APPEAL CASE

Hokitika Guardian, 2 June 1932, Page 2

APPEAL CASE

N.S.W. UPPER HOUSE.

PRIVY COUNCIL VERDICT TERMS

(United Press Association—By Electric Telegraph.—Copyright.)

LONDON, May 31. In the Privy Council judgment, their Lordships expressed the opinion that the New South Wales Legislature was empowered under Section 5 of tin 1865 Act, to enact the constitution (Legislative Council) Amendment Act 1929, and thereby introduce - Section Seven A, into the Constitution Act 1902. In other words the legislature was empowerd to alter the N.S.W. constitution by. enactment that bills relating to • specified kinds of legislation (for. example the abolition of the Council, or altering its constitution or . powers, or repealing or amending that enactment) should not be hresentted for the Royal assent, until the electors had approved in the prescribed manor. There was here no question of repugnancy. The enactment of the 1929 Act was Simply an exorcise by the N.S.W. Legislature of it* power (adopting the words of Section 5 of the 1565 Act) to make laws re-'pectins

constitution powers and procedure of the authority competent to make laws for New South Wales. The whole of Section Seven A was competently enacted. It was intra vires, of Section .Five of the 1865 Act, and was lignin adopting the words of Section Five) a Colonial Law for the time being in force when thpybill, repealing Section Seven A was introduced in the Council. It will be'observed 'that the second sentence of’the section contains an enacting part with a proviso, and it was vehemently contended by the appellants that .the, effect of the proviso was not to cut down the operative part of the sentence and that any construction of the words, manner and form, contained in the proviso, which cut down the powers previously granted, was repugnant to the power so granted. Their Lordships held the opinion it was impossible to read the Section as if it contained watertight compartments. It mu.Jt be read as a whole, ~ whereupon the effect is to qualify the words immediately preceding it. Their Lordships said the powers are granted sub modo. Reading the section as a whole, it gives New South Wales legislature certain power, subject to the provision 1 hat in .respect of certain, laws they can only become effectual provided they , are passed in such a manner and form as may from time to time be required by any Act still on the Statute Book. Beyond that, the words, manner and form are wide euought to co er an enactment providing that a biiHsvto be"-',<nbmittoh to j 1 the electors, and that unless and until the majority of electors voting approve of the bill, it shall not be presented to the Governor for His Majesty’s con- ] sent.

Lord Justice Sankey • rending the .Privy ;Co«ncil judgment, comprehensively reviewed the history of the case. He stated that the contentions of either side, which their Lordships consider obviously overlapped, impinged one another. Each party claimed ;to be the protector of the rights and powers of the Parliament of New South - Wales, and asserted it was its opponent who was seeking to tether and restrict them. Many hypothetical cases hail been submitted to their Lordships, who had been invited to express an opinion upon the situations which night arise but they conceived it their duty to confine themselves to the point involved, which was whether the Legislature of New South Wales had power to j abolish the Council or repeal Section ' 7a, of the Constitution Act ,1902, ex- ( cept in the manner provided by the said Section 7a. It would be suffi- j cient for their Lordships to decide any i other question if and when it arose. “Their Lordships consider the answer depends entirely upon the meaning apd effect of Section 5 of the 1860 Act, read in conjunction wit Section 1 of the constitution Statute Assuming that the latter section still possesses some operative effect such operative effect must be subject to the conditions contained in Section

5 of tlie 18Gu Act, regarding the particular kind of laws within purview of that Section, therefore Section o is the master -< etion herein applic- , able. The judgment continues 1 The question then arises: Could that Bill, a repealing Bill- after its passage through both Chambers, be lawfully presented for (he. Royal assent without first receiving the approval of the electors in the pro. rrilied manner. Their Lordship., are of the opinion that, j the Bill could not lawfully be so pre- ; sen ted. Thq proviso in tire second •sentence of Sc.lion 0, ih'tib Act states a condition,, which must be fulfilled | before the Legislature can validly ex- | ercise its power to make the kind of j laws referred to in that sentence, in j order that 7a may oe ropeali>.l : (in other woids that that particular Jaw respecting the constitution powers anil pro'edlire ol a Legislature may be validly made), the law therefore must have been passed in a manner required by Section la. which was the Coluidai law for the time being operating i:i New .South Wales. ’ Their Lordships said that an attempt bad been made 10 draw some distinction between the Mill lo repeal the Statute and tb<> Hill for other purposes,' and between "making laws and the word in the proviso “passed.” Their Lordships feel that they are unable to draw any such distinctions.

As to the proviso, their Lordships agree with Justice Rich's pronouncement, “1 take the word ‘passed,’ as equivalent to enacted.” Tile proviso is not dealing with narrow questions of Parliamentary procedure. In my opinion, the proviso to the Section 5 relates to the entile process of turning tlie proposed law into legislative enactments, and was intended to enjoin the fulfilment of every condition and compliance with every requirement which existing legislation imposed in the process of law making. “Again, no question of repugnancy arises. It is only the question j whether - the proposed onaefnieut is intra vires, or ultra vires, of .Section 1

5. A Bill within the scope, of subjection 6 and 7a receiving the Royal asent without the approval of the electors in accordance with that section would not he a valid Act of Legislature. It would be ultra vires of Section 5, of 1965 Act. Indeed, the presentations of the Bill to a Governor without such approval, would commission an unlawful Act. Their Lordships are accordingly of opinion that Section 7a of the Coiir-titution Act, 1902, was valid and in force, when the two Bills under consideration were passed by the Council and Assembly, therefore the Bill could not be presented to the Governor for Royal assent, unless and until the majority «f the ol«otor.-: voting, had approved them. The High Court judgment is •therefore 'uplU‘l<h : '*'lifiil> l Pig appeal (lis- j missed with costs. There will he no costs allowed to • the interveners, in accordance with practice.