Attorney General for New South Wales v Trethowan (Australia)

Factual and Procedural Background

In 1929 the Parliament of New South Wales enacted the Constitution (Legislative Council) Amendment Act 1929, inserting section 7A into the Constitution Act 1902. Section 7A required that any Bill abolishing or altering the Legislative Council, or repealing section 7A itself, be approved by a majority of electors at a referendum before presentation for the Royal Assent.

In 1930 the Government introduced two Bills: one to repeal section 7A and the other to abolish the Legislative Council. Both Bills passed the Legislative Council and the Legislative Assembly. Members of the Legislative Council—suing on behalf of themselves and similarly-situated councillors—obtained declarations and injunctions from the Supreme Court of New South Wales preventing presentation of the Bills to the Governor without the mandated referendum. The Ministers of the Crown appealed. By a three-to-two majority the High Court of Australia affirmed the Supreme Court. The Ministers then appealed, by special leave, to the Judicial Committee of the Privy Council.

Legal Issues Presented

1. Whether the Parliament of New South Wales can abolish the Legislative Council or repeal section 7A without first obtaining elector approval as prescribed by section 7A.
2. Whether subsection 6 of section 7A is invalid because it:
   • impermissibly restricts the legislative competence of future Parliaments;
   • is repugnant to section 4 of the Constitution Statute 1855 (Imperial); and
   • is repugnant to section 5 of the Colonial Laws Validity Act 1865 (Imperial).

Arguments of the Parties

Appellants' Arguments

• The sovereign (acting through the two Houses) retains full power to repeal section 7A without referendum.
• A present Parliament cannot bind its successors; the New South Wales Constitution is “uncontrolled.”
• Subsection 6 of section 7A conflicts with section 4 of the Constitution Statute 1855 and section 5 of the Colonial Laws Validity Act 1865, rendering it void.

Respondents' Arguments

• Section 7A was validly enacted and is binding.
• Imperial legislation gives the New South Wales Parliament plenary authority to alter its constitution, powers and procedure.
• Once altered, the new constitutional requirements replace prior arrangements and remain binding until repealed in the prescribed manner.
• The only limits on plenary power are (a) compliance with any “manner and form” requirements in force and (b) maintenance of a representative legislature.
• Section 7A validly imposes such a “manner and form” requirement; therefore future Bills within its scope must follow the referendum procedure.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Judicial Committee identified section 5 of the Colonial Laws Validity Act 1865 as the controlling provision. That section confers plenary legislative power on colonial legislatures subject to any “manner and form” restrictions contained in legislation “for the time being in force.” The proviso in section 5 therefore qualifies the grant of power; legislation must comply with any operative procedural conditions.

The expression “manner and form” was held broad enough to encompass a referendum requirement. Section 7A, enacted in 1929, was thus a valid exercise of the power to legislate respecting “the constitution, powers and procedure” of the New South Wales Parliament.

Because section 7A was in force when the impugned Bills passed both Houses, those Bills fell within subsection 6 of section 7A. Under section 5 of the 1865 Act they could become law only if passed in the manner required by section 7A—that is, approved by referendum. Any attempt to present the Bills for assent without such approval would be unlawful and the resulting Acts would be ultra vires.

Adopting the view expressed by one member of the High Court majority (referred to here as Judge A), the Committee equated “passed” with “enacted” and regarded the proviso as governing “the entire process of turning a proposed law into a legislative enactment.”

Holding and Implications

APPEAL DISMISSED. The declaratory and injunctive orders remain in force. The two Bills cannot be presented for the Royal Assent until they are approved by a majority of electors voting in a referendum, as required by section 7A.

Implications: The decision confirms that properly-enacted “manner and form” provisions bind future Parliaments of New South Wales unless repealed in the stipulated way. It safeguards the entrenchment of section 7A but does not establish new precedent beyond the statutory framework considered.