Yougarla v Western Australia [2001] HCA 47 | Case summary

Yougarla v Western Australia [2001] HCA 47 | Case summary | Zoe

The WA Constitution Act was described by Wilson J in Western Australia v Wilsmore[1] as the "keystone of the present constitution of Western Australia". It provided for representative and responsible government of the colony. The statute has been amended from time to time, beginning with the Constitution Act Amendment Act 1893 (WA) ("the 1893 Constitution Act"), which itself was repealed by the Constitution Acts Amendment Act 1899 (WA) ("the 1899 Constitution Act"). In its then amended form, the WA Constitution Act was further amended by the Australia Act 1986 (Cth) ("the Australia Act"). It will be convenient to refer later in these reasons to various provisions of the Australia Act, but this appeal is to be decided by reference to the law as it stood before the enactment of the Australia Act.
Section 70 of the WA Constitution Act made provision for appropriations to the welfare of what it identified as "the aboriginal natives" and for the issue of annual sums by the Treasurer to the Aborigines Protection Board, a body which had been established under the Aborigines Protection Act 1886 (WA)[2]. Various questions of construction of s 70 arise but it will not be necessary to deal with them unless the appellants are correct in their contention that s 70 remains in force.
Murray J held that s 70 does not remain in force and ordered that the action be dismissed. The Full Court (Ipp, Anderson and White JJ) ordered that an appeal by the present appellants be dismissed.
In the Supreme Court, the respondents relied upon two Western Australian statutes as having achieved the repeal of s 70. The statutes are the Aborigines Act 1897 (WA) ("the 1897 Act") and the Aborigines Act 1905 (WA) ("the 1905 Act"). In the interval between 1897 and 1905, federation had arrived. Section 107 of the Constitution provided that every power of the Parliament of a colony continued in respect of the State in question, unless (as was not the position for this case) the power was vested exclusively in the Parliament of the Commonwealth. Further, s 106 declared that the Constitution of each State "as at the establishment of the Commonwealth" was, subject to the federal Constitution, to continue "until altered in accordance with the Constitution of the State".
If the 1905 Act achieved the result contended for by the respondents, then there is no need to consider the 1897 Act. Section 65 and the First Schedule of the 1905 Act stated that s 70 of the WA Constitution Act was repealed. However, the appellants contend that, in this respect, the 1905 Act was ineffective because requirements as to manner and form imposed upon the Parliament of Western Australia had not been satisfied with respect to the bill for that Act. They submit, in accordance with well established authority in this Court[3], that this failure with respect to manner and form spelt invalidity.
We turn to consider those alleged requirements as to manner and form. Section 5 of the 1890 Imperial Act stated:

Part III (ss 42‑53) of the statute was a significant element in the constitutional scheme established by the WA Constitution Act. Part I (ss 2‑36) established an elected Legislative Assembly of 30 members. The subsisting Legislative Council (which had been established in 1870 and had been a partly elected and partly nominated body[7]) was to continue but, as an interim measure, it was to be a wholly nominated body of 15 members until Pt III came into operation[8]. This interim Legislative Council and the elected Legislative Assembly were to be called together for the first time not later than six months after the commencement of the WA Constitution Act[9]. Part III provided for a Legislative Council to consist of 15 elected members. However, Pt III was to come into operation only on the expiration of six years or when the population of the colony (excluding "aboriginal natives") attained 60,000, whichever first occurred (s 42). The figure of 60,000 was exceeded in 1893[10]. The provisions of Pt III then were repealed by the 1893 Constitution Act which dealt afresh with the qualification of members and electors of the two Chambers.
Schedules B, C and D, referred to in the second proviso to s 73, provided for appropriations respectively under ss 69, 70 and 71 of the WA Constitution Act. Section 69 dealt with the salaries of officers including the Governor, the Chief Justice, the Puisne Judge and Ministers (Sched B); s 70 with the appropriation of moneys for the welfare of aboriginal natives (Sched C); and s 71 with pensions to Ministers in the former administration (Sched D).
The bill for the repeal of s 70 thus required, by reason of the second proviso to s 73, reservation by the Governor for the signification of Her Majesty's pleasure thereon. The phrase "Her Majesty's pleasure" in a provision such as s 73 had a particular meaning in what one might call the common law of the English constitution respecting the colonies. Sir Henry Jenkyns[11] wrote in 1902[12]:

We turn now to consider the text and operation of s 2 of the 1890 Imperial Act. By s 2 the Imperial Parliament took steps anticipated in s 76 of the bill for the WA Constitution Act. This had (in s 76) deferred the operation of that statute until the Imperial Parliament had repealed so much of certain Imperial legislation as applied in the colony and was "repugnant" to the bill.
Section 2 effected a repeal of "so much and such parts of" three Imperial statutes "as relate[d] to the colony of Western Australia" and were "repugnant" to the WA Constitution Act. This notion of "repugnancy" usually applied in Imperial affairs to give primacy to Imperial over local laws. Here, given the character of the WA Constitution Act, the paramount legislation for the operation of s 2, the situation was reversed so as to favour the local law. The term "repugnancy" had appeared in s 2 of The Colonial Laws Validity Act 1865 (Imp)[15] ("the Colonial Laws Validity Act") and had great significance in determining the relationship between enactments of the Parliament at Westminster and all colonial legislatures[16]. The question, as Mason J put it[17], was whether the provisions of any two statutes at issue were so much in conflict "that they [could not] be reconciled one with the other [and] the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time". There was some uncertainty, which it is unnecessary to resolve here, as to whether the "covering the field" test for inconsistency developed with respect to s 109 of the Constitution applied also to "repugnancy"; however, it was sufficient to demonstrate repugnancy that, as Dixon J put it in Ffrost v Stevenson[18], "the co‑existence of the two sets of provisions … would produce an antinomy inadmissible in any coherent system of law".
The three Imperial Acts were the 1842 Act, The Australian Constitutions Act 1844 (Imp)[19] ("the 1844 Act"), being "[a]n Act to explain and amend the [1842 Act]", and the 1850 Act. The 1842 Act and the 1844 Act were not expressed of their own force to relate to the colony of Western Australia. They did so only because of provisions in the 1850 Act.
The repeal of the three statutes of 1842, 1844 and 1850 by s 2 of the 1890 Imperial Act was subjected to two provisos. Their effect was to recognise the repugnancy of those statutes to the WA Constitution Act but nevertheless, for particular purposes, to continue the operation of some provisions of the 1842 Act and the 1850 Act. Neither proviso saved any part of the 1844 Act. The significance of this will appear later in these reasons.
The proviso in par (b) to s 2 was temporal in operation. It continued in force so much of the 1842 and 1850 statutes "as relate[d] to the constitution, appointment, and powers of the Legislative Council" of Western Australia, but only until the initiation of the bicameral system to be established in pursuance of the WA Constitution Act by the issue of the first writs for the election of members to serve in the Legislative Assembly.
It is upon the operation of the first proviso to s 2 of the 1890 Imperial Act, that in par (a), that the appellants' case turns. This states:

Section 9 of the 1850 Act had authorised the establishment of the Legislative Council with one‑third of its members appointed and two‑thirds elected. This was implemented in 1870[20]. Shortly put, the appellants' argument is that (i) the Legislative Council had been empowered by s 14 of the 1850 Act to make laws for the peace, welfare and good government of the colony; (ii) s 32 of the 1850 Act had applied to that Legislative Council and it had conferred certain powers upon that body subject to the observance of requirements, one of which was that "a Copy of such Bill shall be laid before both Houses of Parliament for the Space of Thirty Days at the least before Her Majesty's Pleasure thereon shall be signified"; (iii) this tabling requirement in s 32 was preserved by proviso (a) to s 2 of the 1890 Imperial Act; and (iv) it applied to the bill for the 1905 Act but was not observed, thereby denying to the 1905 Act an essential condition precedent to its validity.
It should be noted that, in so far as it related to Western Australia, the whole of s 32 of the 1850 Act (along with part of s 31 of the 1842 Act and other provisions in the 1850 Act) had been repealed before the enactment of the 1905 Act. This repeal was effected by s 1 of a general measure of statute law reform, the Statute Law Revision (No 2) Act 1893 (Imp) ("the 1893 Revision Act"). However, a proviso to s 1 stated that the repeal of any provision did not affect any enactment in which the repealed provision had been applied, incorporated or referred to. It thus may be assumed that, if s 32 otherwise had any operation with respect to the enactment of the 1905 Act, it did not cease to do so by reason of the 1893 Revision Act.
It also should be observed that the proviso in par (a) to s 2 of the 1890 Imperial Act was not a departure from previous Imperial legislation which had dealt with the other Australian colonies. For example, it followed the terms of s 3 of The New South Wales Constitution Act 1855 (Imp)[21] and s 3 of The Victoria Constitution Act 1855 (Imp)[22]. These statutes had provided respectively for the establishment of bicameral legislatures in New South Wales and Victoria.
Moreover, par (a) of s 2 of the 1890 Imperial Act effectively reproduced part of the text of s 12 of the 1850 Act. Section 12 was still in force in Western Australia when the 1890 Imperial Act was introduced; it had rendered applicable and in force in Western Australia after the establishment in 1870 of the Legislative Council certain provisions of the 1842 Act and the 1844 Act, with the substitution of "Western Australia" for "New South Wales". These provisions were identified in s 12 as including those concerning:

With respect to the States, including Western Australia, s 8 of the Australia Act now provides that legislation which has been assented to by the Governor shall not, after 3 March 1986, be subject to disallowance by Her Majesty. Provision with respect to the withholding of assent and reservation for Her Majesty's pleasure now is made by s 9 of the Australia Act[25].
Category (iii) identified in s 2(a) of the 1890 Imperial Act refers to the Instructions issued to Governors by the Home Government. In the nineteenth century, the legal significance to be attached to Instructions had been a matter of some debate[26]. The efficacy of land grants passed by early Governors of New South Wales contrary to their Instructions had been disputed but not conclusively resolved[27]. In 1861, in South Australia, Boothby J had proceeded on the footing that Instructions had the force of law so that no colonial Act to which the Governor had given his assent contrary to the Instructions was valid[28]. Thereafter, it was settled that, if a direction to reserve was found in the Royal Instructions and was disregarded by the Governor, his assent nevertheless was valid by force of s 4 of the Colonial Laws Validity Act[29]. However, the Governor risked the displeasure of the Colonial Office and might be recalled[30]. If the direction to reserve was given by Imperial statute, an assent by the Governor was a nullity and the bill in question did not become law[31].
The nature of the Instructions provided to colonial Governors changed over the course of the nineteenth century, particularly with the development in colonies such as those in Australia of representative and responsible government. In 1878, changes were made to the Instructions accompanying the Letters Patent constituting the office of Governor-General of Canada and Higinbotham CJ took up with the Colonial Office the making of changes to the Instructions to the Governors of the Australian colonies[32]. As a result, redrafted Instructions were adopted in 1892. Paragraph 7 of these Instructions provided that, except in stipulated circumstances, the Governor was not to assent to bills falling within any one of eight classes[33]. These included bills containing provisions to which the Royal Assent had been once refused and bills which had been disallowed; bills affecting the currency of the colony; bills imposing differential duties otherwise than as allowed by the Australian Colonies Duties Act 1873 (Imp); bills with provisions apparently inconsistent with obligations imposed upon the Crown by treaty; and bills "of an extraordinary nature and importance, whereby Our prerogative or the rights and property of Our subjects not residing in the Colony, or the trade and shipping of the United Kingdom and its Dependencies, may be prejudiced". The circumstances in which assent might be given despite the bill falling within one of these classes were those in which the Governor:

Upon passage of a bill through a colonial legislature, three courses were open to the Governor upon it being presented for the assent of the Crown. First, the Governor might assent in the name of the Sovereign; it was nevertheless the obligation of the Governor to transmit a copy of the statute to the Colonial Office in order that the Imperial authorities might have an opportunity to exercise the power of disallowance, and, as will appear later in these reasons, in some colonies that requirement to transmit a copy was expressly imposed upon Governors by Imperial statute. Secondly, the Governor might withhold the Royal Assent in accordance with his Instructions, but failing such Instructions, the Governor of a self‑governing colony exercised the veto only on the advice of the local Ministers. Thirdly, the bill might be reserved for the signification of the pleasure of the Sovereign until that assent was given on British Ministerial advice[34].
Categories (i), (ii) and (iii) identified in s 2(a) of the 1890 Imperial Act deal with these three matters of the giving or withholding of assent, reservation, and Instructions and all deal with the position of colonial Governors. With respect to bills to be passed by the new bicameral legislature in Western Australia, s 2(a) did not leave these three matters, nor the procedures in the colony respecting disallowance in the United Kingdom, to those aspects of the general law and the prerogative which regulated them in the absence of legislation. In the Australian colonies, it appears somewhat unusually[35], Imperial laws, in particular the 1842 Act and the 1850 Act, had dealt with these subjects. Imperial law had dealt also with tabling at Westminster, but that was not one of the matters which s 2(a) was concerned to apply to the system of government established by the WA Constitution Act. It perhaps is significant that, whilst the matters identified in s 2(a) were of interest to the executive branch of the British Government, tabling was concerned with the interest of the legislature in colonial affairs. Tabling was apt to stimulate parliamentary scrutiny.
We turn further to consider the relevant provisions of the 1842 Act and the 1850 Act.

Section 73 of the WA Constitution Act, supported by s 5 of the 1890 Imperial Act, empowered the legislature to be constituted by the WA Constitution Act to repeal or alter any of the provisions of the WA Constitution Act. This was subject to provisos, the second of which used the expression "shall be reserved by the Governor for the signification of Her Majesty's pleasure thereon".
What was involved in reservation might have been left for the general law and the prerogative as it affected colonies. However, in the Australian colonies, as indicated by the 1842 Act and the 1850 Act, the practice had been to specify in legislation the elements of manner and form involved in the process of reservation. The WA Constitution Act itself did not deal with those matters. Nor did it deal with the matters of disallowance or the giving or withholding of assent by Governors and their Instructions. For that, provision was made in proviso (a) to s 2 of the covering legislation, the 1890 Imperial Act.
The terms of proviso (a) stated that the relevant provisions of the earlier Imperial legislation "shall apply to Bills to be passed by the Legislative Council and Assembly". To what bills? The exercise of the power vested in the Imperial authorities with respect to disallowance might apply to any legislation passed by the legislature of Western Australia. However, no question of disallowance arose with respect to the 1905 Act. Nor did any question arise respecting the giving or withholding by the Governor of the Royal Assent, or the Instructions concerning that assent. Another method of Imperial control, namely reservation, was specifically attached as a proviso to the power of alteration and repeal conferred by s 73 of the WA Constitution Act. To laws to which s 73 applied, including the 1905 Act, content was given to the obligation of reservation imposed by s 73 by what was to be found in earlier Imperial legislation. This Imperial legislation was that identified in proviso (a) to s 2 of the 1890 Imperial Act.
However, there was a threshold difficulty in assimilating to the operation of the system of government instituted by the WA Constitution Act the provisions of the 1842 Act, the 1844 Act and the 1850 Act. For example, the specification in s 31 of the 1842 Act of the categories of bills for which reservation was required differed from that in s 73 of the WA Constitution Act. If s 31 were to be preserved alongside s 73, there would be repugnancy between them. Instances of this were the portion of s 31 of the 1842 Act to which reference has been made, and s 32 of the 1850 Act. The conflict was resolved by the opening words of s 2. This brought about repeal of the earlier laws to the extent of such repugnancy but preserved and excepted from that repeal provisions of the earlier legislation which dealt with the four categories of Imperial control listed in the proviso and supplied manner and form for such methods of Imperial control.
The provisions of the earlier legislation thus preserved were to apply to bills to be passed by the Legislative Council and Assembly; in particular the provisions in the 1842 Act (and s 12 and s 33 of the 1850 Act) with respect to reservation were to apply to those bills which s 73 required the Governor to reserve for the signification of Her Majesty's pleasure.
Those provisions were complied with with respect to the bill for the 1905 Act. They did not include, because proviso (a) to s 2 did not translate them into the new system, any requirement for tabling drawn from s 32 of the 1850 Act.
It follows that the appellants cannot make out the necessary step for the success of their appeal. The appeal must fail and it is unnecessary to consider further submissions put by the respondents in opposition to the appeal.

The effect of the decision in this appeal is that the 1905 Act did not miscarry by reason of any requirement preserved or imposed by s 2 of the 1890 Imperial Act. The respondents succeed in their submission that the 1905 Act was effective because there had been no necessity under any Imperial law that the bill for that Act be laid before both Houses of Parliament at Westminster.
This result makes it unnecessary to rule upon further submissions made in the concluding paragraphs of the respondents' written outline. It is sufficient to say that each submission appears to be at odds with earlier judgments in this Court.
One submission was that the question of compliance with the tabling requirement was "non‑justiciable" because it involved an aspect of the procedures of the Parliament at Westminster[44]. However, what is at stake here is the validity of the 1905 Act, a statute of Western Australia, not the United Kingdom. In Attorney-General (NSW) v Trethowan[45], both Rich J and Dixon J treated manner and form requirements binding subordinate legislatures as requiring fulfilment of every requirement imposed upon the process of law‑making, including the laying of colonial bills before the Houses of the Imperial Parliament.
The other submission was that the reference in s 106 of the Constitution to "[t]he Constitution of each State", as applicable to Western Australia, is confined solely to the legislation of that State, to the exclusion of any manner and form requirement which at the time of the 1905 Act was imposed by Imperial legislation. Acceptance of that submission would require the rejection of what has been said in various decisions, including those most recently referred to by Brennan CJ in McGinty v Western Australia[46].
The appeal should be dismissed with costs.
KIRBY J. This appeal[47] presents for decision a contested assertion that the State of Western Australia ("the State") has for a century been in breach of a provision of the State Constitution. The provision in question is said to require the State to pay to the Crown an annual sum "to be appropriated to the welfare of the aboriginal natives [being] an amount equal to one per centum on [the] gross revenue"[48] of the State.
There is no contest that the sum has not been paid. However, the State contends that there has been no default because the Parliament of Western Australia, first in colonial times by the Aborigines Act 1897 (WA) ("the 1897 Act")[49] and then after federation by the Aborigines Act 1905 (WA) ("the 1905 Act")[50], passed valid legislation repealing the provision under which the obligation is said to have arisen. The repealing statutes were certainly enacted[51]. The question is whether one at least of them succeeded or whether they both failed for non‑compliance with Imperial legislation[52], argued by the appellants to govern the manner and form of constitutional amendments made by the Parliament of Western Australia.
At least for a time a finding in favour of the appellants would obviously cause inconvenience to the revenues of the State and problems for its institutions[53]. This would last until a valid amendment of the State Constitution achieved a repeal. Inferentially, success in the appeal would give rise to negotiations on behalf of the Aboriginal inhabitants of Western Australia. Inconvenience is no barrier in constitutional adjudication if a party can establish that relevant constitutional requirements have not been complied with[54].

The joint reasons in this Court proceed directly to the third issue. They point out how, at the time of enactment of the 1897 and 1905 Acts, the limitations on the legislative powers of the Australian colonies (and by inference, on the Parliament of the State after federation) were regarded as "confusing, and nearly unintelligible"[61]. If those who had responsibility for complying with such requirements a century ago found that task a daunting one, prone to produce error and often necessitating remedial legislation[62], it is appropriate, in my view, to give initial consideration to the issues of justiciability and the role of s 106 of the federal Constitution. Doing so offers the prospect of a thread of Ariadne (or possibly two) to conduct the judicial Theseus through the labyrinth. Seizing such a thread has an additional attraction of solving the puzzles in this appeal by reference to Australian constitutional norms. So far as possible an Australian court today should, in my opinion, endeavour to find the answers to such puzzles by reference to Australian constitutional provisions, if any such provisions apply.
One further point should be made in stating these issues. The approach of the parties appeared to assume that it was sufficient to test the manner and form requirements of Imperial law by reference either to the 1897 Act or the 1905 Act. Because of the common ground that the 1897 Act had neither been proclaimed in accordance with the requirements of the 1842 Act nor tabled in accordance with the 1850 Act and because, at least, the shortcomings of proclamation were cured by the 1905 Act, once the Royal Assent had been given, an approach has been adopted of concentrating on the effectiveness of the 1905 Act.
There are obvious reasons of convenience for addressing the 1905 Act. There are also legal reasons for doing so because of the supervening change of status of Western Australia, with consequential change in the constitutional character of the Parliament of Western Australia[63]. The joint reasons take this course[64]. I am also content to adopt this approach on the basis that, if the later 1905 Act is found to have been valid, no reason remains to consider separately the validity of the 1897 Act. I recognise that, in strict logic, determination of the effectiveness of the earlier 1897 Act comes first. It may be sufficient to assume (as the very passage of the 1905 Act suggests that contemporaries did) that the 1897 Act had indeed failed. Were it otherwise it was unlikely that the legislators in 1905 would have re‑enacted the measure and then sent it, as a reserved Bill, to London to enliven Imperial attention which only 15 years earlier had been viewed by many of the settlers in Western Australia as meddlesome and needlessly insistent upon Aboriginal welfare[65].

The respondents' arguments: The respondents submitted that the appeal failed in limine because the question of whether the 1897 and 1905 Acts conformed to procedures as to tabling in both Houses of the Imperial Parliament and proclamation of the Royal Assent in Western Australia was not justiciable. The foundations for this submission were twofold.
First, it was argued that a court may not look behind the Royal Assent nor permit investigation of the validity of an Act by reference to suggestions of a technical failure to comply with some aspect of parliamentary procedure, such as a requirement to table a Bill in Parliament or to proclaim it in a particular way, after the Royal Assent is given. This argument was advanced by reference to English authority[66]. It was said that, in part, such an approach rested on the deference to Parliament exhibited by courts in relation to internal parliamentary procedures[67]. In part, such an approach was said also to be founded on the prohibition contained in Art 9 of the Bill of Rights (1688) as applied in Western Australia[68]. In part, it was hinted that the rule rested on the separation of the judicial from legislative powers. In part, it had to do with the completely disproportionate inconvenience that might be done by the discovery, years later, of a supposed technical slip said to invalidate the legislation. Citizens would have been entitled to act on the faith of an ostensibly valid law published in the official record of the statutes of Western Australia. A mechanical defect could not undermine such a law.
Secondly, the respondents argued that, in this case, there was a particular reason for following the self‑restraint of the English courts[69]. This was the fact that, in the present case, exceptionally, scrutiny of the procedure surrounding the 1905 Act was directed to the internal processes of tabling in the Parliament at Westminster, a process extrinsic to the Parliament of Western Australia[70]. If a United Kingdom court would treat as non‑justiciable the question of whether a tabling (or proclamation) requirement laid down by a United Kingdom statute had been satisfied in respect of a statute that had received the Royal Assent and was ostensibly valid and in force, an Australian court should (so it was put) follow the same rule of restraint, whatever its own willingness to examine compliance with Australian enactments governing manner and form[71].
Justiciability is established: I would reject these arguments. Because, in Egan v Willis[72], similar submissions as to justiciability were urged upon this Court without success, I will not repeat what I said there. Suffice it to recall that there is a particular reason why the English rule of deference to parliamentary procedures has not been followed in this country[73]:

The federal Constitution makes no mention of the manner and form requirements of earlier Imperial enactments. Instead, in compliance with s 106, alteration could be achieved simply "in accordance with the Constitution of the State". The respondents argued that a recognition of the new legal paradigm was necessary both to give effect to the language of s 106 of the Constitution and to recognise the creation of an autochthonous procedure for local amendment of State constitutions, freed from earlier Imperial requirements and respectful of the new dignity and status enjoyed by the "people of the Commonwealth"[80] and "electors"[81] who had adopted the new Constitution and who enjoyed exclusive privileges to alter its terms[82].
It was on this footing that the respondents submitted that compliance with Imperial manner and form provisions, such as the requirement of tabling of the 1905 Act in the Imperial Parliament[83], had no continuing application to constitutional amendments in Western Australia. It was immaterial to the validity of the Act, although that fact had not been realised at the time. There being no provision in the "Constitution of the State"[84] necessitating otherwise, the giving of the Royal Assent cured the defects (if any) that had remained after the attempted amendment of the WA Constitution Act by the 1897 Act. The failure to see the significance of the Australian federal Constitution, and even the possibility that in 1905 a different answer might have been given by this Court in respect of that significance, did not alter the meaning of s 106 of the Constitution, read with today's eyes[85].
The Constitution of the State: It is implicit in the foregoing argument that the reference in s 106 of the federal Constitution to alteration of State constitutional law "in accordance with the Constitution of the State" means in accordance with the Constitution Act of that State, and it alone[86]. There are some considerations that support this narrow interpretation of s 106. For example, it would recognise the undoubted change that came over the States of the new Commonwealth after the commencement of the federal Constitution. It would also lay emphasis upon the autonomy of the States and "people of the State"[87] within Australia to make, or unmake, their constitutional law in accordance with Australian, and not pre‑federal Imperial, norms. Had it been intended, after federation, to impose duties of subordination of State constitutions to Imperial regulation, this could have been expressly stated, as was done for federal law. Thus, in respect of the Royal Assent to federal Bills, the Constitution makes express provision for the withholding of the Royal Assent by the Governor‑General or the reservation of such law for the Queen's pleasure[88]; the transmission of recommended amendments by the Governor‑General to the Parliament[89]; disallowance by the Queen within one year of the Governor‑General's signification of assent to a law[90]; and signification of the Queen's pleasure upon Bills reserved for the ascertainment thereof[91]. Such provisions are now obsolete, save for certain laws of symbolic significance[92]. Nevertheless, they appear as express provisions in the federal Constitution in respect of federal law. No mention is made of any such matters in respect of the laws of the States.
The question is thus presented whether the foregoing specificity means that laws amending a State constitution were automatically released from earlier Imperial regulation, save for any still provided by s 106 of the federal Constitution itself. The opposing interpretation would hold that the constitutions of the several States of the new Commonwealth were no more than a collection of Imperial laws and prerogative instruments that had formerly governed the States when they were colonies.
Imperial manner and form requirements continued: Whilst there is ambiguity, and a degree of uncertainty, as to what precisely the expression "the Constitution of the State" in s 106 means, the better view is that the phrase is not confined to the respective Constitution Acts of the States as such Acts existed in 1900, freed from all requirements of Imperial legislation that governed them before federation. This was the construction urged on the Court by the Attorney‑General of the Commonwealth. He intervened, in this respect, to support the appellants. They adopted the Commonwealth's submissions on this question.
First, there is the textual indication provided by the contested phrase itself. It does not refer to the Constitution Act of the State in question, as it might have done[93]. Instead, it uses the generic word "Constitution".
Secondly, it is obvious that the phrase "Constitution of the State" (and "Constitution of each State"), appearing in s 106, must be capable of consistent application to each of the six States of the Commonwealth to which s 106 was to apply after the federal Constitution came into force. This is a reason for rejecting as irrelevant, the appeal of the respondents to the peculiarities of the "Western Australian context". Whilst, on the coming into force of the federal Constitution, each State of the Commonwealth possessed an enactment titled the "Constitution Act" of the State[94], such enactments differed significantly in their content. Thus, the Constitution Act of Tasmania relies on an external Act to specify the content of the legislative powers of the Parliament of that State. The 1850 Act has therefore been described as the source[95] both of the general power of law‑making in Tasmania and of the power of constitutional alteration in that State.
Thirdly, the disputed phrase must be viewed in the context of a reference to a legislature which, within its own sphere before federation, reflected some of the features of the uncontrolled powers of the Imperial Parliament from which it had derived its authority. Just as no "Constitution Act" could define exhaustively the "Constitution of" the United Kingdom, so the reference to "Constitution of the State" in s 106 of the Australian federal Constitution did not refer only to the several Constitution Acts of the former colonies[96]. As with their source, the statutory basis of constitutional law was disparate and complex, not particular and contained in a single document.
Fourthly, examination of the Constitution Acts of the States, even apart from that of Tasmania, quickly discloses that they by no means pretend to cover all of the considerations proper to a constitution of a polity such as the Australian colonies had become by 1900 and such as it was expected that the States of the Commonwealth would be. In several decisions of this Court views have been expressed that, after 1900, the constitutions of the States continued to include not only the Constitution Acts in force at that time but also those elements of Imperial legislation, of continuing operation within the States, that expanded or elaborated such Constitution Acts[97].
At the very least, according to notions of constitutional law already current in 1900, the courts of each State would ordinarily be regarded as being part of the "Constitution of the State". The continuing role of the State courts within the Judicature provided for by Ch III of the federal Constitution (and specifically of the Supreme Courts of the States[98]) makes it unlikely that the respective Constitution Acts of the States exhausted the phrase appearing in s 106. None of the Constitution Acts establishes the Supreme Court of the State or regulates to any significant extent the composition and functions of State courts. Such considerations are, and have since federation been, regulated by a mix of Imperial, colonial and State legislation and, in the case of some States, Royal Charters.
In Re Tracey; Ex parte Ryan[99] it was held, unsurprisingly, that State courts are part of the government of a State and are protected from federal regulation and control by s 106. As a matter of principle, it is obviously undesirable that the words of s 106 should be given a narrow construction. To the extent that this is done, it would detract from the constitutional status accorded, in particular, to State courts and most especially such courts other than Supreme Courts (which are specifically mentioned elsewhere in the federal Constitution[100]).
Fifthly, contextual considerations affirm the wide ambit of the words in question. When s 106 is read with ss 107 and 108 it appears clear that the object of the federal Constitution was to continue in force the powers of the Parliaments of, and every law in force in, the Australian colonies that became the States of the Commonwealth. This consideration reinforces the conclusion that the "Constitution", referred to in s 106, carried from the colonial period the institutional arrangements proper to the governance of the former colonies, now States. Yet if these features, relevant to governmental powers, are carried forward, it becomes impossible, as a matter of construction, to reject pre‑existing Imperial limitations on the exercise of such powers[101]. These include the Imperial manner and form provisions which would otherwise answer to the description of part of the "Constitution of the State".
Sixthly, to the extent that it is useful to construe a constitutional phrase by reference to what the founders in 1900 expected the phrase to mean[102], there is no doubt that the word "Constitution" in s 106 was expected to have a larger denotation than simply the Constitution Acts of the colonies, then in force. This much is shown by the drafting history of the clause[103]. It is confirmed by the way in which, after federation, provisions of the Colonial Laws Validity Act 1865 (Imp) were invoked to prevent constitutional alteration which did not comply with its manner and form requirement[104].
Conclusions: For these reasons I would reject the submission of the respondents that s 106 of the federal Constitution expelled any residual manner and form provisions of Imperial legislation applicable to the alteration of the WA Constitution Act and, after 1901, permitted such alteration so long as it was in accordance with the WA Constitution Act and it alone.
It follows that the manner and form provisions referred to in the 1890 Imperial Act formed part of the Constitution of Western Australia for the purpose of s 106 of the federal Constitution. In this way, the appellants were entitled to argue that, as part of the Constitution of Western Australia, s 33 of the 1842 Act and s 32 of the 1850 Act were picked up and applied to the Constitution of the State, to the extent that, by their several terms, they attached to the provision in question.
The result of this analysis is that the merits of the appellants' primary argument must be determined.

The question for decision: The foregoing conclusion brings me back to the labyrinth of Imperial law. There is no easy way through it. Nor is the way that I propose absolutely sure. Numerous steps need to be negotiated. They must be taken in sequence. Ultimately they yield the solution to the puzzle that appears to be the correct, or at least the preferable, one.
At the outset it is as well to remember that the search, in respect of the 1905 Act, is not for an Imperial legislative provision requiring reservation of the repeal of s 70 of the WA Constitution Act for the King's pleasure or for proclamation, as it was agreed that each of these preconditions (to the extent applicable) was properly fulfilled. The question is rather whether a requirement of laying the Bill for the 1905 Act before both Houses of the Imperial Parliament was applicable, as part of the Constitution of Western Australia "in accordance with" which that Constitution might alone have been altered in 1905.
The historical context: The starting point for analysis is an appreciation that the provisions of s 70 of the WA Constitution Act were unusual. The section had no counterpart in any other Australian colony or State. Its terms can only be understood against the background of the tensions that had arisen in colonial times between the Imperial authorities and the settlers concerning the indigenous peoples[105].
Generally speaking, for most of the nineteenth century the Imperial authorities were insistent about protection of the interests of the indigenous peoples. The settlers and, to some extent, colonial authorities often resisted that pressure. The provision obliging an annual guaranteed payment from the gross revenues of Western Australia for the welfare of the Aboriginal natives was the product of energetic, and not always harmonious, negotiations between the Imperial authorities and the Governor of Western Australia. The Governor, in turn, was subject to pressure from the local inhabitants. However, the voices that were normally heard by the Governor were those of the settlers, impatient to achieve full representative and responsible government. For obvious reasons, the voices of the local "aboriginal natives" were often not heard at all and certainly not to the same extent as the settlers.
Contemporary documents show that the disadvantages suffered by the Aboriginal people in Western Australia were very much in the mind of the Secretary of State for the Colonies in the United Kingdom, Lord Knutsford. Indeed, as full self‑government approached, they were also of concern to the Governor of Western Australia, Sir F Napier Broome. In 1888, the Governor wrote to Lord Knutsford[106]:

In earlier colonial times the interests of the Aboriginal people could be protected, to some degree, by the autocratic rule of the Governor. He was constantly answerable to the Imperial authorities in London. The global interests and perspectives of those authorities demanded that minimum standards should, as far as possible, be met. However, with the proposed advent of full representative and responsible government in Western Australia in 1890, in the form of a bicameral Parliament elected by the settlers[107], the prospect had to be faced that many of the previous restraints and controls on legislation, protective of the Aboriginal people, would be lost. So much was realised both by the Governor and by his Imperial masters. Lord Knutsford and the officials who worked for him were part of the Executive Government of the United Kingdom. They were, in turn, responsible to the Imperial Parliament. It had its own general interest in the governance of the Empire, and the protection of Imperial economic interests and of the rights of senior resident officials such as the Governor and judges. However, its interests also extended, to some extent, to the protection of the indigenous peoples from "evil‑disposed" settlers.
I mention these matters of history for two reasons. First, they support the contention, obvious enough on its face, that s 70 of the WA Constitution Act was intended for the benefit and protection of the Aboriginal people of Western Australia. Against the background disclosed by the contemporaneous documents, it would not have been wholly surprising for the Imperial authorities to have effected their purposes by "entrenching" such provisions, as far as they could, against what might be viewed in London as unjustifiable amendment or repeal of such constitutional provisions.
Secondly, relatively simple means of ensuring effective Imperial supervision of such "entrenched" protections would include the requirement that all local amendments should be reserved by the Governor for the Queen's pleasure[108]. Effectively, this would ensure that the Queen would be advised by her relevant Minister of State in the United Kingdom on whether to grant or withhold the Royal Assent. It would interpose the judgment of officials in London, distant from local pressures and alert to any larger Imperial interests involved.
A further means of reinforcing protection of these interests would be by a requirement that proposed change of a section such as s 70 should be tabled in both Houses of the United Kingdom Parliament prior to securing the Royal Assent[109]. This would signal a double determination of the Imperial authorities to ensure the scrutiny of any repeal or amendment by the members of the Imperial Parliament to whom, ultimately, the ministers and officials were themselves accountable. On the face of things, therefore, there would have been nothing unusual in the imposition of the dual requirements expressed in the 1850 Act. The only question, then, is whether, by their terms, they applied.
Analysis of the legislation: The critical requirement in issue is the one which is said to require the tabling of an amendment to the WA Constitution Act in both Houses of the Imperial Parliament. That requirement appears in s 32 of the 1850 Act in the following terms:

One of the "certain particulars" concerned the alteration or repeal of s 70 of the WA Constitution Act. Such laws were subject to the "conditions imposed" by s 73 of the WA Constitution Act. That section afforded to the legislature of Western Australia "full power and authority from time to time by any Act to repeal or alter any of the provisions of [the WA Constitution Act]", subject to two provisos. The second of these provisos is relevant. It included a requirement that, relevantly, "every Bill which shall interfere with the operation of [s 70 or Sched C] shall be reserved by the Governor for the signification of Her Majesty's pleasure thereon"[114].
As with s 70, Sched C contained reference to the dedicated sum of £5,000 "[f]or promoting the welfare of aboriginal natives" and a cross‑reference to "the provision in section 70 when the revenue exceeds 500,000l". On the face of things, therefore, an express, special and limited proviso was imposed on alteration of the WA Constitution Act in the relevant respect. But it was one which merely required reservation of a Bill to amend s 70 of that Act for signification of the royal pleasure, a step that was undoubtedly taken both in 1897 and 1905. The WA Constitution Act said nothing about any requirement to lay such an amending Bill before both Houses of the Imperial Parliament.
To answer the question whether, apart from this particular provision, earlier Imperial legislation continued to apply to amendments of the WA Constitution Act, it is necessary to look to whether, expressly or by necessary implication, the 1890 Imperial Act remained in force, and incorporated the tabling requirements contained in s 32 of the 1850 Act.
The first step to the answer to this question may be found in the general provisions of s 2 of the 1890 Imperial Act. That section is described in its marginal note as a section for the "[r]epeal of certain provisions in Acts of Parliament relating to Western Australia". By this section, from the day of its proclamation in Western Australia "so much and such parts of the several Acts mentioned in the Second Schedule to this Act as relate to the colony of Western Australia and are repugnant to the [WA Constitution Act] shall be repealed". The Second Schedule refers explicitly to, amongst other Imperial legislation, the 1850 Act, s 32 of which contained the critical tabling requirement. Accordingly, if such provisions were "repugnant to" the WA Constitution Act, the obligations of s 32 of the 1850 Act had, by s 2 of the 1890 Imperial Act, been repealed.
The notion of "repugnancy" is an imprecise one[115]. On the face of things, the WA Constitution Act, by making particular provision in relation to alteration and repeal of any of its own provisions, might be taken as having replaced earlier Imperial legislation that overlapped that provision to some extent (for example, by separately requiring reservation for the royal pleasure) or which went beyond the new remit (for example, by requiring tabling in the Imperial Parliament). Such a view of repugnancy would not be an unnatural one. Indeed, it was properly conceded for the appellants that it was a possible one although (as it was put) one which would not be preferred by this Court.
The dropping of the express provision for tabling could have been justified at the time by the introduction into Western Australia, in accordance with the WA Constitution Act, of a bicameral representative legislature by which the colony attained the fullest form of self‑government then available in the British Empire. The previous requirement, under s 32 of the 1850 Act, envisaging tabling in both Houses of the United Kingdom Parliament, was arguably apt to ensure (amongst other things) that legislation made other than by a legislature wholly elected by, and accountable to, British subjects would pass under the notice of members of a Parliament that was so elected and accountable. Having regard to the enlargement of electoral democracy in Western Australia envisaged by the WA Constitution Act (and the 1890 Imperial Act giving it effect), such extra scrutiny might, arguably, no longer have been seen as necessary. At the least, this development in parliamentary government of Western Australia provided a rational explanation for deleting the necessity of tabling the amending Bill in the Imperial Parliament, as envisaged by s 32 of the 1850 Act.
However that may be, the answer to the continuing operation of s 32 of the 1850 Act is not, in my view, to be found in the contentious notion of repugnancy or in disputable interpretations of what the Imperial and Western Australian governments regarded as their proper respective functions at the relevant times. The provisions of s 2 of the 1890 Imperial Act allowing for the repeal of the 1850 Act, are themselves subject to two express provisos. Relevantly, proviso (a) preserved "the provisions of the [1842 Act and 1850 Act] which relate to the giving or withholding of Her Majesty's assent to Bills, and the reservation of Bills for the signification of Her Majesty's pleasure thereon"[116]. Such "provisions" are, by proviso (a), to "apply to Bills to be passed by the Legislative Council and Assembly constituted under the [WA Constitution Act]".
Accepting that the phrase "relate to" is extremely broad and that, on one reading, the provisions of the 1850 Act obliging future amendments to the Western Australian Constitution to be laid before both Houses of the Imperial Parliament could be viewed as "relating to" the machinery for the signification of the Royal Assent in the United Kingdom, proviso (a) to s 2 of the 1890 Imperial Act could arguably be read, in its terms, as breathing continuing life into the tabling requirement of s 32 of the 1850 Act and applying that obligation to amendments to the WA Constitution Act and thus to a repeal of s 70.
Yet any such "life" depends, ultimately, upon what precisely is preserved by the proviso. When its language is examined, all that is preserved are the "provisions of the Acts", relevantly the 1850 Act, of a given description. It is therefore necessary to return to the 1850 Act in order to discover what, in terms, it provided so that, whatever the resulting provision might be, it can be measured for repugnancy against the repeal and amendment provisions of the WA Constitution Act, as s 2 of the 1890 Imperial Act envisaged.
I have previously set out the provisions in s 32 of the 1850 Act requiring that a copy of a Bill be laid before both Houses of the Imperial Parliament. It is now critical to notice the words in that section "such Bill". Only a Bill of the specified kind was required by s 32 of the 1850 Act to conform with the obligation of tabling. To find what "such Bill" was, it is essential to look back to the text of s 32 of the 1850 Act. When this is done, it is clear that the requirement of the tabling of "such Bill" is not contained in a general section applicable to all amendments of the written constitutional law of Western Australia. Instead, the requirement of tabling is contained, together with the requirement of reservation for the royal pleasure, in two provisos to s 32. These provisos have no work to perform save as they modify the substantive provisions of that section.
When s 32 of the 1850 Act is examined, it can be seen that it is addressed, unsurprisingly, to the situation of governance that existed (relevantly) in Western Australia at the time of its enactment. At that time, in Western Australia, the mode of government fell far short of the system of representative and responsible government later envisaged under the WA Constitution Act and the 1890 Imperial Act. In short, it was a system of government by the Governor advised by a Legislative Council. That Council was originally wholly appointed by the Governor. It was not elected[117]. Section 32 of the 1850 Act envisaged that, in the case of the Australian colonies mentioned (including relevantly Western Australia), moves would in the future be made to create elected legislatures comprising two Houses. It was only in respect of the vesting of legislative powers and functions in such a bicameral legislature, in substitution for the powers and functions of "the Legislative Council" in existence in 1850, that the "Bill … for any of such Purposes" or "such Bill" had to be enacted in the manner and form laid down. Only such Bills were therefore subject to the dual requirements of the two provisos to s 32 of the 1850 Act. Once such a Bill had been enacted, the dual requirements contemplated by s 32 of the 1850 Act were spent.
In 1870 the Governor of Western Australia, Sir Frederick Weld, "caused a Bill to be prepared in exact accordance with the provisions of [the 1850 Act]"[118]. This followed the Governor's ascertainment of the fact that the Imperial authorities had no objection to his "according to the people of this Colony that modified form of Representative Government provided by" the said Act. In accordance with s 32 of the 1850 Act, the Governor therefore despatched the Bill to London to await the Queen's pleasure. On 30 September 1870, Lord Kimberley, for the Colonial Office, conveyed to the Governor "Her Majesty's Confirmation and allowance" of the Bill then described as "the new Constitution Act"[119]. It is not clear whether that Bill had been laid on the table of both Houses of the Imperial Parliament as s 32 of the 1850 Act contemplated. But, in any event, it was certainly proclaimed in Western Australia[120]. It commenced to operate. The Legislative Council provided for in it took office and began to function. The validity of none of these steps is challenged in this appeal.
Against the background of these events, the proviso requirements to s 32 of the 1850 Act were fulfilled at the latest by what occurred in 1870. Whether those requirements were complied with strictly or not, the events envisaged by the 1850 Act were then concluded. In their terms, the words of s 32 of that Act had no further application to later events. The constitutional caravan had moved on. The only way that a different conclusion might be reached would be if a view were taken that the 1890 Imperial Act, by its language, had reignited, in some fashion, the manner and form requirements of s 32 of the 1850 Act, seemingly discharged by the events of 1870.
When, however, the actual words of the provisos to s 32 of the 1850 Act are examined, it is clear that the section was intended to be read in the context (then fresh in mind) of the successive laws for the constitutions of the Australian colonies, most notably, and relevantly, the 1842 Act. By s 31 of the 1842 Act, the Governor had been empowered to reserve certain Bills for the signification of the Queen's pleasure, specifically those which would (a) effect electoral change; (b) alter the salaries of the Governor, superintendent or judges[121]; or (c) alter customs duties. By the terms of s 33 of the 1842 Act, the manner and form requirements laid down by that Act applied only to Bills "so reserved" and thus to Bills for the specified purposes. This interpretation is consistent with the language and structure of ss 31, 32 and 33 of the 1842 Act read with the 1850 Act.
Similarly, the Bills which required reservation and tabling by virtue of s 32 of the 1850 Act were not expressed to be at large. They were only Bills for "such Purposes" as stated in s 32, which related to Bills concerning (a) the election or qualification of elected members of Parliament; (b) the qualification of electors; or (c) substitution of other Legislative Houses for the Legislative Council. Assuming that the purpose of s 33 of the 1850 Act was to apply the requirements of s 33 of the 1842 Act to Bills reserved for the Queen's pleasure under s 32 of the 1850 Act, by joint operation of the 1842 and 1850 Acts[122], the only Bills requiring compliance with the several manner and form provisions were those for the "purposes" there specifically identified.
None of those "purposes" applies to a Bill for the repeal or alteration of s 70 of the WA Constitution Act. In respect of that provision, assuming s 32 of the 1850 Act did have continuing operation, it was therefore sufficient simply to rely on the particular obligation of reservation for the Queen's pleasure contained in s 73 of the WA Constitution Act itself. That obligation was effectively entrenched by s 2 of the 1890 Imperial Act[123]. This conclusion still left work for s 2(a) of the 1890 Imperial Act to perform. It picked up and applied s 33 of the 1850 Act as a provision continuing to govern the Constitution of Western Australia.

The result of this analysis is that, for the repeal of the critical provisions of s 70 of the WA Constitution Act, the combined operation of that Act and of applicable Imperial legislation required nothing more than reservation of a Bill for that purpose for the royal pleasure. There was no obligation to table such a Bill in both Houses of the Imperial Parliament. For such repeal or amendment, a more limited Imperial scrutiny sufficed. That was the scrutiny by the officers of the Colonial Office advising the Executive Government of the United Kingdom, who in turn advised the monarch. That scrutiny was discharged in respect of the Bill for the 1905 Act.
Whether this result was by conscious design or by a slip of drafting unnoticed as the successive constitutional legislation affecting Western Australia passed through the Imperial Parliament cannot now be said with complete confidence. The foregoing analysis demonstrates how easy it would be to make slips in complying with the disputable or uncertain requirements of Imperial legislation.
The appellants' arguments are not defeated by the historical merits, as such. They only fail when measured against the actual text of the manner and form requirements upon which they relied. Given the colonial history to which I have referred, the merits might well have justified not only scrutiny by officials and the Executive Government of the United Kingdom but also an opportunity for scrutiny by both Houses of the Imperial Parliament. Attention to the Bill in those Houses in 1905 might have enlivened a more sensitive defence of the Imperial interest in protecting indigenous peoples in Western Australia[124]. But it might not. The settlers, after all, would be more likely to have had access to the members of the Imperial Parliament at the time than the Aboriginal people or their supporters. We shall never know what might have occurred because the Bill for the 1905 Act was not tabled in both Houses at Westminster. And there was no requirement of Australian or Imperial law to require that it should have been.
No defect is therefore shown in the amendment of the Constitution of the State of Western Australia in accordance with the requirements of the WA Constitution Act and such Imperial law of continuing force as was part of the "Constitution of the State". Accordingly, the requirements for amendment of the State Constitution by the 1905 Act conformed to s 106 of the federal Constitution. The amendment was therefore valid and effective. Section 70 of the WA Constitution Act was duly repealed.
I do not regard the Australian States Constitution Act 1907 (Imp)[125] as relevant to the validity of the 1905 Act. There is enough confusion in the labyrinth and I will restrain myself from adding more, unnecessarily.
In the light of these conclusions I do not have to consider the alternative arguments kept in reserve by the respondents as to the consequence of non‑compliance with the tabling requirements if that had been shown. Nor need I consider problems such as would have been presented by the effective abolition in 1897 of the Aborigines Protection Board, contemplated by s 70 as the repository of the dedicated revenues.

Yougarla v Western Australia

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