Western Australia v Wilsmore

It is in my opinion legitimate, in deciding upon the meaning of s. 73 in the Constitution Act 1889, to have regard to the fact that the section appeared in the Bill which was scheduled to the Western Australian Constitution Act 1890 Imp.. Section 5 of the latter Act clearly indicated that the only limitations on the power of the colonial legislature to alter or repeal the Constitution Act, 1889 were to be those "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scheduled Bill on the alteration of the provisions thereof in certain particulars until and unless those conditions are repealed or altered by the authority of that legislature". This strengthens the conclusion, which should in any case be reached, that the first proviso of s. 73 was a true proviso, and did no more than qualify the grant of power conferred by the opening words of the section.

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.

Of course the beliefs of those who framed the legislation do not assist in its interpretation. But the history of these provisions shows that s. 73 of the Constitution Act 1889 could not have been intended to be a great constitutional safeguard. By that time the Colonial Laws Validity Act 1865 Imp. had been passed, but it remained true to say that although, while the first proviso of s. 73 remained in force, it was not competent to repeal or alter the provisions of the Constitution Act, 1889 in a way which would effect any change in the constitution of the Legislative Council or of the Legislative Assembly except by the majority to which the proviso referred, it was nevertheless possible to repeal the proviso by a simple majority, since no manner or form was required for a law effecting such a repeal. Even if the first proviso to s. 73 had operated as an independent enactment, the barrier to change was easily removed. In the light of these matters, it is the less surprising that the proviso should refer only to laws which repeal or alter the Constitution Act 1889, and not to laws which, without repealing or altering that Act, nevertheless change the constitution of the Legislative Council or of the Legislative Assembly.

For these reasons I consider that it was not a condition of the validity of the Act of 1979 that it should be passed by a special majority, and that the challenge to the validity of that Act must fail.

I have had the considerable advantage of reading the reasons for judgment of Wilson J. I prefer to express no view concerning the meaning of the phrase "the Constitution of the Legislative Council and the Legislative Assembly" appearing in the first proviso to s. 73 of the Constitution Act 1889 W.A.. I am otherwise in complete agreement with the reasons for judgment of Wilson J. and would, for those reasons, allow this appeal.

I would allow this appeal for the reasons given by Wilson J.

In question is the validity of the Electoral Act Amendment Act (No. 2) 1979 W.A., s. 7 which changed qualifications for election to the Western Australian Legislative Council and Assembly adversely to the plaintiff. The challenge to the Act depended on showing that it was invalid because it was not passed in accordance with the Constitution of Western Australia. The Western Australian Constitution (or at least its principal provisions) originally derived its authority from the Western Australian Constitution Act 1890 Imp. but now derives its authority from s. 106 of the Australian Constitution which provides:

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. Therefore a contravention of a State Constitution is a contravention of the Australian Constitution. Although much reference was made to the Colonial Laws Validity Act 1865 Imp., this is irrelevant. When the colony of Western Australia became part of the Commonwealth of Australia as the State of Western Australia, the Colonial Laws Validity Act became inapplicable for the simple and sufficient reason that Western Australia was no longer a colony.

The principal provisions of the Western Australian Constitution appeared in the Constitution Act (the coming into force of which was authorized by the Western Australian Constitution Act 1890 Imp.). The Act has undergone a number of changes including some slightly confusing changes of title which are explained in the judgment of Wilson J. but the relevant part is s. 73 which materially provides:

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. The plaintiff Mr. Wilsmore contends that s. 7 of the Electoral Act Amendment Act (No. 2) 1979 W.A. should have been, but was not, passed by absolute majorities in accordance with the proviso to s. 73.

The proviso in s. 73 of the Constitution Act requiring absolute majorities for any Bill " by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected " is limited to any Bill for an Act " to repeal or alter any of the provisions of this Act", that is the Constitution Act. Absolute majorities were required only for the passage of any change to the Constitution Act (even if this includes amendments which have become part of that Act).

By 1907 electoral qualifications were outside the Constitution Act and appear in the Electoral Act 1907-1976 W.A.. The process by which that was achieved is presumed valid, and no evidence was advanced to displace the presumption. Because the challenged Act does not change the Constitution Act, even if it changes the Constitution of the Council or the Assembly, absolute majorities were not required for its passage.

It is not necessary to deal with the question whether the Western Australian Supreme Court was entitled to inquire into whether the Act was invalid because of an alleged defect in the process of lawmaking. (See Clayton v. Heffron [1] .)

The circumstances out of which this appeal has arisen are set out in the reasons for judgment of my brother Wilson and I need not repeat them.

The critical question in the appeal is whether the respondent is correct in submitting that s. 7 of the Electoral Act Amendment Act (No. 2) 1979 W.A. would have constituted a "change in the Constitution of the Legislative Council or of the Legislative Assembly" within the meaning of s. 73(1) of the Constitution Act 1889 W.A., as amended, so as to require the manner and form provisions set out in the first proviso in s. 73(1) to be complied with. It was argued that the consequence of failure to comply with those requirements would produce the result that s. 7 would be invalid because it would not have been lawful to present the Bill for that Act for the royal assent.

The relevant provisions of s. 73(1) of the Constitution Act including the first proviso, are as follows:

Subject to the succeeding provisions of this section, 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.

In substance it was argued on behalf of the respondent that the proviso was an independent and separate enactment and not a qualification upon the grant of legislative power conferred by the first sentence. It is to be remembered that the Constitution Act was enacted by the newly-reconstituted Parliament of the Colony of Western Australia in 1889. The drafting style of that period differs in some respects from that which is now common in the State of Western Australia and elsewhere in the Commonwealth. The terms of s. 73(1) are in fact borrowed from similar provisions in force in Australia which go back to 1855 as appears from s. LX of 18 & 19 Vict. c.55, the Victoria Constitution Act, to which the Victorian Constitution Act was a schedule. It is now to be cited as the Constitution Act pursuant to the provisions of the Acts Interpretation Act 1915 Vict.. It was proclaimed to come into operation in Victoria on 23 November 1855. It contained however an additional provision in s.LXI which provided:

Notwithstanding anything herein contained, it shall be lawful for the said Legislature from Time to Time, by any Act or Acts, to alter the Qualifications of Electors and Members of the Legislative Council and Legislative Assembly respectively, and to establish new Electoral Provinces or Districts, and from Time to Time to vary or alter any Electoral Province or District, and to appoint, alter, or increase the Number of Members of the Legislative Houses to be chosen by any Electoral Province or District, and to increase the whole Number of Members of the said Legislative Houses, and to alter and regulate the Appointment of Returning Officers, and to make Provision in such Manner as they may deem expedient for the Issue and Return of Writs for the Election of Members to serve in the said Legislative Houses respectively, and the Time, Place, and Manner of holding such Elections respectively. That additional provision did not appear in any of the other equivalent State Acts save in the case of Queensland. No such provision was contained in the Australian Colonies Government Act (13 & 14 Vict. c. 59), assented to on 5 August 1850. That Act had provided for Governors of the various colonies to establish Legislative Councils in the newly-divided parts of the original colony of New South Wales and for the election of members thereof and also for the establishment of Legislative Councils in Van Diemen's Land and South Australia and also in Western Australia but there were no provisions corresponding to those introduced in 1855 by the Victoria Constitution Act (18 & 19 Vict. c.55) or by the South Australian Constitution Act (No. 2 of 1855-1856).

The schedule to the New South Wales Constitution Act 1855 (18 & 19 Vict. c. 54) set out the Constitution of New South Wales, the relevant section of which was in different terms from those in the Victorian, Queensland and South Australian Acts and which might have produced the result contended for by the respondent.

The Act to establish a Constitution for South Australia contained in s. 34 a provision that Parliament: "shall have full power and authority, from time to time, by any Act, to repeal, alter, or vary all or any of the provisions of this Act, and to substitute others in lieu thereof." There followed a proviso in the same terms as in the Victorian Act.

The Queensland Constitution Act of 1867 (31 Vict. No. 38) contained in s. 9 a provision in substantially the same terms with a proviso that Bills for making alterations in the Constitution should not be presented for the royal assent unless they had passed both Houses with the concurrence of "two-thirds of the members". However it contained in s. 10 a separate power to alter the divisions and sub-divisions which were to be represented in the Legislative Assembly and to establish new and other divisions and to alter the number of representatives in the Colony in the several electoral districts or alter and regulate the appointment of returning officers etc. In that respect it resembled the Victorian Act.

The Western Australian Constitution Act 1889 (52 Vict. No. 23) contained s. 73(1) which is set out above. It was in the same form as the New South Wales Act and omitted the supplementary section found in Victoria and in Queensland. Why these variations have occurred does not readily appear and why, faced with at least four precedents, the draftsman of the Western Australian legislation chose the short form rather than the long form is by no means easy to discern. In the end however these considerations throw no real light on the proper construction of the Western Australian Act.

The argument was that what is expressed as a proviso to the first part of s. 73(1) was not a mere qualification on the exercise of the wide power given by that part of the sub-section but was an independent enactment affecting all changes in the constitution of the Legislative Council and the Legislative Assembly however made and that amendments to the Electoral Act were within description.

This appears to be the first occasion on which this particular point has been taken despite the presence of similar provisions in the Constitutions of other States since 1855 and of substituted provisions in a Constitution Act Amendment Act. That does not of itself provide a reason for rejecting the argument but it does provide a reason for close scrutiny of the argument.

It is well established that the prima facie effect of a proviso is to except out of the previous enacting part something which but for the proviso would fall within the enacting part; cp. R. v. Dibdin [2] , per Fletcher Moulton L.J., and on appeal to the House of Lords [3] , per Lord Ashbourne; Toronto Corporation v. Attorney-General (Canada) [4] , per Lord Macmillan. That is its dictionary meaning (Shorter Oxford English Dictionary) and see Craies on Statute Law, 7th ed. (1971), pp. 218-219; Pearce, Statutory Interpretation in Australia 2nd ed. (1981), p. 56. This however is not to deny that a particular context may indicate an intention to add to, rather than qualify, the principal enactment: Commissioner of Stamp Duties v. Atwill [5] .

1. [1910] P. 57, at p. 125. 2. [1912] A.C. 533, at p. 544. 3. [1946] A.C. 32, at p. 37 4. (1972) 126 C.L.R. 665; [1973] A.C. 558.

The question therefore is whether there is anything in the context to indicate that the prima facie meaning should not be given to this proviso.

It is worth noting that in all the States amendments were made in the original Constitution Acts very soon after they were first enacted and have continued to be made regularly. In Western Australia and in some other States the amendments have taken the form of repealing particular provisions of the Constitution Act and making a fresh provision on the same subject matter but in a different form in a separate Act entitled a " Constitution Act Amendment Act ". In Western Australia the first occasion on which this was done appears to be in the Constitution Act Amendment Act 1893 (57 Vict. No. 14) which repealed a large number of sections and also so much of certain other sections and schedules as affected the qualifications of members of the Legislative Assembly and the Legislative Council and the boundaries of certain electorates or electoral districts. In addition it enacted as part of the Constitution Act Amendment Act new provisions relating to the Legislative Council dealing amongst other things with the qualifications of members and electors, quorums, casting votes, retirement and a whole range of matters and similar provisions dealing with the Legislative Assembly. Subsequent amendments have taken the same form.

In my opinion there is nothing in the words themselves or in the context in which they are found which suggests that this proviso is other than a proviso properly so called, i.e. one which limits the operation of the general words in the preceding sentence. There is no support for the contrary view to be obtained in any of the few decided cases which have dealt with or referred to the provisions in Constitutions of the other States which contain clauses in the same or similar form to that of s. 73(1). The fact that in the case of some States there is a separate section which restricts the operation of the equivalent of s. 73(1) does not affect the question of construction which now arises. Nor is it of any significance for present purposes that the changes which were initially effected by putting the electoral provisions into the Constitution Act Amendment Act 1893 were subsequently overtaken by other changes, the ultimate form being in an Electoral Act and an Electoral Act Amendment Act.

The provisions of the Imperial Act, Western Australian Constitution Act 1890, support the conclusion that the proviso in cl. 73 of the Bill as originally proposed in the Colonial Legislative Council operated as a proviso only and not as an independent provision of general application. The form of words used in s. 5 of the Imperial Act and in s. 73(1) of the Constitution Act is in my opinion not appropriate to achieve the purpose contended for by the respondent. Such a very substantial restriction upon the powers of the newly-constituted Parliament would, if it had been intended, be likely to have been expressed in a very different manner and not simply as a proviso to the power to alter or repeal the provisions of the Constitution Act itself. It is not to be supposed that the Western Australian propounders of this Bill in 1889 and those concerned with the introduction of the legislation in the Imperial Parliament were unaware of the practice which had been followed in other Australian colonies, at least since 1855, of amending the various provisions in their Constitution Act by repealing the relevant provision and changing the constitution of either House of Parliament in a separate Act called a Constitution Act Amendment Act which the legislatures had freely amended thereafter without special majority.

It is no doubt true that in some States occasional problems had arisen concerning the operation of the proviso in the sense that it appears from time to time to have been overlooked, cp. Professor Jenks' book on The Government of Victoria (1897), pp. 246-249. It may be observed that he makes no mention of the possibility that s.LX (the Victorian equivalent of s. 73(1) of the Western Australian Constitution Act) had a wider operation than restricting the manner and form of amending the Constitution Act itself in relation to the matters expressly referred to in the opening words of s.LX.

In these circumstances I find nothing in the form of s. 73(1) nor in the context provided by the other provisions of the Constitution Act which suggests that the proviso was not intended as a restriction on the opening words but was intended as a general restriction on the legislature. The wider context including the provisions of the Imperial Act likewise provides no indication that something other than the ordinary operation of a proviso was intended.

The form of the second proviso in s. 73(1) also supports the view that the first proviso relates only to the kind of laws referred to in the first sentence of the section. Each of the two provisos serves the same purpose, i.e. to qualify the exercise of the power to repeal or alter certain specified provisions of the Constitution Act itself. Their form and language does not suggest any intention that they apply to Bills which did not purport to repeal or alter those specified provisions.

I am therefore satisfied that the legislation in question was valid and that the appeal should be allowed.

In 1974 the respondent, Mr. Wilsmore, appeared before a judge and jury in the Supreme Court of Western Australia for trial on a charge of wilful murder. The jury returned a special verdict, pursuant to s. 653 of the Criminal Code W.A., of not guilty on account of unsoundness of mind. That verdict rendered him liable to be detained during the Governor's pleasure, and in fact he continues to be detained in the Fremantle Prison. There is no suggestion that he is presently of unsound mind, but that question is not material to the present case.

In July 1979, in response to a claim lodged by him with the Electoral Registrar for the Fremantle District, Mr. Wilsmore's name was entered, in accordance with the provisions of the Electoral Act 1907-1976 W.A., on the roll of electors for the Legislative Assembly District of Fremantle and the South Metropolitan Province of the Legislative Council. The practical consequences of that action were limited, because at that time it was not and never had been the practice to provide facilities within the prison for electors to cast their vote in parliamentary elections. Later in that year a Bill to amend the Electoral Act was passed by both Houses of the Parliament and was assented to on 25 October 1979. It was styled the Electoral Act Amendment Act (No. 2), 1979 ("the amending Act"), and was proclaimed to come into operation on 23 November 1979. The amending Act made a number of significant changes to the electoral law in its application to persons in custody, including provision for those who were enrolled and eligible to vote to cast absentee votes in future elections. One change, however, operated adversely to Mr. Wilsmore. Section 18 of the principal Act, dealing with the grounds on which a person shall be disqualified from being enrolled as an elector, or if enrolled, from voting at any election, was amended by s. 7 of the amending Act so as to disqualify a person who is detained in custody under the provisions of s. 653 of the Criminal Code.

Mr. Wilsmore responded to this challenge to his status as an elector by instituting proceedings against the appellants ("the State") in the Supreme Court. He alleged, inter alia, that s. 7 of the amending Act is a provision that purports to effect a change in the constitution of the Legislative Council and of the Legislative Assembly within the meaning of s. 73 of the Constitution Act 1889 W.A. and that since the third reading of the Bill was passed in the Legislative Assembly without the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Assembly, it was not lawful for the Bill to be presented to the Governor for Her Majesty's assent. He sought relief in terms, inter alia, of a declaration that the amending Act or, alternatively, s. 7 thereof, was void and of no legal effect.

To this claim the State conceded that the third reading of the Bill in the Legislative Assembly failed to attract an absolute majority, but denied both that s. 7 is a provision that purports to effect a change in the constitution of the Council or the Assembly and that it was not lawful to present the Bill for assent. Brinsden J. found in favour of the State. He held himself bound by the authority of the decision of this Court in Clydesdale v. Hughes [6] to hold that a law altering the qualification of electors or members of a House of the Parliament was not a law which effected a change in the constitution of that House. He also considered the problem afresh, independently of Clydesdale v. Hughes, and held that s. 7 of the amending Act did not effect such a change. Mr. Wilsmore appealed to the Full Court, which by a majority (Wickham and Smith JJ., Wallace J. dissenting) reversed the decision of Brinsden J. The State now appeals by special leave to this Court.

Before I identify the issues as they have been canvassed in argument before us, it is convenient to sketch the statutory background. The keystone of the present constitution of Western Australia is the Constitution Act 1889. The Bill for that Act was passed in April 1889 by the Legislative Council and reserved for the Royal Assent. At that time the Council was the sole legislative chamber of the colony. The Western Australian Constitution Act 1890 (53 & 54 Vict. c.26) is an Imperial Act which authorized Her Majesty to assent to the Bill which was scheduled to the Act. Section 5 of the Imperial Act reads as follows:

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.

In exercise of the power contained in s. 73, the Constitution Act Amendment Act 1893 was enacted. Although capable of being read as a separate and independent enactment, it is clearly an amendment of the 1889 Act, which is referred to as "the principal Act". The provisions of the principal Act relating to the qualification of members and electors of the Legislative Council and of the Legislative Assembly are repealed and these matters are dealt with afresh in the 1893 Act. The whole of the 1893 Act was repealed by the Constitution Acts Amendment Act 1899 ("the 1899 Act"). That Act dealt with the qualification of members and electors of the Council in ss. 7, 15, 17, and 31, and with the qualification of members and electors of the Assembly in ss. 20, 26, 28, and 31. It may be important to notice that notwithstanding its short title, and although in its long title this Act of 1899 is expressed to be "An Act to amend the Constitution Act, 1889, and to amend and consolidate the Acts amending the same", the Act assumes an identity which is quite distinct from any of the preceding Acts, including the 1889 Act. By way of contrast to the 1893 Act, the 1899 Act does not refer to the 1889 Act as the principal Act. In the eighty years since its enactment, the 1899 Act has been amended frequently and has itself been referred to in such amending legislation as "the principal Act".

In 1907 the qualification of electors for the Legislative Assembly were removed from the 1899 Act and included in the provisions of the Electoral Act 1907 (ss. 17, 18). The qualification of electors for the Legislative Council was retained in the 1899 Act and in 1963 was assimilated to that required of electors for the Assembly. Section 8 of the Constitution Acts Amendment Act (No. 2) 1963 provided:

Section fifteen of the principal Act [that is, the 1899 Act] is repealed and re-enacted as follows -

15. Subject to the disqualifications prescribed by section eighteen of the Electoral Act, 1907, the qualification of electors of members of the Legislative Council is that which is prescribed by section seventeen of that Act as the qualification for electors of members of the Legislative Assembly.

I conclude this review of the legislative history of provisions touching the qualification of members and electors of the Council and the Assembly with a summary of the present position. The 1889 Act no longer deals with the topic at all, save for such peripheral matters as disqualification of membership arising from membership of either House of the Parliament of the Commonwealth (ss. 16, 17), and the obligation to take the prescribed oath or affirmation (s. 22). The 1899 Act continues to deal with the basic qualification for membership of the Legislative Council (s. 7) and the Legislative Assembly (s. 20). These two sections are in similar terms, and since they may have some relevance to the issues it is convenient to set out one of them. Section 7 provides:

Subject as hereinafter provided, any person who has resided in Western Australia for one year shall be qualified to be elected a member of the Legislative Council, if such person is of the full age of eighteen years, and not subject to any legal incapacity, and is a natural born or naturalised subject of Her Majesty the Queen and who is either an elector entitled to vote at an election of a member of the Legislative Assembly, or is qualified to become such an elector. I have already referred to s. 15.

I come now to the issues. It is common ground that the first proviso to s. 73 of the 1889 Act imposes a fetter on the legislative power of the State. In cases to which it applies, its observance is an essential condition precedent to the validity of the law in question. In the light of the well-known cases of McCawley v. The King [7] , Attorney-General (N.S.W.) v. Trethowan [8] , Clayton v. Heffron [9] , and Bribery Commissioner v. Ranasinghe [10] , it would have been difficult to contend otherwise. The Solicitor-General somewhat wistfully invited the Court to reconsider the matter in the hope that it might relegate the proviso to the ineffectual category of a procedural direction, non-compliance with which would have no effect on the validity of the legislation. I decline the invitation, for the same reason that he declined to argue the proposition. It is clearly untenable. The Solicitor-General also examined at some length the source of the legal efficacy of such a provision, but, interesting though such an examination may be, it is unnecessary for the purposes of this case to pursue it. It matters not in the present context whether the proviso is of binding force because of s. 5 of the Colonial Laws Validity Act 1865 Imp., s. 5 of the Western Australian Constitution Act 1890 Imp., s. 106 of the Australian Constitution or simply because, on such authority as may be gleaned from Ranasinghe , it finds a place in the Constitution Act itself. I do not examine the point.

1. (1920) 28 C.L.R. 106; [1920] A.C. 691. 2. (1931) 44 C.L.R. 394; (1932) 47 C.L.R. 97. 3. (1960) 105 C.L.R. 214. 4. [1965] A.C. 172.

Mr. Wilsmore's case can be put very simply and directly. He says that by s. 7 of the amending Act (that is, the Electoral Act Amendment Act (No. 2) 1979), he and others like him were disqualified from being enrolled as an elector, and, if enrolled, from voting at any election of members of the Legislative Council and the Legislative Assembly. He says further that by reason of ss. 7 and 20 of the 1899 Act that disqualification of him as an elector effectively disqualifies him from becoming a member of either House. The argument then proceeds that a Bill which interferes with the qualifications of electors and members of a house of the legislature effects a change in the constitution of that house within the meaning of the proviso and consequently requires to be passed by an absolute majority. The Bill in question not being so passed, s. 7 is void and of no effect.

The State answers Mr. Wilsmore in two ways, expressed in the alternative. In the first place, it says that the Electoral Act was amended in 1979 by a process which was not touched by s. 73 of the 1889 Act in any way at all. The amending Act was passed in exercise of the general power vested in the legislature by s. 2 of the 1889 Act to make laws for the peace, order, and good government of Western Australia, supported if necessary by s. 5 of the Colonial Laws Validity Act 1865 Imp.. On its proper construction, the first proviso contained in s. 73 operates only to qualify the specific power to legislate which is referred to in the section, namely, the power "to repeal or alter any of the provisions of this Act". The amending Act was not such an Act. Alternatively, the State says that even if the proviso were to be construed as if it stood alone as a separate enactment, the amending Act did not effect any change in the constitution of the Council or the Assembly, and therefore the Bill did not require to be passed other than by an ordinary majority.

It is convenient, before proceeding to a consideration of these issues, to clarify a peripheral point. It appears that Wickham J. erected a bridge between certain of these submissions in so far as he held that the amending Act indirectly altered s. 15 of the 1899 Act because of the reference in that section to the Electoral Act, and hence it was an exercise of the legislative power referred to in s. 73 of the 1889 Act. Before us, Mr. French, counsel for Mr. Wilsmore, disowned such a proposition. He asserted, correctly in my respectful opinion, that a distinction must be drawn between a rule and the subject matter upon which the rule operates. It follows that an amendment to s. 17 or s. 18 of the Electoral Act touching the qualification of electors cannot be said to be an alteration of s. 15 of the 1899 Act. Nor could it be construed as an amendment to s. 7 or s. 20 of the same Act. Those sections require as a qualification for membership of the Council and Assembly respectively possession of the status of an elector entitled to vote or of one who is qualified to become such an elector. The rule prescribed by these sections remains the same notwithstanding that an amendment to the Electoral Act may result in persons who had formerly satisfied the description of an elector no longer doing so. I should make it clear that the point to which I have referred was not central to his Honour's decision.

It is therefore common ground that the amending Act was passed in the exercise of the ordinary plenary legislative power of the State and is not an Act "to repeal or alter any of the provisions of this Act" within the meaning of that phrase in s. 73. The first question then is whether the proviso, whatever it may mean, has any application to it. The answer lies in the proper construction of the section as a whole: Commissioner of Stamp Duties v. Atwill [11] . Mr. French argued that there was nothing in the terms of the proviso itself to link it with the preceding grant of power, that in its terms it spoke completely and effectively as a separate independent provision and that the prefatory words, "Provided always", simply reflected the old drafting practice which attached words of enactment to successive provisions. The question is whether the proviso is a true exception to or qualification on the preceding provision, or whether it exceeds the scope of that provision.

1. (1972) 126 C.L.R. 665, at pp. 669-670; [1973] A.C. 558, at pp. 562-563.

In Minister of State for the Army v. Dalziel [12] , the relevant principle is stated by Latham C.J. in these terms:

As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is "dependent on the main enactment" and not an "independent enacting clause": Cf. R. v. Dibdin [13] . But though a provision framed as a proviso ought to be drafted and generally should be construed only as such, a consideration of both the main and the subsidiary provisions of an enactment may show that the proviso contains matter which is really "in substance a fresh enactment, adding to and not merely qualifying that which goes before" (Rhondda Urban District Council v. Taff Vale Railway Co. [14] ). 1. (1944) 68 C.L.R. 261, at pp. 274-275. 2. [1910] P. 57, at p. 125. 3. [1909] A.C. 253, at p. 258.

If one pauses to consider the second proviso, a clear answer emerges in favour of the proposition that the second proviso is a true qualification operating only in relation to statutes passed to repeal or alter any of the provisions of the 1889 Act. Its subject matter is confined to specified sections of the Act. It may then be asked, if the second proviso is a true exception to the opening provision, is not the first proviso of a similar kind? There is no incongruity arising from such a construction. "This Act", the 1889 Act, has clearly dealt with "the Constitution of the Legislative Council and the Legislative Assembly", whatever those words may mean. Why should not the first proviso be understood simply as requiring that any change to those parts of the Act, but no other change, must be passed by an absolute majority? The majority view in the Full Court saw some significance in the reference in the proviso to the words "any Bill", as indicating the broad application that was intended, but with respect that expression may appropriately be seen as the counterpart to the reference to "any Act" with which the section opens.

Mr. French argues that so to read the section is to trivialize the important concept which lies at the heart of the provision, namely, the constitution of the two Houses, including, in his submission, changes to the franchise. But a subject is not trivialized because it may be varied by a law passed by an ordinary majority. The submission reflects a misunderstanding of the section as a whole. Standing behind and over s. 73 is a legislature possessed of plenary powers, described by the Judicial Committee of the Privy Council in the well-known passage in McCawley v. The King [15] in these words:

It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people, what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own constitutional salvation. Cf., also, Powell v. Apollo Candle Co. Ltd. [16] ; Riel v. The Queen [17] . This basic constitutional principle does not permit a "manner and form" provision to be ignored, but it does emphasize the breadth of the legislative power conferred on the colonial legislature. Again, it must be remembered that, however stringent a manner and form provision may be, that plenary legislative power to which I have referred is always available to remove it, subject only to the observance of such manner and form provision, if any, which is applicable to its removal. There is no such provision in the case of the first proviso in s. 73. The requirement of an absolute majority in the cases prescribed may be varied or wholly eliminated by a Bill which is passed by no more than a simple majority. So long as the second proviso remained applicable the Bill would require to be reserved for Her Majesty's assent. 1. (1920) 28 C.L.R., at p. 117. 2. (1885) 10 App. Cas. 282, at pp. 289-290. 3. (1885) 10 App. Cas. 675, at p. 678.

There are further considerations in support of the view that the first proviso in s. 73 refers only to any Bill to repeal or alter any of the provisions of the 1889 Act by which any change in the constitution of the Legislative Council or of the Legislative Assembly shall be effected. In the first place, the 1889 Act contains other instances where the draftsman has used the words "provided always" to introduce an exception or qualification to the provision immediately preceding them: see, for example s. 74, and s. 22 as it stood before its repeal and re-enactment by Act No. 15 of 1980. There is nothing in the Act to suggest that in s. 73 there was a reversion to the then long-discarded practice whereby statutes were not sectionalized, and each provision in a statute was introduced by its own enacting words. That practice met its demise in the colony of Western Australia with the passage of the Interpretation Ordinance in 1853 (16 Vict. No. 11), by which it was provided in s. 2:

that all such Ordinances shall be divided into sections, if there be more enactments than one, which shall be deemed to be substantive enactments, without any introductory words.

In the second place, in my opinion, s. 5 of the Western Australian Constitution Act affords strong support for the State's submission. That section refers directly to the scheduled Bill and acknowledges that cl. 73 of that Bill imposes a manner and form requirement. I attach importance to the section as an aid in the resolution of the present problem because in my view it clearly recognizes the limited operation of the manner and form requirement. It confirms the power of the legislature to alter or repeal any of the provisions of the scheduled Bill, " 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" (my emphasis). The operation of the manner and form requirement may be varied, so it seems to me, either by direct amendment to s. 73, or by the removal from the Act of matters touching the constitution of either House of the legislature. The removal itself, of course, must observe the requirement, but thereafter legislation upon those matters will not be affected by s. 73. It may be that the legislature will devise a fresh manner and form requirement for inclusion in the new legislation; in that event, I see no reason why the observance of that requirement will not be a condition precedent to the validity of future amendments to that legislation: cf. Electoral Districts Act 1947, s. 13.

The limited scope of the opening words of s. 5 of the Imperial Act and of s. 73 stands in contrast to the generality of the corresponding phrase in s. 5 of the Colonial Laws Validity Act. The former each focus on the power to make laws altering or repealing the provisions of a particular enactment, while the latter asserts that " every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature ". In my opinion, the contrast serves to identify the restricted operation of the first proviso to s. 73.

In considering this matter I have taken into account the advice of the Law Officers of the United Kingdom which was tendered to the Colonial Office on 13 May 1863: O'Connell and Riordan, Opinions on Imperial Constitutional Law, p. 65. The advice was to the effect that the Electoral Act of 1861 S.A., which purported to alter the House of Assembly of South Australia, was invalid because it was not passed with the concurrence of absolute majorities in the Council and Assembly, as required by s. 34 of the Constitution Act 1855 (No. 2 of 1856). In relevant respects, s. 34 is broadly similar to s. 73 of the 1889 Act. It appears from the report that the provincial Attorney-General held the opinion that the proviso in s. 34 requiring absolute majorities merely applied to enactments which repealed, altered or varied the Constitution Act, which the Electoral Act of 1861 did not do. With reference to that opinion, the advice of the Law Officers merely stated their inability to adopt that construction. No reasons were given. Having regard to the considerations to which I have referred, I am unable to derive assistance from their advice. It is interesting to note that the advice was critical of the practice of making the validity of an Act dependent upon particular majorities and advised against its continuance. It was productive of "great inconvenience".

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.

It follows from the conclusion that I have expressed that s. 7 of the amending Act was not subject to the first proviso in s. 73 of the 1889 Act, and that Mr. Wilsmore's claim for a declaration of invalidity must fail. It is therefore unnecessary for me to deal with the second principal issue in the case, namely, the meaning of the phrase "the Constitution of the Legislative Council and the Legislative Assembly". Nevertheless, I would say this. In my opinion, the judgment of this Court in Clydesdale v. Hughes is clear authority, unless and until it is reversed or departed from by this Court, for the proposition that a law which merely changes the qualifications of members of the Legislative Council does not effect a change in the constitution of that body within the meaning of s. 73 of the 1889 Act. When such an authority has guided the lawmaking procedures of the Parliament for almost fifty years then any departure from it would require very serious consideration.

In its grounds of appeal the State raises questions of severance and of the standing of Mr. Wilsmore to bring the action. The Solicitor-General did not pursue the question of standing and in the light of my decision the issue of severance need not be pursued.

The lynch pin of the respondent's case is the proposition that s. 7 of the Electoral Act Amendment Act (No. 2) 1979 W.A. would effect a "change in the constitution of the Legislative Council or Legislative Assembly" within the meaning of that phrase in the first proviso to s. 73(1) of the Constitution Act 1889 W.A. and that, as the manner and form requirements of the first proviso were not fulfilled, it was not lawful to present the Bill for the former Act for Royal assent.

The proviso follows upon the grant of power expressed in the opening words of s. 73:

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. If the proviso is construed as qualifying the antecedent grant of power, it has no application to s. 7 of the Electoral Act Amendment Act (No. 2) 1979, for that section does not purport to repeal or alter any of the provisions of the Constitution Act. The careful argument of Mr. French for the respondent has failed to persuade me that the proviso is an independent enactment rather than a qualification upon the grant of power.

The Constitution Act had its origin in a Bill passed by the Legislative Council of Western Australia and reserved for the Royal Assent. Assent to the Bill in a slightly amended form was authorized by an Imperial Act, the Western Australian Constitution Act 1890 (53 & 54 Vict. c.26), in a schedule to which the amended Bill was set forth. That Act also repealed certain parts of earlier Imperial Acts relating to Western Australia and repugnant to the Constitution Act. Although the Constitution Act contained in s. 2 a grant of plenary power to make laws for the peace order and good government of the Colony, that grant was or might have been thought to be insufficient to permit the Colonial Legislature to amend the Constitution Act the terms of which followed the Bill scheduled to the 1890 Imperial Act. And so a particular grant of power was made in order to permit amendment of the Constitution Act by the Colonial Legislature.

The proposal to grant that power had emanated from the Colonial Legislative Council as cl. 73 of the Bill, but a particular grant by the Imperial Parliament to the Western Australian Legislature was made by s. 5 of the Western Australian Constitution Act 1890:

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.

It is clear that the Imperial Parliament understood that the power contained in the Bill to alter the provisions thereof - that is, the power contained in s. 73 - "was subject to conditions imposed by the Bill", and that understanding tends to show that the provisos in s. 73 are conditions imposed upon the power of amendment contained in the section, rather than enactments independent of that grant of power. If the provisos were construed as independent enactments having a continuing operation with respect to the matters referred to in the provisos even after those matters were removed from the Constitution Act, the requirements of manner and form therein contained would continue to fetter the Colonial Legislature in the exercise of its plenary power conferred by s. 2. It is not to be supposed that the Imperial Legislature intended to cut down the plenary powers conferred by s. 2 of the Constitution Act and to impose continuing fetters upon the exercise of the Colonial Legislature's powers after the Colonial Legislature validly removed a provision from the Constitution Act. Once removed, the plenary power of the Legislature to repeal or alter laws with respect to the subject matter to which the fetter was theretofore attached was not subject to a condition governing its exercise. If the purpose of s. 5 of the 1890 Imperial Act and s. 73 of the Constitution Act is to enable the amendment of the Constitution by the Colonial Legislature, there is an evident purpose in qualifying the exercise of that power, but there is no evident purpose in imposing a continuing fetter upon the Colonial Legislature's general powers.

The terms in which s. 73 is drawn also tend to show that the two provisos are qualifications upon the power rather than independent provisions. The second proviso refers to Bills which are intended to affect the operation of specified sections and schedules of the Constitution Act. The second proviso thus takes effect only with respect to Bills affecting the operation of those provisions so long as they are the specified sections or schedules of the Constitution Act, and it has no effect with respect to the subject matter of any section or schedule after it is validly removed from the Constitution Act. The second proviso is clearly a qualification upon the grant of power contained in s. 73, and there is no reason to attribute a different construction to the first proviso. Both provisos are what they appear to be: qualifications upon the exercise of the power to repeal or alter provisions of the Constitution Act. Neither proviso applies to a Bill which does not purport to repeal or alter that Act.

It follows that the first proviso has no effect upon s. 7 of the Electoral Act Amendment Act (No. 2) 1979. That section relates to the qualification of electors, a matter which was dealt with in ss. 39 and 53 of the Constitution Act. But ss. 39 and 53 were validly repealed by the Constitution Act Amendment Act 1893 W.A. (see ss. 21 and 24) and provisions governing the qualification of electors were thereafter to be found in other Acts of the Western Australian Legislature. They were translated into the Electoral Act 1907 W.A., and the qualification of electors has since been governed by provisions of that Act. It is conceded that the provisions for qualification of electors were validly removed from the Constitution Act, so that the power to amend provisions of that kind is no longer to be found in s. 73 or affected by the provisos therein contained.

As the Bill for the Electoral Act Amendment Act (No. 2) was not a Bill to repeal or alter the provisions of the Constitution Act, the respondent's argument fails. I would allow the appeal with costs.

I should add that the Acts Amendment (Constitution) Act 1978 W.A. amended or purported to amend s. 73 of the Constitution Act and to entrench the provisions set out in s. 6(b) of the amending Act, but the amendment does not affect the meaning and operation of s. 73 in respects material to this case. Perhaps I should also add that, in my view, no question as to the power of the Legislature of the State of Western Australia to entrench provisions affecting the future exercise of its legislative powers has arisen in this case.