Attorney-General (Wa)
vMarquet

Judges: Gleeson CJ
Gummow J
Kirby J
Hayne J
Callinan J
Heydon J

Legislative References:
The Constitution - s 51(xxxviii); s 106; s 107; s 128
Australia Act 1986 (Cth) - s 6
Australia (Request and Consent) Act 1985 (Cth) - The Act
Australia Acts (Request) Act 1985 (WA) - The Act
Constitution Act 1889 (WA) - The Act
Constitution Acts Amendment Act 1899 (WA) - The Act
Electoral Distribution Act 1947 (WA) - s 13
Acts Amendment (Constitution) Act 1978 (WA) - s 4
Colonial Laws Validity Act 1865 (UK) - s 5
Australia Act 1986 (UK) - s 6

Canberra

Orders

221 Special leave to appeal should be granted in each matter. Each appeal should be treated as instituted and heard instanter and allowed. The answers given by the Full Court of the Supreme Court of Western Australia should be set aside. In place of those answers, each of the questions asked in the proceedings should be answered in the terms proposed by Wheeler J in the Full Court. The State should pay the costs of the amici in this Court.

222 CALLINAN J. Section 13 of the Electoral Distribution Act 1947 (WA) ("the EDA") is an entrenching provision. The principal question which this case raises is whether the passage through both Houses of the Parliament of Western Australia of a Bill to "repeal" that Act by a simple majority rather than an absolute majority of the members of each House as required by the section did in law effect the repeal.

The facts

223 On 19 December 2001 the Electoral Distribution Repeal Bill 2001 (WA) ("the Repeal Bill") completed its passage through both Houses of the Western Australian Parliament. The following day, the Electoral Amendment Bill 2001 (WA) ("the Amendment Bill") also passed through both Houses of the Western Australian Parliament. Both Bills were passed by a majority of the members of each House present and voting. In the Legislative Council, however, the Bills were passed by a simple majority of the members actually present only.

224 Clause 3 of the Repeal Bill is in the following form:

"3 Electoral Distribution Act 1947 repealed

The Electoral Distribution Act 1947 is repealed."

225 By contrast, cl 4 referred to both amendment and repeal:

"4 Constitution Acts Amendment Act 1899 amended

(1)

The amendments in this section are to the Constitution Acts Amendment Act 1899.

(2)

Section 5 is amended by deleting 'as defined under section 6'.

(3)

Section 6 is repealed.

(4)

Sections 18 and 19 are repealed and the following section is inserted instead -

'18. Constitution of Legislative Assembly

The Legislative Assembly shall consist of 57 elected members who shall be returned and sit for electoral districts.'"

226 Clause 5 was a transitional provision and need not be set out. Clause 6 however uses the language of amendment in respect of the Electoral Act 1907 (WA) ("the Electoral Act") and is as follows:

"6 Electoral Act 1907 amended

(1)

The amendments in this section are to the Electoral Act 1907.

(2)

Section 24(3) is amended by deleting 'under section 3(2)(f) of the Electoral Distribution Act 1947'.

(3)

Section 51(2) is amended by deleting 'under the Electoral Distribution Act 1947'."

Its purpose was to insert a new Pt IIIA into the Electoral Act to deal with the distribution of electoral boundaries for the Legislative Council and Legislative Assembly. In consequence, the Electoral Act, although with some significant changes, would replace and serve the purposes previously served by the EDA. Clause 16I of the Bill, for example, provided for the State to be divided into electoral divisions in a manner that would change the current ratio of electors to members. The Amendment Bill also included provisions to amend the Constitution Acts Amendment Act 1899 (WA) to increase the number of members of the Legislative Council from 34 to 36.

227 On 21 December 2001, the Clerk of the Parliament of Western Australia sought declarations from the Supreme Court of Western Australia whether it was lawful for him to present the Bills to the Governor for assent in the light of s 13 of the EDA which provides that:

"It shall not be lawful to present to the Governor for Her Majesty's assent any Bill to amend this Act, 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."

Proceedings at first instance

228 The matter came on for hearing before the Full Court of the Supreme Court of Western Australia, specially constituted for the occasion by five judges (Malcolm CJ, Anderson, Steytler, Parker and Wheeler JJ), in April 2002. The first defendant was the Attorney-General for Western Australia, and the second defendant was the State of Western Australia. By leave of the Court, a number of incorporated bodies and two persons representing various political, rural and community interests appeared together as amici curiae. In substance, the dispute in the proceedings was joined between the defendants and the amici.

229 As a preliminary issue, the Court considered whether it had jurisdiction to intervene in the parliamentary process after the deliberative stage had been completed but before the Royal Assent. Their Honours also considered whether, if the Court did have jurisdiction before the completion of the process of enactment, it should exercise that jurisdiction, or do so only if and after the Royal Assent were granted. All members of the Court were of the opinion that the issues raised by the proceedings were justiciable and that the Court's jurisdiction in relation to them should be exercised ^[232] .

230 Three issues of substance remained: first, whether on the proper construction of s 13 of the EDA, the Repeal Bill or the Amendment Bill is a Bill "to amend" the EDA and, secondly, whether s 13 had been impliedly repealed by the Acts Amendment (Constitution) Act 1978 (WA) ("the Constitution Amendment Act"). The third issue raised a question as to the source and continuing force and validity of the EDA, that is, whether on their proper construction, s 6 of the Australia Act 1986 (Cth) and possibly the Australia Act 1986 (UK) ("the Australia Acts"), were an effective source of power for, or validation of s 13 of the EDA, and operated to enable the EDA to continue to bind the Western Australian Parliament.

First issue in the Full Court

231 The majority (Malcolm CJ, Anderson, Steytler and Parker JJ) concluded in relation to the first issue that the two Bills were in substance an attempt to amend the EDA which needed to, but did not in fact, comply with s 13. After reviewing the relevant authorities, Steytler and Parker JJ (with whom Malcolm CJ and Anderson J agreed), held that ^[233] :

"the question whether an enactment involves the repeal or amendment of earlier legislation is a matter of substance, ie, 'the substantial effect produced', rather than one, simply, of form. Further, the precise context in which the issue arises may be material to the answer."

232 Their Honours were of the view that s 13 had the purpose of entrenching the provisions of the EDA. It was an Act that dealt with an essential aspect of the Constitution of the Western Australian Parliament and s 13 was enacted in the expectation that there must, and always would be legislation on the topic with which it deals ^[234] . This understanding of s 13, their Honours said, indicated that a narrow interpretation of the word "amend" in the section was inappropriate. Absent a reasonably broad interpretation, s 13 would be without legal effect ^[235] .

233 Their Honours were of the further opinion that the Repeal Bill and the Amendment Bill constituted a legislative scheme. They held that Parliament did not intend the permanent revocation of the EDA, that is to say, to create what would in effect be a legal vacuum so far as the means and basis of election of members of the Parliament were concerned. Instead, Parliament intended to transfer the stipulation of the relevant bases for election of members, from the EDA to the Electoral Act. It would be artificial therefore, to consider the Repeal Bill in isolation from the Amendment Bill. The substance of Parliament's intention was the amendment of the EDA for the purposes of s 13 ^[236] .

234 There was, Steytler and Parker JJ said ^[237] (Malcolm CJ agreeing ^[238] ) a further basis upon which s 13 applied to and governed the Repeal Bill in any event. It was that, because the Bill included a transitional provision to continue the operation of s 11 of the EDA until the next general election, the Act was not wholly repealed, and would in part at least, continue to operate, albeit only until the date of the next general election. The Repeal Bill was therefore an amendment Bill in any event ^[239] .

235 Wheeler J (dis) was of the view that the natural meaning of the word "amend" as used in s 13 of the EDA should be adopted, that "the Parliament must be taken to mean precisely what it said" ^[240] .

236 As to the operation of the two Bills taken together, if and when enacted, as a legislative scheme, her Honour said this ^[241] :

"[they could not be] considered as a repeal and re-enactment or repeal and substitution of the [EDA]. It is true that the [EDA] is repealed, but what is 'substituted' is the insertion of a series of provisions, many of them identical with the former [EDA] provisions and others quite different, into the [Electoral Act]. If the scheme were to come into operation, the concept of an [EDA] would cease to exist at all. By analogy, if one were to repeal the Police Act 1892 (WA), and insert all former sections from it into the Criminal Code (WA), and the Local Government Act 1995 (WA), and the Health Act (depending upon which was the most appropriate place for the particular sections) it would be difficult to see how the Police Act could be regarded as having been 'amended' rather than repealed."

237 Her Honour accepted however that amendment and repeal were overlapping concepts ^[242] :

"Plainly, there is some overlap between the concepts of amendment and of repeal in relation to a statute, since the repeal of a section, whether it is re-enacted or not, is an amendment - that is, an alteration - of the statute as a whole. ...

However, because of the difference between the concepts of an 'enactment' an 'Act' and a 'section', it is one thing to say that an Act has been amended because one or more sections has been repealed, in which case the Act continues to exist in an altered form; it is another to say that the repeal of an Act in its entirety may be regarded as an amendment of the Act. In the latter case, the Act ceases to exist. To say that an Act which has entirely ceased to exist has been 'amended' is in my view inconsistent with any understanding of the word 'amend'."

238 Wheeler J rejected that the presence of a transitional provision in the Repeal Bill meant that the EDA was in any event only "amended" and thereby in terms literally attracted the operation of s 13 ^[243] .

Second issue in the Full Court

239 The second issue was whether s 13 of the EDA had been impliedly repealed by the Constitution Amendment Act, which, among other things, inserted s 2(3) into the Constitution Act 1889 (WA) ("the Constitution Act"). Section 2(3) provides:

"(3) Every Bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to section 73 of this Act, be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen."

240 It was argued that the only qualification to the requirement that Bills be presented to the Governor for assent after passage through the Houses of Parliament was the phrase "subject to section 73". Because, it was said, there was no express qualification in s 73 of the Constitution Act with respect to the matters referred to in s 13 of the EDA, the latter must have been impliedly repealed.

241 Steytler and Parker JJ (with whom Malcolm CJ and Anderson J agreed) held that the argument that s 13 had been impliedly repealed failed ^[244] . Their Honours pointed out that s 73 of the Constitution Act made it unlawful to present certain Bills to the Governor for assent unless those Bills had been passed by an absolute majority of each House of Parliament. The desirability, their Honours thought, of there being an express exception to s 2(3) of the Constitution Act in order to preserve the operation of s 73, was "patently obvious" ^[245] . Legislative provisions beyond the Constitution Act were not however affected ^[246] :

"It would be strange, indeed, if the intention of the [Constitution Amendment Act] had included the repeal of the operation of s 13 of the [EDA], but this was left to pass by way of implication from a provision such as s 2(3). In our view, it is not apparent that by the amendments made by the [Constitution Amendment Act], it was intended to affect, or repeal, a legislative provision such as s 13 which was outside the [Constitution Act] itself. The significant legislative purpose, apparent from the [Constitution Amendment Act] itself, neither required nor suggested any such wider purpose."

242 Steytler and Parker JJ accepted that the argument that s 13 had been impliedly repealed depended upon the true meaning of the word "passage" in s 2(3) of the Constitution Act: whether the support of a simple majority of the members of each House of Parliament present and voting meant that there had been a "passage" of the Bill or Bills ^[247] . Their Honours were of the opinion that in order for a Bill to complete its "passage" through Parliament, it must have been passed by each House in a manner (and form) which are valid and binding as a legal expression of each House's consent to the Bill becoming a law ^[248] . On the assumption that s 13 of the EDA is valid ^[249] :

"a Bill within the scope of s 13, which failed to secure the support of an absolute majority of the members of either House on the second or third reading in that House of the Bill, would not have completed its passage through that House within the meaning of s 2(3)."

Accordingly, their Honours held, there was no foundation for a conclusion that s 13 of the EDA had been impliedly repealed ^[250] .

243 Wheeler J agreed with the majority on this point. Her Honour concluded that s 2(3) of the Constitution Act and s 13 of the EDA were reconcilable, and that therefore there was no implied repeal of s 13 ^[251] . That is ^[252] :

"Section 13 is narrow and particular in its scope; it is expressed to apply only to amendments to the [EDA]. It appears to me that it is open to read s 13 as a proviso to, or exception from, the new provisions of the [Constitution Act], which exception deals with the particular case of amendment to the [EDA]."

The third issue in the Full Court

244 The third matter considered by the Court was the operation of s 6 of the Australia Acts in relation to s 13 of the EDA.

245 It was submitted that the Parliament of Western Australia could not bind itself or a future Parliament in the manner that s 13 purported to do because it had been vested with plenary legislative powers ^[253] . Section 13 could therefore only have binding effect, if at all, on the Parliament by force of s 6 of the Australia Acts which provides:

"6 Manner and form of making certain State Laws

Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act."

246 It was submitted by the applicants that the Australia Acts had no application to the Bills because they were not Bills "respecting the constitution, powers or procedure of the Parliament".

247 Steytler and Parker JJ, with whom Malcolm CJ and Anderson J agreed, held that s 13 was binding on the Western Australian Parliament by virtue of s 6 of the Australia Acts. Wheeler J did not decide the issue. The majority accepted that the Western Australian Parliament had plenary powers. This had been confirmed by s 2 of the Australia Acts ^[254] . Their Honours also observed, however, that the plenary powers of State parliaments had been limited since 1865 by the proviso to s 5 of the Colonial Laws Validity Act 1865 (Imp) which provided:

"5. Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and 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; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony."

248 Although the Colonial Laws Validity Act was repealed by the Australia Acts, the proviso contained in s 5 of that Act was replaced by s 6 of the Australia Acts. Their Honours concluded that ^[255] :

"In the [Australia Acts] the declaration and enactment of legislative powers in s 2 includes full power to make laws respecting the constitution, powers and procedure of the Parliament of the State. Relevantly, this had also been the effect of the grant of legislative powers affected by the primary enactment in s 5 of the [Colonial Laws Validity Act]. ... For relevant purposes there is no material difference between the operation and effect of s 6 of the [Australia Acts], read with s 2, and the proviso to s 5 of the [Colonial Laws Validity Act] read in the context of s 5, even though s 6 is expressed as a mandatory requirement to observe manner and form requirements rather than as a proviso to the grant of powers as in s 5 [of the Colonial Laws Validity Act]."

249 In the result, in their Honours' view, s 6 of the Australia Acts was effective to make binding upon a State Parliament any conditions as to manner and form which the Parliament has required to be observed when making a law respecting the constitution, powers or procedures of Parliament ^[256] .

250 Steytler and Parker JJ were prepared to accept that the "constitution of the Parliament comprehends, at least, the composition, nature and makeup of each House" ^[257] . Their Honours went on to say ^[258] :

"In the context of a bicameral representative legislature such as the Western Australian Parliament, the view commends itself to us that those provisions which govern, in respect of each House, the number of members, and whether the electors of the State vote as a whole to elect them or be divided into geographic or other divisions for the purpose of voting, and if voting is in divisions the basis upon which that division is made, and which provide for the number of members to be returned by each division, are each matters of such central relevance and significance to the composition and makeup of each of the Houses of the Parliament, and to the representative character or nature of the two Houses so constituted, as to be within the scope of the 'constitution' of the Parliament within the meaning of s 6 of the [Australia Acts]."

251 Section 13 of the EDA therefore continued to have application to the Parliament of Western Australia in attempting to enact "constitutional legislation", and should have been complied with for the lawful passage of the Repeal Bill and Amendment Bill.

The appeals to this Court

252 The Attorney-General for Western Australia and the State of Western Australia sought special leave to appeal to this Court. On 11 April 2003, a Full Bench of three Justices referred the application to an enlarged bench.

253 Those who were amici curiae in the Supreme Court of Western Australia sought and were granted leave to appear in this Court. The Attorneys-General of the Commonwealth, the State of Queensland and the State of New South Wales appeared as interveners.

254 An additional application to appear as amicus curiae in this Court made by Mr Jeremy Richard Ludlow was dismissed.

Justiciability

255 Steytler and Parker JJ made a comprehensive survey of the cases relevant to any question of justiciability and whether the Full Court should in its discretion exercise its jurisdiction ^[259] . No one seeks to argue that this Court should take any different view. Accordingly, I can turn immediately to the issues which were argued in this Court which, with one addition, were the same as those with which the Full Court was concerned. The additional issue here was whether the intervening prorogation of the Parliament caused the Bills to lapse so as to prevent their transmission to the Governor for the Royal Assent in any event. It is an issue which will only need to be resolved if the applicants succeed on other issues in the case.

"Amend" or "Repeal"

The applicants' argument

256 The applicants submitted that in order to determine whether a Bill effects an amendment or a repeal, regard need be had to the real and substantial consequences of it if enacted. A Bill which has the effect of obliterating or extinguishing an Act in its entirety is not a Bill to amend that Act, but is a Bill to repeal it. There is, it was submitted, a real distinction of substance between "repeal" and "amend". The word "amend" in s 13 of the EDA was carefully chosen. It is wrong to suggest that the repeal of the EDA was in any way subject to, or conditional upon the enactment of legislation in replacement of it. The repeal of the EDA could and did stand alone. Accordingly, the Repeal Bill was not a Bill to amend the EDA. It was a Bill to repeal it and was therefore not affected by or subject to s 13 of the EDA.

257 The applicants argued that central to the approach of the majority of the Supreme Court was the view that it was necessary to look at the effect of the two Bills taken together, that is, to look at and to regard the Bills as a scheme. The applicants submitted that it is not appropriate to regard Bills not expressed to be interdependent in such a way as to give them an aggregated or combined operation. The appropriate course, it was submitted, is to focus on the substance of the Repeal Bill only, as it alone purported to change the EDA. The intent and substance of the Repeal Bill were to repeal the EDA and not to effect amendments to it.

258 Nor is it appropriate, according to the applicants, to find that the purpose of s 13 was to entrench the provisions of the EDA, and to immunise them from change otherwise than in accordance with s 13. The applicants submitted that to do so would be to give an unwarranted purposive construction to the section inconsistent with its plain words which are that it was a Bill to amend the EDA.

259 Finally, the applicants argued that the conclusion of Malcolm CJ, Steytler and Parker JJ that the Repeal Bill, even when considered in isolation, actually amended rather than repealed the EDA, was incorrect: the transitional provisions set out in the Repeal Bill repeal the EDA in toto, and merely establish a new regime which is to exist during the transitional period. As the EDA would no longer exist after the commencement of the Repeal Bill, the Repeal Bill cannot be said also to amend it.

The competing arguments

260 The amici, in response to these submissions, argued that a dichotomy between "amend" and "repeal" cannot be drawn in the context of s 13 of the EDA. If ever a provision called for a purposive construction it was this one, s 13. If it were otherwise and "amend" did not include "repeal", the whole intention of the entrenchment of the EDA effected by the section would be futile.

261 The amici also submitted, in the alternative, that the Repeal Bill, taken alone or read with the Amendment Bill, amended the EDA. They argued however that the reasoning of the majority did not necessarily turn on a reading of the Bills together as a scheme, nor on the transitional provisions. Nonetheless, the amici submitted, that to the extent that the majority in the Full Court may have separately relied on those matters, no error in their reasons was demonstrable.

The decision

262 In order to answer the questions raised by the applicants it is necessary to understand the nature and purpose of constitutions in this country and the history and conditions that have shaped their forms and provisions.

263 Western Australia is a vast State in a vast country. The population of both is unevenly distributed between metropolises and the country. In consequence, electorates vary in size, as do the demands of travel, communication, and servicing generally, upon those who represent their constituents. Equally it is obvious that there are many ways in which members of Parliaments may be elected, that is to say, democratically elected. Indeed, throughout the democratic world many different ways of electing representatives to Parliaments have been chosen. Similarly, Parliaments are not constituted according to any universal model. Even in Australia there is considerable variation. Queensland has a unicameral legislature. The terms of members of State upper houses vary considerably ^[260] . Parliamentary representatives could be elected, as is the case with the Senate, on the basis of a single total State electorate, or, as with the House of Representatives, on the basis of one member for one electoral division, the boundaries of which are not immutable. The point is that Parliaments cannot be elected and operate without provision, indeed fairly elaborate provision, to enable them to do so. And it is against the background of these elementary propositions that the Constitution of Western Australia must be identified, and the legislation and the Bills to which reference has been made, must be examined.

264 The first of these to which I turn is the EDA. What work has it to do? The answer is, essential work, work of a kind that if not done, would not enable a legislature to be elected and to function. Section 3 reflects the choice (made by ss 6 and 7 of the Constitution Amendment Act) of separate electoral divisions or districts for the election of members of the Parliament. Section 6 states the number of districts and distributes them (unevenly) between metropolitan areas as defined, effectively the capital Perth and its environs, and the rest of the State. Other provisions, ss 2, 2A, 3, 7, 8 and 9 prescribe the times, persons, procedures, bases and other matters for the determination of the boundaries of, and numerical tolerances in, electoral divisions.

265 Sections 51, 59, 60, 61 and 62 of the Electoral Act deal with the administration of the Western Australian electoral roll and have as their premise concepts of electoral districts and regions which are given life by the EDA. They could not be given effect if the EDA were not in place. Without the EDA or some like Act or replacement of it, elections for the Parliament of Western Australia could not be conducted. The inclusion of the transitional provision in cl 5 of the Repeal Bill continuing the current districts and distributions for a certain period is itself an effective acknowledgment of the essentiality of much of the EDA.

266 I turn to the Amendment Bill. Its purpose is to amend the Constitution Acts Amendment Act 1899 (WA) to increase the number of Legislative Councillors from 34 to 36 to be elected from six electoral regions each electing an equal number of councillors. Further, the Amendment Bill would insert in the Electoral Act provisions for the division from time to time of the State into 57 electoral districts and six electoral regions, by electoral distribution commissioners. The Amendment Bill contained a new provision, cl 16I, for insertion in the Electoral Act, providing a new basis for the division of the State into electoral districts. The six electoral regions would be determined by groupings of the electoral districts, so that the changed basis for division of the State into electoral districts would also effect a change to the basis of the determination of the six electoral regions. Otherwise, apart from some related machinery provisions, the provisions to be inserted into the Electoral Act by the Amendment Bill are, largely, in the same terms as the present provisions of the EDA with the exception of s 13 which would have no further operation.

267 The introduction of the Amendment Bill in the form in which I have just summarized is itself a further indication of the essentiality of the sorts of provisions of the kind contained in the EDA, and in substantial part reproduced in the Amendment Bill.

268 The problem in this area is obvious. What continuing vitality should a fetter imposed by a former Parliament have in relation to a later one? How heavily, definitely and finally, if at all, should the legislators of the past dictate the future? The answer must take into account that the whole intention of a constitution is to provide for the community that it is to govern a degree of genuine and effective, but not entirely inflexible, stability and certainty. The preference by and large of common law countries (apart from the United Kingdom) has been for Constitutions which are alterable in compliance only with a more strict, and, it may be accepted, less accessible process than the mere enactment of other, non-constitutional legislation. Section 128 of the Constitution of this country is itself an example of a provision requiring compliance with a strict process for its operation. By contrast, in some other countries there seems to have been a degree of instability which the presence of provisions such as s 13 of the EDA and adherence to them help to avoid.

269 The rise and fall of some Constitutions and the uncertainty arising in respect of them are discussed in K C Wheare's Modern Constitutions. His account aptly captures the degree of instability, indeed chaos, which has sometimes accompanied constitutional change ^[261] :

"It is worth while perhaps to emphasize the way in which Constitutions have come and gone in the first half of the twentieth century. Two World Wars provided the occasion for many of these changes. By the end of the First World War the Constitutions of Imperial Germany, of Imperial Russia, of the Austro-Hungarian Empire, and of the Turkish Empire, had been overwhelmed. In the next few years there arose new Constitutions, often for new states set up in the ruins of old Empires. There were new Constitutions for Germany (the so-called 'Weimar' Constitution of 1919), the USSR (1924 and 1936), Poland (1921), Czechoslovakia (1920), Jugoslavia (1921), Austria (1921), Hungary (1920), Estonia (1920), Lithuania (1928), Latvia (1922), Greece (1927), Roumania (1923), Albania (1925), Finland (1919), Portugal (1933), and Spain (1931). By the end of the Second World War most of these Constitutions had ceased to operate and had been joined in destruction by the older, pre-1914 Constitutions of France and Italy; in Finland, Portugal, and the USSR alone, perhaps, could it be claimed that the Constitution still preserved some semblance of its former self. In the years after 1945 new Constitutions began once more to appear, but in smaller numbers and with less liberal and democratic exuberance than in the years after 1918. There were new Constitutions for France (1946 and 1958), Italy (1948), the Federal Republic of Western Germany (1948), the Federal Peoples Republic of Jugoslavia (1946), Burma (1947), Ceylon (1948), India (1950), while in Austria and in Czechoslovakia an attempt was made to revive the old Constitutions of 1920 with some modifications, an attempt which was to fail in Czechoslovakia with the Communist coup of 1948 and the subsequent adoption of a new Constitution for a 'people's democratic republic'.

It is apparent from this account of the rise and fall of Constitutions that in Europe there are few countries which provide a sufficiently long and stable period of experience under a Constitution to enable one to consider, with any profit, the way in which the process of formal constitutional amendment has worked and how effective it has been. The Constitutions of most European countries have in fact not had a fair trial; they have not been given a chance to show whether they could work or not.

The same situation is found, broadly speaking, in Central and South America. In few of the republics has there occurred even twenty years' continuous government in accordance with the terms of a Constitution, and in some cases one Constitution has followed another in quick succession and in equal ineffectiveness. Between 1933 and 1948 fourteen new Constitutions were adopted in Latin America, and of these Brazil supplied three, one each in 1934, 1937, and 1946. It is true that in many cases these new Constitutions reproduce a good deal that was found in their predecessors, but in practice the frequency with which Constitutions come and go in most Latin-American States make any study of their ordered development impossible." (emphasis added)

270 Opinion as to the essentials however of and for a constitution are not unanimous. In McCulloch v Maryland Marshall CJ delivering the opinion of the Court said this ^[262] :

"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves."

271 On the other hand, many Constitutions contain quite elaborate detail with respect to matters which others eschew. Parts II and III of the Australian Constitution, for example, descend to the detail of the specification of the separate (State) electorates of Senators (s 7), the duration of their terms (ss 13 and 14), numbers of members of the House of Representatives (s 24), duration of the members' terms (s 28), and Part IV to the extent of the Parliament's powers with respect to the conduct of the business of Parliament.

272 It follows, in my opinion, that even though all draftspeople of Constitutions might not include the sort of detail as to the matters to which I have just referred, and those of a like kind in the EDA and in the Amendment Bill itself, it cannot be said, that these are not at least fit matters for inclusion in, and forming part of a constitution, and, having been designated as such by a manner and form entrenchment provision, in this case s 13 of the EDA, should not be so regarded.

273 The matters to which I have referred, and the conclusion that I draw from them, that the EDA forms part of the Constitution of the State, do not of themselves determine the meaning of and operation to be given to s 13 of the EDA, but they heavily influence them. It immediately strikes the reader how anomalous it would be if "amend" when used in a constitution were to be read so narrowly as to exclude, or have no application to a repeal, so as to enable a legislature, without complying with the requirements of s 13, to obliterate or extinguish entirely part of the Constitution, but not to amend it even by the addition or deletion of a mere word or phrase: that although the Parliament might not tinker with, it was entitled to annihilate a constitution or a substantial provision of it.

274 In my opinion therefore, "amend" in s 13 of the EDA should be read to include and apply to a purported "repeal". The fact that other legislation, for example, s 44 of the Interpretation Act 1918 (WA) uses each of the words "altered, amended, or repealed" does not dictate any different conclusion. The context there is quite different. In any event, on occasions, the words may be used interchangeably, and on others either conjunctively or disjunctively, for further or greater assurance and completeness. The context here, of a constitution, requires an expansive reading. It is unnecessary for me to repeat the history of the EDA and its precursors. This is fully described in the joint judgment of Steytler and Parker JJ in the Full Court ^[263] and the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in this Court. It is sufficient to say that the history is consistent with, and points to the conclusion which I have reached, that the purpose, and therefore the meaning to be given to s 13 of the EDA, was to immunise, consistently with the notion that constitutional change should be a matter of careful and detailed deliberation, the EDA against change, whether partially or completely, except by stringent compliance with a manner and form provision.

275 A second and separate reason for the same conclusion was given by the Full Court, that the Repeal Bill and the Amendment Bill should be read together and treated as part of a scheme. ^[264] It is unnecessary for me to express any concluded opinion on this although it does appear that the process undertaken by the Houses of Parliament was, and needed to be, a two-stage process. Without the latter there was no, or insufficient provision for the conduct of a general election. The attempted enactment of the Amendment Bill provides an indication of this.

276 There was a third reason given by the Full Court why the applicants' argument on this aspect of the case should fail. It was that, in any event, the EDA was not repealed, it was amended, because some of it was continued in operation, if only transitionally, by cl 5(2) of the Repeal Bill. ^[265] This raises a question of construction that could readily arise in other situations. I need express no opinion on it, as in my view the applicants fail on their first argument.

Repeal otherwise of s 13 of the EDA?

The applicants' argument

277 It was next submitted by the applicants that s 13 is directly inconsistent with s 2(3) of the Constitution Act (which was inserted in 1978 by the Constitution Amendment Act) as it is not possible to comply with both provisions at the same time. Section 13 purports to prohibit what s 2(3) requires. That is, s 2(3) requires that every Bill be presented to the Governor for the Royal Assent after its passage through the Houses of Parliament, while s 13 provides that it is not lawful to present certain Bills to the Governor unless they have been passed by an absolute majority.

278 The applicants submitted that in rejecting this argument, the Full Court erred by focussing on its perceived intention underlying s 2(3) rather than its clear operation. It was also submitted that the existence of an express exception to s 2(3) (s 73 of the Constitution Act) denies the existence of another, unstated exception.

279 Steytler and Parker JJ were of the opinion that the word "passage" in s 2(3) meant passage according to law. The applicants in this Court submitted that this interpretation ignores the effect of ss 14 and 24 of the Constitution Acts Amendment Act 1899 (WA) which provide that questions arising in the Legislative Council and Legislative Assembly be decided by a majority of votes of the members present (except for the presiding officer of each House who may exercise a casting vote). It was submitted that these provisions determine what is necessary for the passage of a Bill through the Parliament. Section 13, on the other hand, merely provides for the extent of the majority required before it is lawful to present the Bill for the Royal Assent. This does not, on the applicants' argument, deny that the Bill may still have passed the Houses if fewer than the required majority were obtained.

The arguments of the amici curiae

280 In response, the amici argued that for a statute to effect such a repeal it must be impossible to reconcile that later statute with the earlier one. This is not the case in relation to s 13 of the EDA and s 2(3) of the Constitution Act because the Full Court was correct in reading s 2(3) as requiring passage in compliance with any relevant manner and form provision. Sections 14 and 24 of the Constitution Acts Amendment Act are not relevant as they should be read as setting out no more than the occasions for passage by a simple majority vote, absent some other manner and form provision. If this were not so, the amici submitted, ss 14 and 24 of the Constitution Acts Amendment Act would themselves have been impliedly repealed by s 13 of the EDA.

281 In my view there has been no implied repeal of s 13. In Goodwin v Phillips, Griffiths CJ said ^[266] :

"where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act."

282 In South-Eastern Drainage Board (SA) v Savings Bank of South Australia ^[267] , Dixon J formulated a test for implied repeal by reference to whether it was "impossible" to reconcile the later and earlier provisions ^[268] :

"But, unless it is found impossible to reconcile the later statute ... there is no room for the conclusion that the later Act must be regarded as meaning to operate upon land under the earlier Act and to do so inconsistently therewith."

283 Gaudron J pointed out in Saraswati v The Queen ^[269] , that there must be strong grounds before an implication of repeal may be inferred ^[270] :

"for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."

The correct answer

284 Any inconsistency between the provisions can readily be resolved, however, by giving due effect to the word "passage" in s 2(3) of the Constitution Act. I agree with the majority in the Full Court that "passage" means "passage in a manner that is legally effective" rather than simply "passage in accordance with usual parliamentary practices". This interpretation recognizes that the Parliament may adopt different means to protect particular provisions from subsequent, hasty, or ill-considered alteration.

285 As Steytler and Parker JJ said ^[271] :

"... the adoption of the meaning of passage which we have suggested would provide a ready, and rather obvious, reconciliation of the operation of the latter and the earlier Acts."

286 There being a ready and obvious solution to any apparent inconsistency, it would not be right in my opinion, to say that it is impossible to reconcile the provisions. There is nothing to rebut the presumption that the provisions were intended to operate together. The Full Court was therefore correct to hold that s 13 had not been impliedly repealed.

Section 13 of the EDA does not bind the Parliament

The applicants' argument

287 What I have already said with respect to the components of the Constitution of Western Australia is really sufficient to dispose of the next argument raised by the applicants. It is that, in order for s 13 to be of binding force in respect of the Bills, they must be, but have not been shown to be laws "respecting the constitution, powers or procedure of the Parliament" for the purposes of s 6 of the Australia Acts. They submitted that it is clear from cases such as Clydesdale v Hughes ^[272] and Western Australia v Wilsmore ^[273] that not every law affecting the manner of choice of the membership of Houses of Parliament is a law respecting the constitution of the Parliament. In particular, it was submitted that laws providing for an "administrative process" by which electoral boundaries are to be determined are not laws respecting the constitution of the Parliament. In repealing the EDA, the Repeal Bill merely makes provision for the administrative machinery for the determination of electoral boundaries. The Amendment Bill, the applicants do however concede, does increase the number of members of the Legislative Council, but in doing so does not amend the EDA: s 13 is not therefore relevant.

The arguments of the amici curiae

288 The amici argue that the applicants cannot demonstrate any error in the Full Court's reasoning that a law for determining electoral boundaries is a law respecting the constitution of the Parliament. A law deals with the constitution of the Parliament of a State within the meaning of s 6 of the Australia Acts if it deals with its nature, composition or make-up. A law establishing the basis upon which electoral districts are determined, the amici submitted, deals with the nature, composition or make-up of a Parliament.

289 The amici also submitted that, in addition to s 6 of the Australia Acts, s 13 of the EDA has binding effect by way of, either or both s 106 of the Constitution, and s 2(1) of the Constitution Act which confers upon the Parliament of Western Australia the power to make laws for the peace, order and good government of Western Australia.

290 In Attorney-General (NSW) v Trethowan ^[274] Dixon J said this of the power contained in s 5 of the Colonial Laws Validity Act ^[275] :

"The power to make laws respecting its own constitution enables the legislature to deal with its own nature and composition. The power to make laws respecting its own procedure enables it to prescribe rules which have the force of law for its own conduct."

291 Laws, as these are, for the distribution of electorates and the composition of Parliament are clearly laws, as I have already held, respecting the constitution of a Parliament. The Bills in question lie at the core of the "nature and composition" of the legislature. They provide the bases for determining the geographic description of the electoral divisions that in turn are the basis for the allocation of seats in the legislature.

292 It follows that the Full Court was correct in holding that s 13 of the EDA is binding upon the Parliament of Western Australia by virtue of s 6 of the Australia Acts which effectively relevantly replaced the Colonial Laws Validity Act and successors to it. Section 3 of the Australia Acts provide as follows:

"3 Termination of restrictions on legislative powers of Parliaments of States

(1)

The Act of the Parliament of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State.

(2)

No law and no provision of any law made after the commencement of this Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of the Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a State shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the State."

293 The provisions of the EDA, including s 13, are part of the Constitution of Western Australia, and therefore may only be changed in accordance with the latter.

294 The Australia Acts may have been in part at least passed pursuant to s 51(xxxviii) of the Constitution, but there is more that can be said of them than that. All of the relevant Acts (federal and State ^[276] ) as well as the Australia Act 1986 (UK) represent a final and indubitable recognition, a settlement between the United Kingdom, Australia and its States, and an ultimate legitimization of the respective constitutions, the sovereignty and the plenitude of the powers of the respective Australian polities ^[277] . They also represent a remarkable and rare consensus of polities which requires that their terms be given full effect. Nothing that was said in Port MacDonnell Professional Fishermen's Assn Inc v South Australia ^[278] , in which the interaction of laws passed pursuant to s 6 of the Australia Act 1986 (Cth) and ss 51(xxxviii) and 106 of the Constitution was discussed, detracts from that.

Additional issue: prorogation

295 The original amici raised an additional issue in their submission which was not dealt with by the Supreme Court. They argued that there is a live issue whether, in any event, the Bills may now be presented for the Royal Assent because the Legislative Council and Legislative Assembly have been prorogued. The giving, they submitted, of the Royal Assent is a legislative act which can only be performed during a session of Parliament. Prorogation of the Legislative Council and Legislative Assembly brings a session of Parliament to an end. Any unfinished business of that parliamentary session is brought to an end at the same time.

296 To this the applicants say that the Governor may lawfully assent to a Bill passed by the Parliament after prorogation. They also add that this is an issue that could be dealt with by way of a challenge to the validity of the legislation after it has received the Royal Assent, so that this Court can still proceed to consider the issue raised by the proposed appeals.

297 The position in the United Kingdom is that prorogation quashes all proceedings pending at the time of prorogation ^[279] . The Royal Assent is, in general, given to any Bills that have passed both Houses before prorogation ^[280] .

298 The practice in the Commonwealth Parliament has been, that, upon prorogation, all proceedings come to an end and all business before the Parliament lapses ^[281] . Generally, Bills agreed to by both Houses are assented to before prorogation ^[282] . There have been occasions, however, when Bills were assented to after the Parliament had been prorogued ^[283] .

299 In Western Australia, the applicants point out, there have been a number of Bills assented to after prorogation. Having regard, the applicants submit, to the time that communication with the Sovereign would have taken when the provisions allowing the reservation of Bills were introduced, it could not have been remotely contemplated that Bills would lapse if there was an intervening prorogation of Parliament.

300 Reference was also made to s 9 of the Australia Acts which, the applicants argued, put an end to any possibility of the reservation of State laws for the assent of the Sovereign. It provides as follows:

"9 State laws not subject to withholding of assent or reservation

(1)

No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State.

(2)

No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty's pleasure thereon."

301 In Simpson v Attorney-General ^[284] the majority of the New Zealand Court of Appeal held that the Governor-General could assent to a Bill after the House of Representatives had ended its term ^[285] . In Western Australia v The Commonwealth ^[286] , Gibbs J held that ^[287] :

"At the time when the Constitution was enacted the effect of a prorogation was well recognized. ... it was said that a prorogation concludes a session and (subject to some immaterial exceptions) has the effect that 'all Bills, or other proceedings, depending in either House of Parliament, in whatever state they are, are entirely put an end to, and must, in the next session be instituted again, as if they had never been'."

302 I am inclined to think the applicants' argument correct but it is unnecessary for me to resolve this question. The other conclusions which I have reached obviate the need for that.

303 I would grant special leave to appeal but dismiss the appeals. The applicants and the amici curiae should each pay their own costs.