Attorney-General (WA) v Marquet

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ATTORNEY-GENERAL FOR WESTERN
AUSTRALIA & ANOR  APPLICANTS

AND

LAURENCE BERNHARD MARQUET  RESPONDENT

Attorney-General (WA) v Marquet [2003] HCA 67

13 November 2003
P114/2002 and P115/2002

ORDER

In each of Matters No P114 and P115 of 2002, order:

1.   Special leave to appeal granted.

2.   Appeal treated as instituted and heard instanter but dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

R J Meadows QC, Solicitor-General for the State of Western Australia with D F Jackson QC and R M Mitchell for the applicants (instructed by Crown Solicitor for the State of Western Australia)

No appearance for the respondent

S J Gageler SC with B Dharmananda for the amici curiae (instructed by Mallesons Stephen Jaques) 

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with G M Aitken intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)

P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland) 

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming, intervening on behalf of the Attorney‑General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales) 

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Attorney-General (WA) v Marquet

Constitutional law (WA) – State Parliament – Powers – Manner and form provisions – Electoral Distribution Act 1947 (WA), s 13.

Parliament – Parliament of a State – Constitutional law (State) – Justiciability – Whether questions arising out of parliamentary consideration of Bills in the Chambers of a State Parliament appropriate for review by courts and judicial determination.

Statutes – Construction – Electoral Distribution Act 1947 (WA), s 13 – Any Bill to "amend" that Act to be passed by a special majority – Whether s 13 applied to either the Electoral Distribution Repeal Bill 2001 (WA) or the Electoral Amendment Bill 2001 (WA) or both – Whether either of those Bills was a Bill to "amend" the Electoral Distribution Act 1947 – Meaning of "amend" – Significance of distinction between "amend" and "repeal".

Statutes – Construction – Whether terms of statute ambiguous – Where different interpretations in contention – Applicable interpretative principles to resolve ambiguity – Whether construction favouring the grant of legislative power and protection of civil and human rights available and applicable.

Statutes – Manner and form provisions – Power of a State parliament to bind its successors – Whether s 6 of the Australia Act 1986 (Cth) applied so as to require compliance with s 13 of the Electoral Distribution Act 1947 – Whether the two Bills affected "the constitution, powers or procedure" of the Western Australian Parliament.

Constitution (Cth) – Provisions concerning Constitution of a State and Parliament of a State – Manner and form provisions – Whether provisions of State law "entrenched" – Effect of Colonial Laws Validity Act 1865 (UK), s 5 – Effect of Australia Acts (Cth and UK), s 6 – Effect of Constitution, ss 51(xxxviii), 106 and 107.

Statutes – Construction – Implied repeal – Whether the Acts Amendment (Constitution) Act 1978 (WA) impliedly repealed s 13 of the Electoral Distribution Act 1947.

Parliament – Practice and procedure – Prorogation – Effect of prorogation on Bills passed by both Houses of Parliament but yet to receive Royal Assent.

Practice and procedure – Costs – Amicus curiae – Whether order for costs in favour of amici curiae as necessary contradictor in proceedings should be made.

Words and phrases – "amend", "repeal", "constitution, powers or procedure of the Parliament".

The Constitution, ss 51(xxxviii), 106, 107 and 128.
Australia Act 1986 (Cth), s 6.
Australia (Request and Consent) Act 1985 (Cth).
Australia Acts (Request) Act 1985 (WA).
Constitution Act 1889 (WA).
Constitution Acts Amendment Act 1899 (WA).
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.

GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ.

The questions argued and the answers to be given

1. The ultimate question in each of these matters is whether it was lawful for the respondent, the Clerk of the Parliaments of Western Australia, to present for Royal Assent either the Bill for an Act to be entitled the Electoral Distribution Repeal Act 2001 ("the Repeal Bill") or the Bill for an Act to be entitled the Electoral Amendment Act 2001 ("the Amendment Bill").

2. Section 13 of the Electoral Distribution Act 1947 (WA)[1] provided 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."

   Neither the Repeal Bill nor the Amendment Bill was passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council. Did s 13 of the Electoral Distribution Act make it "not ... lawful" to present to the Governor for Her Majesty's assent either the Repeal Bill or the Amendment Bill?  That is, did either or both "amend" the Electoral Distribution Act?  (It is convenient to call this the "construction question".)

   [1]The Act was originally entitled the Electoral Districts Act 1947 (WA). Its short title was amended by s 86 of the Acts Amendment (Electoral Reform) Act 1987 (WA).

3. If s 13 of the Electoral Distribution Act, on its proper construction, did apply to either or both of the Repeal Bill and the Amendment Bill, was it necessary to comply with the manner and form provisions of s 13?  (It is convenient to call this the "manner and form question".)  That will require consideration of the operation and effect of s 6 of the Australia Act 1986 (Cth) and its provision that:

   "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."

4. These reasons will seek to demonstrate that, on its proper construction, s 13 of the Electoral Distribution Act did apply to the Repeal Bill and to the Amendment Bill and that, because each of those Bills was for "a law ... respecting the constitution ... of the Parliament" of Western Australia, s 6 of the Australia Act required compliance with the manner and form provisions of s 13 of the Electoral Distribution Act.

5. Two other, subsidiary, questions were also raised by the arguments advanced.

6. Was s 13 of the Electoral Distribution Act impliedly repealed by s 4 of the Acts Amendment (Constitution) Act 1978 (WA) (the "implied repeal question")? That Act inserted s 2(3) into the Constitution Act 1889 (WA): "[e]very 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 ...". These reasons will seek to demonstrate that inserting s 2(3) in the Constitution Act 1889 (WA) ("the 1889 Constitution") did not impliedly repeal s 13 of the Electoral Distribution Act.

7. The second subsidiary question may be called the "prorogation question".  Between the time when the proceedings were commenced in the Supreme Court of Western Australia and the delivery of judgment by the Full Court, the Governor of Western Australia, on 9 August 2002, prorogued the Legislative Council and the Legislative Assembly.  It was submitted in this Court, but not in the court below, that proroguing the Houses rendered the questions moot because, so it was submitted, even if it were otherwise lawful to present either Bill for assent, they could not be presented for Royal Assent after the proroguing of both Houses.  Although it is not necessary to decide the point, these reasons will seek to show that proroguing the Houses did not have the effect asserted.  Had it otherwise been lawful to present the Bills for Royal Assent, that could have been done notwithstanding the prorogation.

8. Finally, it should be noted that one matter dealt with at length in the judgments of the Full Court[2] was not agitated in this Court.  No party to the proceedings (the Attorney‑General for Western Australia and the State on the one side and the Clerk of the Parliaments on the other) and none of the Attorneys‑General who intervened (the Attorneys‑General for the Commonwealth, New South Wales and Queensland) contended in this Court that the issues tendered in the present proceedings were not justiciable.  The respondent, the Clerk of the Parliaments, played no active part in the proceeding in this Court or in the court below.  Those who appeared in this Court, as amici curiae, to contradict the arguments for the applicants (the Liberal Party of Australia (WA Division) Incorporated, the National Party of Australia (WA) Incorporated, the Pastoralists and Graziers Association of Western Australia (Incorporated), The Western Australian Farmers Federation (Inc), One Nation (Western Australian Division) Incorporated and Judith Ann Hebiton) likewise did not seek to contend that the issues were not justiciable.  That question need not be considered.

   [2]Marquet, Clerk of the Parliaments (WA) v Attorney‑General (WA) (2002) 26 WAR 201 at 209‑210 [17]‑[23] per Malcolm CJ, 223‑224 [84]‑[85] per Anderson J, 230‑244 [119]‑[169] per Steytler and Parker JJ, 270 [296] per Wheeler J.

   The essential facts

9. On 19 December 2001, the Legislative Council of Western Australia completed its consideration of the Repeal Bill.  In the Legislative Assembly an absolute majority of members had voted in favour of the Bill.  In the Legislative Council a majority of the members of that House, then present and voting, voted for the Bill but it was not passed by an absolute majority of the members of that body.

10. On the next day, 20 December 2001, the Legislative Council completed its consideration of the Amendment Bill.  The Bill had been passed by an absolute majority of members of the Legislative Assembly but it, too, secured only a majority of those members then present and voting.  It did not secure an absolute majority of the Legislative Council.

    The proceedings below

11. On 21 December 2001, the respondent commenced proceedings in the Supreme Court of Western Australia seeking declarations.  A separate proceeding was commenced concerning each Bill.  In each, the respondent asked the Court, in effect, to determine whether it was lawful for him to present the relevant Bill to the Governor for assent.  The proceedings were referred to the Full Court of the Supreme Court of Western Australia.  A majority of the Court (Malcolm CJ, Anderson, Steytler and Parker JJ) answered the questions in the negative[3].  The fifth member of the Court (Wheeler J) dissented, being of the opinion that it was lawful to present the Repeal Bill to the Governor for assent and that the lawfulness of presenting the Amendment Bill for assent "would depend upon whether the Repeal Bill [had] been assented to at the relevant time"[4].

    [3]Marquet, Clerk of the Parliaments (WA) v Attorney‑General (WA) (2002) 26 WAR 201.

    [4](2002) 26 WAR 201 at 288 [371].

12. The applicants sought special leave to appeal to this Court against the declaratory orders which the Full Court made.  That application for special leave was referred for consideration by the Full Court of this Court.

    The construction question – the contentions

13. Section 13 of the Electoral Distribution Act spoke only of a "Bill to amend this Act".  It did not refer to a Bill to repeal the Act. Central to the applicants' contentions was the contention that s 13 should not be construed as extending to a Bill which itself did no more in relation to the Electoral Distribution Act than repeal it. The applicants submitted that, in considering whether s 13 was engaged, attention must be confined to the Bill in question and that it was not relevant to ask whether, at the same time or later, the Parliament was considering some other Bill dealing with subjects with which the Electoral Distribution Act dealt.  That is, the applicants' argument was that in s 13 "amend" meant "amend", not "change" or "repeal", and that attention must be confined to the particular Bill.

14. The amici submitted that "amend" must be understood in the light of the history of what became s 13 of the Electoral Distribution Act.  It is a word which in its context, they submitted, included "change", and extended to include the Repeal Bill no matter whether that Bill was considered in isolation from the Amendment Bill or, as their submissions tended to suggest was the preferable course, in conjunction with it.

    The construction question – some matters of history

15. The construction question cannot be answered without understanding the legislative origins of the Electoral Distribution Act and the place that its legislative predecessors took in the constitutional arrangements for Western Australia. It is therefore necessary to begin by considering the Constitution which introduced in the Colony representative and responsible government with a bicameral legislature. It remains the "keystone of the present constitution of Western Australia"[5].

    [5]Western Australia v Wilsmore (1982) 149 CLR 79 at 93.

16. In its original form, the 1889 Constitution dealt with the establishment of the Legislative Council and Legislative Assembly (s 2) and provided, by that same section, that it should "be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good government" of the Colony and its dependencies. The 1889 Constitution provided (s 11) for how the Assembly should be constituted: there were to be 30 members elected for "the several electoral districts hereinafter named and defined". Section 37 and Sched A identified the 30 electoral districts into which the Colony was divided.

17. The members of the first Legislative Council to be constituted after the 1889 Constitution were appointed by the Governor in Council (s 6) but the 1889 Constitution provided (s 42) that, no later than six years after the summoning of that first Council, or upon the population of the Colony, "exclusive of aboriginal natives", attaining "Sixty thousand souls", whichever first happened, provisions for an elective Council were to be proclaimed. (The Governor was authorised to postpone the operation of these provisions for any period not exceeding six months.)

18. The provisions of the 1889 Constitution which provided for an elective Council included s 45 (that "[t]he Legislative Council shall consist of fifteen elected members ...") and s 52 by which the Colony was divided into five electoral divisions each returning three members to serve in the Council. The electoral divisions were described in s 52 as each comprising a number of identified electoral districts.

19. The 1889 Constitution provided for the qualifications of electors for the Legislative Assembly (s 39), for the qualifications of electors for the Legislative Council (s 53), and for the maintenance of electoral lists (s 41), but in other respects it continued in operation (s 38) the provisions of electoral laws found in other legislation (The Electoral Act 1889 (WA) which was enacted in anticipation of the 1889 Constitution coming into force).

20. Section 73 of the 1889 Constitution provided:

    "THE Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act.  Provided always, that it shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively.  Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III of this Act provided, and every Bill which shall interfere with the operation of sections sixty‑nine, seventy, seventy‑one, or seventy‑two of this Act, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty's pleasure thereon."

21. For present purposes it is relevant to notice only that part of s 73 which provided manner and form requirements in respect of "any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected". (In Yougarla v Western Australia[6], this Court considered the operation of s 73 in relation to the provisions of s 70 of the 1889 Constitution dealing with sums payable to the Aborigines Protection Board.)

    [6](2001) 207 CLR 344.

22. The 1889 Constitution was amended in 1893 (by The Constitution Act Amendment Act 1893 (WA)), in 1896 (by the Constitution Act Amendment Act 1896 (WA)) and again in 1899 (by the Constitution Acts Amendment Act 1899 (WA)). By each of those Acts changes were made to electoral divisions or provinces for elections to the Legislative Council and to electoral districts for elections to the Legislative Assembly. The numbers of members of each House were changed by each of these amending acts and the qualifications of electors were altered by the 1893 and 1899 amending acts.

23. In 1903, three Bills were introduced into the Legislative Assembly of Western Australia: a Constitution Act Amendment Bill, an Electoral Bill and a Redistribution of Seats Bill. The Houses of the Western Australian Parliament differed about these Bills. The Constitution Act Amendment Bill was eventually laid aside in the Legislative Council, the Houses being unable to agree upon its form. The Electoral Bill and the Redistribution of Seats Bill were passed in early 1904.

24. In the Legislative Council, while the Redistribution of Seats Bill was being considered on recommittal, an amendment to the Bill was proposed, and agreed to, to provide for the legislative precursor to what is now s 13 of the Electoral Distribution Act.  The member who moved the amendment is reported[7] as saying that:

    "It was almost a formal matter, and simply retained the power the Constitution gave at present to insist that any Bill that fundamentally altered the Constitution should be agreed to by a majority of both Houses."

    At first the Legislative Assembly rejected this amendment[8], but the Legislative Council insisted on it, and ultimately the Bill was passed in its amended form[9], including the amendment as s 6.

    [7]Western Australia, Legislative Council, Parliamentary Debates (Hansard), 9 December 1903 at 2587.

    [8]Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 16 December 1903 at 2869.

    [9]Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 15 January 1904 at 3207.

25. The debates in the Western Australian Parliament reveal that the three Bills introduced in 1903 – the Redistribution of Seats Bill, the Electoral Bill and the Constitution Act Amendment Bill – were intended to effect a number of interrelated changes to constitutional arrangements in Western Australia. Some of the proposed changes affected the way in which the Western Australian Parliament was constituted and elected. Electoral boundaries were to be redrawn by the Redistribution of Seats Bill; the franchise was to be altered by the Electoral Bill and the Constitution Act Amendment Bill. But the proposals made in the Constitution Act Amendment Bill were much more extensive than that, including, as they did, provisions for double dissolutions of the Houses of the Parliament and provisions giving increased powers to the Legislative Council in relation to money Bills. Because the three Bills were treated in debate as related one to another, it is as well to say something about each.

26. It appears that the measures were put forward as three Bills on the basis that it was "the function of Constitutions to be as immutable as possible"[10].  The Redistribution of Seats Bill was seen as containing provisions which were very likely to be varied[11] as the State developed.

    [10]The Colonial Secretary, the Hon W Kingsmill, moving the second reading of the Redistribution of Seats Bill in the Legislative Council, Western Australia, Legislative Council, Parliamentary Debates (Hansard), 14 October 1903 at 1545.

    [11]Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 13 January 1904 at 3167.

27. Two issues dominated the debates about the three Bills:  first, the number of members to be in each House and the relationship between the numbers of members in each House, and, secondly, the detailed consideration of electoral boundaries.  (The record of debate in the Assembly in committee considering those provisions of the Redistribution of Seats Bill which defined the boundaries occupies many pages of Hansard and the debate proceeded seat by seat.)

28. The effect of the Redistribution of Seats Bill was to move from the 1889 Constitution (as it had been amended from time to time) those provisions governing elections to the Western Australian Parliament which drew the electoral boundaries. But the Bill, as ultimately enacted, did not alter the number of members of either House of the Western Australian Parliament. There were still to be 50 electoral districts, each returning one member to the Legislative Assembly. The provisions of s 6 of the Constitution Acts Amendment Act 1899 dividing the Colony into 10 electoral provinces, each returning three members of the Legislative Council, were ultimately unaffected by the legislation which was passed in 1904, except to the extent to which the boundaries of the component electoral districts were changed.

29. The Electoral Bill was seen as containing machinery provisions. Its effect was to make some relatively minor changes to the franchise – essentially by removing the previous requirement that an elector had to be registered to vote for at least six months before becoming eligible to vote. By contrast, the Constitution Act Amendment Bill would have made significant changes to constitutional provisions regulating voting. Plural voting in elections for the Legislative Council would have been abolished. This and the other proposals advanced in the Constitution Act Amendment Bill failed.

30. The inclusion, in the Redistribution of Seats Bill, of the legislative precursor to s 13 of the Electoral Distribution Act might be seen as contrary to the intentions of those who divided the legislation proposed in 1903‑1904 into three Bills.  That may explain the reluctance with which the Legislative Assembly embraced the Council's amendment.  But whether contrary to the original structure which the framers of the Bills envisaged or not, the amendment was made.  As the then Premier said[12], when explaining his government's decision to accept the Council's amendment to the Redistribution of Seats Bill:

    "That is inserted by the Council to require of both Houses the same majority as must now be obtained if we are to pass any amendment which involves a redistribution of seats. By agreeing to that clause we place ourselves in no different position from that which we occupy to‑day. The Council say to us, 'If you take from the Constitution Act those sections which deal with the redistribution of seats, and which in the past have always formed part of the Constitution Act, you must take with them the obligation imposed on you by the Constitution Act, that whatever amendments you make shall be passed by a certain majority.' We disagreed with that amendment, but the Council insist on it."

    [12]Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 13 January 1904 at 3168.

31. As is demonstrated later in these reasons, the view expressed in this passage as to the meaning of manner and form provisions in the Constitution was correct. Further, the prediction that redistribution of electoral boundaries would be a matter of frequent parliamentary consideration proved to be correct. A further redistribution of seats occurred in 1911. The Redistribution of Seats Act 1911 (WA) was passed with an absolute majority at all relevant stages of its passage through both Houses. The Act redrew the boundaries of electoral provinces and electoral districts but did not alter the number of members of either House. Section 6 of that Act was in terms substantially identical to those of s 6 of the 1904 Act and those now found in s 13 of the Electoral Distribution Act.

32. In 1923, assent was given to the Electoral Districts Act 1922 (WA). That Act provided for the appointment of Electoral Commissioners whose duty would be to divide the State into 50 districts for the election of members of the Legislative Assembly. The Act prescribed (ss 4‑7) the criteria to be applied in making that division and provided (s 9) for the introduction of a Bill for redistribution of seats in accordance with the report of the Electoral Commissioners. Such a Bill would have been subject to the manner and form requirements of s 6 of the 1911 Act. The criteria specified in the 1922 Act were altered by the Electoral Districts Act Amendment Act 1928 (WA) but the detail of those changes is irrelevant.

33. In 1929, a new Act for redistribution of seats was enacted:  the Redistribution of Seats Act 1929 (WA). It, too, was passed with an absolute majority in both Houses. It repealed the 1911 Act (s 5) and provided for new boundaries for the 50 electoral districts and 10 electoral provinces. Section 4 of the Act was in substantially identical terms to those of s 6 of the 1904 Act, s 6 of the 1911 Act and s 13 of the Electoral Distribution Act.

34. The Redistribution of Seats Act Amendment Act 1929 (WA) made some amendments to the description of boundaries of some electoral districts but again the detail does not matter for present purposes.

35. In 1947, the Electoral Distribution Act repealed the Redistribution of Seats Act 1911, the Electoral Districts Act 1922, and the Redistribution of Seats Act 1929 and made new provisions for the subjects with which those Acts had dealt. Like the 1922 Act, the Electoral Distribution Act provided for the appointment of Electoral Commissioners to recommend the division of the State into electoral districts and electoral provinces.  It provided criteria by which that was to be done.  Those criteria have since been amended and now provide (s 6) that there shall be 34 electoral districts in the "Metropolitan Area" (defined, in effect, as Perth and Rottnest Island) and 23 districts in the area comprising the remainder of the State.  The number of enrolled electors in a district must not be more than 15 per cent greater, or more than 15 per cent less, than the quotient obtained by dividing the total number of enrolled electors in the area of the State concerned by the number of districts into which that area is to be divided.  (The operation of this criterion was considered by this Court in McGinty v Western Australia[13].)  The Electoral Distribution Act has been amended in a number of other respects since it was first enacted but nothing was said to turn on those changes.

    [13](1996) 186 CLR 140 at 225‑226.

36. One other piece of legislative history should be noticed but may then be put aside.  In 1907, the Imperial Parliament enacted the Australian States Constitution Act 1907 (Imp) to deal with what then was seen as the inconvenience and difficulty presented to the Imperial authorities by provisions of State constitutions requiring reservation for Royal Assent of Bills dealing with the alteration of the franchise and the system of election.  Bills for altering the constitution of the State legislatures were seen as falling in a different category which did merit the attention of the Imperial authorities.  But in order, so it seems, to confine the classes of Bills that would have to be reserved, s 1(2) of the Australian States Constitution Act made elaborate provision for whether a Bill was to be treated as a Bill altering the constitution of the legislature of a State or of either House.  The particular detail of those provisions is not now important.  The statute is no longer in force[14].

    [14]Yougarla v Western Australia (2001) 207 CLR 344 at 367 [58].

37. It may be that the inconvenience of reserving Bills was a matter of concern in relevant colonial and Imperial circles by late 1903, when the Constitution Act Amendment Bill, Redistribution of Seats Bill and the Electoral Bill were being prepared. But even if that were so (and we were taken to nothing that would show whether it was) nothing suggests that the introduction of those Bills in 1903 was connected with the matters which were later to be dealt with in the Australian States Constitution Act.

    The construction question – what history shows

38. The history of the legislation reveals that provisions governing electoral redistribution were always treated as requiring special consideration by the colonial, later State, Parliament. At first, they were set out in the 1889 Constitution itself. When it is observed that the 1889 Constitution provided (s 11) that the 30 members of the Legislative Assembly were to be elected for "the several electoral districts hereinafter named and defined" (emphasis added), it is evident that the definition of the districts returning members to sit in the House was then a defining element of the constitution of the Parliament. (The equivalent provisions of the 1889 Constitution dealing with an elective Legislative Council were of the same character.) When it is also recalled that the number of districts identified the number of members that were to be elected to the Legislative Assembly, the conclusion that definition of electoral districts was then a matter affecting the constitution of that House is reinforced.

39. It therefore follows from s 73 of the 1889 Constitution that the definition of electoral districts set out in the 1889 Constitution (as amended to 1904) was amenable to change only by the absolute majorities referred to in that section. It also follows that the member of the Legislative Council who proposed the amendment to the Redistribution of Seats Bill in 1903, by including the legislative predecessor of what is now s 13 of the Electoral Distribution Act, was right to describe it as "retain[ing] the power the Constitution gave ... to insist that any Bill that fundamentally altered the Constitution should be agreed to by a majority of both Houses".

40. The applicants rightly pointed out that neither s 6 of the 1904 Act nor s 13 of the Electoral Distribution Act used the same verbal formulae that were used in s 73 of the 1889 Constitution. Section 6 of the 1904 Act and its legislative descendants have all used the expression "any Bill to amend this Act". Section 73 of the 1889 Constitution gave power to the legislature "to repeal or alter" any of the provisions of the Act, subject to the proviso that "any Bill by which any change in the [c]onstitution" of either House of the legislature was made had to secure an absolute majority in each House. No doubt the difference in language ("amend" rather than "repeal or alter" or "change") provides a firm foothold for the argument that "amend" may be read more narrowly than "change". But the difference in language cannot be treated as determining the issue which now arises. It remains necessary to construe the expression which was used in the 1904 Act and now appears in s 13 of the Electoral Distribution Act.

41. Moving the provisions defining electoral districts into a separate Act, and later providing the mechanism for regular redistributions, obviously separated the provisions dealing with these subjects from Acts that were called "Constitution" Acts.  But neither the title of an Act nor the division of State constitutional provisions between separate pieces of legislation is a matter of determinative significance to the present issues.

42. All who presented arguments on the hearing of the applications in this Court accepted that legislative provision for the definition of electoral boundaries was essential to the holding of an election for either House of the Western Australian Parliament, whether that was a general election, or a by‑election consequent upon a vacancy in the lower House.  (Vacancies in the upper House can now be filled by re‑count[15].)

    [15]Electoral Act 1907 (WA), Pt IVA (ss 156A‑156E).

43. Saying that such legislation is "essential" may be ambiguous. For present purposes, what is important is that defining electoral boundaries is not only politically necessary, it is legally essential. Of course there would be irresistible political pressure to produce legislation defining electoral boundaries if the existing provisions were removed from the statute book. But not only would there be political pressure, the provisions of the Western Australian Constitution, particularly Pt I of the 1889 Constitution (ss 2‑36) and Pt I of the Constitution Acts Amendment Act 1899 (ss 5‑42), which deal with the Parliament of that State, cannot work except by reference to defined electoral districts and provinces. It follows that, if the Electoral Distribution Act were to be repealed, some replacement provisions would have to be made, at least to the extent of defining electoral boundaries.  If that was not done, there could be no election.

44. Neither the applicants nor the amici suggested in argument that, if the provisions defining electoral districts and provinces were repealed, those electoral boundaries would have had some continued operation (apart from the operation which transitional provisions gave them) until different provision was made.  Perhaps those provisions of Pt V of the Interpretation Act 1984 (WA) (ss 33‑39) which deal with the effect of repealing Acts might have been said to have some relevant operation in such circumstances.  Much might then have depended on examining whether such of the legislation governing elections as remained unaffected by the repeal could be given sensible meaning and effect despite the repeal.  None of these questions was explored in argument and it is, therefore, not appropriate to pursue them.  Rather, significance must be attached to the fact that the definition of electoral boundaries now is, and in 1904 was, essential to the election of the Parliament.

45. Because the definition of electoral boundaries was, and still is, essential, repealing the Electoral Distribution Act must sooner or later be succeeded by the enacting of other statutory provisions which will themselves define or provide for the definition of electoral boundaries.

    The construction question – "amend" and "repeal"

46. In the course of argument we were taken to various decisions both in this Court[16] and in other courts[17] which have considered the meaning of the words "amend" and "repeal".  It may readily be accepted that the central meaning of "amend" is to alter the legal meaning of an Act or provision, short of entirely rescinding it, and that the central meaning of "repeal" is to rescind the Act or provision in question.  The cases reveal, however, that the words can be used in ways in which there appears to be some overlapping in their meanings.  Thus, as was pointed out in Kartinyeri v Commonwealth[18]:

    "An amendment may take the form of, or include, a repeal.  Thus, if a section is deleted it can be said that it has been repealed whilst the statute itself has been amended." (footnote omitted)

    [16]Goodwin v Phillips (1908) 7 CLR 1 at 7; Mathieson v Burton (1971) 124 CLR 1 at 9‑12; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 353‑354 [9]‑[10], 375‑376 [66]‑[68].

    [17]For example, Beaumont v Yeomans (1934) 34 SR(NSW) 562 at 568‑570.

    [18](1998) 195 CLR 337 at 375 [67].

47. It may also be accepted that "amend", "repeal" and cognate terms were used in the Western Australian interpretation legislation in force in 1904 (the Interpretation Act 1898 (WA)) and in 1947 (the Interpretation Act 1918 (WA)) in ways which suggested that the words were considered to have different meanings. (Neither of those Interpretation Acts sought to define either "amend" or "repeal" as the current interpretation legislation does[19].)  But concluding that the words have different meanings is not to say that the distinction between them always depends upon the form in which a particular piece of legislation is cast.  The distinction must depend upon considerations of substance not form.

    [19]Interpretation Act 1984 (WA), s 5.

48. The applicants rightly pointed out that the expression in s 13 of the Electoral Distribution Act, "any Bill to amend this Act", had first to be applied in a parliamentary, not a curial context.  Each House of the Parliament would have to consider whether a Bill being considered in the House met the description of being a Bill to amend the Electoral Distribution Act.  That reinforces what the words of s 13 would convey in any event:  that the critical question is one requiring characterisation of a particular Bill, regardless of what other Bills are then under consideration by that or the other House.

49. But to decide that, when considering the operation of s 13 of the Electoral Distribution Act, it is necessary to confine attention to the Bill to which it is said to apply does not conclude the question which s 13 presents.  It does not shed light on what is meant by "amend" in the expression "any Bill to amend this Act".

50. It would be question‑begging to commence with an assumption that there is an opposition between the concepts of amendment and repeal, and to ask which of the two better fits the present case.  A question to be decided is whether the legislation, on its true construction, distinguishes between those two concepts.  The issue is whether what occurred in the present case falls within the concept of amendment in s 13.

51. The critical consideration is that defining electoral boundaries is legally essential to enable the election of the Parliament.  Because that is so, "amend" cannot be understood as restricted to legislative changes that take the form of leaving the Electoral Distribution Act in operation albeit with altered legal effect.  "Amend" must be understood as including changing the provisions which the Electoral Distribution Act makes, no matter what legislative steps are taken to achieve that end.  In particular, it is not important whether the changes are made by one or more than one statute.  The form in which the legislative steps to effect the change is framed is not determinative; the question is, what is their substance?

52. Because definition of electoral boundaries is legally essential to the election of the Parliament, repealing the Electoral Distribution Act must necessarily be a precursor to the enactment of other provisions on that subject of electoral boundaries.  To read "any Bill to amend this Act" as confined to a Bill which will leave at least one provision of the Electoral Distribution Act remaining in force, whether with the same or different legal operation, would defeat the evident purpose behind the introduction of the provision in 1904.  That purpose was to ensure that no change could be made to electoral districts save by absolute majority of both Houses.  And when identical provision was made in subsequent legislation there is no reason to read the phrase more narrowly.  The evident purpose of the provision should not be defeated by preferring form over substance[20].

    [20]Bropho v Western Australia (1990) 171 CLR 1 at 20. See also Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 145‑146 [82].

    The construction question – irrelevant considerations

53. Section 13 of the Electoral Distribution Act must be given the same meaning no matter whether the proposed legislation would advance or diminish the rights of particular electors.  The construction question cannot be resolved by classifying the particular proposals that are made for new electoral boundaries as "desirable" or "undesirable", or as advancing human or other rights of electors in Western Australia.  The content of the Bills which it is said have not validly been passed is irrelevant to whether either was a Bill to amend the Electoral Distribution Act.  To assign a different meaning to s 13 according to the qualitative assessment that is made of the desirability of the proposed laws under consideration constitutes fundamental legal error.

54. It was decided in McGinty v Western Australia[21] that the Constitution contains no implication affecting disparities of voting power among the holders of the franchise for the election of members of a State Parliament. That outcome is not to be gainsaid by reference to international instruments and their elevation to control constitutional interpretation, including that of "manner and form" provisions[22].

    [21](1996) 186 CLR 140.

    [22]See Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383‑386 [95]‑[101].

55. There is, moreover, a logical difficulty as to the use of such instruments in the present case. The question is one of the construction of s 13 of the Electoral Distribution Act.  The section is to be construed in the context of the whole Act.  It stipulates a special procedure for the alteration of the substantive provisions of the Act.  The meaning and effect of the stipulation is in dispute, but at least that much is clear.  Let it be assumed, for the purposes of argument, that the substantive provisions of the Act are antithetical to the standards of representative democracy established by international instruments.  If the purpose of s 13 is to make it more difficult to change a system of electoral distribution that is contrary to international norms, then an argument that the section itself should be construed by reference to such norms is self‑contradictory.

    The construction question – applying s 13

56. It follows from what has been said about the proper construction of s 13 that it applied to the Repeal Bill.  That was a Bill for an Act to "amend" the Electoral Distribution Act.

57. It also follows that s 13 applied to the Amendment Bill.  It, too, was a Bill for an Act which would amend the Electoral Distribution Act because it was a Bill to make provision for the several subjects with which the Electoral Distribution Act dealt.  Although the Amendment Bill was introduced and dealt with separately from the Repeal Bill, a Bill dealing with these subjects had to be passed.

58. The conclusions just expressed do not depend upon treating the two Bills as forming a "scheme".  That the two Houses dealt with the Bills separately might suggest that the word "scheme" was inappropriate, as a matter of ordinary language, to describe or identify some relationship between them.  Moreover, an argument founded on identifying two Bills as a scheme may be thought to encounter particular difficulty if the Bills had been considered at more widely spaced intervals than was the case here, or if the promoters of the Bills had differed.  To treat one Bill promoted by government as forming part of a scheme constituted by that Bill and another promoted by the opposition, or one of several alternative proposals before the Parliament, would stretch the meaning of "scheme" beyond its breaking point.  More fundamentally, however, it is by no means clear what legal criteria were to be applied in order to attach the description "scheme".  Nor was it clear what legal consequences were said to follow from the application of the term[23].  At base the contention seemed to amount to no more than that some legislation defining electoral boundaries was necessary to permit election of the Parliament.  That contention is accepted but it neither needs, nor makes useful, the attribution of the term "scheme" to the two Bills now in question in order to draw a conclusion about the application of s 13.

    [23]cf Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735; W R Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) (1940) 63 CLR 338; [1940] AC 838; Logan Downs Pty Ltd v Federal Commissioner of Taxation (1965) 112 CLR 177.

59. Nor do the conclusions expressed depend upon attributing particular significance to some transitional provisions that were contained in cl 5 of the Repeal Bill.  By those provisions the existing electoral divisions made under the Electoral Distribution Act would have continued to apply in respect of by‑elections held before the first general election to be held after the commencement of the Act (cl 5(2)(a) and (b)), and would have applied for the purposes of filling casual vacancies in the Legislative Council by re‑count under Pt IVA of the Electoral Act 1907 (WA) (cl 5(2)(c)). The amici submitted that these transitional provisions would have given an altered temporal dimension to the Electoral Distribution Act, and thus have amended it, in the sense of altering its legal meaning in that respect[24].  In view of the conclusions earlier reached, it is unnecessary to consider the validity of this contention.

    [24]Kartinyeri v Commonwealth (1998) 195 CLR 337 at 375 [67].

    The implied repeal question

60. It is convenient to deal at this point with the applicants' contention that s 13 of the Electoral Distribution Act was impliedly repealed by the enactment (by s 4 of the Acts Amendment (Constitution) Act 1978) of s 2(3) of the 1889 Constitution. Section 2(3) provides that "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".

61. It was said that this provision is directly inconsistent with s 13 of the Electoral Distribution Act. That is not right. The two provisions can be readily reconciled. Where s 2(3) speaks of "passage through" the Houses of the Parliament it necessarily means "due passage" or "passage in accordance with applicable requirements". It does not mean, as the implied repeal argument necessarily entailed, passage in accordance with the requirements for Bills to which no manner and form provision applied.

62. The reference in s 2(3) to its terms being "subject to section 73" requires no different conclusion. In 1978, when s 2(3) was inserted in the 1889 Constitution, s 9 of the Australia Act had not been enacted. Reservation of Bills for the Royal Assent was still required by s 73. It was to that question that the express subjection of s 2(3) to s 73 was directed, not to the proper understanding of the expression "passage through" the Houses.

    Section 13 of the Electoral Distribution Act as a manner and form provision

63. Discussion of the application of manner and form provisions has provoked much debate about the theoretical underpinnings for their operation.  Thus, to ask whether a Parliament has power to bind its successors by enacting a manner and form provision has, in the past, lead into debates cast in the language of sovereignty or into philosophical debates about whether a generally expressed power includes power to relinquish part of it.  Neither the language of sovereignty, nor examination in the philosophical terms described, assists the inquiry that must be made in this case.  Sooner or later an analysis of either kind comes to depend upon the content that is given to words like "sovereignty" or "general power".  It is now nearly 50 years since H W R Wade convincingly demonstrated[25] that the basal question presented in a case like the present, when it arises and must be considered in a British context, is about the relationship between the judicial and legislative branches of government and, in particular, what rule of recognition the courts apply to determine what is or is not an act of the relevant legislature.  When Diceyan theories about the role of the Parliament at Westminster held sway the answer which Wade identified as having been given in England to the question of what rule of recognition an English court would apply in relation to the Acts of that Parliament was:  any Act enacted in the ordinary way by that Parliament regardless of any earlier provision about manner and form[26].

    [25]H W R Wade, "The Basis of Legal Sovereignty", (1955) Cambridge Law Journal 172.

    [26]Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743 per Avory J; Ellen Street Estates Ltd v Minister for Health [1934] 1 KB 590 at 597 per Maugham LJ; British Coal Corporation v The King [1935] AC 500 at 520 per Viscount Sankey LC; Manuel v Attorney‑General [1983] Ch 77 at 89 per Sir Robert Megarry VC.

64. Sir Owen Dixon explained that such an analysis proceeded from an understanding of the relationship between the judicial and the legislative branches of government that was apt to a structure of government which did not depend ultimately upon the constitutional assignment of particular powers to the legislature or provide for a constitutional division of powers between polities[27].  It was a structure of government in which the only relevant fundamental or constitutional rule engaged was the rule of recognition.  This was "the pivot of the legal system"[28].  There was no other fundamental or constitutional rule which applied.  And that is why a different answer was to be given when considering the legislation of subordinate legislatures where a superior legislature (the Imperial Parliament) had provided for some manner and form provision.  There was a higher, more fundamental, rule that was engaged.  Given such constitutional developments in Britain as devolution, and the undertaking of treaty obligations in relation to Europe, analysis of the first kind described might now be thought[29] to encounter difficulties today.  It is, of course, neither necessary nor appropriate to explore those difficulties here.

    [27]Dixon, "The Law and the Constitution", (1935) 51 Law Quarterly Review 590 at 604.

    [28]Dixon, "The Law and the Constitution", (1935) 51 Law Quarterly Review 590 at 593.

    [29]H W R Wade, Constitutional Fundamentals, (1989) at 40‑47.

65. In an Australian context it was, at first, important to recognise that the colonial legislatures stood in the second category we have identified. They were subordinate legislatures, and manner and form provisions could be and were imposed upon them by Imperial legislation. Section 73 of the 1889 Constitution can be seen as one example of such a provision. (It must be recalled that the 1889 Constitution depended for its operation upon enabling Imperial legislation – the Western Australia Constitution Act 1890 (Imp).)  In addition, the Colonial Laws Validity Act 1865 (Imp) gave effect to manner and form provisions found not only in Imperial law but also in colonial law.  That too was seen as the imposition of manner and form provisions by superior law.

66. Now, however, it is essential to begin by recognising that constitutional arrangements in this country have changed in fundamental respects from those that applied in 1889.  It is not necessary to attempt to give a list of all of those changes.  Their consequences find reflection in decisions like Sue v Hill[30].  Two interrelated considerations are central to a proper understanding of the changes that have happened in constitutional structure.  First, constitutional norms, whatever may be their historical origins, are now to be traced to Australian sources.  Secondly, unlike Britain in the nineteenth century, the constitutional norms which apply in this country are more complex than an unadorned Diceyan precept of parliamentary sovereignty.  Those constitutional norms accord an essential place to the obligation of the judicial branch to assess the validity of legislative and executive acts against relevant constitutional requirements.  As Fullagar J said, in Australian Communist Party v The Commonwealth[31], "in our system the principle of Marbury v Madison[32] is accepted as axiomatic".  It is the courts, rather than the legislature itself, which have the function of finally deciding whether an Act is or is not within power[33].

    [30](1999) 199 CLR 462. See also, for example, Selway, "The Constitutional Role of the Queen of Australia", (2003) 32 Common Law World Review 248.

    [31](1951) 83 CLR 1 at 262.

    [32]5 US 137 (1803).

    [33]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262‑263; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267‑268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Plaintiff S157/2002 v The Commonwealth (2003) 77 ALJR 454 at 474‑475 [104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; 195 ALR 24 at 52.

67. For present purposes, two changes in constitutional arrangements are critically important:  first, the fact of federation and creation of the States, and secondly, the enactment by the federal Parliament of the Australia Act. Section 106 of the Constitution provides that "[t]he Constitution of each State ... shall, subject to this Constitution, continue as at the establishment of the Commonwealth ... until altered in accordance with the Constitution of the State." Then, in 1986, pursuant to a reference of power under s 51(xxxviii) of the Constitution, the federal Parliament enacted the Australia Act in order, as its long title said, "to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation".  The Australia Act, too, is to be traced to its Australian source – the Constitution of the Commonwealth.  The Australia Act takes its force and effect from the reference of power to the federal Parliament, made under s 51(xxxviii), and the operation that the Act is to be given as a law of the Commonwealth in relation to State law by s 109 of the Constitution[34]. Although the phrase "subject to this Constitution" appears both in s 51 and s 106, it was decided in Port MacDonnell Professional Fishermen's Assn Inc v South Australia[35] that "the dilemma ... must be resolved in favour of the grant of power in par (xxxviii)".

    [34]Sue v Hill (1999) 199 CLR 462 at 490‑491 [61]‑[62].

    [35](1989) 168 CLR 340 at 381.

68. The Australia Act had two provisions of particular relevance to manner and form provisions.  First, s 3(1) provided that the Colonial Laws Validity Act should not apply to any law made after the commencement of the Australia Act by the Parliament of a State and, second, the provisions of s 6 earlier set out were enacted.  It is of particular importance to recognise that the Australia Act stands as a form of law to which the Parliament of Western Australia is relevantly subordinate.  To the extent to which s 6 applies, the powers of the Parliament of Western Australia to legislate are confined.  What has been seen as the conundrum of whether a body given general power to legislate can give up part of that power need not be resolved.  By federal law, effect must be given to some manner and form provisions found in State legislation.

69. Neither the applicants nor the amici advanced any challenge to the validity of the Australia Act. No intervener made any such submission. The applicants, the amici and the interveners were all content to argue the applications on the basis that s 6 of the Australia Act, either alone or in conjunction with s 6 of the Australia Act 1986 (UK), was capable of valid application.  The dispute between them was restricted to whether the provisions of s 6 were engaged in the particular circumstances of the case.  At no time in the oral argument of the applications was the contrary suggested.

70. That this should be so is not surprising when it is recalled that in Port MacDonnell Professional Fishermen's Assn Inc v South Australia all seven Justices constituting the Court concluded[36] that "the continuance of the Constitution of a State pursuant to s 106 is subject to any Commonwealth law enacted pursuant to the grant of legislative power in par (xxxviii)" of s 51. Section 6 of the Australia Act, therefore, is not to be seen as some attempt to alter s 106 or s 107 otherwise than in accordance with the procedures required by s 128. Section 6 was enacted in the valid exercise of power given to the federal Parliament by s 51(xxxviii).

    [36](1989) 168 CLR 340 at 381.

    Section 13 of the Electoral Distribution Act and s 6 of the Australia Act

71. Was either the Repeal Bill or the Amendment Bill, if it became law, within s 6 of the Australia Act? That is, was it "a law ... respecting the constitution, powers or procedure of the Parliament of the State"? If either Bill, on its becoming law, would meet that description, s 6 of the Australia Act would be engaged and the law would "be of no force or effect unless it [was] made in such manner and form as ... required by a law" made by the Western Australian Parliament.

72. The meaning to be given to the expression "constitution, powers or procedure of the Parliament" must be ascertained taking proper account of the history that lay behind the enactment of the Australia Act.  In particular, it is necessary to give due weight to the learning that evolved about the operation of the Colonial Laws Validity Act, s 5 of which also spoke of "laws respecting the constitution, powers, and procedure" of the legislatures to which it applied.

73. In s 5 of the Colonial Laws Validity Act the expression "constitution, powers, and procedure" appeared in that part of the section which provided that a representative legislature "shall ... have, and be deemed at all times to have had, full power to make laws respecting" those subjects.  The reference to manner and form requirements in the proviso to the section was treated[37] as a condition upon which the full power referred to in s 5 was exercisable. Section 6 of the Australia Act takes a different form.  It provides directly for the requirement to observe manner and form.  Nonetheless, the use of the expression "constitution, powers or procedure" in the Australia Act is evidently intended to build on the provisions of the Colonial Laws Validity Act.  (The use of the conjunction "or" rather than "and" in the collocation is readily explained by the drafting change from grant of power to requirement to obey manner and form.)

    [37]Attorney‑General (NSW) v Trethowan (1932) 47 CLR 97; [1932] AC 526.

74. On its face, the expression "constitution, powers or procedure" of a legislature describes a field which is larger than that identified as "the constitution" of a legislature. It is not necessary or appropriate to attempt to describe the boundaries of the areas within the field that the three separate integers of the expression "constitution, powers or procedure" cover, let alone attempt to define the boundaries of the entire field. In particular, it is not necessary or appropriate to explore what is encompassed by the reference in s 6 of the Australia Act to "powers or procedure" of a legislature, whether in relation to the ability of a legislature to entrench legislation about any subject or otherwise[38].  It is enough to focus on the expression the "constitution" of the Parliament.

    [38]cf Smith v The Queen (1994) 181 CLR 338 at 352‑353.

75. The "constitution" of a State Parliament includes (perhaps it is confined to) its own "nature and composition"[39]. The Attorneys‑General for New South Wales and Queensland, intervening, both submitted that s 6 of the Australia Act should be read strictly and that, accordingly, the "constitution" of a State Parliament should be understood as referring only to the general character of the legislature rather than the rules pursuant to which members are returned to a chamber.

    [39]Attorney‑General (NSW) v Trethowan (1931) 44 CLR 394 at 429 per Dixon J.

76. For some purposes, the nature and composition of the Western Australian Parliament might be described sufficiently as "bicameral and representative". But the reference in s 6 of the Australia Act to the "constitution" of a State Parliament should not be read as confined to those two descriptions if they are understood, as the submissions of the Attorneys‑General for New South Wales and Queensland suggested, at a high level of abstraction.  That is, s 6 is not to be read as confined to laws which abolish a House, or altogether take away the "representative" character of a State Parliament or one of its Houses.  At least to some extent the "constitution" of the Parliament extends to features which go to give it, and its Houses, a representative character.  Thus, s 6 may be engaged in cases in which the legislation deals with matters that are encompassed by the general description "representative" and go to give that word its application in the particular case.  So, for example, an upper House whose members are elected in a single State‑wide electorate by proportional representation is differently constituted from an upper House whose members are separately elected in single member provinces by first past the post voting.  Each may properly be described as a "representative" chamber, but the parliament would be differently constituted if one form of election to the upper House were to be adopted in place of the other.

77. Not every matter which touches the election of members of a Parliament is a matter affecting the Parliament's constitution.  In Clydesdale v Hughes[40], three members of the Court held that a law providing that the holding of a particular office did not disable or disqualify a person from sitting as a member of the Legislative Council of Western Australia was not a law which, for the purposes of s 73 of the 1889 Constitution, effected an alteration or change in the constitution of that House[41].  Again, however, it is neither necessary nor appropriate to attempt to trace the metes and bounds of the relevant field.

    [40](1934) 51 CLR 518 at 528.

    [41]See also Western Australia v Wilsmore (1982) 149 CLR 79 at 102.

78. The Repeal Bill and the Amendment Bill were respectively to do away with, and then provide an alternative structure for, the constitution of the two Houses of the Western Australian Parliament. The Repeal Bill did away with the scheme under which there were two Houses elected from 57 districts and six regions respectively, where the 57 districts were to be ascertained in accordance with the rules prescribed by s 6 of the Electoral Distribution Act.  Those rules depended upon the division between the metropolitan and other areas and the application of a tolerance of 15 per cent more or less.  Upon the Repeal Bill coming into force the manner of effecting representation in the Parliament would have been at large.  Considered separately, then, the Repeal Bill was for a law respecting the constitution of the Parliament of Western Australia.

79. The Amendment Bill, if it came into force, would have provided for 57 electoral districts and six electoral regions, but they would have been differently drawn from the way for which the Electoral Distribution Act provided. The criteria to be applied in drawing electoral boundaries under the Amendment Bill would have differed according to whether the electoral district had an area of less than 100,000 square kilometres. The tolerance in the smaller districts would have been reduced from 15 per cent to 10 per cent; in the larger districts the formula was more complicated, but again the tolerance was changed from 15 per cent. In addition, and no less significantly, under the Amendment Bill, the number of members of the Council would have been increased, from the 30 specified by s 5 of the Constitution Acts Amendment Act 1899, to 36. The Amendment Bill was for a law respecting the constitution of the Parliament of Western Australia.

80. The conclusions reached about the operation of s 6 of the Australia Act make it unnecessary to decide whether, separately from and in addition to the provisions of that section, there is some other source for a requirement to comply with s 13 of the Electoral Distribution Act[42]. It is enough to notice two matters. First, as indicated earlier in these reasons, the continuance of the constitution of a State pursuant to s 106 of the federal Constitution is subject to the Australia Act[43]. Section 13 of the Electoral Distribution Act is made binding by s 6 of the Australia Act.  Secondly, the express provisions of s 6 can leave no room for the operation of some other principle, at the very least in the field in which s 6 operates, if such a principle can be derived from considerations of the kind which informed the Privy Council's decision in Bribery Commissioner v Ranasinghe[44] and can then be applied in a federation[45].

    [42]cf Bribery Commissioner v Ranasinghe [1965] AC 172 at 197.

    [43]Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 381.

    [44][1965] AC 172 at 197.

    [45]McGinty v Western Australia (1996) 186 CLR 140 at 297.

    Prorogation

81. Consideration of the issues already discussed is sufficient to determine that the Full Court of Western Australia was correct in the conclusions it reached.  Nonetheless, it is as well to say something briefly about the prorogation issue.

82. Reduced to its essentials, the submission of the amici on this issue was that once the two Houses of the Western Australian Parliament were prorogued (as they were by proclamation made on 9 August 2002), any Bills to which the Royal Assent had not then been given lapsed and, for that reason, could not lawfully be presented for or given the Royal Assent.

83. The argument depended upon giving a meaning and effect to proroguing a House of the Western Australian Parliament that, in turn, depended upon parliamentary practice in Britain.  This practice was said to be sufficiently
    

    [46](1975) 134 CLR 201.

    [47](1975) 134 CLR 201 at 238.

    [48]Precedents of Proceedings in the House of Commons, (1818), vol 2 at 335‑336.

    [49](1975) 134 CLR 201 at 254.

    described in Western Australia v The Commonwealth[46].  There, Gibbs J[47] said, quoting Hatsell[48], that the rule of parliamentary practice in Britain was 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".  In the same case, Stephen J described[49] the effect of prorogation as "wiping clean the parliamentary slate".

84. In Britain, the practice has developed of prorogation being effected by an announcement to both Houses being made in the House of Lords of the Queen's command that Parliament should prorogue.  The announcement is made by one of the commissioners of a royal commission[50].  That commission authorises the signification of the Royal Assent to any Bills then pending and that assent is pronounced before the prorogation[51].  Accordingly, the circumstances which arise in this case would not arise in Britain.  The British practice ensures that, if legislation has passed both Houses, assent is given before the Houses are prorogued.

    [50]Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd ed (1997) at 233.

    [51]Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd ed (1997) at 233‑234.

85. The power to prorogue given by s 3 of the 1889 Constitution is a power "to prorogue the Legislative Council and Legislative Assembly from time to time". The power may be exercised with respect to each House at different times or at the one time. When it is said that prorogation wipes the parliamentary slate clean, what is meant is that proceedings then pending in the House that has been prorogued must be begun again unless there is some contrary provision made by statute or Standing Order.  (Here, the Standing Orders of each House provided for proceedings to be taken up after prorogation at the point they had reached when the House was prorogued[52].)  But here, if the Bills had been passed by both Houses, there was no proceeding then pending in either House.  Each House would have completed its consideration of the Bills.  There being no proceeding pending in the Houses, proroguing the Houses would have had no relevant effect on the Bills.  They could lawfully have been presented for and could lawfully have received Royal Assent.

    [52]Western Australia, Legislative Council, Standing Orders, Order 436; Western Australia, Legislative Assembly, Standing Orders, Order 220.

    Conclusion and orders

86. For these reasons, which differ in some significant respects from those adopted by the majority in the Full Court, the questions asked in the proceedings should be answered, "No".  Special leave to appeal should be granted in each matter; the appeal in each matter should be treated as instituted and heard instanter but dismissed.  There should be no order for the costs of either application or either appeal, the respondent in each case simply submitting to the jurisdiction of the Court.  The amici should bear their own costs.

87. KIRBY J.   These applications for special leave to appeal[53] concern the constitutional law of Western Australia ("the State").  Specifically, they concern the latest attempt to correct the unequal distribution of electors in the State for the purpose of State elections[54]. 

    [53]From a judgment of the Full Court of the Supreme Court of Western Australia:  Marquet, Clerk of the Parliaments (WA) v Attorney-General (WA) (2002) 26 WAR 201. The applications were referred into the Full Court by order of Gummow, Callinan and Heydon JJ on 11 April 2003.

    [54]Burke v Western Australia [1982] WAR 248 at 252-253.

    Representative democracy and the value of the vote

88. Changes in electoral democracy:  At the time of federation, both in federal and State elections in Australia[55], as in other countries, there were significant departures from the ideal of electoral democracy.  In all but two of the Australian States, women had no vote[56].  Property qualifications existed[57].  So did plural voting[58].  The number of voters in electorates (and hence the value and influence of their votes) varied considerably.  Substantial variations existed in the size of metropolitan and rural constituencies. 

    [55]The qualification of electors in federal elections were initially related to those in State elections. See the Constitution, ss 8 (Senate), 30 (House of Representatives).

    [56]Norberry and Williams, "Voters and the Franchise:  the Federal Story", The Vision in Hindsight: Parliament and the Constitution Paper No 16, Australian Parliamentary Library Information and Research Services Research Paper No 17, 28 May 2002.  See now Art 7 of the Convention on the Elimination of All Forms of Discrimination against Women done at New York on 18 December 1979, 1983 Australia Treaty Series 9, entered into force for Australia on 27 August 1983.

    [57]Hughes, "Institutionalising electoral integrity", in Sawer (ed), Elections:  Full, free & fair, (2001) 142 at 145.  There were similar property requirements for jury service:  Ng v The Queen (2003) 77 ALJR 967 at 973 [36]; 197 ALR 10 at 18-19.

    [58]Hughes, "Institutionalising electoral integrity", in Sawer (ed), Elections:  Full, free & fair, (2001) 142 at 145.

89. Over the ensuing century, tolerance of such disparities in the value of each elector's vote declined in Australia, as in other countries with democratic governments.  In part, this change occurred because of improvements in the means of communication.  These removed, or reduced, a justification commonly offered for disparities.  In part, it followed parliamentary repeal of the worst types of malapportionment with their tendency to entrench sectional interests[59].  And in part, in other countries, it reflected the insistence of the courts and, more recently, international bodies, that such disparities should be minimised to ensure compliance with fundamental rights and to require that the rhetoric about democracy and representative government be matched by legally enforceable, and approximately equal, voting entitlements[60]. 

    [59]McGinty v Western Australia (1996) 186 CLR 140 at 185 referring to Brugger and Jaensch, Australian Politics:  Theory and practice, (1985) at 208-214 and Lijphart, Electoral Systems and Party Systems, (1994) at 15.

    [60]In the United States, this occurred after decisions of the Supreme Court:  Wesberry v Sanders 376 US 1 (1964); Kirkpatrick v Preisler 394 US 526 (1969); White v Weiser 412 US 783 (1973); Karcher v Daggett 462 US 725 (1983). In Canada see Reference re Provincial Electoral Boundaries (Sask) [1991] 2 SCR 158 at 170.

90. Within Australia, the general principle of approximate equality in the value of each vote (with an allowable variation usually expressed in terms of percentages) is now reflected in the electoral law of the Commonwealth and most of the States.  Western Australia remains an exception to the trend towards "equality of electorate size [as reflecting] a change in society's perception of the appropriate expression of the concept of representative democracy"[61].  In that State alone, the disparities in electorate numbers remain very large.  They do so as a result of the law in question in these proceedings[62]. 

    [61]McGinty  v Western Australia (1996) 186 CLR 140 at 202 per Toohey J.

    [62]Subsequent to the enactment of the 1987 legislation (by which the relevant sections of the Electoral Distribution Act 1947 (WA) were inserted), 74% of the electors in the State (being the proportion of voters in metropolitan electorates) would choose 50% of the members of the Legislative Council, leaving 26% of the electors (those in non-metropolitan electorates) to choose 50% of the members of the Council. In respect of the Legislative Assembly, 74% of the electors (in metropolitan electorates) would choose 60% of the members while 26% of the electors (in non-metropolitan electorates) would elect 40% of the members: see McGinty v Western Australia (1996) 186 CLR 140 at 213-214.

91. By reason of population movements, the disparities between the respective electoral values of metropolitan and non-metropolitan votes in the State have continued to increase[63].  Such variance is obviously of large political significance.  In otherwise close elections, it favours the interests of those candidates and political parties that draw more support from non-metropolitan voters.  In a general election, such a bias in the value of individual votes can accumulate to influence the composition of the State Parliament and hence the formation of the Government of the State.

    [63]For example, in 1996 there was a variance of 414% in the District of Ashburton:  see McGinty v Western Australia (1996) 186 CLR 140 at 214.

92. The McGinty case and its aftermath: In 1996, The Hon J A McGinty and others, then part of the Parliamentary Opposition, sought relief in this Court against the inequality in the value of the votes of electors in the State. They appealed to a constitutional implication of representative democracy, said to derive either from the federal Constitution or from the State Constitution Act 1889 (WA) ("the Constitution Act"). In McGinty v Western Australia[64], all members of this Court rejected the supposed federal constitutional implication.  A majority[65] rejected the implication based on the Constitution Act.

    [64](1996) 186 CLR 140.

    [65]Brennan CJ, Dawson, McHugh and Gummow JJ; Toohey and Gaudron JJ dissenting.

93. Now, in government, Mr McGinty returns to this Court as Attorney-General for Western Australia, in effect, to support a new attempt to overturn what he claims to be the electoral malapportionment of the State.  He, and the State, seek to uphold the validity of legislation said to have been passed by the two Chambers of the Parliament of the State, designed to abolish the legal foundation for present electoral disparities and, in consequence, to bring the State substantially into line with the approach taken to the value of votes in all other parts of the nation. 

94. Given that the Parliament of the State has constituent powers, and may (subject to law) repeal, amend and change all State laws, including those of a constitutional character, Mr McGinty's position on the face of things seems more promising than it was in his last proceeding.  However, by majority decision of the Full Court of the Supreme Court of Western Australia[66], he lost his attempt in that court to uphold the alteration to the offending law.  Now, seeking special leave to appeal, he has returned to this Court to challenge the correctness of the Full Court's disposition.

    [66]Malcolm CJ, Anderson, Steytler and Parker JJ; Wheeler J dissenting.

    The facts and legislation

95. The basic facts:  The background facts are set out in other reasons[67].  Mr Laurence Marquet is the Clerk of the Parliaments of Western Australia.  By the Joint Standing Rules and Orders of the two Houses of the Parliament of the State, it is his responsibility to present every Bill to the Governor of the State for the signification of the Royal Assent once it has passed through the Legislative Council and the Legislative Assembly[68]. 

    [67]The reasons of Gleeson CJ, Gummow, Hayne and Heydon JJ ("the joint reasons") at [9]-[12]; the reasons of Callinan J at [223]-[229].

    [68]In accordance with the Constitution Act, s 2(3).

96. Mr Marquet brought proceedings in the Supreme Court for the determination of two questions, namely whether it was lawful for him to present to the Governor for the signification of Her Majesty's Assent the Electoral Distribution Repeal Bill 2001 (WA) ("the Repeal Bill") and the Electoral Amendment Bill 2001 (WA) ("the Amendment Bill").  Pending the outcome of the proceedings, neither Bill has been so presented. 

97. The two questions stated in the Supreme Court were designed to tender the basic issue of whether it was sufficient for the two Bills, in the normal way, to complete their passage through both Chambers of Parliament by a simple majority of the members present and voting;  or whether, in this particular case, it was essential, for the validity of the Bills, and each of them, that they should have passed by a vote of an absolute majority of the members of both Chambers.

98. Although each of the Bills was passed by an absolute majority of the members of the Legislative Assembly, the vote on the second and third readings of each Bill in the Legislative Council, whilst attracting a simple majority of those members present and voting, fell short of securing an absolute majority in that Chamber.  Being uncertain as to his duty, Mr Marquet sought the rulings that now bring the matter to this Court. 

99. The key provision of s 13:  The key provision that is said to give rise to the necessity to obtain the affirmative vote of an absolute majority in each Chamber, is s 13 of the Electoral Distribution Act 1947 (WA) ("the 1947 Act"). Although that section appears in other reasons, as it is crucial, I will repeat it:

    "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."

100. This provision was itself enacted as part of the law of the State in the normal way.  There was no purported requirement of an absolute majority for its passage.  No referendum was held to "entrench" the section so as to give it a special status.  It simply passed into law as an ordinary piece of State legislation.  Nevertheless, the Full Court held that it gave rise to extraordinary legal consequences.

101. I will not detail the history of the constitutional laws of the State[69]. They are found principally in the Constitution Act. There are other relevant enactments[70].  These include the Constitution Acts Amendment Act 1899 (WA) ("the Constitution Amendment Act") and, so it is claimed, the 1947 Act itself. Apart from the last-mentioned Act, there is a general law on elections in Western Australia, namely the Electoral Act 1907 (WA) ("the Electoral Act"). This additional legislation is sufficiently described in other reasons[71].

     [69]The joint reasons at [15]-[22].

     [70]Yougarla v Western Australia (2001) 207 CLR 344 at 377-378 [89], 385-389 [117]-[127].

     [71]The joint reasons at [23]-[36].

102. The real contestants in these proceedings (as before the Full Court) were the Attorney-General and the State (as applicants), and a number of persons and bodies representing "political, rural and country community interests"[72].  By leave, the latter appeared together as amici curiae ("the amici").  They supplied a contradictor for the proceedings both in the Full Court and in this Court.

     [72]Marquet v Attorney-General (WA) (2002) 26 WAR 201 at 226 [100]. Their identities are set out in the joint reasons at [8].

     The issues

103. The following issues arise:

     (1)The justiciability issue:  Whether, having regard to the deference observed by courts in relation to proceedings in Parliament, the questions presented in the proceedings are justiciable, so that they may give rise to a judicial determination concerning the validity of things done in Parliament.

     (2)The prorogation issue:  Whether the Repeal Bill and the Amendment Bill lapsed after their alleged passage through Parliament by reason of the prorogation of the Legislative Council and Legislative Assembly on 9 August 2002, so that, whatever otherwise might have been their legal effect, each Bill had expired and thus has no continuing legal force.

     (3)The implied repeal issue: Whether s 13 of the 1947 Act was impliedly repealed by s 2(3) of the Constitution Act following the insertion of that sub-section by the Acts Amendment (Constitution) Act 1978 (WA) ("the 1978 Act"). If the consequence of the 1978 Act was the implied repeal of s 13 of the 1947 Act, the supposed impediment to the amendment of the provisions of the 1947 Act by simple majority was removed before the passage of the Repeal Bill and the Amendment Bill in 2001. As a result, each of those Bills, upon receiving the Royal Assent, would take effect according to its terms.

     (4)The amend/repeal issue:  Whether, assuming s 13 of the 1947 Act remained in force after the 1978 Act, and was effective to determine the validity of any Bill to "amend" the 1947 Act, the Repeal Bill, by its provision repealing that Act in its entirety, would, if it received the Royal Assent, remove the impediment to amendment of the 1947 Act.  If so, would the Amendment Bill, freed from the asserted requirement of s 13 of the 1947 Act (whether viewed in isolation or in combination with the Repeal Bill), validly substitute a new electoral system for the unequal electoral divisions for which the 1947 Act provided?

     (5)The effectiveness of entrenchment issue:  If it should be necessary to consider the operation of s 13 of the 1947 Act, whether, upon any of the grounds propounded, that section was effective to "entrench" the procedural requirements which it contained, thereby obliging a later Parliament to obey its terms.  Alternatively, was s 13 of the 1947 Act effective in 2001, so as to render invalid the Repeal Bill and the Amendment Bill, if those measures, separately or together, were to be characterised as amendments of the 1947 Act?

     (6)The costs issue:  Whether the costs of the amici, as the effective contradictor in this Court, should be borne by the applicants.

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)

     [261]2nd ed (1967) at 89-91.

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."

     [262]17 US 315 at 406 (1819).

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.

     [263]Marquet, Clerk of the Parliaments (WA) v Attorney-General (WA) (2002) 26 WAR 201 at 247-249 [190]-[197].

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.

     [264]See Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 753-754 per Latham CJ, 768-770 per Starke J, 783-787 per Evatt J.

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?

     [265]Marquet, Clerk of the Parliaments (WA) v Attorney-General (WA) (2002) 26 WAR 201 at 250-251 [204]-[207].

     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."

     [266](1908) 7 CLR 1 at 7.

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."

     [267](1939) 62 CLR 603

     [268](1939) 62 CLR 603 at 625.

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."

     [269](1991) 172 CLR 1.

     [270](1991) 172 CLR 1 at 17.

     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."

     [271]Marquet, Clerk of the Parliaments (WA) v Attorney-General (WA) (2002) 26 WAR 201 at 256-257 [239].

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.

     [272](1934) 51 CLR 518.

     [273](1982) 149 CLR 79.

     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."

     [274](1931) 44 CLR 394.

     [275](1931) 44 CLR 394 at 429-430.

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.

     [276]See the Australia Act 1986 (Cth), Australia (Request and Consent) Act 1985 (Cth), Australia Acts (Request) Act 1985 (Q), Australia Acts (Request) Act 1985 (NSW), Australia Acts (Request) Act 1985 (Vic), Australia Acts (Request) Act 1985 (Tas), Australia Acts (Request) Act 1985 (SA), Australia Acts (Request) Act 1985 (WA).

     [277]Compare and contrast the patriation of the Canadian Constitution by the Canada Act 1982 (UK).

     [278](1989) 168 CLR 340.

     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].

     [279]Erskine May, Parliamentary Practice, 22nd ed (1997) at 233.

     [280]Erskine May, Parliamentary Practice, 22nd ed (1997) at 233-234.

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].

     [281]Harris, House of Representatives Practice, 4th ed (2001) at 226.

     [282]Harris, House of Representatives Practice, 4th ed (2001) at 227.

     [283]Harris, House of Representatives Practice, 4th ed (2001) at 227.

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'."

     [284][1955] NZLR 271.

     [285][1955] NZLR 271 at 283 per Stanton and Hutchison JJ.

     [286](1975) 134 CLR 201.

     [287](1975) 134 CLR 201 at 238.

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.