 1917. '

On the said 3rd April 1917 His Excellency the Govern Queensland, with the advice of the Executive Council, appoint the defendant William James Gall to be the returning officer taking the said referendum poll (notification of which appointment was published in the Government Gazette of 3rd April 1917), and by writ under his hand commanded the said William James Gall to take the said referendum poll on 5th May 1917 and to return th said writ not later than 6th August 1917.

On the said 3rd April 1917 His Excellency the Governor | Queensland, by and with the advice of the Executive Co made and issued regulations under the Parliamentary Bills Ref dum Act of 1908 providing for the issue of the said writ and taking of the said referendum poll, which regulations have published in the Government Gazette of 3rd April 1917.

On the said 3rd April 1917 His Excellency the Governor « Queensland, with the advice of the Executive Council, appoint certain places to be the polling places at the said referendum pol in the electoral districts of Queensland, and directed the defend: Richard Joseph Cole, William Bradshaw Hardcastle, Henry Tay! Macfarlane and Frederick Bennett to be assistant returning offi for four of the said electoral districts, to wit, Brisbane, Forti Valley, South Brisbane and Toowong, respectively, notification | which appointment was published in the Government Gazette of April 1917.

the Government Gazette of 3rd April 1917 the Home Secre- suance of the power in him vested by the Parliamentary purs P , y

( 12th April 1917 the plaintiffs on their own behalf issued a the Supreme Court of Queensland against some of the defend- On 19th April 1917 a further writ was issued by the plain- ing the same relief and adding certain defendants in a nntative capacity as Members of the Legislative Council.

juncti s prayed in the said writs. 17. On Ist May 1917 the High Court of Australia granted special re to appeal from the orders of the Full Court of Queensland.

h Court of Australia when an order (which is the order of y already set out so far as material) was made by the said

ity of votes was cast against the Bill. 'The said 5th May 1917 was appointed as a polling day for an

Ts the Constitution Act Amendment Act of 1908 a valid and effective Act of Parliament ?

Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ?

) Is there power to abolish the Legislative Council of Queens- land by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908?

H.C. or A. (4) Was the referendum taken on 5th May 1917 a valid refer 1917. S ea dum ? Tayror (5) How and in what manner are the costs of the procee eee to be borne and paid? Grxerat The special case now came on for hearing. oF QUEENS-

Feez K.C. and Stumm K.C. (with them Fowles and Douglas), f the plaintiffs. The Constitution of Queensland has been establish by the following Statutes: Australian Courts Act 1828 (9 Geo. ¢. 83) ; Australian Constitutions Act 1842 (5 & 6 Vict. ¢. 76), provi a government for New South Wales, and giving authority for establishment of new colonies in the territory comprised within the Colony of New South Wales, with similar forms of government; the Australian Constitutions Act 1850 (13 & 14 Vict. c. 59), whi gave power to alter the constitution of the Legislative Couici established by 5 & 6 Vict. c. 76 or to establish instead thereof Councils and Houses of representatives, i.e., power to establish a bica:

_ system of government. The bicameral system was introduced into New South Wales by 18 & 19 Vict. c. 54 (1855), sees. 3-7 and Schedule. Under the provisions of this Act an Order in Council was made n 1859 making Queensland a separate colony, and provision was m: for a Legislative Council and Legislative Assembly (Order in Counei 6th June 1859, pars. 1, 2, 8, 14, 22).

Constitution Act 1907, and is therefore invalid. Secs. 1 and 2 of the Queensland Constitution Act of 1867 (31 Vii No. 38) have nct been altered or repealed. Before the Legislati Council could be abolished those sections would have to be amend so as to allow for its abolition. The Imperial Parliament has that the Legislature of Queensland shall consist of a Legislati : Council and a Legislative Assembly. The Constitution Act of 1867 is a consolidation (see preamble). Sec. 9 gives the only power to alter the Constitution. The Order in Council of 6th June 1859 is still the basis of the Constitution (Cooper v. Commissioner of Inco Tax (Qd.) (1)). The Constitution Act is merely a transfer of power (1) 4 G.LR., 1304.

\¢ Parliament of Queensland which are only as wide as those by the Order in Council, and the exercise of any wider powers be left to the Imperial Legislature. The power conferred is _ of altering the constitution of either body of the Legislature, determining what shall be the internal composition of both but no power is given to abolish either House (Attorney- for New South Wales v. Rennie (1) ).

s J. referred to Australian States Constitution Act 1907,

the power to abolish is intended to be given the word " ig used as in clause 20 of the Order in Council. The amble to the Order in Council provides for the establishment of ture in a manner " as nearly resembling the form of govern-

ly one provided for by 18 & 19 Vict. c. 54. Under the pro- sof 18 & 19 Vict. c. 54 it was not intended that the Legislature ied by the Order in Council should have power to destroy its branches.

The Order in Council, by clause 22, gave limited power to alter the tution. Then further power was given by the Colonial Laws Act 1865, sec. 5. So far as the Legislative Council is con- the Queensland Parliament have exhausted their power under the Order in Council and the Colonial Laws Validity Act, by the of the Constitution Act of 1867. The Parliamentary Bills Act of 1908, which substitutes for the Legislative Council cases the vote of the people and the Legislative Assembly, ond this power, and is invalid. Further, this Act does not

tive Council; it may give power to take the power to it, but that power has not been taken.

visions of sec. 14 of the Commonwealth Electoral (War-time) 19 '7 come within the defence power of the Commonwealth,

H.C. or A. and also within the power to regulate Federal elections (Co

es wealth Constitution, sec. 51 (vr.) (Farey v. Burvett (1) ).

'Avronney. yan A-G. for Qd. and Blair, for the defendants. The GENERAL stitution Act Amendment Act of 1908 does not come under the of Bills requiring reservation for His Majesty's signature (Aust

States Constitution Act 1907, sec. 1; Keith's Responsible Gove in the Dominions, vol. 11., p. 998). In any event the Governor w authorized by the Secretary of State for the Colonies to assent the Bill (Australian States Constitution Act 1907, sec. 1, proviso | The Parliamentary Bills Referendum Act of 1908 is to be re construed with and as an amendment of the Constitution 1867. This Act altered the Constitution in effect by provid a third body, the electorate, in certain cases. The power to pa

power to make laws altering or repealing any part of the O: Council (Dicey's Law of the Constitution, 8th ed., p. 101; Web Outtrim (2); Cooper v. Commissioner of Income Tax (Qd.)

R. v. Burah (4); West Derby Union v. Metropolitan Life Assi Society (5); Powell v. Apollo Candle Co. (6) ). The Constitution Act of 1867, by sec. 2, gives power to le;

Constitution (Dicey's Law of the Constitution, 8th ed., p. 101; J British Rule and Jurisdiction beyond the Seas, p. 75). The provisions of sec. 14 of the Commonwealth Electoral (War-tin Act 1917 (No. 8 of 1917) are not within the Commonwealth d power or the power of regulating elections; and, even if the its provisions are merely directory, and not mandatory, and | fore do not avoid a referendum taken on the same day as the elections (see Montreal Street Railway Co. v. Normandin (7), and t title of the Act and sec. 2). By sec. 3 the Commonwealth E (1) 21 C.LR., 433, at p. 442. (5) (1897) A.C., 647, at p. 655. (2) (1907) A.C., 81; 4 C-L.R., 356, (6) 10 App. Cas., 282, at p. 290.

(3) 4 C.L.R., 1304, at p. 1314, (7) (1917) RAG 70. (4) 3 App. Cas., 889, at p. 904.

e) Act 1917 and the Commonwealth Electoral Act 1902-1911 read as one. (See Smith v. Oldham (1).)

J. This special case was stated as in the original juris- this Court in consequence of its order made on the fourth t May by consent of the parties to an appeal, who are the are five questions for the opinion of the Court : - (1) Is the ution Act Amendment Act of 1908 a valid and effective Act of nt? (2) Is the Parliamentary Bills Referendum Act of d and effective Act of Parliament? (The two Statutes ned are Acts of the Parliament of Queensland.) (3) Is there y abolish the Legislative Council of Queensland by an Act accordance with the provisions of the Parliamentary Bills Act of 1908? (4) Was the referendum taken on 5th M17 a valid referendum? (5) How and in what manner are sts of the proceedings to be borne and paid ?

0 question No. 1 the position of the plaintiffs rested on the ition that the Bill had not been reserved for the assent of His and that in view of the necessity for that assent the Bill It in fact received the assent of the Governor of Queens- it was contended, did not suffice to give it the form of its appearing that the Governor had been authorized by of State for the Colonies to assent to the Bill, counsel \tifls very properly withdrew the objection, and the

No. 2 I have had a great deal of doubt, but I have conclusion that in this instance also the answer must mative. I was for some time much impressed by the conclusions of the Supreme Court of Queensland in judgment read by Lukin J. upon the injunction motion subject of the appeal already mentioned, and but for

sec. 5 of the Colonial Laws Validity Act 1865 I should have be much n dee to agree val that judgment.

of opinion that sec. 5 of the Imperial Act establishes the conte of the defendants as to the validity of the Referendum Act of

the Queensland Constitution Act of 1867 "to consolidate the relating to the Constitution of the Colony of Queensland." The Parliament of Queensland is a " representative legis and also a " colonial legislature " within the meaning of the Imp Act. As such it is deemed always to have had, and it has had 1865, "full power within its jurisdiction to establish Co judicature, and to abolish and reconstitute the same, and to alter th constitution thereof, and to make provision for the administratio of justice therein." Also it is deemed always to have had, has had from 1865, " full power to make laws respecting the coi tion, powers, and procedure of such legislature ; provided that sud laws shall have been passed in such manner and form as may time to time be required by any Act of Parliament, letters patent Order in Council, or colonial law for the time being in force" Queensland. I take the constitution of a legislature, as the t is here used, to mean the composition, form or nature of the Hou of legislature where there is only one House, or of either Hous the legislative body consists of two Houses. Probably the power not extend to authorize the elimination of the representative char of the legislature within the meaning of the Act. Argument has been raised.on the difference in phraseology bet the first part of this section referring to Courts of judicature, : the second part referring to the constitution, powers and pro' of the legislature, and I am far from thinking that there is not good deal of force in the argument. But I think that the word the second part of the section, with which we are more immediat concerned, are too strong and too comprehensive to enable o z say that the power therein given is not sufficient to give to the legislation impeached. The section is one of conti vitality, and acts upon all laws as to the constitution and p

e legislature, so as to give them validity whether they were before or after 1865. It is true that the Constitution Act of provided for all laws passed thereunder to be enacted " by

jesty by and with the advice and consent of the Legislative 'il and Legislative Assembly in Parliament assembled," and Constitution did not recognize the making of laws by any authority. It is also true that in general the legislation of a 'ereated by and acting under a written charter or constitution only so far as it conforms to the authority conferred by that ment of government, and that therefore attempted legislation, at variance with the charter or constitution, cannot be held ective law on the ground that the authority conferred by that ent includes a power to alter or repeal any part of it, if the tion questioned has not been preceded by a good exercise of power; that is, if the charter or constitution has not ante- itly been so altered within the authority given by that document _ Istated that proposition in the case of Cooper v. Commissioner come Tax (Qd.) (1), in expressing my agreement with the other embers of this Court. Normally, therefore, in the absence of such a

it professed to be an amendment of the Constitution Act of was merely, in view of its provisions, an Act at variance with stitution, not preceded by a valid extension of the constitu- power, was therefore itself, as it stood, invalid. But in the nt case the Imperial provision seems to me to take away the plication of the principle I have stated to legislation of the kind ch. it authorizes. The Parliamentary Bills Referendum Act is

respecting the powers" of the Legislature in certain cases. 'ides that when a Bill passed by the Legislative Assembly successive sessions has in the same two sessions been rejected e Legislative Council it may be submitted by referendum to and if affirmed by them shall be presented to the Governor Majesty's assent. It therefore provides for the substitution ular vote for the assent of the Legislative Council as often reumstances indicated may occur. I feel bound to say that

H.C. or A. in my opinion the words of the Imperial sec. 5 cover s

could be abolished by the process provided by the Referen

If the Act in question had been invalid without it, I am co to think that it gives the necessary validity. Question No. 2, therefore, I answer in the affirmative. Question No. 3 asks whether the Legislative Council of Qu -en:

of 1908. In 1916 a Bill for that purpose was twice in| sessions passed by the Legislative Assembly and each time by the Legislative Council. Seeing that it proposed the ab of that branch of the Legislature, was it such a Bill as might 1 i be submitted to the process authorized by the Referendum A The latter Act was unrestricted, and, as I think it valid, I do how the fact of the Bill of 1916 being a Bill to deal with th lative Council can be held to place it beyond the legislative at of 1908. There is power to make laws " respecting the constitu of the legislature, and this, if passed, is such a law. The me making it a law are provided validly by the Referendum Ac seems to me, therefore, that I cannot but hold that there is po abolish the Legislative Council by an Act passed in accordance! the Referendum Act. That is to say, I must answer question No in the affirmative. a

The fourth question really raises a controversy as to the v: of the 14th section of the Commonwealth Electoral (War-t 1917. In the circumstances we think it unnecessary to ans question.

As to question No. 5, we are of opinion that there should b costs.

Isaacs J. In view of par. 19 of the special case, I was of th opinion as my learned brother Barton, that the Court ought answer the questions. The action was, in its inception, only in nature of guia timet, and whatever argument was then open to tain it - as to which I say nothing - seemed to me to disapp' the referendum was lost, because no damage had arisen or ¢ possibly arise. It appeared to me that the observations of ] Loreburn L.C. in Glasgow Navigation Co. v. Iron Ore Co. (1) |

cal questions applied, and that no party had a right to H.C. or A. ek rmining the fifth, as to incidence of costs. The majority of Tavtor

urt, however, being of a different opinion, I merely record sy mnonwey-

In my opinion the Constitution Act Amendment Act of 1908 and effective Act of Parliament. seas: he argument never seriously put the validity of this Act in con-

he plaintiffs rather threw the burden on the defendants (1) that it had been passed by a two-thirds majority, and the royal assent had been validly given. Both provisions fact to have been observed.

[ also agree with the view expressed by Lord Elgin, on behalf he Imperial Government, in his telegram of 23rd March 1908, 'neither provision applied to the measure.

Is the Parliamentary Bills Referendum Act of 1908 a valid and e Act of Parliament?" This Act, as is well known, was passed juence of a great constitutional crisis involving the relations two Houses, the Ministry and the Governor. Apparently it cted as a method of preventing the recurrence of such a Tt was passed avowedly as an amendment of the Con- by both Houses unanimously, and was reserved for His assent. To declare such an enactment constitutionally le is no.doubt within the function of a Court, but the con- would be so momentous that only the very clearest con- 1 of its invalidity would justify the declaration.

effect may, for the present purpose, be shortly stated. Both es are left unaltered in composition and affirmative powers. e change effected by the Act consists in no longer requiring olute condition of legislation the concurrence of both Houses g the Crown. After two failures to agree, the advice of lative Assembly is sufficient, provided there be obtained the of a majority of the electors at a referendum. Sec. 10 "If the referendum poll is decided in favour of the Bill, be presented to the Governor for His Majesty's assent, receiving such assent the Bill shall become an Act of 'in the same manner as if it had been passed by both

m the Court answering the first four questions for the purpose

Houses of Parliament, and notwithstanding any law to the cor trary." ' The Act makes no change in respect of the mode of obtain royal assent. Presentation to the Governor for that always necessary, and whether it is given by the Governor at or upon express instruction, or is reserved for His Majesty's pi assent, is a matter to be determined by considerations other tha provisions of the Act.

The effect, summed up briefly, is that the Legislature of Qi land - apart from the Crown, which must in all cases assent - hence forth consists of the two Houses concurring, except in the case of an irreconcilable difference, and in that case it is constituted by th Legislative Assembly alone, on condition that the electors app of the Assembly's proposal.

The Attorney-General contends for two distinct authori pass this measure. One is clause 22 of the Order in Council of 1 i$ the other is the Colonial Laws Validity Act 1865.

The plaintiffs' answer to the Order in Council is twofold. say that clause 22, whatever its ambit otherwise may have been, all events extends no further than to alter provisions in the 0 in Council itself, and as that was repealed by Act 31 Vict. No. 3 (1867) and replaced by the Constitution Act of 1867 (31 Vict. 38), a separate and distinct Act, and not the Order in Council, i follows that clause 22 can have no operation upon the Act. | say the plaintiffs, further, as to the construction of clause 22, never did extend so far as to exclude altogether one of the legislativ Houses established by the Order in Council itself. '

With respect to the Colonial Laws Validity Act, their argumen is that, equally with clause 22 of the Order in Council, its ex does not reach to eliminating one of the Houses from law making They urge that if that were possible, the Crown itself might be excluded, since the Crown is a part of the legislature. 'a

Taking the Colonial Laws Validity Act first, on account of i more general importance, the relevant provision is contained i sec, 5. The crucial words are "every representative legisla shall . . . have . . . full power to make laws respectit the constitution, powers, and procedure of such legislature."

Feez argued that the words "constitution . . . of such , " are limited by the outward form of the legislature at the constitutional amendment is made. Thus, if it then s the Crown consists of one chamber, it cannot provide for , chambers, and if it then besides the Crown consists of two s, it cannot provide for one chamber. According to the ent, internal changes only are possible - such as the number d qualifications of members and the electoral franchise. This it, which was directed both to question 2 and question 3, on to deduce that, as one chamber cannot be entirely abolished, can the necessity for joint concurrence of both Houses in act of legislation. It was supported by urging that since included the Crown, the Attorney-General's view

authorize the total elimination of the Crown as part of the

not agree' with this contention. To begin with, the word ature" in this connection is not intended to include the That word is undoubtedly sometimes used to include the Crown, which is the first branch of it. But it is also frequently Leven by Parliament itself to denote the law-making authority

n and from the fact that the " assent " of the Queen or the Wernor is regarded as an additional factor. This limited use of term is common. For instance, in Anson's Law and Custom of stitution (vol. 11., part 2, at p. 68), in dealing with the self- ing colonies, the learned author observes: " The legislature s of two chambers, except in certain provinces of the Dominion a." The context must always be looked at to see which is 'The Imperial Act called the Australian States Constitution 907 (7 Edw. VII. c. 7) is a good illustration. Sec. 1 contains of both senses. " Every Bill passed by the Legislature of e" which "shall be reserved for the signification of His pleasure thereon" necessarily, as to the expression " legis- 'refers to the Houses only. But "any Act of the Legislature

~ TayLor v. ATTORNEY- GENERAL OF QUEENS- LAND.

of the State" in the same section must include the Crown,

_ must be read subject to the fundamental conception that, c

examples are found in the same Act. When power is colonial legislature to alter the constitution of the legislati

with the very nature of our constitution as an Empire, the

T read the words " constitution of such legislature " as in the change from a unicameral to a bicameral system, or the Probably the " representative " character of the legislature is condition of the power relied on, and is preserved by th "such," but, that being maintained, I can see no reason for , down the plain natural meaning of the words in question exclude the power of a self-governing community to say t State purposes one House is sufficient as its organ of | Some strong reason must be shown for cutting down the p meaning of the words themselves applied to such a subject

Now, when the history of the enactment is remembered, present any reason for restricting the words? It originated thr difficulties arising in South Australia with regard to Acts

whose report to Mr. Cardwell, dated 28th September 1864, i the origin of the general power contained in sec. 5 and other s of the Act. That report certainly in no way suggests an limitation as is contended for.

In my opinion, therefore, the full meaning of the words mus given to them, and, consequently, supposing there were no ot authority to support the Queensland Referendum Act of 1908 than Colonial Laws Validity Act 1865 - which is a standing general of all representative legislatures outside and irrespective 0 own separate Constitutions - the answer to the second qu should be in the affirmative. i

But I am further of opinion that the Attorney-General's tention is right, that the same result would be attained by fo

of the Order in Council of 6th June 1859. That Order in | was issued under the authority of the Act of 1855 (18 & 19 e. 54). Some question having been raised as to its validity, e of a doubt whether the form of government and legislature lished followed with sufficient precision the form then existing ew South Wales, Act 24 & 25 Vict. c. 44, sec. 3, was passed by 'it was validated retrospectively. It existed in full force up st December 1867. Its 22nd clause says: " The Legislature Colony of Queensland shall have full power and authority time to time to make laws altering or repealing all or any of the ons of this Order in Council in the same manner as any other the good government of the Colony except" &c. The on preserves the 14th clause.

pursuance of that power, the Queensland Legislature e Constitution Act of 1867. That Act was partly a repetition ly an alteration of the provisions of the Order in Council. der in Council had been altered by previous enactment, and of 1867 consolidated all the constitutional laws up to that The only way an alteration in the Order in Council could was by an Act of Parliament, which therefore, by virtue nd clause of the Order, could and can itself be altered and d, unless that clause itself is to be regarded as no longer in The only suggestion for so regarding it is that the Order ly repealed by the Queensland Act. It is true that by Act 31 Vict. No. 39 the Order in Council is said to be But when the Act is read as a whole, including the the intent of the Legislature is clear that their intention peal entirely the Order in Council so far as i made pro- the Government of Queensland, but to leave untouched (as an exception) and clause 22 (as an outside permanent I would in any case construe the 3rd section and the 'in favour of validity, which would exclude from the repeal

14 and, with it, clause 22.

Constitution Act of 1867 was to come into force when the g provisions of the Order in Council and the amending consolidated in the Constitution Act of 1867 - went out of But neither did the Legislature intend, nor in my opinion

aw Taytor ®. ATTORNEY- GENERAL oF QUEENS- LAND.

had it the power, to alter or repeal clause 22. If it had pow repeal clause 22 in toto, it had power to repeal it in part, and, ; it had power to alter it by excising the exception or the pro'

both - which is unthinkable. Therefore, clause 22 stood, and

the time being. This is the view taken by Griffith C.J. in Coope Case (1). I concurred in that opinion (2), and still think it on

The words of clause 22 are certainly not narrower - and are p even broader - than those of sec. 5 of the Colonial Laws Va Act 1865, and consequently would, of themselves, support we are considering, and possibly would support constitu changes outside the ambit of sec. 5 of the Colonial Laws Va Act. On both grounds, taken separately or conjointly, I a the second question in the affirmative.

- "Is there power to abolish the Legislative Council of Qu land by an Act passed in accordance with the provisions Parliamentary Bills Referendum Act of 1908?" :

For the reasons given in my answer to the second question, ¥ the additional observation that upon its construction the 1908 includes the power to pass such an Act as is described, I a this in the affirmative. 4

References were made during the argument to text-wril Though they are not to be regarded as authorities, there is no dou! the opinions they express, and the examples they adduce, the view I take independently.

The only qualification I make as to the exercise of the po that the conditions attached to the grant in clause 22 of the Or in Council or in sec. 5 of the Colonial Laws Validity Act 1865, : tively, must be observed according to whichever of these grant relied on. :

- «Was the referendum taken on 5th May 1917 a v teferendum ? " z

Its validity so far as that depends on the State Constitution a State laws has already been dealt with. ;

The only other point raised was with reference to sec. 14

'alidity Act (28 & 29 Vict. c. 63) enables us to answer ques- and 3 in the affirmative. It provides that a representative e shall, in respect of the colony under its jurisidiction, have deemed at all times to have had full power to make laws the constitution, powers, and procedure of such legislature, d that such laws shall have been passed in such manner and s may from time to time be required by any Act of Parliament, patent, Order in Council, or colonial law for the time being in

the said colony. In our opinion the word " constitution " in

enactment enables a representative legislature to alter its

ition as it chooses, to allot to the legislature such powers fit, and to prescribe the method in which it shall conduct It may perhaps be that the legislature must remain a representative legislature as defined by the Statute, s unnecessary in the present case to determine whether that ornot. This seems to us the plain meaning of the words used, is urged that some less extended meaning should be given n because of the earlier words of the section which run as : "Every colonial legislature shall have, and be deemed at s to have had, full power within its jurisdiction to establish of judicature, and to abolish and reconstitute the same, and the constitution thereof, and to make provision for the ation of justice therein." It is said that the word " abolish" here where it is intended to give power to put an end to a

ded to give power to destroy the Legislative Council, which | part of the existing legislature. Had it been intended to a representative legislature power to enact that there hereafter be no legislature, the word "' abolish " might well

Electoral (War-time) Act 1917. On this, I agree with H.C. or A.

ent made by my learned brother Barton. oy

I agree that there should be no costs. TayLor Arronwey-

Durry anv Ricu JJ. We agree with what has been said ne

also agree with him in thinking that sec. 5 of the Colonial Gavan Daffy J.

have been used, but the vice of the argument lies in a between two distinct notions - the abolition of a legislatu the abolition of a constituent part of such legislature. Mere ; t tion of the constitution of a legislature negatives the notion o abolition of such legislature, but may entail the abolition of tegral part of it. The words of the section are properly chosen express the powers sought to be conferred. It was intended colonial legislature should have power to constitute new C and to put an end to existing Courts, to determine whether Courts should continue to exist or should cease to exist, as w to mould their form, prescribe their duties, and regulate their cedure, but it was not intended that a representative legisk should have power to produce anarchy by enacting that there sho be no legislature ; its powers are limited to determining what be the nature of the legislative body, what its powers of le and what its methods of procedure. At the time the Legislatu Queensland passed the Parliamentary Bills Referendum Act of 19 it was such a "' representative legislature." It is said that the e of that enactment was to provide that in certain cases laws be made by the Legislative Assembly and the electors spe means of a referendum, instead of by the Legislative Assemb! the Legislative Council. We think its true effect was mere limit the power of the Legislative Council by rendering its ¢ rence unnecessary in the making of laws in certain circum: But, however this may be, it is clear that it was a law within 1 competence of the then existing legislature, and that after its p: the Legislature of Queensland still remained a representative | lature within the meaning of the Colonial Laws Validity Ai therefore competent to make laws with respect to its own co tion, powers, and procedure. It follows from what we hav said that a law to abolish the Legislative Council of Quee would be such a law, for it would leave the Legislature of Quee still a representative legislature within the meaning of the Laws Validity Act. Further argument was addressed to us ot construction of the Parliamentary Bills Referendum Act. It said that an investigation of its terms showed that it was not in to apply to such a measure as a Bill to abolish the Legislative

asked, could it have been intended to apply the pro-

he Referendum Act valueless, if it did not impliedly repeal it ? no reason why the provisions of the Referendum Act should e applied even in the case of a Bill designed to repeal the lum Act itself. On this point we entirely agree with the en in the Supreme Court of Queensland. Lukin J., in the judgment of the Court, said: "' We know of no reason 'Act should not be brought into existence which may be ble to many purposes, and amongst those many purposes that will make its further application for any purpose from nature impossible" (Taylor v. Attorney-General (1) ).

ly, it was said that sec. 10 of the Referendum Act of 1908 es that the Bill shall be presented to the Governor for His 's assent, and that these words are not appropriate to a Bill ch in course of law should be reserved for His Majesty's assent. { that the words of the section are applicable to the case which is presented to the Governor for the purpose of being by him for His Majesty's assent as well as to that of a which the Governor assents on behalf of His Majesty. The it on the construction of the Referendum Act therefore fails. agree with the rest of the Court in thinking that it is unneces- answer question 4, and that there should be no order as to

J. The questions for the opinion of the Court are set out judgments just delivered. My learned brothers have dealt ly with the reasons why this Court should answer the questions the way agreed upon by all members of the Court, that I propose very briefly to some of the reasons for my concurrence in ed answers to the questions submitted.

gree that the answer to question 1 should be in the affirmative. isel for the appellants did not, in the end, press for any other

'answer to question 2, I hold, depends principally on the mean- effect of sec. 5 of the Colonial Laws Validity Act 1865, (1) (1917) 8.R. (Qd.), at p. 243.

passed two years before the Queensland Constitution Act of 186 Under the Colonial Laws Validity Act 1865 (an Imperial which is still in force) the Queensland Legislature as a " repres tive legislature " has had, at all times since the passing of th power to make laws respecting the constitution, powers, and pr

law for the time being in force' in Queensland. The Queens Constitution Act of 1867 has been amended by the Queen Legislature from time to time. The Act mentioned, in my o authorized such amendments.

The Queensland Constitution Act Amendment Act of 1908

not now contended that that is not a valid and effective Aci Parliament.

The Parliamentary Bills Referendum Act of 1908 was passed by both Houses of Parliament, and assented to by His Majesty King. It was a law respecting the powers and procedure of Legislature, and was passed as an amendment of the Constituti in the manner and form required by the colonial law for the ti being in force. (See sec. 5 of the Colonial Laws Validity Act 186 I therefore hold that it was a law which the Queensland Legis- lature had power under sec. 5 of the Colonial Laws Validity 1865 to pass, and that it is a valid and effective Act of Parliam:

The third question is: " Is there power to abolish the Legislativ Council of Queensland by an Act passed in accordance with provisions of the Parliamentary Bills Referendum Act of 1908 The question this Court is really asked to decide is whether th "Legislative Council" of Queensland - as one part of the Li Jature - can be abolished by an Act amending the Constitution passed in accordance with the provisions of a valid Act.

required by the colonial law (the Queensland Constitution Act) f the time being in force (sec. 5 of the Colonial Laws Validity

i), and in my opinion would be a valid and effective law passed r the powers granted by the Imperial Act. he answer to question 3 should, therefore, be in the affirmative. ave read the judgment of my brother Isaacs, and I agree with ns so clearly stated by him for holding that, if there were er authority to support the Parliamentary Bills Referendum Act [908 than the Colonial Laws Validity Act 1865, the Act of 1908 ; a valid exercise of the power of the Queensland Legislature. agree also with him, for the reasons mentioned by him, when

ntal conception that, consistently with the very nature of nstitution as an Empire, the Crown is not included in the ambit

luding the change from a unicameral to a bicameral system, e reverse. Probably the 'representative' character of the eis a basic condition of the power relied on, and is preserved word 'such,' but, that being maintained, I can see no reason ting down the plain natural meaning of the words in question s to exclude the power of a self-governing community to say State purposes one House is sufficient as its organ of legis- . Some strong reason must be shown for cutting down the y meaning of the words themselves applied to such a subject

al Act, to decide whether clause 22 of the Order in Council operates in any way which could affect the matter. I think that, if the clause does so operate, the power given e wide enough to authorize the Queensland Legislature to

Questions 1, 2 and 3 answered in the affirmative. Question 4 not answered. As to question 5, no costs awarded.

Solicitors for the plaintifis, F. J. Fitzgerald & Walsh and

& Peterson. Solicitor for the defendants, W. F. Webb, Crown Solicito

THE COMMONWEALTH s : pares DEFENDANT, AND WOODHILL 5 4 : : - « Resrowt PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

transitory actions - Lands Acquisition Act 1906-1916 (No. 18 of 1906 of 1916), secs. 37, 38, 39 - Seat of Government (Administration) Act 1910:

sec. 8 - Jervis Bay Territory Acceptance Act 1915 (No. 19 of 1915), sees.

Judiciary Act 1903-1915 (No. 6 of 1903 - No. 4 of 1915), secs. 39, 56. ?

An action to recover compensation for the compulsory aequisiti ion by the Commonwealth under statutory authority is in its nature local transitory.

'The words "any State Court of competent jurisdiction" in, see Lands Acquisition Act 1906 mean any State Court having jurisdic petent as to locality as well as subject matter.

On Ist May 1915 the Commonwealth, pursuant to the Lands Acq 1906, compulsorily acquired certain land of the respondent at then in the State of New South Wales. On 25th ae 1915 the

At a glance

Court

Decision date

Before

Source

Judgment (165 paragraphs)