Western Australia v Wilsmore

Western Australia v Wilsmore - [1982] HCA 19 - HCA 1982 case summary — Zoe

[6]

The most compelling argument against this construction is that the limitation imposed on the power of the legislature is curiously weak and ineffectual, in that once the provisions relating to the constitution of the Legislative Council or of the Legislative Assembly are taken out of the Constitution Act 1889 there is no restriction on their amendment. This, however, was apparently intended by the framers of the statute. Section 5 of the Western Australian Constitution Act 1890 Imp. was obviously modelled on s. 4 of the New South Wales Constitution Act 1855 (18 & 19 Vict. c.54) and s. 4 of the Victoria Constitution Act 1855 (18 & 19 Vict. c.55) under which responsible government was established in those two colonies in 1855. The history of the advent of responsible government in New South Wales is discussed in papers by Dr Currey and Sir Victor Windeyer which are to be found in the Journal and Proceedings of the Royal Australian Historical Society, vol. 42, at pp. 97 and 257 respectively. An account of the position in relation to Victoria will be found in Jenks, The Government of Victoria, ch. XXI. In New South Wales, William Charles Wentworth, whose object was to "frame a constitution in perpetuity for the colony" had recommended that the power of the New South Wales legislature to amend the new constitution should be very limited. The Constitution Bill which was sent to London did contain the requirement that certain provisions of the constitution were to be altered only by a special majority, but s. 4 of the New South Wales Constitution Act as passed enabled the colonial legislature to repeal the sections imposing this requirement by an ordinary majority. This was not done by inadvertence; the Law Officers and the Colonial Office were fully aware of the effect of the change, and Wentworth strongly objected to it: see A.C.V. Melbourne, Early Constitutional Development in Australia, pp. 420-423. Sir Victor Windeyer explains the attitude of the Imperial authorities by the fact that they were unused to the notion of an entrenched constitution and, especially since the Reform Act, were imbued with a sense of the power of the Parliament to remould itself. However, the Imperial authorities were of the opinion that since the Constitution Bill was scheduled to the Imperial Act, "the several provisions of the Bill would have become, in a legal point of view, sections of an Act of Parliament, and it might be very doubtful at least whether, in the absence of special provision, the new Legislature could have in any way meddled with them": see the despatch of Lord John Russell cited by Dixon J. in Attorney-General (N.S.W.) v. Trethowan [25] . The result was that s. 4 of the New South Wales Constitution Act empowered the legislature of New South Wales to amend any of the provisions of the Constitution Act (including those which provided for special majorities) by the vote of a simple majority, and to proceed to alter the Constitution by simple majority vote once the special requirements had been removed. The fact that the insertion in the Constitution Act of provisions requiring special majorities in these circumstances provided no effective safeguard was understood also by those concerned with the Victorian legislation: see Jenks, op. cit., p. 197.

[45]

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 scheduled Bill, being the Constitution Act 1889 ("the 1889 Act"), became law on the proclamation of the Royal Assent on 21 October 1890. Section 2 established a Legislative Council and a Legislative Assembly, and provided (and still provides) that it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies The Act included provisions dealing with the qualification of members of the Assembly and the Council (ss. 18, 23, 25, 29), and with the qualification of electors of the two Houses (ss. 39, 53). Section 73 provided: The Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. 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 provides for the substitution of a fully elective Legislative Council for the original nominee Council. Section 73 was substantially amended by the Acts Amendment (Constitution) Act 1978 but the amendment is not material to this action. I will continue to refer to the section, now 73(1), as it stood before the amendment.

[69]

Earlier in these reasons I have referred to the 1899 Act. On a strict view, having regard to the consensus between the parties that s. 7 of the amending Act is not a law to alter the provisions of "this Act" within the meaning of those words of s. 73, it is not essential for the decision in this case to rule on the relationship if any of the 1899 Act to the 1889 Act. Nevertheless, it is obviously a question of great potential significance. In the course of argument, the Solicitor-General voiced the concern that, if s. 73 was held to apply to laws amending the 1899 Act, a question of validity might arise with respect to the Constitution Acts Amendment Act 1973. This Act amended ss. 7 and 20 of the 1899 Act by reducing the minimum age for membership of the Legislative Council and the Legislative Assembly respectively from twenty-one years to eighteen years. It is said that the Bill for the Act may not have been passed by an absolute majority. The change effected in 1973 follows the reduction in the minimum age of electors to eighteen years which was effected by the Electoral Act Amendment Act (No. 2) 1970. It may be that the possible invalidity of the change effected in 1973 will cause no problem unless and until a person under twenty-one years of age is elected to the legislature. But clearly the anxiety should be laid to rest. In my opinion, laws passed in amendment of the 1899 Act are not subject to s. 73 of the 1889 Act. I have already noted that notwithstanding its short title the 1899 Act is itself a principal Act and has been so regarded consistently by the legislature. In the course of argument, reference was made to s. 22 of the Interpretation Act 1918 W.A. as amended, the general effect of which is to require that every Act "passed in amendment or continuation of a former Act" be read with the amended or continued Act as one Act. However, this section clearly does not have the effect that legislation amending the 1899 Act shall be read as one with the 1889 Act. It requires no more than that it be read with the 1899 Act which it is expressed to amend. The Constitution Acts Amendment Act 1933 stands in a somewhat special position because it was an Act to amend both the 1889 Act and the 1899 Act. It was this Act which came under the consideration of this Court in Clydesdale v. Hughes [18] , but since on any view the Act fell within the ambit of s. 73 of the 1889 Act the point which I am now considering did not arise. The Constitution Acts Amendment Act 1933 has now been incorporated into the 1899 Act as s. 39A; this was effected by the Constitution Acts Amendment and Revision Act 1963.

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Judgment (82 paragraphs)

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