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Editors --- "Yougarla v Western Australia - Case Summary" [2001] AUIndigLawRpr 46; (2001) 6(4) Australian Indigenous Law Reporter 38

Court and Tribunal Decisions - Australia

Yougarla v Western Australia

High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)

9 August 2001

[2001] HCA 47

Aborigines — constitutional rights entrenched in Constitution Act 1889 (WA) — provision in s 70 for payment of 1 per cent of public revenue — manner and form requirements respecting the repeal of s 70 — the manner and form requirements set out in Imperial legislation — which of these manner and form requirements applied to the repeal of s 70 in 1905 — requirement of tabling repeal Bill at Westminster — whether compliance with tabling necessary

Facts:

Appeal from the Full Court of the Supreme Court of WA: Yougarla v Western Australia (1999) 21 WAR 488.

The Constitution Act 1889 (WA) (‘the Constitution’) came into force as a schedule to the Western Australia Constitution Act 1890 (Imp) (‘the covering Act’). The British Government had been determined that the Constitution would provide for the welfare of the Aborigines of WA out of the public purse. Consequently, the Constitution contained s 70 which provided for the payment of 1 per cent of public revenue to a Board for Aboriginal welfare chaired by the Governor.

Section 70 was entrenched, so that the colonial Parliament could not simply repeal the section. Section 73 of the Constitution provided that Bills on a small number of matters, when the subject of legislation by the Western Australian Parliament, be reserved for the assent of the Sovereign, which in reality meant the approval of the British Government.

The problem facing the Court in this case was to determine what were the requirements attached to the process of reservation. That reservation required certain procedures to be followed was apparent from s 2(a) of the covering Act which provided for the provisions of two earlier Imperial Acts (of 1842 and 1850) ‘which relate to the ... reservation of Bills’ to apply to Bills reserved under the Constitution.

The 1842 Act provided that reserved Bills from the Australian colonies were required to be dealt with by the Imperial Government within two years of passing a colonial legislature, to avoid become stale, and when assented to by the Sovereign, such Bills had to be proclaimed in the colony in a manner that ensured their public recognition. The 1842 Act listed Bills altering the constitution of the then Legislative Councils as amongst the Bills requiring reservation.

The 1850 Act provided in s 32 that Bills affecting the constitution of the Legislative Council of an Australian colony in certain ways should be tabled at Westminster for thirty days. This measure had the obvious purpose of ensuring that the British Ministers who would determine the fate of the proposed constitutional changes would be responsible to a Parliament that was properly informed.

The purpose of s 2(a) of the covering Act was to repeal the portions of the 1842 and 1850 Acts which were repugnant to the Constitution, but leave on foot those portions relating to reservation from the two mid-century Acts.

The Western Australian Parliament forwarded a Bill to London in 1894 to repeal s 70. This was returned unassented in 1897 when it was realized that it was stale under the terms of the 1842 Act. A further Bill was forwarded to London in late 1897 for the repeal of s 70, which was assented to. This was the subject of legal opinion in 1905 by the British Law Officers, who advised that this purported repealing Act was invalid for failure to adhere to the manner and form requirement of proclamation in WA on its return to the colony from Britain, this requirement being also a provision from the 1842 Act relating to manner and form which was picked up by s 2(a) of the covering Act, to apply to Bills reserved under s 73 of the Constitution. Bills affecting s 70 were amongst such Bills requiring to be reserved.

The appellants (five Elders from the Pilbara) argued that the purported repeal of s 70 by a third Bill in late 1905 was also invalid because the Bill had not been tabled at Westminster. They argued that tabling was a requirement in the 1850 Act relating to reservation, just like the requirements of proclamation and avoiding staleness from the 1842 Act which had been enforced against previous legislative attempts to repeal s 70.

Held, dismissing the appeal:

Per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ:

1. Section 32 of the 1850 Act was a provision empowering the Western Australian legislature to pass legislation altering the constitution of the legislature, providing that Bills for such purposes were reserved and tabled. [43]

2. The requirement of tabling was a proviso to this power, which qualified that power. [41]

3. The proviso that s 32 Bills be tabled did not operate ‘as an independent enactment’. [40]

4. Section 32 was repealed by the force of s 2(a) of the covering Act, and such repeal ‘necessarily would take with it the proviso respecting tabling’. [43]

5. The portions of the 1842 and 1850 Acts which would continue after 1890 to apply to legislation emerging from the bi-cameral Western Australian legislature were those ‘which dealt with’ methods of imperial control (such as reservation, giving or withholding of assent, or disallowance) listed in s 2(a) of the covering Act. [52]

6. The provisions of the 1842 Act (and those of the 1850 Act which related to the 1842 Act provisions on reservation) ‘with respect to reservation were to apply to those bills which s 73 required the Governor to reserve’. [53]

7. The requirement of tabling in s 32 of the 1850 Act was not translated by s 2(a) of the covering Act into the post-1890 bicameral legislative structure, so that the 1905 Bill to repeal s 70 did not require tabling. [54]

Per Kirby J:

8. The terms of s 32 of the 1850 Act applied only to Bills of the type identified in s 32. [121]

9. The reference in s 2(a) of the covering Act to the 1850 Act still had work to do by picking up s 33 of the 1850 Act, which applied the manner and form relating to reservation in the 1842 Act (proclamation and the avoidance of staleness) to the matters listed in s 32 of the 1850 Act (this being in conformity with the joint judgment at [53]). [127]