Working Paper 8: Legislative Powers

LAW REFORM COMMISSION

NEW SOUTH WALES

WORKING PAPER

LEGISLATIVE POWERS x_ 2 PREFACE

w ReforThLa e m Commissio constitutes ni y db the law Reform Commission Act, 1967. The Commissioners are - The Honourabl Justic. eMr e Reynolds, Chairman Mr. R.D. Conacher, Deputy Chairman Mr. C.R. Alien Professor D.G. Benjafield Mr. D. Gressier Mr. T.W. Waddell, Q.C.

The Commission put t thisou s working e papeth n ri course of its work on statute law revision. In the first instanc Commissioe eth furnishins ni workine gth g Attorney-Generae papeth o t r l wits vieit ha o wt consideration by the Standing Committee of Commonwealth d Statan e Attorneys-General.

The Commission is not committed to any of the proposals in the working paper. It is a survey of some long-standing problems and a set of suggestions r theifo r solution. Future events will determine whether e Commissioth n will procee mako t d e repora e th n o t natters discussed.

The offices of the Commission are on the 16th level e Goodseloth f l Building, 8-12 Chifley Square, Sydney (Postcode 2000, telephone 258-7213). The Secretary of e Commisioth . R.JMr .s i n,Watt . Letters shoul e addresseb d d to him.

3 CONTENTS

Page

Preface 2

Contents 3

4 Tabl Casef o e s

Table of Statutes 6

0 1 Summary

Working Paper 16

Par tI Historica0 2 l Introduction

Part II Sections 2 to 6 of the Statute 50 of Westminster A. Section 2 52 4 7 B. Sectio n3 8 8 0. Sectio n4 D. Section 5 93

Part III Proposal for United Kingdom Legislation 96

"New South Wales Bill 1972" 111

Appendi Colonia- xA l laws7 Validit11 186t yAc 5

Appendix B - Statute of Westminster 1931 121

7 12 Notes 4 TABL F OASEO E S Paragraph Note Aarons v. Rees (1898) 15 W.N. (N.S.W.) 88 L24 Ashbur Bill. yv s [18933 9 A.C33 . 115 A.G. (N.S.W.) v. Australian Agricultural 120 Co. (1934) 34 S.R. (N.S.W.) 571 A.G. (N.S.W.) v. Trethowan [1932] A.C. 526 90 217, 240 A.G. (Queensland) v. A.G. (Commonwealth) 76 (1915 0 C.L.R2 )8 14 . A.G. (Victoria . Mosev ) s [19073 7.1. 0 R13 . 124 Bonse a MacchiL . rv a (1969 3 A.L.J.R4 ) . 128 275 Bridie v. Eessina (1965) 66 S.R. (N.S.W) 124 446 British Columbia 31ect-ric Railwa Ltd. .yCo 165 v. The King [19463 A.C. 527 Broken Hill South Ltd. v. Commissioner of 119 Taxation (1936-1937 6 C.L.R5 )7 33 . Caruchet, In re (1899) 9 Q.L.J. 122 167 Olayton v. Heffron (1961) 61 S.R. 103 (N.S.W.) 768 Limite. CobCo b& . Krop dv p [19653 Qd.R. 124 285 Commonwealt Kreglinge. hv rFerna& u Ltd. 78 (1926 7 C.L.R3 ) 3 39 . Crof Dunph. tv y [193336 A.C15 . 112,113, 174 Ffrost v. Stevenson (1937) 58 C.L.R. 528 74 118, 234 Harris v. Davies (1885) 10 App.Cas. 279 124 Hazlewood v. "Webber (1934) 52 C.L.R. 268 124 Iskra, Ex parte (1963) 63 S.R. (N.S.W.) 115 214 538 Johnson v. Commissioner of Stamp Duties 120 [19563 A.C. 331 McCawley v. The King [19203 A.C. 691 95, 114 Macleo . A.Gdv . (N.S.W.) [18913 5 A.C45 . 112 167 Mitchel . Scalelv s (1907 5 C.L.R) 5 40 . 124 Munro v. Lombardo [19643 W.A.R. 63 167

. 5 Paragraph Note Myer Emporium Limited v. Commissioner of 121 Stamp Duties (1967 N.S.W.R2 ) 0 23 . Nadan v. The King [19263 A.C. 482 108 0'Sullivan- v. Dejneko (1963-1964 ) 110 181 C.L.R. 498 Peninsular & Oriental Steam Navigation Co. 151 v. Kingston [1903] A.C. 471 Permanent Trustee Co. (Canberra) Ltd. v. 181 Finlayson (1968 3 A.I.J.R4 ) 2 4 . R. v. Foster (1958-1959) 103 C.L.R. 256 154, 171, 232 . HildebrandRv . t [1964] Qd.R3 4 . 167, 196 McCarth. Rv . y (1873 4 A.J.R) 5 15 . 124 . MaraiRv . s [1902] A.C1 5 . 76 108 R. v. Whelan (1868) 5 W.W. & a'B. (L) 7 75 Scully, Re (1937) 32 Tas.L.R. 3 123 e Shi Th . LtdSwif p. Co v .S.S t& . 60 "Heranger" (1965 2 W.N8 ) . (N.S.W) . Pt.l0 54 , Taylo . A.Grv . (Queensland) (19173 2 ) 220 C.L.R7 45 . Thompson v. Commissioner of Stamp Duties 122 (1967 6 W.N8 ) . (N.S.W ) .Pt.2 7 24 , Trethowa . Pedenv n (1931 1 S.R3 ) . (N.S.W) . 103 183 Trustees Executor sAgenc& y Co.v. 113 Federal Commissioner of Taxation (1933) 49 C.L.R. 220 Union Steamshi f N.2o e . . Th pCo Ltd . v . 77 Commonwealth (1925) 36 C.L.R. 130 Wallace Brother Commissione. sv f Incomro e 114 Tax, Bombay (1948) 75 I.A. 86 Welker v. Hewett (1969) 120 C.L.R. 503 123 231, 233 6 TABL STATUTEF EO S UNITED KINGDOM ACTS

DatReferencd ean e Short Titl Subjecr o e t Paragraph Note

1 22 Settlemenf o t Will3 Ac 1 170& .t 2 01 2 c. I II 1782 22 Geo.III c.75 Colonial Leave of 71 Absence Act 1782 1823 4 Geo.IV c.96 New South Wales Act 171 1823 182 8Geo.I9 V c.83 Australian 2 Court t sAc 125, 1828 242 Vict6 184 & .25 Australia8 23 n Constit4 19 - c.76 utions Act 1842 1850 13 & 14 Vict. Australian Constit- 242 c.59 utions Act 1850 Soutw Vict9 Ne 1 h 185& .Wale 8 51 s Con- 8 19423 , c.54 stitution Act 1855 195 Vict6 2 186& . 5 2 Australian Constit6 19 - c.ll utions Act 1862 Vict9 2 & 186. 8 2 5 Colonial Laws Valid- 33,62- 125, c.63 ity Act 1865 104,186, 142 197 s.5 ("manner and 47,48, form") 88-91, 155,180, 181,182, 195 1874 37 & 38 Vict. Statute Law Revision 242 c.35 Act 1874 Vict4 5 189& . 3 05 Colonia0 6 l Court f so c.27 Admiralt 189t yAc 0 1894 56 & 57 Vict. Colonial Acts Con- 198 c.72 firmation Act 1894 Vict8 5 189& . 7 45 Merchant Shippin t 86,144gAc - c.60 . 1894 * 147,161 1900 63 & 64 Vict. Commonwealth of Aust- 8,15, 220, c-12 ralia Constitution Act 82,160 222 s.9 (Constitution of 159,178, 213, e Commonwealth)l8th 6 214, 237 4 Vict6 190& .3 6 0 Colonia7 23 l Stoc t 190Ac k 0 c.62 Date and Reference Short Title or Subject Paragraph Note 1907 7 Edw.VII c.7 Australian States Con- 189,199 142, stitutio 190t nAc 7 235, 242 1931 22 & 23 Geo.V Statute of Westminster 5,6,32, 223, 4 c. 1931 8 33,3522 , 39-61 2 s. 62-104, 183,184 s. 3 105-133, 173 4 s. 134-143, 197, 156,160, 218, 162,1674 22 , 171,172 s.5 144-147 s.6 59-61 ss.7-12 56,58 154, 197, 203 1936 1 Edw.VIII c.3 His Majesty's Declara- 141 221 tion of Abdication Act 1936 1937 1 Edw.VIII & Regency Act 1937 167 226 Geo.V1 I c.16 7 Geo.V 194& 36 I 7 Regenc16 t 194Ac y 3 c.42 1947 11 & 12 Geo.VI Ceylon Independence 194 c.7 Act 1947 1953 1 & 2 Eliz.II Royal Titles Act 1953 141 228 c.9 Eliz.I3 5 19522 & 32 I 7 Regenc16 t 195yAc 3 c.l 1957 5 & 6 Eliz.II Ghana Independence 194 c.6 Act 1957 Eliz.I9 196& 08 I Nigeri4 19 a Independence t I96Ac 0 c.55 Eliz.I0 1 196& 19 I Sierra Leon4 19 e Independ- c.16 enct 196Ac e1 Eliz.I0 1 196& 19 I Truste7 23 e Investments t 196Ac 1 c.62 Eliz.I1 1 196& 0 1I1 Tanganyik4 19 a Independ- • l c. enct 196Ac e 1 1962 10 & 11 Eliz.II Jamaica Independence 194 t 196Ac 2 c.40 1962 10 & 11 Eliz.II Trinidad and Tobago 194 c.54 Independenc t 196Ac e 2 8

DatReferencd ean e Short Title or Subject Paragraph Note Eliz.I1 1 196& 0 I21 Uganda Independenct eAc 194 c.57 1962 1963 c.54 Kenya Independence Act 194 1963 1964 c.46 Malawi Independenct eAc 194 1964 1964 c.86 Malta Independence Act 194 1964 - 1964 c.93 Gambia Independence Act 194 1964 1966 c.14 Guyana Independence Act 194 1966 1968 c. 8 Mauritius Independence 194 t 196Ac 8 1970 c.36 Merchant Shipping Act 212 1970 1970 c.50 Fiji Independence Act 194 1970

COMMONWEALTH ACTS

Date and Reference Short Title Paragraph Note

1942 No. 56 Statut Westminstef eo r 4 53,515 9 Adoptio 194t nAc 2 1953 No. 32 Royal Style and Titles 228 Act 1953 1954 No6 .7 Cocos (Keeling) Islands 210 (Request and Consent) Act 1954 1957 No2 .10 Christmas Island 210 (Reques d Consentan t ) Act 1957 1963 No. 64 Crimes (Aircraft) Act 215 1963 9 NSW SOUTH WALES ACTS

Reference Short Title Paragraph- Note

7 Vic1 . No1 .4 The Constitutiot nAc 195 1897 No.4 Interpretation Act, 1897- 115 215 1969 1900 No. 40 Grimes Act, 1900 215 1902 No. 32 Constitution Act, 1902 89,91, 217, 159,175, 220 176,181, 195 1969 No. 30 Imperial Acts Application 2 Act, 1969

NEWZEALAN D ACT

Date Short Title Note

1947 New Zealand Constitution (Request 210 d Consentan t 194Ac ) 7 Paragraphs 1-7. The Law Reform Commission of New South Wales is completing a reference made to it concerning statut revisionw ela . Because forcn man i lawd e yeol s ar Unitee Acts th a f sdo Kingdom Parliament State th , e legislature cannot amend, repea re-enacr lo t them without authority from that Parliament.

Whil requesea befors i thao e d t eth ten United Kingdom Parliament woult i , opportune db invito t e e that body to confer on the State the principal powers granted to British Dominions unde Statute rth Westminstef eo r 1931 mentione Parn i alss dI i below I t o t I opportun. reconsideo t e r provision reservatioe th r sfo Statf no edise Billth -d san allowanc f Stato e e Acts.

Other States may find these proposals of interest and may wish to be associated in a joint approach to the United Kingdom Parliament so that they may, in effect, become master f theiso n statutrow e books.

Paragraphs 8-55,. Par tI Historica l Introduction n 188 I Imperiae 6th l Government begana polic consultinf o y e self-governingth g colonie mattern so s of interest throughout the Empire. When the Australian Colonies became State Federationt sa , they allowed themselves, partly by misjudgement, partly by apathy, and partly by historical accident excludee b o t , d froColoniae mth l Conferences and to lose their direct participation in imperial affairs.

When n 1926i , , British constitutional relationships came to be re-examined and re-defined, the Commonwealth Government spoke for Australia without reference 11 e Statest th oe consequentia Th . l Statut Westminstef o e r passes wa 193n di 1confeo t r virtual autonom Britise th n yo h Dominions in place of old conventional understandings. The Australian States were not brought within the Statute and wer t directleno y consulted abou . Thetit y lackee dth foresigh Canadiae th f to n Provinces which secure themo t d - selves the principal benefits of the Statute.

e CommonwealtTh f Australiho "dominion"a a( ) adopte Statute th d Westminstef eo 1942n ri operato ,t e retrospectively fro Septembe3 m r 1939 .intere th Onl n -yi vening years after 1931 did some of the States realize that they, had been left in an inferior position, but their attempts to protect themselves camlateo n severato I e . l cases the States had failed to act despite recommendations by Crown law, and other, advisers that they should obtain the application to their legislatures of the Statute of Westminster. Whil Commonwealte th e h Government enjoyed complete autonomy unde e Statuterth e Stateth , s remained d stilan , l theoretically remain, "in a legal status of dependent colonialism".

Paragraphs 56-147. Part II Sections 2 to 6 of the Statute of Westminster

Section inclusiv4 o t s2 those ar ef o e greatest consequence. Section 5 relates to the Merchant Shipping Act 1894 (Imperial) - a subject which should be, and is being, dealt with independently. Section 6 relates to colonial court admiraltyf so s beeha nt I judiciall. y held that, becaus e wordinth f eo g use n sectioi d t alreadi , n6 y e applieAustraliath o t s n States.

Paragraphs 62-104. A. Section 2 of the Statute of Westminster 12 This section, so far as the Dominions were concerned, put an end to the doctrine of 'repugnancy' - namely, that law Dominionsf so , being w repugnanla e th o t of England, were "voi d inoperative"an d . That doctrins ewa written into the Colonial Laws Validity Act 1865, which continue bino sAustraliae t th d n States.

The 'repugnancy' concep s suitetwa o dt the British Empir centura f eo y ago, when communications were l substantiaal poor d an , l legislative matters were virtually controlled and supervised by the policy of the Colonial Office. Althoug e effechth f 'repugnancyto s beeha 'n somewhat softene e coursth y f judiciadb o e l pronouncements remaint i , s potentiaa s a l dange Stato rt eanachronistics i laws d an , .

While recommending tha least a t muco s t h of the Colonial Laws Validity Act as continues the doctrine of repugnanc repealede yb Commissioe th , n point that o sou t tw enabl) 5 sectiond ean 1 Stat( f thaso t e Ac tconstitution o st be made "rigid n certaii " n respects e examplOn . s sectioi e n w SoutNe e h th Wale f o sA 7 Constitution Act, 1902, which direct procedursa followee b y attempte o an et n o d d abolition e Legislativth f o e Council. That section, being "rigid", canno simple tb y repeale Parliamenty db . Certain other procedures must be observed to secure any such repeal. To preserv constitutionae eth l powers flowing from sectiond an s1 Coloniae th f o l5 Laws Validit woult i necessare t db y Ac o yt ensur continuee eth d operatio thosf no e section enacte th r -o s men f somethino t g els thein i e r place.

Section 2 of the Statute of ,Westminster is of particular relevance in that it confers a power of repeal or amendmen Imperiaf to l Acts, whic purposee needes th hi r fo ds 13 of statut w revisionela .

Paragraphs 105-133 e Statut. SectioB th . f Westminstef o eo n3 r This section confers on the Dominions "full power to make laws having extra-territorial operation". Over many years it has been made clear by decisions of the courts, that the States have such power in respect of laws made for their "peace, orde d gooran d government".

Extra-territorial legislation is not law- makin other gfo r countries legislatiot bu , n whiqh makes relevan Stata o countryr t o e , fact d eventsan s occurring outside its boundaries. Power to legislate in that fashion characteristia s i fulla f co y sovereign, independent state. Such power has been specifically conferred on most British countries obtaining independence sinc e seconeth d "world War.

The informal powers which the Australian States have in this respect should be rendered formal by statutory grant.

Paragraphs 134-143 e Statut. Sectio0 th . f Westminstef o o e n4 r Section 4 curtails legislation by the United Kingdom Parliamen Dominionsr tfo , unles Dominioe th s n concerned s "requesteha d consentedan d e enactmenth . Thio t it " sf o t section confirmed a convention existing between the Imperial Government and the Dominions, which still applies to the States. It would be tidier for the States substantially to adopt section 4. That action would also close State statute books to United Kingdom laws which could be made to apply by wha s constitutionallti y calle e "paramoundth t e forceth f o " Parliament at Westminster. 14 Paragraphs 148-200. Part III Proposal for United Kingdom Legislation

These Commission'e paragraphth t ou t sse s proposals, first by way of commentary and, secondly, as a draft Bill for an Act of the United Kingdom Parliament. The Bill is used merely as a convenient expression of the principles involved: its form will be subject to review by Parliamentary Counsel.

Section 1 of the draft applies to Hew South Wales the laws of England concerning succession to the throne and regency. At present theae matters are covered by convention which, under the federal system of government, is imprecise and potentially confusing.

e Statappl5 th e Section d th eo yt an 3 , s2 e Statutsubstancth f Westminsterf o o e 4 f sectiond o e an 3 , .s2 These are the provisions affecting repugnancy, extra-territoriality, curtailment of United Kingdom legislation for the State unless by request, and the vesting of power in the State to repea r amenlo d existin futurr go e "Imperial" Acts.

Section 4 re-enacts the material portions of sections 1 and 5 of the Colonial Laws Validity Act 1865 referred to in Part IIA above.

Sectio declaren6 e Commonwealtsth f ho Australia Constitution Act (1900) and the Commonwealth Constitution, the Statute of Westminster 1931, and the proposed new Act, to be "dominant laws" which will remain in force overriding any inconsistent laws of the State. 15 Sectiondea8 d l an wit s7 h anomalied san anachronisms concerning the old colonial practice of reserving specific Bills for signification of the Sovereign's pleasure. The Governor would retain a discretion to reserve, but would in no case be obliged to do so.

Sectio s intendei n9 preveno dt e distth - allowanc e Sovereigth y eb f Statno e Acts when assentey b o t d the Governor. The power of disallowance has long since fallen into desuetude.

Section 11 proposes certain consequential repeal f "Imperialso " Actse remaininTh . g sectione sar formal.

The draft Bilbees lha n framed only with the needs of New South Wales in mind. It could be readily adapte duplicater o d purposee th y othe r an fo drf so State desirin obtaio gt similana r relationship witUnitee hth d Kingdom Parliament. 16 Marc1 1 n O h 19661 thi. s Commission received froe mth Honourable the Attorney General a number of references, includin followinge gth : revieo T 4 .l Imperia wal l Act forcn si thin i e s firsStata s t(a e step towards general Statute Law Revision) and so far as practicable, the preparatio legislatiof no repeao nt l thes ma Imperial Act re-enacd san t such par thef o ts a m should remain part of the law of New South Wales. 5. Following the complete review of the Imperial Acts in force in this State to consider and review all local Acts with a view to their re-enactment where necessary in modern form, retaining the existing spirit and intendment of such Acts, but the Commission to be free to make specific inquiry of the Attorney-General on any aspects arising in the course of its review for determination of policy.

2. Reports on these subjects (L.R.C. 4 and L.R.C. 10) were made in 1967 and 1970 respectively. In particular, L.R.C 4 deal. t with those Imperial Acts which were regarded as being capable of local repeal or re-enactment. A draft Bill submitted with the Report set aside certain Imperial statute r preservatiosfo n wholln pari tr o y (Second Schedule). Other such statutes were regarded as incapable of local repeal (Third Schedule). All residual Imperial Acts in force in New South Wale virtuy sb receptiof eo n unde Australiae rth n Courts Act 1828 were recommended for repeal. The consequential Imperial Acts Application Act, 1969 f thi,o s State, implemented material al l proposal drafe th tn si Bill .

e passinTh f thago t doe t fulltAc 3 sno . y disposf o e \ 17 this Commission's reference under numbe quote, r4 paran i d - grap aboveh1 completo T .re-examinatioa , it e s beenha n Imperiae th mad f o e l statute sSecone cite th Third n dan i d d Schedules of the Imperial Acts Application Act, together with a review of all Imperial statutes passed since the commencement of the Australian Courts Act which have continuing effect w SoutNe n hi Wales .statutee th The e yar s more precisely identifie n L.R.C i s beind a forcn 4 ."i g e her y expreseb s words or necessary intendment and by virtue of the paramount legislative e Imperiaforcth f o e l Parliament".

4. This examination and review have opened up a number of fundamental questions as to the legislative relationships betwee Australiae th n n States and, respectivelye th , Commonwealt e Parliamenth Unitee d th han f do t Kingdom. Those questions must be taken into account in order to achieve the object contemplated in the existing reference of securing general statut w revisionla e n theorI . y and o somt , e extentn i , practic State th e e Parliamen nots historicar ti fo , l reasons, the exclusive master of its own statute book. Until it becomes so, statute law revision in any complete sense must be, at best, imperfect.

5. Our preliminary research into the subject involved, inter alia n analysia ,positioe Australiae th th f so f no n p States unde e Statutth r Westminstef o e s agreedwa r t 1931.I , 2 at first informally, that this Commission might prepara e pape r consideratiorfo Standine th y nb g Committe Commonf o e - wealth and State Attorneys-General with a view to securing uniformity of action by the States. That objective is desirable, apart from what advantage seee b uniformitn i ny sma y itself, as intervention by the United Kingdom Parliament will be essential for the proposed course of statute law revision. 18 A single Imperia substantiallf o t lse Acta r ,o y similar Acts, covering the requirements of all the Australian States in this and related constitutional connexions, would probably be more convenient to the Parliament at Westminster and to the Australian legislatures note W .e thaAttornee tth y General formally confirmed our authority to proceed with this investigation and working paper in his letter of 12 November 197 thio t 1 s Commission.

6. We submit the results of our work in three parts, e scopth whichf o e n summaryi , : is ,

Part I Historical Introduction (The exclusion of the Australian States from Colonial Conferences; the circumstances preceding and surrounding the Statute of Westminster 1931; its adoption by the Australian States.e th Commonwealth y b )t no t bu ,

Part II Sections 2 to 6 of the Statute of Westminster (An assessmen f theio t r relevanc Australiae th o et n States with observation desirabilite th n so theif yo r adoptior no otherwise for the purposes of the States.)

ParI ProposaII t Uniter lfo d Kingdom Legislation (A draft Bill with commentary, dealing chiefly with the posi- Soutw tioNe f hno Wale capablt sbu beinf eo g appliel al o t d States. The Bill contemplates the adoption by the State of part of the Statute of Westminster, and includes provisions in aid of statute law revision and to resolve some related constitutional anomalies.)

7. Our researches have been greatly assisted by the kind co-operation of the Honourable E. M. Bingham, M.H.A., Attorney-General of Tasmania, J.C. Finemore, Esq., Q.C., 19 Chief Parliamentary Counse Victoriaf lo , (who made available to us relevant government records), and the librarians and staffs of the National library of Australia, the New South Wales Parliamentary Library, the Supreme Court library e Attorneth d an y General's Library, Sydney. 20

I HISTORICAL INTRODUCTION 8. The present legislative relationship between the United Kingdom and the Australian States can only be understood in terms of history. The former Colonies of Australia acquired self-government at various times between 1850 and 1890. With the passing in 1900 of the Commonwealth of Australia Constitution Act,3 they became States in a federation. The new Commonwealth Parliament was invested with specific legislative powers, the States retained the residue.

9. Commonwealt d Statehan s remained subjec lono t g standing limitation thein so r autonomy unti passine lth f go the Statute of Westminster 1931 which, on its adoption by Commonwealte thth e s a Commonwealt r fa s concerned ho wa s d han , virtually ende s legislativit d e subordinatio Imperiae th o nt l Parliament. But the Australian States were not brought under the terms of the Statute and still remain outside them. Again, the reasons for the States1 exclusion from an essentially beneficial measur onln eunderstooe ca yb referency db o et history. It is therefore desirable to make a review of the positio Statee th f nso from 188 194o 6t 2 before analysine gth effects of the Statute of Westminster upon them.

Colonial Conferences Decline Th :Fald Australiaf ean lo n State Representation, 10. In November 1886 Edward Stanhope, Secretary of Coloniese th Stat r fo e , addresse circulada r despatco ht the Governors of all British Colonies under Responsible Government. furtherancn I 4 imperiaf eo l polic Queee th y n had been "advised to summon a Conference, to meet in London in the early part of next year, at which representatives 21 e principaofth l Colonial Governments wil invitede lb o t , attend for the discussion of those questions which appear more particularl demano yt d attentio e presenth t na t time".5 e Conferenc e "purelTh b o t ys ewa consultative o thas "t ti t materiano s wa l thaColoniee th t s have equa proportionar lo l representation.

11. Thus Aprin i , l 1887 e firs,th t Colonial Conference was held. All of the Australian Colonies were represented, in some cases by men to make their mark in Australian Federation - Deakin for Victoria, Griffith for Queensland and Forrest for Western Australia. New South Wales was represented by its Agent General, Sir Saul Samuel, a former Premier, Sir Patrick Jennings formea d an ,r Attorney General, Robert Wisdom. The representatives were received somewhat patronizingld yan it was plain that no substantial issues would be considered. "Apart from the fact that the Colonies found that their opinions in matters of trade and communication were of some importance, the first Colonial Conferenc verd ha ey little e effecth n o t constitutional statue self-governinth f so g Colonies".6 t wasI , however12. a start, d agreemenan , s reachetwa d that such meetings should be held on a regular and more representative basis. So, at the following Conference held betwee Secretare th n Coloniee Prime th f Statth o y r ed fo esan Minister e self-governinth f so g Colonie Junn sd Julyi an e , 7 e Australiath 1897l al , n Premiers attended. Their Govern- * ments (excepting that of ..estern Australia) had likewise been represente e Ottawth t a d Conferenc 1894f o e , directed principall discussioa o yt matterf no s relatine th o gt 8 proposed Pacific cable. 22 e nexth tt A Conference13. n 1902e Australiai ,th , n States virtually lost their representation by their own short-sightedness and, coincidentally, by the unusual manner in whic meetine hth s convenedgwa Statee Th . s wer t inviteeno d to be present, it being taken for granted by the Colonial Office that thelosd yha t their placeConference th t sa e because of Australian federation. Joseph Chamberlain, the Secretar Statef yo addressinn i , g delegate wero swh e present, dismisse Australiae dth n positio thesn ni e terms: The main changeConferencr ou n si e result from political vicissitudes, and, above all, from the very welcome Federation of the Australian Commonwealth althougt Bu e lessene.ar e hw n di number from that change in composition, I believe l animate al same e th e ar y thadb spirit e tw , that we all have the same paramount object at heart, namelypossible w f i , y candrao t , w closee rth q bonds which unit. eus

e ConferencTh 14d bee.eha n convene coincido t d e with the presence in London of leading colonial figures attending the coronation of Edward VII. The Australian States seemed less concerned about their exclusion from the Conference than they were about a supposed slight to their dignity because their Premiers' invitations to the coronation had been conveyed through, the Governor-General of the Commonwealth. Accordin o Professogt r Keith, this "most improper step" resulted in "the dignified and proper refusal of the Premiers to attend". However, the States salved the Premiers' pride at heavy cost, for their unprotesting absence from the Conference becam powerfua e l precedent. Never again would the voice of the Australian States be heard directly in the 23 counsels of Empire.

Australiae th t A n15 Premiers. ' Conference heln di Sydne 1903,1n yi 1 State representatio imperiar nfo l purposes t canvassed no preservatioe th s wa t bu , Statf o n e rightss a , agitated in the Vondel case,12 12 occupied some attention. The imperia predominancle th vie f o wCommonwealte th f o e h Governmen speakinn Australiai te th r gfo n beet peoplno n d eha disguise Chamberlaiy b d despatca n Novembe5 i n2 f ho r 190o 2t the Lieutenant-Governor of South Australia, concerning the Vondel incident: The aim and object of the Commonwealth of Australia Constitution Act was not to create merely a new administrative and legislative machinery for the six States united in the Commonwealth, but to merge x Statethsi e s intunitee on o d Federal Statr eo Commonwealth, furnished wit powere hth s essential s existenctit o s sucha e . camt BeforAc e e th e into force, each of the separate States - subject, of course, to the ultimate authority of the Imperial Parliament - enjoyed practically all the responsibilitiee th l poweral d san separatf so e nations. By the Act a new State or nation was created, armed with paramount powers t onlno o ,yt settle the more important internal affairs relating to the common interests of the united peoples, but also to deal with all political matters arising between them and any other part of the Empire or (throug Majesty's Hi h s Government) wity foreigan h n power [thn ..O . e proclamatio e Constitutioth f no n Act] Australia becam single on e e entityo n d an , longer six separate States, in the family of nations under the British Crown, and the external 24 responsibility of Australia (except in regard to matters in respect to which a later date was fixed e Constitutionbyth ) vested immediatele th n yi Commonwealth, which was armed with the paramount power necessary to discharge it ... The Consti- tutiofacn i ts placenha Commonwealte dth n a s ha intermediary betwee Imperiae nth l Governmend tan the States in regard to the matters assigned to it.13 e SoutTh h Australia16. n Government vigorously contested that interpretation in a despatch of 15 February 1903,14 and decline acknowledgo dt Federae eth l Governmen intermedn a s a t - iarfuturr yfo e purposes than I .t vie State wth e Premiert sa the 1903 Conference unanimously concurred Premiee Th . f ro South Australia there remarke dquits i that e"i t obviouo st me that the Imperial Government are saturated with the Canadian practice, and their only desire is to save themselves as much as possible, and they want the Federal Government to be the medium between the various States and themselves; but however convenient that may be for them, we think we have our rights". Those rights were maintained in this connexion e purposth r but representatiof fo o e, e imperiath t na l level, the gond yha e forever.

Attempts to Secure State Recognition 17. In 1906 the State Governments, belatedly sensing their disadvantage, took concerted action in the hope of securing representatio Coloniae th t na l Conferenc hele b do et e followininth g year. J.H. Carruthers, Premie Soutw Ne f hro Wales Minuta Governoe n th i ,Jun1 o et f ero 1906, pointed t thatou : 25 contemplatioA respective th f no e Constitutions of the State and the Commonwealth will serve to show tha verta y considerable proportioe th £ no subjects which wil discussee lb Conferenca t a d e of representative Coloniee th f so mattere sar f so either exclusiv predominatinr eo g controe th y lb States... The representative of the Government of the Commonwealth at such a Conference ... would only be entitled to voice the views of the Federatio regarn ni thoso dt e matters upon which the Federal Government exercises exclusive control d theran ,gravs i e e objectioo t n permitting any such representative to assume to represent those interests which are peculiarly the concer State th ef n o Government.1 6

18. The Governor transmitted those views to the Secretary of State for the Colonies, while the Premier circulated them to his colleagues of the other State Governments. Between 16 Jul0 3 Junyd separatan e e approache supporn Soutw si Ne hf o t Wales were made to the Secretary of State by the Governments of Victoria, Queensland, Tasmania and Western Australia. The despatche e severath y sb l Governors were formal, excepting that of 16 July 1906 by Sir GeraldStrickland, Governor of Tasmania. While waiving any claim for his State to be accorded any voting rights at the proposed Conference, he made a significant appraisa politicae th f l o constitutiona d lan l problem t stakesa : Fro Imperian ma l poin viewf o tappeart i , s that this request deserve welcomee b o spontaneoua st s da s expressio anxiete State th th f enf o yo Government s to co-operate in drawing the Empire more closely 26 together. The decisions of the representatives assemble conferencn di afterwardy ema s require application through channels commanding the cordial acquiescence of other Colonial statesmen representing the average frame of mind in Australia. This subsequent acquiescencf eo leaders of thought not present at the Conference will not be so easily obtained, if Australia is only represente Reid. Mr Deaki. .y Mr b y r db no These leader commonle sar y believe represeno t d t extremely opposed view crucian so l questions- e.g. Protectio Fred nan e Tradwhicn o e- h Australia is so divided that its voice at the Colonial Conference should not depend on the chance of which leader happens to be in power, especially as the same Parliament has been led by both in turn. Pro constitutionama l poin view f claie to th , m e Statoth f e Premie vers ri y strong. Australians, when entering on the Commonwealth, had the Canadian Constitution before them; nevertheless they deliberately decided to maintain a more direct connection between the Crown and each State, and to continue the individual existence of six self- governing communities. These self-governing Colonie receivt no d sedi delegatioa theif no r power legislatiof so d nan administration frocentrae th m l authorit thet ybu y themselves, on entering the Commonwealth delegated clearly defined and strictly limited functions to the Federal Government. A strong and combined determination has been evinced of late, on the part of the self-governing 27 Statestransfeo t Commonwealt e t th no ,o rt y han mor theif eo r right dutiesd san , even indirectly Tasmaniae th d an n Governmen determines ti o dt promptly oppose any step tending to detract from State rights. The States still have undoubted controy b f lo largee th r r functione fa sharth f o e f so Australian administration, from the point of view of the development of the country and the material d personaan l interest peoplee th e grou f Th so . p of functions delegate Commonwealte th o t d a s hha comprehensive aspect, but its connection with the everyday life of the majority of Australians is, in times of peace and of normal colonial development, comparatively remote, sid y sideb e wite hth direct bearing of State administration on the fortune aspirationd san individualsf so . Pro Statma e poin viewf o t refusaa ,e th f lo representation at the Colonial Conference of 1907 would embitte aversioe rth federationo nt d an , give some strength to a feeling that the Imperial authorities are disposed to expand the prerogatives of the Commonwealth Executive in a manner that the self-governing Colonies did not stipulate for when they joine Australiae th d n Federation.17 17 l Statal eo T representation19. Secretare sth Statf yo e returned the same unaccommodating reply. The Conference would be constituted like its predecessor and would itself decide any changes in its composition. Invitations would not be extended to the States. Premier Carruthers expressed disa- ppointmen d protesttan whicn i , e saih d tha spoke th n o e behalf of all States. He complained that the States, solely 28 represente Prime th ey db Minister , Alfred Deakin, woult dno "have their voice constitutionally or authoritatively expressed upo subjecte n th man f yo s which will fin placda e upon the agenda paper". He also denied the propriety of State representation being determine Conferency an y db t ea which State attitudes could not be separately propounded.18 18

20. The Government of Tasmania independently confirmed its protest, and the Government of South Australia added its representations in sympathy with the other States.19 The principal submission by South Australia, a memorandum of 12 December 1906, made up in detailed and analytical argument what it lost by dilatoriness. So persuasive was it that Lord Elgin, though adhering to his decision not to invite State attendance, felt constrained to send a long explanatory despatch in reply - a marked contrast to his previous perfunctory refusals.20 While admittin Imperiae gth l Government's "deep regret" at apparently having given unwitting legitimatet bu , , caus r dissatisfactioefo n amongst State Ministers, he emphasized that there had been no earlier agitatio Statf no e grievances concernin compositioe gth f no the 1902 Conference. In effect, the States were regarded as having slept on any rights they may have had. There was no proper analogy, he said, between the Australian States, which had surrendered some of their powers, and Natal and Newfound- land, which had not. In the Imperial view, the Commonwealth and the States "both alike represent the people of Australia, but for different purposes". The deciding factor was that "the great majority of the subjects, and those the most important discussee onesb Conference o t ,th t da mattere ear s which are now in effect the business of the Commonwealth thesf o vere w th e casalone yfe d th f eve subject o ean n i n; s 29 which may be regarded, in whole or in part, as still the business of the States, the Commonwealth possesses or may acquire paramount power". Overall e Imperiath , l Government could fin alternativo dn e without "disregardin scheme th g e of Commonwealth legislation, or the fundamental principles on which the idea of the Colonial Conference is based".21

21. mattere Tha th e s practicallf Th twa o . d en e yth presenc Statee th Conferencef t so a e s would have been embarrassing as, at the urging of Canada, Dominion Ministers were permitted to attend, if required to support their Prime Ministers.22 22 In the result the gatherings even of those representatives became inconveniently large witnesses a , y db the outspokenness of Sir William Lyne, Australian Treasurer, who had been given a back seat, could not hear, nor confer with his Prime Minister, and felt that, if his function was d listen,an merelt e "mighh si wels o a yt te somewher lb e else".23

22. The poorly reasoned and authoritarian refusals of the Colonial Office to accede to State requests contrasted with two very closely argued, lengthy, and telling memoranda by Deakin. In the first, of 31 October 1906, he strongly resisted the claims of the States. Their internal concerns could, he asserted, be canvassed directly with the Imperial Government through their Agents General. But the Imperial Council [Colonial Conference] is to deal with matters of wider range, and it is difficult, if not Impossible, to conceive cases in which uniform action on its part would be necessar desirablr yo e with respec subjecto t s over whic Statee hth s have exclusive controln I . 30 facprincipae tth l creatioe objecth e f th o t f no Commonwealt transfeo t jurisdictio s s it h wa o rt n l subjectal respecn si whicf to Australiae hth n Colonie d interestsha commonn si regardind an , g which uniform action was possible. One of the leading idea thats swa regards a , s other partf so the Empire and foreign countries, Australia should be regarded as a single entity. To approve of the participatio Statee Conferenca th n f si no e whose work must consist in the discussion of topics with an external bearing would be to admit that the existenc Commonwealte th f eo s altogethehwa r unnecessary, and that the Constitution has merely adde seventa d h Governmen thoso t e already existing, leavin Statee g th fule sth l jurisdiction outside Australia, whatever it was, which they had before its institution.24' He discerne populao dn r Australian feelin supporn ge i th f to views of the Premiers. The agitation, he maintained, was a personal,on y certaieb n State politicians resentfue th f lo limitation of their former powers.

23. The South Australian submissions of 12 December 1906 drew from Deakin a further powerful replication ten days later. In it he rejected State views as to Commonwealth legislative incapacity. Many federal power law-makinf so d gha then not yet been exercised, but that did not restrict nor diminis e availabilithth thosf yo e majol powersal n rO . matters of national importance the Commonwealth exercised control, or had authority to exercise it, and was the only legislature to speak on the nation's behalf. Through it the people of the States were represented on all issues of common 31 national concern. If there were separate representation of Australian States at Colonial Conferences then Australia could no longer speak with one voice; the views of the States woul disunitee b d mann o d y topics and, consequentlye th , Commonwealth's real representation would be destroyed. Most mattere oth f r discussiosfo n kina wer f do e over whice th h woul t i poweStateo n unreasonable d db d ran aha e that their voices should be heard as mere expressions of opinion when they had no executive power to carry Conference resolutions into effect. Such a practice would render "practically abortive whole th " e purpos f suco e h Conferences.25 25

24. furthera Ther s d greaterewa an , , local issuee Th . relationship betwee Commonwealte th n Statee th d sh an mus e b t firmly understoo f Federatioi d n wer succeedo t e : If [the State arguments] were accepted it would appear that the federation of Australia was a mere departmental arrangemen purpose th r f o etfo placing under one control the management of three important departments which affect the internal intercourse, intercommunicatio generae th d lan n defenc Australiaf o e t thaBu t. vie altogethes i w r impossibl f acceptanceo e . Federatio mucd ndi h more than merely establis centraha l administrative body. It created an entirely new Government provided with legislativ d judiciaan e wels a ls la executive powers. The nature of these latter has been the subject of much discussion, but it is now settled that they include the right to act on behal Australif fo matterl whola al s n aa i e s that intereste relatth o t e Australianf so unitea s sa d community e principa. th f Indeedo e lon ,reason s that induced Australian federato st s thaewa s a t 32 regard l placesal s outsid continene eth t they should speak with one voice, that as the interests of Australian relation si externao nt l affairs were common to all, it was desirable to have one spokesman with one set of views instead of, as formerly x spokesmesi , n wit x possiblhsi y divergent sets of views. That principle has been stated over frequentls i d ovet an i r s a again yt bu ignore, y db State authorities desirin preservo gt themselveo t e s every possible vestige of power and jealous of the supremac Commonwealte th f yo h Governmentt i , demands repetition.26

25. Man Deakin'f yo s arguments were sound;2 politican i 7 l terms they were expedient. The State Premiers had not presented their case with sufficient car uniformityr eo . Only the South Australian submissions gave eveappearance th n f o e substance e upshoTh . te are wasth Imperiaf ao n ,i l relations, a permanent lowering of the status of the States and the elevation of the Commonwealth to a position which, constitutionally speaking, it was not intended to hold. As Professor [later Sir] William Harrison Moore remarke 1910n i d : Of the present Constitution the essential feature is that the functions of government are divided: s thaii t t which make federalt si e CommonTh . - wealth Governmen Parliamend an t distinguishee ar t d from the States by the fact that they are charged with powers and functions which are limited by enumeration, while the residuary powers of government are reserved to the States. These powers, save where they are subject to the paramount federal power in the case of the enumerated powers, are independent and not subject to federal supervision 33 and control. There is nothing which casts on the State y responsibilitsan Commonwealthe th o t y e th , whole schem federaf o e l governmen s opposei t o t d the existence of any supervisory authority over the States. This is undoubtedly the case within the Commonwealt s submittei h t itselfi d dan , that there is nothin Constitutioe th n gi n which either directly or by inference justifies the view that, while within Australia the Constitution is to be treate federaa s a d l union, conferring limited powers merely upon the Commonwealth Government, it treatee e Imperiab th o i st y b d l Governmena s a t unitary constitution wit singlha e responsible government.

26. At the 1907 Conference, Deakin, in what, externally at least, seeme gesturda conciliatiof eo Statese th o nt , proposed that suggested subsidiary conferences be held not simply "between representative Governmente th f o s s concerned", but between "any Governments concerned" to allow specifically for purely Provincial or State matters in Canada and Australia respectivel debatee b o yt behaln o d thosf fo e Governments.29 29 The Canadian Prime Minister rejecte idee s possiblth da y accentuating differences between the various governments in federal systems y sucAn h. subordinate conferences shoule db meetingc aho d s unconnected witregulae hth r Conferencef o s principal Imperial Governments. t presDeakino s d shi ndi proposal: the suggestion that the Australian States might take a place at the regular Conferences was not aired.

27. Almost simultaneously at their own Australian Conference, the State Premiers admitted that their hope for 34 a separat eaffaire voicth n Empirf losi ea so s t ewa cause . Their last wor s spokePremiee dwa th y nTasmaniab f ro I " . e matter".3th n think,i n e saidhavh e ca 0" "w e e,w donl al e The Premiers did, however, agree to maintain a united front against the Commonwealth to preserve State rights, to ensure tha directa t channe communicatiof lo n betwee State nth e Governors and the Colonial Office was maintained without the Commonwealth Governor-General as intermediary, and also to appoint a constitutional expert to scrutinize Federal legislation, reportin y enactmenan n go t which might prejudice e Statesth .

e StateTh s 28receive. o invitatiodn e Imperiath o nt l Conferenc y sucan h o 1911f t Conferenceo e r ,no s thereafter. They made no further public attempts to secure representation meetingse th f o followet I y .a an t d thaAustraliae th t n States were not consulted when the Imperial Conference of 1926 set up, under the chairmanship of Lord Balfour, a Committee of Prime Ministers and Heads of Delegations to examine questions of Inter-Imperial Relations (the Balfour Committee).31

The Imperial Conference. 1926. and its Consequences d coloniaOl l29 . tied undergonha s e scrutiny durine th g 1914-1918 War. The British Empire had been largely transformed by it. So far as legislative and. executive authority was concerned signs arose of a new attitude in Australia. n 1916I , Andrew Fisher, Australia's Scottish-born labour Prime Minister, said bluntly that, though there was no sense in crying over spilt milk, it was intolerable that a Dominion Prime Minister should have less control over his country's fate humblese i th nr tha d wa peac nha td an ecitize f o n 35 the United Kingdom. In the future the Dominions would insist on having their say, not only in work-a-day matters like tariffs and social policy, e conducth bu n foreigf i to t n affairs.32

30. With such view mindn si e Balfou th , r Committen i e 1926 endeavoure t intpu oo dwordt enigmatie sth c statuss a , between themselves, of Great Britain and her Dominions. Its celebrated definition was: "They are autonomous Communities within the British Empire, equal in status, in no way subordinat anotheo t y aspec an e eon n theif ri o t r domestic externar o l affairs, though unite commoa y db n allegianco et the Crown, and freely associated as members of the British Commonwealth of Nations".33 With its other analyses, the Committee's repor s beetha n describe distinguishea y b d d historian as memorable for descriptive ability and political shrewdness wast "I ,: firs d foremosttan , finely accurate description. With admirable economy of words it cut through the thickets of legalism and skirted the marshes of vague moralizing, and revealed the British Commonwealth as it was in the year 1926. It revealed also the direction of the road along which the British Commonwealth had passed, and the immediate end which that road was nowapproaching".34

31. The reduction of the Balfour formula to a draft Bill was assigned to a special Conference on the Operation of Dominion Legislation in 1929. Australia was represented by Sir William Harrison Moore and Major R.G. Casey. The Report e Conferencoth f s publisheewa 1930,3n i dspeciaa d an 5 l report for the Australian Government was made by Harrison Moore.36 They are considered in greater detail below. 36 e ImperiaTh l32 .Conferenc 193f eo 0 endorse drafe dth t recommended submittean t i o dt ds "whict wa Ac tha t n i hta thought might convenientl callee yb Statute dth f eo Westminster" be passed and become operative from 1 December 1931.37 There was one caveat. Although the Canadian House of Commons had approved the 1929 Report, "it appeared that representation d beesha n received from certaie th f no Provinces of Canada ... protesting against action on the Report until an opportunity had been given to the Provinces to determine whether their rights woul adversele db y affected by such action". The Canadian Provinces pressed their

case so effectively at home that the Prime Minister called a Conference betwee Federae nth l Governmen l provinciaal d an t l governments early in the following year: it was agreed that the Dominion should adop Statute th t Westminstef o e d tharan t s termit s should Provinces.3e applth o t y 9

33. That preceden t pursueStatee no th s y sdtwa b when a similar reviee proposeth f o w d Statut mads n ewa i e Australia. Once again they were preoccupied with rivalries among themselves and their powers and status as between themselves and the Commonwealth. And, moreover, the Dominions had been given a limited timetable within which to ratify the Statute. That encourage concentratine dth attentiof o g n only thosn o e matters which then seemed most fundamental t wasI . , for instance, well stated by one complainant to the Western Australian Government that: feelI , mattea ,is regrer t I rfo t thaquestioe tth n of removin e subjectiogth Statf o n e legislatioo nt the Colonial Laws Validity Act etc. has not been include e propose th Westminsterf o n i dt dAc . However, the resolutions must be passed by the 1st August 37 1931; the great question of the moment thus becomes grantine th t greateno f go r legislative freedoo t m the States; but the prevention of the unintentional diminutio theif no r existing right privileged san s throug e susceptibilithth proposee f th o f o t y Ac d Westminster to more than one construction.40

34. As the reports of the Imperial Conference made their Governmente th o Australiat e th y f wa so n States response th , e was varied. At one end of the scale, the New South Wales Government wanted the whole matter deferred so that it could concentrat rescuinn o e legislatios git aboliso nt e hth Legislative Council, then recently upset by the Supreme Court's decision in Trethowan v. Peden. 41 At the other end of the scale, the Tasmanian Attorney-General successfully moved his Government to canvass State rights directly with the Imperial Government appeart "I . o me"st e saidh , , tha poine Statee th tFederaa th vief o tn f i o sw l Union suc s oura h s should havconsideratione du e , and ther always i e possibilite sth y thae Stateth t s will be overlooked since they have not been e Conferenceth represente f o y an s e t ..a dTh . decision e Imperiath f so l Conference, 1930, wile lb submitted to the Imperial Parliament in the form of amending legislation and as the views of the States e overlookeb y ma d when -such proposed legislatios ni being considere woulI d d recommend that representations be made to the Imperial Government ... that this Stat d othean e r Commonwealte Stateth f o s e hb given ample opportunit considerinf o y g such proposed legislation before it is passed into law. 42 Queensland gav s supporTasmaniae it eth o t n representations, while South Australia and Western Australia made independent 38 approache Dominione th o st s Office. Only Victoria seemed content with the proposed ratification, though its Agent Genera London li s anxiounwa s that "concerted action" might be taken by all States.43

Jul3 n yO 193135 . Federal Attorney-General Brennan introduce House th Representativef eo n di resolutiosa o nt ratif e proposeyth dStatute termth f Westminstef o so e r Bill44Historically , the most interesting and most pertinent speecresolutioe th n ho s tha nwa J.Gf to . Latham, then Deputy LeadeOppositione s principallth wa f ro e H 5 4 . y responsible45 for initiating amendments which were adopted by Parliament and written into the Statute of Westminster itself to resolve the most seriouconstitutionae th f so l doubts entertainey db the States. In effect the amendments prescribed that Australian Commonwealth request Imperiar sfo l legislation should be made, and consented to, by the Parliament as well as the Government of the Commonwealth; and they ensured that the Commonwealth could not solicit imperial legislation on matters falling solely within State power. Latham emphasized tharelationshie th t p between Commonwealtt Stated no han s swa reall legislatione e objecyth th f o t . It mus rememberee b t livinde ar tha e gtw undera federal constitution d thaStatee an ,th t s eacs hha a place in a federal system which depends upon a division of legislative power between the States. This resolution doe affectt t intendesno no s i , d to affect d certainlan , y shoul t affectno d e th , position of the States in relation to the Common- Unitee th wealt o t d r Kingdomho e StateTh . s have t beeno e conferencen th represente f o y an st a d from which this resolutio ultimatels nha y emerged, 39 and they canno compromisee tb affecter o dy an n i d way by this legislation ... They are entitled to preserve such relations as they like with the British Parliamentt controno o e d lth e W . relations between the States and the rest of the Empire. They have independent relations.

36. As amended, the resolution was debated after the manne legislatiof ro passed nan boty b d h Houses s solvinIt . g of some of the States' problems went almost as far as was then desired but, viewed objectively, it did not go far enough.

A Premiers37. ' Conferenc s helewa d meanwhiln i e Melbourne during August and September 1931.47 The Prime Minister, who presided, referred to the Statute of Westminster and "said he had received a number of protests regarding this subject from different States" e issueH . d whas intendetwa d placatora e tb o y memorandu 8 mreassurin4 Premiere th g s that the Statute woul t substantialldno y affec Statee th t t allsa , e requesteh d an d thay furthean t r representation made b s e directl himo yt .

38. Tasmania persevered with determined opposition on the grounds that the Statute might enable the Commonwealth to destro shiele th y paramounf o d t imperial legislatioe th r nfo State d eve san annihilato t n e theme FederaTh . l Government offere o propost d e thaStatute th t furthee b e r amendey b d adding a clause to the effect that: "Nothing in this Act shal e deemelb requiro t d concurrence th e Parliamene th f o e t and Governmen Commonwealte th f o t w Australif la ho y an o at made by Parliament in respect of any matter which when the law 40 is made is within the authority of the States of Australia not bein mattega r withi authorite n th Parliamene th f yo r to Government of the Commonwealth of Australia in any case where it would have been in accordance with the constitutional position befor commencemene th e thi f thao t sAc t Parliament should make suc hCommonwealte Th law".49 h also offeret dno to adop Statute th t e unti l Statlal e objection d beesha n resolved t Tasmanibu , a remained obdurate. Western Australia, then brooding ovepossibilite rth secessionf yo s likewiswa , e in no humour to withdraw its objections.50 South Australia also presse separats it d e complaints upo Dominione nth s Office and urged postponemen readinf o t Statute gth Westminstef o e r Bill. 51

n LondonI finaa ,39 . l gesturAustraliae th o t e n States Statute debate th th n f Westminstef o eo o e e ev e s th mad wa rn o e in the House of Commons. A useful account by the Tasmanian Agent General is preserved in that State's Archives: The second reading of the Bill in the House of Commons was taken on the [20th November] and that morning all the State representatives met at the Hous f Common o e requesLesli . th Mr t f sa o e t Boyce, the Member for Gloucester, Mr. J3oyce, who is an Australian d beeha ,n Solicito e asketh y b d r General to meee Agentth t s Genera discuso lt e provisionsth s relatet Australiae i th s a o t sr Bilfa e onth fo ls States e dealH . t fully wit Bil e d pointehth lan d out that in the view of the Imperial Government, the rights of the States had been adequately protected and the y thae y alterationse coulan t t dno s were necessary. e AgentTh s General, however, were unanimouslf o y the opinion that clause 10(2) was not sufficiently 41 clear inasmuc Federae th s ha l Parliament might giv wida e e interpretation thereto pasd an ,s some legislation which the State Governments would consider detrimental to their constitutional n orderightsi placo d t re clausan , eth e beyond any doubt it was urged that the following words shoul e insertedb d "referre n sub-sectioi o t d ) (1 n of this section". The Solicitor General on behalf e Governmenoth f t accepte e amendment.dth 52 52

The Statut Westminstef eo r Enacted 40. The Statute of Westminster Bill passed the United Kingdom Parliamen 193s close it th 1f sessioo et ta a n i n3 5 mingled mood of restrained patriotism and unrestrained apathy. OnlIrise th y h question aroused sustained interest. e generaTh l feelin Englisf go h politiciane s th that swa f i , Dominions wante measuree dth , they coulterme th dsn o hav t i e the d stipulatedyha . Accordin Dominiono t g s Secretary Thomas there was no possible alternative for wise statesmanship but "freel d ungrudginglan y Dominionso e accedeyt th o t " ' request - "to have done anything else was to run counter to the whole policr coursou relation f i yo e Imperiao nt l developmenta , policy which believes liberty to be the only true keynote of that development." 54 The Bill was to be looked upon, in his view, as the beginning of a new system of equality, the cutting away of dead wood to render possible new growth. 55

41. . However, to Winston Churchill the need to codify constitutional fundamentals was objectionable: "When all the generous sentiments in which all parties have bathed themselves during recent years have to be reduced to the language of Acts of Parliament, the result is not only pedantic, it s painfuli , y rate andan o t wilsom t i t ,a el almose b t 42 repellent" thosf O 6 e5 . member House th Commonf o en si s finwhd repellentt odi di fewa , , notably Hopkin Morris d Marjoribanksan , sough havo t e e Bildebatth l n o postponede , but the majority favoured immediate action. Another effort s mad Mandewa y b e securo rt e postponemen orden i t r thae tth objections of Tasmania and South Australia might be further studied. His proposal was decisively rejected, the Dominions Secretary saying: Every d followemembeha o rwh d Australian politics during the last two years knows perfectly well the differences existing with Federaregare th o dt l Parliamen Statee th reasonr d sfo tan s disconnected entirely with this Statute. We know the agitation thas taketha n plac n somi e e case r separationsfo . It would be a profound mistake for this Parliament, whic itsels hi f responsibl Australiae th r efo n Constitution, to take sides. Nothing would be more dangerous to Imperial unity than that.57 57

e Housth Lordf o en I s som42.e desultory referencs wa e Australiae th mad o t e n position. Lord Lloyd championee th d e Statecausth i urgef eo sam d cautio n passinni Bill.e gth 58 58 But paused it was, though with such indifference that it seemed to be enacted under sufferance.59 The attitudes of the Australian States had been too parochial and too disunited in their representation warrano t s t serious attentiot na Bil e lTh n . Greabecami w t la eBritai 1 1 n Westminster no December 1931. Its more formal provisions applied instantly to the Dominions, but its important operative sections (2 to 6) would only take effec n Australiai t w ZealanNe , d an d Newfoundland when adopte thosy b d e respective Dominions. 43 Reactions to the Statute 43. Amongst lawyer d politiciansan w enactmenne e sth t was viewed somewhat warily in most British countries, with the notable exceptions of Eire and South Africa. An American legal commentator observed "a surprising lack of enthusiasm for the enactment of the Statute even on the part of its supporters". In his view a study of its terras suggested tha te acclai"somth f o em [wasgivet i t altogetheo nt ]no r moderate". s ideaHi s 60wer e r RoberechoeSi y b td Garrao nwh assessed the Australian reaction as follows: A marked want of enthusiasm for the Statute was show many nb y who, while admitting that Australia was practically committed to it by the Imperial Conference resolution f 192so d 19306an , were not satisfied that the statutory implementing of the Balfour memorandum was either necessary or free from danger.61 Another lawyer thought thae Statuttth d brougheha purela " t y negative contribution in law".62 More recently, Sir Kenneth Roberts-Wray has suggested that "as a matter of political relationship amountet si moro n o et d tha nstatutora y confirmatio f establisheno d fact".63

44. In Australia some concern was voiced, though little heeded, about the constitutional disadvantage in whic e Stateth h d allowesha d themselve placede b o t s . Professor K.H. Bailey, stressing thae Statesth t ' legislative powers in Federation were co-ordinate, not subordinate, concluded that: e regretteb o t s Ii td thae problemth t s created Statute bfederaa th y r fo e l Dominion havt no e been discusse n conferenci d e betwee e Commonwealtth n h 44 and the States, as they were in Canada ... In their endeavou provido rt e safeguards against Commonwealth aggrandisement Statee th , s havn ei the writer's opinion, overlooke poinda f somo t e substance.

Justic. Mr e 45Dixo. n sounde similaa d r cautioe th t a n Australian Legal Convention of 1936 when he said: In order to give legal autonomy to a community which enjoy endurer o s federasa l systef o m government, it is not enough to free federal legislation upo mattere nth s confide Federae th o dt l Parliament from the overriding force of such Imperial statutes as may extend to it, if at the same time those statutes remain paramount over State legislatio same l th e al n matterno n o d san matters within the exclusive power of the States. To adopt this illogical courstreao t e s th ti e State and Federal legislatures as if they operated n differeni t countries t doe I t trea.sno t them as branches of one system of government among whom the total legislative e autonomoupoweth f o r s Dominio s dividedi n .5 6 66 e VictoriaTh 46n. Governmen d meanwhilha t e retained Professor Bailey to advise it on the consequences of the e desirabilityth o t Statuts a d ,an e eve t suca n ha lat e stage f seekino , s extensiogit e Statesth o nt . That advice, whic referres i h n greatei o dt r detail s belowwa , generally in favour of having applied to the States some of the major provisions of the Statute. At a Constitutional Conference held in Melbourne in 1934 the Federal Attorney- 45 General, R. G. Menzies, mad t cleai e r tha s Governmenthi s twa considering Bailey's opinion before taking any steps to adopt e Statute.th 67 67

n MarcI h 47193 .e Prim6th e Minister, J.A. Lyons, circulated to the State Premiers a draft Bill for the adoption in Australia of the Statute's relevant sections.68 n compliancI e wit requesha t initiate Victoriae th y db n Premier, the Commonwealth deferred action to permit of discussion of the measure at a Premiers' Conference to be held in Adelaide later in that year. In an advice as to the view whic w SouthNe h Wales might takeCrows it , n Solicitor, C.E. Weigall, observed: This Bill proposes a straight out adoption of section e Statutth s n n i thei2,3,4,i e 6 rd an 5 present form. Such a course is of no advantage e Statetth o s thesa s e sections only e extenth o t d e Commonwealthth law f o s notices i t I .d thae th t Canadian Provinces have the provisions of section e Statute'applyinth f o 2 e th o themt t g bu , Governmen o doubtn t wil t overloolno effece th k t e Coloniaoth f l Law se positio Validitth n o t n yAc of the Legislative Council. 69 e 193th 6t A Conferenc48. e Attorney-General Menzies explained thaGovernmens thi s submittintwa drafe th g t Bill for criticism in accordance with the promises made to the States by the Scullin administration in 1931.7 0 On behalf of New South Wales it was stipulated, as a condition precedent of support, that the Bill should incorporate a preamble to the effect that "whereas it would be against constitutional usagw affectin la onaco t ey an lawte f th go s 46 the State[s] without consultation wit Statese hth d whereasan , , in order that that should be done, it is desired and recognized as constitutionally proper and necessary that the States shoul informee db contemplatee nature th th f f o edo d legislatio d aske nan r thei dfo r opinions thereon".71 Victoria 71 pressed strongly for the extension of the terms of the Statute to the States. In that it was opposed by New South Wales which wishe retaio dt Coloniae nth l Lawe sth Validitr fo t yAc sake of its legislative Council. The other States were indecisive but promised to give any considered criticisms withi monthe non concerteo N . d facaction i ts ntakenwa .

49. In June 1937 the Commonwealth proceeded to the formality of a first reading of the adoption Bill. Tasmania's Government, in a reversal of attitude, supported the measure d regardean d "any risk Stato st e rights involvee th n i d passage adoptioth f o e n bill ..s vague.a d possiblan , y unreal". 73 Victoria continued to press for a preamble to be safeguardine inserte th Bile r th lpositio e fo n th di f go f no the States. Its anxiety was that "the Statute of Westminster in its present form might enable the Commonwealth to make and the Parliament of the United Kingdom to accede to, a request r legislatiofo thay nb t Parliament which might serioualy affect the position of the States".74 South Australia and Queensland associated themselves with that view.75 New South Wales offered the text of a "recital" and "declaratory clause" to a similar end. Western Australia remained totally opposed to adoption of the Statute, expressing its preference for the continuanc flexiblf o e e constitutional understandings.7 7 77 defensiva n I e50 Hous.e speec th Representativef o en i h s on 25 August 1937 the Attorney-General, R.G. Menzies, moved the second reading of an unaltered adoption Bill. While 47 criticizing the 1926 Balfour proposals as a "misguided attemp reduco t writteo et n terms something whica s hwa e letter"th f e felo h , t tmattee spiri no thath d f tan to r the Statute of Westminster had to be accepted as a fact.78 "Deferring it", he later maintained, "may mean that some day, in the heat of some intra-Imperial dispute, the Commonwealth Parliament might be invited to adopt the Statute as a gesture either of independence or of defiance. I believe we should act while the rational mood is on us".79 There seemed to be general, if subdued, approval of that t secur no Bile d th eldi view t attentiobu , n before th e Parliamentary session closed.

Australian Adoption of the Statute 51. There had been much agitation throughout Australia bnumbea y patriotif ro c associations against adoptine gth Statute. It was seen as a move to "cut the painter" in respect of British ties. Although the protests were generally though ill-foundede b o t havo t ed beean , n more suited to 1926 or 1931 than to 1937, they may have had a cooling influenc Governmente th n o e . Certainl attempo yn t - s mad wa givo e Bilt ey priorit th elan y and, althougs wa t i h introduce o occasionstw n o d , other business took precedence and it expired at the close of each session. Its revival awaite exigenciee th d secone th changa f d o s an Worle r Wa d of Federal Government, The new Attorney-General, Dr. H.V. Evatt, announce e presth n Septembeo si t d r 194 s intentio2hi n to introduce an adopting measure because of "many difficulties and anomalies" arising for want of the Statute's full application, especially in wartime. At the end of that mont e circulateh monograpa d federao ht l parliamentarians in explanation of his proposed Statute of Westminster Adoption 48

Bill. 82

52. The benefits of the Statute, he argued, were no longer merely desirable, they were urgently essential. Because the Statute had not been adopted, there had been serious uncertainty as to the validity of Commonwealth laws or regulations d delaan , y becausneee reservo th t d f o e e certain legislation for royal approval. The result was not only inconvenience and restriction upon parliament's legislative powers, but "urgent vital war legislation or regulation invalidatee b y sma delayer o d thein i d r operation through requirements which are out-of-date and admittedly serve no useful purpose".83

53. On the second reading of the Bill in the House of Representatives, it received general support.84 The only reference to the position of the States was an assurance by the Attorney-General that the adoption of the Statute would not "alter the constitutional distribution of powers between this Parliamen State th ed Parliamentstan , [nor] affect constitutional practice betwee Imperiae Statee th th nd san l authorities" 5 .W.M8 . Hughes a strenuou n i , s address, sought postponement of the issue by referring it to an all-party committee t tha s defeated.bu , twa e Bil Th l e passe86 th n i d SenatOctobe9 n d becamo ean w re adoptio la e1942Th e th . f o n Statute was made retrospective to 3 September 1939, the date e outbrea oth r fwit wa hf o kGermany .

54. The then Crown Solicitor for New South Wales, A.H. 0'Connor, advise s Governmenhi d t s thaa r t fa "excep o s n i t section 6 of the Statute [relating to Colonial Courts of Admiralty] may apply to the laws of a State, the Australian 49 States as States in my opinion derive no benefit from the adoption by the Commonwealth of the Statute". But he foreshadowed that some detriment migh sufferee b t d froe mth States' continued exclusion Statutee fro e termth mth f o s .7 8

55. The position of the States has meanwhile remained stationary. But, althoug vero hn y weighty practical consequences flow fro anomaloue mth s standin Commonwealtf o g h and States under the Statute of Westminster, the position is untidily inconvenient and illogical. It is a potential sourc misunderstandinf o e d embarrassmentgan needt i o d t s an , be set in order. As Professor Sawer has well pointed out, on e passinStatute th th f Westminstef go o e r "the grotesque constitutional situation was created that the Australian federal government could enjoy the fullest degree of national autonomy, whil federatioe Statee th th e f so n remainea n i d legal status of dependent colonialism".88 At a time when British Commonwealth relationships have changed even further towards autonom d independencyan governmene th n ei f o t former territorie Empiref so anachronistie th , c statuf so the Australian States should no longer be left to the accident- al movements of history. On the contrary, it lends itself to revision and reform. 50 E STATUT TH I I f SECTIONWESTMINSTEO f EO 6 O T S2 R e StatutTh Westminsterf o e 56. , 1931, consista f so lengthy preamble, reciting the constitutional relationships existin conventioy gb n betwee Imperiae nth l Governmend an t the British Dominions, and twelve sections largely directed to reducing those conventions to legislative form. Sections 2 to 6 inclusive were not to apply to Australia until the Commonwealth had adopted the Statute. Section 7 was concerned solely with Canada. The remaining sections took effect in Australia forthwith.

57. Section 1 defined "Dominion" for the purpose of the Statute, while section 11 excepted all such Dominions (and any States or Provinces therein) from the expression "Colony "y imperia an use n i d l legislation passed "aftee th r commencement of this Act". Section 12 specified a short title.

f greatesO 58t. significanc e Australiath o et n States, at that time, were sections ,8, 9 and 10 which provided constitutional safeguards then insisted upon by the States. Sectio preserven8 existinl dal g machiner repeae th r r lo yfo alteratio e Commonwealtth f no h Constitution Act. Section9 prevente Commonwealte th d h Parliament from legislatinn go matters withi e exclusivnth e authorit e Statesth d f yo an , from being obliged to concur in imperial legislation made for the States "where it would have been in accordance with the constitutional practice existing before the commencement of thi that Parliamene sAc tth Unitee th f dto Kingdom should make thawithouw la t t such concurrence". Sectio 0 presn1 - cribed that sections 2 to 6 should not apply to certain "Dominions", Australi af themo bein e , gon until locally adopted. In that regard, the States were given an assurance 51 e Commonwealtbyth h Government that they woul consultee b d d before such adoption in Australia.

59. Whe e 1942nth adoptin s e passewa th t y b dgAc Commonwealth Parliament Australiae th , n t Stateno d sdi become boun otherwisr o d e affecte y sectionb d5 o t s2 inclusive positioe th t s differenbu ,nwa t with regaro t d sectio . Tha6 n e followintth section i s g nwa terms : Without prejudic e generalitth e o t eth f yo foregoing provisions of this Act, section four of the Colonial Courts of Admiralty Act, 1890 (which requires certain laws to be reserved for the signification of His Majesty's pleasure or to contain a suspending clause), and so much of section severequires a thaf nt o Ac te sth approval of His Majesty in Council to any rules of Court for regulating the practice and procedur Coloniaa f o e l Cour Admiraltyf o t , shall cease to have effect in any Dominion as from e commencementh f thio t s Act.

60. The width of the phrase "in any Dominion" prompted Professor Bailey 's opinio n 193ni 2 that "the section appear's t standi e s e Statea o th applth st o o t s welt y a s s a l Commonwealth".89 s propeit Sectio n o r , constructionG n , meant tharequiremente th t Coloniae sectiof th o s f o l4 n Courts of Admiralty Act should cease to have effect "in Australia". Accordingly, on its adoption, section G applied throughout Australi needw no o speciasd n aan l exten- e Statesth sio o nt . Judicial confirmatio thaf no t vies i w to be found in Swift & Co. Ltd. v. The Ship S. S. "Heranger" where Macfarlan, J., held that sectio 6 n"operate o ament s d the operation of section 7 of the Colonial Courts of Admiralty Act, n Australii 189O, d thaaan t such reservatio s thereforni e necessart no longer"y yan . 91

61. We propose to regard section 6 of the Statute of Westminster as being already in effect in the Australian States and to require no further examination here. We turn examination a o t w no sectionf no inclusive4 o t s2 d an , tbriea o f commen n sectioto . n5

A. e StatutSectioth f Westminstef o e o n 2 r (Application of the Colonial Laws Validity Act 1865)

62. The section is in the following terms: e ColoniaTh (1) l Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. w madprovisioo n la ed y an an f w no la o N (2) afte commencemene rth Parliae th y b thif -o tt sAc Dominiomena f to n shal voie lb inoperativr o d n eo the ground that it is repugnant to the law of provisione th England o y existint an r o f ,so r go future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any sucpowerParliamene e th th h Actf d so a an , f to Dominion ahall include the power to repeal or amend y sucan h Act, order, rul regulatior eo r fa o s n ni Dominione th f o w . la e same ath pars th i e f to

r presenFo t 63purpose. e effecsth f thito s section, f extende i Australiae th o t d n States, woulf appreciablo e db e significance. It would, in the legislative sense, remove from the States the last restrictions of their colonial past, and would take awa potentiallya y inconvenient obstaclo t e 53 their law-making powers.

64. Like Statutth e Westminsterf eo e Coloniath , l Laws Validity Act must be viewed in the perspective of history. properlOnle b yt i the n ynca appreciated hown o , the one hand, [Sir] John Latham could say of it that "the Acs realltwa enablinn ya g Act"and e otheth rn o hand, ,

[Sir] Robert Menzies could propose tha t "mighi t t juss a t well be called the Colonial Laws 'Invalidity' Act".93 In truth the nature and effect of the Act in the middle of the nineteenth century were very different from its nature and effect in the mid-twentieth century. Originally the Act was liberal and broad: today it has become repressive d narrowan .

65. Since Dicey's celebrated assessmen n 188i tf 5o the Colonial Laws Validit s "tha t e yAc charte f coloniaro l legislative independence",94 it has been eulogized by many commentators 192n I .0 Lord Birkenhead e declareb o t t i d "in Imperial history clarum et venerabile nomen".95 Higgins, J., in 1925 said that: The object of the Act of 1865 was not BO much to preserv e righte Britiseth th f so h Parliament against encroaching colonial legislatures, as to make it clear that a colonial legislature, acting for the colony in pursuance of the powers of legislation conferred, might act freely and without constraint from London, excepting only so Britisa s a r h fa Act, applyin extendinr go o gt the Colony, definitely contradicted the colonial legislatio valie b o ndt e colonia ..s Th .i t Ac l except to the extent of any actual repugnancy or 54 direct collision between the two sets of provisions. Suc concessioha e th pare f th to n no supreme Parliament mark versa y high levef lo liberality, foresight, statesmanship.96 More recently Sir Kenneth Roberts-Wray has written that "constitutional lawyers (and others) owe a debt of gratitude ... [that Parliament was "provoked"] into enacting a charter of freedo r coloniamfo l legislatures ... which ..n fac.i t f uncertainty".o g 66clearefo . a p du 97 Roberts-Wray, however, poino t goet than tou so t

the real source of liberality in the Colonial laws Validity s Acsectiotwa whic3 n h provided that: No colonial law shall be or be deemed to have been voi inoperativr o d groune th f n do eo Englandf o repugnancw la ,e unlesth o yt e sth same shal repugnane lb provisione th o t f so [certain Acts, orders, or regulations referred e precedinth n ti o g section]. That section, according to Roberts-Wray, did not merely remove doubts changet "i , d existin d conferrean w gla d upon colonial legislatures freedom in place of restrictions of an extent which defied precise definition"98 98 e herar ee w rathe t Bu r concerned67. t wite no ,hth liberality of that portion of the Colonial Laws Validity Act, but with its section 2, quoted below, which avoids "colonial" laws when repugnant to "imperial" laws. In that context it is desirable to put aside the view of the Act as a charter of freedom and to examine the reasons for its being passed. It was an Act designed principally to remove particulaa r problerelievo t d pressure an mth e worf o ef o k 55 the Colonial Offic n attemptinei resolvo gt e constitutional problems which arose in the colonies. It was not volunteered grana s legislativf a o t e independence thruss wa t ti : upon the Imperial Government by the consequences of the pedanti d hypercriticacan l behaviou Justic. Mr f ro e Benjamin Boothby, a Puisne Judge of the Supreme Court of the Province of South Australia.9 9

Background to the Colonial Laws Validity Act 68. Dr. D.B. Swinfen of the University of Dundee has made carefully documented and scholarly analyses of the e considerationth f o d an backgrount Ac s motivatine th o t d g the Colonial Office to procure it, and Parliament to pass e negativth f O eit. attitud100 e formeth f e observeso erh : e questioOnth repugnancf no y ther vers wa ey little likelihood in the eighteen-fifties that the Colonial Office would go out of its way to hav Bila ethrougt pu l h Parliament, definine gth s wa e officials lawe th w statth o la T .f e o e th , already clear d wheran , e difficulties arose, they could be dealt with by the existing machinery - eithe y disallowancerb e coloniath y b r lo ,courts , with final appeal to the Privy Council. It is worth pointing out in this connexion that, in the forty years before 1865a singl t ,no e case involv- ing repugnancy was brought before the Judicial Committee. So far from seeing any need for the passing of a Colonial Laws Validity Act, the Colonial Office would probably l thingal , s being equal, have resiste y sucan d h proposal.101

69. But all things were not equal, due to the efforts of South Australia's "uncompromising dogmatist",102 Boothby, J. 56 Prom his appointment to the bench in 1853, he regarded himsel lona s efa custodia imperiae th f againsw no lla t defilement by colonial legislators. In his court a start- ling number of local laws and institutions were held invali repugnancr dfo lawe r Englandth f s o fo o yt d an , similar reasons. The Constitution Act, the pioneering Real Property Acts, two Electoral Acts, the legislation setting Coure th appointmene Appealf tth o p u d an , Chief to f Justice Hanso Boothby'n ni werl al e s assessment void.103 o obstructivS e governmen70th . o e Colonyet th f to , inflammatoryo s d an , were Boothby's judgements, that both HouseSoute th hf s o Australia n Parliament sent addresses Queee tth o n complainin s actionhi f d seekingo san g intervention wast I ., however, precisely such acrimony whice hth Colonial Office was determined to avoid. That the colonies should resolve those difficulties for themselves, was clearl r Frederic Si viee yth f wo k Rogers, Under-Secretary at the Colonial Office, when he wrote an important minute on the Boothby affair: I think these Coloniae powerth f [o s l Assemblies] should, if possible, be so large and clear as to e grounth t dcu from unde objectorh rsuc s a s Mr. Boothbyo enablt d ean , Parliamen o throt w back on the Colonial Legislature the task of curing mistake d removinsan g doubts.104

71. Boothby continued in his strange course until the South Australian Government proceeded under Burke's Act105 to "amove m fros officehi "mhi e detail Th . s canno gone tb e int muco s here ht confusiobu , d befallen.thnha e ambitf so the Colony's legislative powers, that the Colonial Office s obligewa obtaio t d n Imperiana Parliamenf o t t lAc se o t 57 doubts at rest. It seems that the enlargement of the following Colonial Laws Validity Bill to cover all colonies, rather than South Australia alone, was a decision taken by Sir Frederick Rogers who "had, for some time, been preparing a Bill to settle several important colonial questions" of lesser stature than the issue of repugnancy. Even that legislation probably would not have been realized, but for Boothby. "All the evidence", Dr. Swinfen suggests, "tends towards the conclusion that no such Act would have been passed without him, whil cleaa e r correlatio estabe b n -nca lished between the legal points raised by him, and the provisions of the Act" many of which answered Boothby point by point. 107 resulte th n I , wit e passin 72Coloniae hth . th f go l Laws Validity Act, the colonies did acquire a much larger and more independent contro theif lo affairn row s thad nha previously been possible e tesTh t. alway s conformitswa o yt the laws of England. A colonial law which was repugnant to those laws would be invalid. Section 2 of the Act provided that: Any colonial law which is or shall be in any respect repugnan t provisione Ac th o y t an f so of Parliament extending to the colony to which y relatema suc w repugnanr o ,hla y ordean r o o rt regulation made under authoritf o f sucyo t hAc Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order r regulationo , e d shallth an , o t , extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

73. Thi preservet sAc portioe e th operatio th df no y nb 58 paramount force of Imperial law when extended to the Colonies.108 To such, paramount legislation, the Colonies coul past dno s repugnan meanine tth d lawst extengan Bu . t of "repugnancy e complear " x questions which warrant special analysis.

Repugnancy 74. The elusiveness of the meaning of this term was widely acknowledged long incorporates beforwa t i e d into the Colonial Laws Validity Act. It was intended to be elusive, as Evatt, J., emphasized in his important judgement on the subject in Ffrost v. Stevenson. 101099 where he gave this accounhistoricae th f to l position: Prior to the passing of the Colonial Laws Validity Acte worth ,d "repugnant s frequentlwa " y imposo t s a userestrictioa e o ds n upon colonial legislatures, assemblie councilr e phrasso th d esan "repugnant to the laws of England" plagued several generation coloniaf so l court lawyersd san . That "repugnance" in such a context was established rather by dissimilarity than similarity of object, purpos r effecto e s suggestei , e observationth y b d s contained in a letter of Sir James Stephen, Under- secretar e Coloniesth f yo o said: wh , - "Why bother yourself with that everlasting phrase 'not repugnant to the laws of England'? Whay meaningan t t doei meant ?s i Ha ?The n why did you, Mr. Counsel to the Colonial Department (you will say) 'bring it into the first New South Wales Act, and keep it in the second'? Why, in the first place, that it might serve as a pons asinorum over which no 59 colonial Crown lawyer should pass without giving proof of more than asinine sagacity. Secondly, because it sounds highly constitutiona d decorouslan . Thirdly, becaust ei may every now and then prevent some egregious absurdity. Thi indees si correce th d t interpretatio phrasee th f no . Whateves ri tyrannical or very foolish you may safely call "repugnant", etc.t whatevebu , s ri necessary for the comfort and good government very colone oma fth y u safelyyo y assumo et be in perfect harmony with English law".

75. The matter was thus settled and understood within the Colonial Offic d interpreteean d with just such flexibility. In many respects, the passing of the Colonial laws Validity Act produce o obvioudn s change e concepTh . repugnancf to y was rarely invoked or considered. Until the first World War there was very little call on the Australian Courts to adjudicate upo . Indeednit manr fo ,y year e onlsth y casf o e y consequenc an . Whelan,v e matte. decisioa R th 11 s 2n o erwa n 112 of the Victorian Supreme Court. There an unsuccessful attempt was made to upset a local statute by invoking section 2 of the Colonial Laws Validity Act. Although the judgements turned mainly on aspects of the adjectival law, a significant pronouncemen repugnancn to mads y Stawellwa b e , C.J.: It appears to me that the meaning of the words England"f o w "repugnans beela ha e ,n th o t misapprehended during the argument. There are no judicial decisions on the point, but there are . numerous cases in which Acts have been passed by 60 this Legislature in direct opposition to the law of England, or what was supposed to be the law. of England - the law relating to primogeniture, for example, the punishment of rape, the mode of carrying out executions, and others - are all Englandf o violationw la .e th Eve f so n before responsible government was given, it was never intended to limit the colonies to the same practice as that of England; it was only intended that the grand principle Englancommoe f o th w f so nla d should be observe legislatioe th n di coloniese th f no .

76. Major interpretations of the concept of repugnancy were made in the High Court by Isaacs, J., in the course of three decisions given between 1915 and 1926. In Attorney- General for Queensland v. Attorney-General for the Common- wealt made h analysi n 4 e a hColonia11 e th f so l laws Validity Act. Applying R. v. Marais. U115S he held that section 2 "declare e supremac th sImperia e th f yo l Parliament whenever it choose legislato s t y portio Empiree an th r f efo no , notwithstandin y locagan l enactmen e samth e n to subject . This is a doctrine inherent in the legal and constitutional relations of the constituent portions of the Empire, and one which a Court of law must recognize, whatever political objections might be urged to the Imperial exercise of power". After reviewing some historicae th f o e l us aspect e th f so word "repugnant n relatioi " o statutesnt o t wene h ,n o t adop long-standine th t g opinion e Imperiath f so w officer lla s that "inconsistency", "repugnancy d "contrarietyan " " were interchangeable term thin si s connexion.116

77. In The Union Steamship Co. of New Zealand Limited 61 e Commonwealth,vTh . 117 Isaacs11,7 J., confirme d elaboratean d d upo originas nhi purpose lth view r detectinf eo fo . g repugnancy, he held that "the attention of the Court is not to be concentrated on mere minute verbal expressions or individual difference f requirements".so repugnancA 118 o t y 118 a "central and commanding intention" of Imperial legislation would be necessary in order to bring the Colonial Laws Validity Act into operation. He went on to cite, with approval, the following passage from Hearn's Government of England; 119 Originally the rule ran, much in the same form in which power is usually given to corporations to make by-laws, that a colonial Act must not be repugnant to the law of England. Such a restriction wert i ef i ,construe d literally, would have prove o severe to d accordingl an ; y repugnancy s definewa o implyt d t diversityno , t conflictbu , ; therf i tha, eis t wera n Imperiad ea an w lla colonial law on the same subject, but with different enactments e Imperiath , w muslla t prevail.

78. The last step in this series of interpretations by Isaacs, J., came in The Commonwealth v. Kreglinger & Fernau Limited. 120 There he made a further account of his previously expressed view d concludedsan : The opinion of Sir Roundell Palmer and Sir Robert Collier [in 1864] 121 ... was that the effect of repugnanc s that commoya wa t w "thnla e subject matter of the invalid part of the legislation is wholly ultra vires". Unless separable, that would brin naugho gt legislatioe e wholth th tf o e n containing the invalid part. To save this total invalidity sec.2 of the Colonial Laws Validity 62 Act was passed. The section is, to my mind, rather savina g tha destructivna e provision effece Th . t f sec.o n thii 3 s respect has, perhaps t beeno , n fully recognized, and the two sections must be read togetherresule th comparinf f to I . o gtw Imperial enactments, whichever is first, is that one cuts down the other, then, whatever legislation is passed under the assumed authority of that other, transgresset bu limite sth reduceds whico i st t hi , is necessarily ultra vires. It does not need sec.2 e Coloniaofth l Laws Validit destroo t t . yAc it y That section really Imperias saya sr fa tha o ls t Law is concerned the local Act (apart from the repugnant portions) may remain valid. Whether after excluding the repugnant portions the local Act locae operate th wile lf th l o legislatur s sa s ei another question.122

e generaTh l79 tendency. , thus followed f interpretino , g quite narrowl concepe yth repugnancyf o t bees ha ,n further borne out by the limited number of cases of the invalidation f "colonialo " legislatio n thano t ground.123 Most litigation putting repugnancy in issue has been concerned with the consequences of a repealing or amending measure which conflicts with some Imperial Act. This aspec y convenientltma e yb examined in isolation.

Repeals and Repugnancy lons ha gt I been 80accepte. d tha coloniata r lo State legislature has power to repeal or amend some Imperial

Acts. These Imperial Act e thos e colonar a n forcth i e n yi e

4 12 or State inherite th s par a ef England.f o o t w dla 12 5 Imperial 63 Acts extendin e colon th State r o g(o t y ) withi e meaninnth g of the Colonial Laws Validity Act, that is, Imperial Acts made applicabl e colon th e expresState r o th t e(o y y b )s word necessarr so y intendmen y Imperiaan f to t l no Act e ,ar susceptible of repeal or amendment by the colonial or State legislature.126

Repugnancy and the Statute of Westminster 81. Section 2 of the Statute of Westminster, in ending the application to 'Dominions' of the Colonial Laws Validity e concepth d repugnancyf Actto an , t onca , e createda disparity between the Commonwealth and States of Australia. Itwa more sth e pronounced than Statute i , tth e specifically applied Canadiae sectioth o t n2 Provinces.e Th 127 Australian States were thus demonstrabla lef n ti y subordinate and unsatisfactory position Professos A . : rit Castlet pu s sha The possibility that a statute of an Australian voie b Statinitiob da y ema beins a . g repugnant to the laws of England within the terms of the Colonial Laws Validity Act, is an anachronism, particularly as those laws to which Australian legislation woul repugnane b d t were passen a n i d era when the present-day concept of the British Commonwealth was unknown.128

82. Curiously enough, the continuance of the Colonial laws Validit d beeha nt airegrievancyAc a s e a d th y b e delegates froAustraliae th m n Colonie weno Englanso wh t d to negotiate the passing of the Commonwealth Constitution Act. According to Professor Keith, writing in 1916, those delegates: Clearly intimated that in their opinion the applicatio lawe th f grea so o t thaf tno t tAc 64 self-governing communities was out of date, and somn i e degree ope objectiono nt . This vies wwa y degrean n i eapplicatioe t persisteth no d an , in dn Coloniae ofth l Law sCommone Validitth o t -t yAc wealth has never been doubted by the Courts.129

Keith went on to propose that the continued application of the Act to self-governing Dominions130 could no longer be justified. e ImperiaTh 83l .Conferenc 192f o e 6 acknowledged that the means to the end of uniformity provided for by the Act coul bettee b d r securee enactmenth y "b d reciprocaf to l statutes based upon consultation and agreement". In tur 192e nth 9 Conference conclude shoult d Ac thae e db tth repealed in its operation to the laws of Dominions: The Act, at the time when it was passed, without doubt extende thee th dn existing powerf so Colonial legislatures. Thi always sha s been recognized, but it is no less true that definite restrictions of a far-reaching character upon the effective exercise of those powers were maintained and given statutory effect. In important field legislatior so n actually covered by statutes extendin Dominione th o gt e sth restrictions upon legislative power have caused and continu causo et e practical inconveniency eb preventin enactmene gth legislatiof o t n adapteo dt their special needs restrictione Th . pase th t n si serve usefua d l purpos securinn i e g uniformitf yo co-operatiod an w la varioun no s matterf so importance t ...bu thi: s metho f securino d g uniformity, based as it was upon the supremacy of 65 the Parliament of the United Kingdom, is no longer constitutionally appropriat case th e n ei Dominions.e oth f 132 Thenc mattee eth translates rwa d into draft legislation

whic duls hwa y enacte Statute sectios th da f f o eo n2 Westminster.

84. Ther s somewa e academic controversy whethee rth doctrin repugnancf eo y coul effectivele b d y disposen i f o d such a way while the Parliament at Westminster could continue to legislate by paramount force. Keith had foreshadowed that, despite other benefits, Coloniarepeae th f lo l Laws Validit woult yAc d leav positioe th e n "vagu d difficult"an e .3 13 The result regards a , s such matter monarchye th s s a ha , postulatee b y ma t i d t tha e Bu views t th hi born4 13 .t eou e 'Dominionsth n i t revives Ac ha ' remova e d th ol d f o l conventions. Latham likewise had proposed that, notwithstanding its effective repeal, the principle of the Colonial Laws Validit must yAc t standlegae lonth o s ,ls g a sovereignty of the British Parliament stood, that "in the event of manifest inconsistency or repugnancy between an Imperial statute and a Dominion statute the Imperial statute must prevail".135

e exclusioTh Australiae th 85f no . n States froe th m virtual repeal of the Colonial Laws Validity Act has been widely criticized. Professor Wheare r examplefo , , contended that: it is difficult to accept arguments put forward to demonstrate that the States of Australia or the Provinces of Canada are, or ought to be, placed upon a status of constitutional inequality in relation to the United Kingdom. A Dominion is 66 not a government or a parliament; it is a territorial community. It has been declared that these territorial communitie e equasar n statue li th o st territorial communit Unitee th f dyo Kingdome Th . people of Australia or Canada, that is to say, are in no way subordinate in constitutional status to the people of the United Kingdom, and that pro- positio unaffectes ni face th t y thadb e peopl tth e of Australi som r Canadr afo o e e purposeaar s governed from Canberra or Ottawa and for other purposes froe Stat mth provinciar o e l capitals.6 13

86. Professor Bailey, writin n 1932gi , hoped that some steps might be taken to overcome the impression that Common- wealth and States were, in this respect, unequal. He felt that the matter could be rectified on the adoption of the Statut Australian ei . Coloniae th s a lr SLawfa o s Validits i t yAc concerned, the case for following the Canadian example is very strong. It would be a great anomal havo yt e Commonwealt d Stathan e legislation on the same subject matter (shipping for example) the latter bound, and the former not bound, by the Merchant Shipping Acts. Both in theory and n practicei , ther e sai b mucs i edo t htreatin g Dominion power f self-governmeno s wholea s a t , irrespective of the particular authority by which, in a federal Dominion, they may come to be exercised.13 7

87. The conclusion seemed inescapable that there was no point in retaining Imperial control over Australian State 67 legislatures, while freein Commonwealte gth h Parliament. However, for the reasons already specified, the States were preoccupied with other priorities in considering the Statute Westminsterf o madt e attemp obtaino o th et s d e twa an ,nth benefit s sectioit f so . Wit n2 h hindsight, that omission seee b havo nt n eca bee mistakena .

"Manne d forman r " necessars i t I y 88tha. e invittw e special attention e significanctth o Colonia e sectiof th o e f o ln5 laws Validity Act. That section reads: Every colonial legislatur defines Ca e sectioy b d n 1] shal l e deemetimeb al have d havo t st a dan , e had, full power within its jurisdiction to establish court f judicatureso o abolist d an ,h and reconstitute the same, and to alter the constitution thereof, and to make provision for e administratioth f justicno e therein d everan ;y representative legislatur defines Ca e sectioy b d n 1] shall n respeci e colon, th o t y undes rit jurisdiction, have, and be deemed at all times to have had, full powe mako t r e laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony.

89. place th mako et t minuta eThino s si e examination applicatioe th f o thaf no t sectioe th sectioo nt f o A n7 Constitution Act, 1902, of New South Wales. Suffice it to say that sectio Constitutioe s addeth wa n o a t A d n7 y b t nAc 68 amendment in 1929 prescribing that the legislative Council abolishee shoulb t dno d without effectn i , , talcin referga - endu d observinman g other procedures.

90. An attempt to abolish the legislative Council in 1930 without following all those procedures was declared invaliPrive th yy d b Counci celebratee th n li d case Attorney- General for New South Wales v. Trethowan.138 The Board held that Coloniae sectioth f o ln5 Lawe s th Validit s wa t yAc "master section e consideredb o t " : It will be observed that the second sentence of the section contain enactinn sa g part witha proviso, and it was vehemently contended by the appellants that proviseffece e no th tth s f o towa dowt te operativcu on th ee sentence th par f to , and that any construction of the words "manner and form", which are contained in the proviso, which cut down the powers previously granted was repugnant to the power so granted. In their Lordships' opinion it is impossible to read the section as if it were containe watertighn i d t compartmentst I . must be road as a whole, and road as a whole the effect of the proviso is to qualify the words which immediately e powerprecedTh e grante . ar s it e d modob su . Reading this sectio wholea s t na i , gives to the legislature of New South Wales certain powers, subject to this, that in respect of certain laws theonln ca yy become effectual provided they have been passe n suci d h manney forma d rs an ma from tirae to time be required by any Act still on e statutth e book. Beyond that e wordth , s "manner and form" are amply wide enough to cover an enactment providin gsubmittee b tha e o t Bilta th s o i lt d 69 electors and that unless and until a majority of the electors voting approve the Bill it shall not be presented to the Governor for His Majesty's assent.139

91. Further, section 7A had been itself rendered incapable of repeal without the authority of a referendum, Coloniae d sectioth an f o nl5 Laws Validit t applieyAc o s d as to render the constitution "rigid" to that extent. There have been proposals from time to time as to other ways in which such rigidity might be achieved without the overriding authority of the Colonial Laws Validity Act.140 We take those proposals to be irrelevant to our present terms of reference wile W .l accordingly sugges retentioe th t e th f no substancColoniae th f o sectionf le5 o Lawd an s s1 Validit y Act and their re-enactment.141

A Note on Sections 4 and 6 of the Colonial Laws Validity Act 1865

92. These sections appear to be anachronistic and no longer Australiae needeth y b d n States. following'termse th n Sectioi s i n4 : No colonia w passella d witconcurrence th h r o f o e assented to by the governor of any colony, or to be hereafte passeo s r r assenteo d r shal, o to de lb be deeme havo t d e been voi r inoperativo d reasoy b e n only of any instructions with reference to such law or the subject thereof which may have been given to such governon behalr Majestyo He r o f f o y rb , by any instrument other than the letters patent or instrument authorizing such governo concuo rt n ri passing o assen t e peace r th o ,o law t r ,s fo order, d gooan d governmen f suco t h colony, even though 70 such instructions may be referred to in such letters patent or last-mentioned instrument. briefn I , 93thi. s section validatewhico t t hAc n sa a Governor has assented through inadvertent disregard of his instructions to reserve the relative Bill for the Sovereign's consideration t doeI .s not, however, operate to cure such an oversight when the instructions have been conveyed by letters patent or instrument generally authorizing the Governor to assent to Bills.

94. The categories of Bills of the Australian States requiring to be so reserved are very restricted. The Royal Instructions of 29 October 1900 (which are identical in all States)142 enumerate them. As those Instructions are not contained in letters patent and do not themselves generally authorize the Governor to assent to Bills, section 4 could operate in respect of them. By clause VIII of those Instructions the Governor, unless otherwise expressly authorized, is not to assent to Bills of the following classes: 1. Any Bill for the divorce of persons joined togethe n holri y matrimony: . y BilAn l2 .whereb y granan y lanf to r money o d , or other donation or gratuity, may be made to himself. y BilAn l3 .affectin e currenc gth e State th f o .y y Bile provisionAn th l4 . f whicso h shall appear inconsistent with obligations imposed upos nU by Treaty. n extraordinary a Bil An f o l5 . y natur d importancean e whereb r prerogativeyOu righte th d propertr so an , y r subjectofOu t residin e no se State th th r n o g,i 71 trad d shippin an eUnitee th f gdo Kingdos it d man Dependencie prejudicede b y sma ; 6. Any Bill containing provisions to which Our assent s beeha n once refused whicr o , h have been disallowed by Us.

95. d probablan , 3 Itemyd an ite srelat, 1 m4 o et matters now beyond the legislative competence of the States. The only remaining ite substancf mo ites ei . Simplm5 y because of the "extraordinary nature and importance" of the measure whico st referst hi inconceivabls i t i , e that assent woul givee db Governoa theo nt y mb r acting inadvertently.

96. The likelihood of the Governor's being given other instructions relating to specific topics of State legislation improbablo s s contraro i s d ean modero yt n conventioo t s na be merely theoretical. It follows that, for the purposes of the States in the twentieth century, section 4 of the Colonial Law sobviouslo n Validit s ha t yyAc practical applicatio f benefino thems continuanco t It . pars a ef to thei ro longe n law n justifiede srca b .

97. Examinatio thif no s sectio s broughnha t under rou attention the unsatisfactory and inappropriate position of the law concerning the mandatory reservation of certain State possible th Bill d san e disallowanc Statf o e e Acts e thinW . k that the opportunity should be taken to place these matters n bettei rmake w order ed furthean , r proposals concerning the Parn I below.i m tII 143

98. Section 6 is in these terms: certificate Th Clere th other ko f eo r proper officer of a legislative body in any colony to 72 the effect that the document to which it is attache trua s ecoloniay di an cop f w yo lla assented to by the governor of such colony, or Bily ofan l reserve significatione th r dfo f o , Her Majesty's pleasure by the said governor, shal prime lb a facie evidence thadocumene tth t so certifie trua s ei d r Billcopo sucf yo w , hla e casy beth e andma , s thaa , s beet ha suc nw hla duly and properly passed and assented to, or that such Bill has been duly and properly passed and presente governore y proclamatioth an o d dt an ; n purportin publishee b o gt authority b d e th f yo governor in any newspaper in the colony to which Bilr o suc lw hshalla l relate signifyind an , g Her Majesty's disallowance of any such colonial Majesty'r He law r o , s asseny sucan ho t reserve d Bil aforesaids la , shal prime lb a facie evidence of such disallowanc assentr eo .

99. There are n effect,i , three element f prooso f contemplate e sectione assenth th y f o Billsb do t :f o ; the disallowance of Acts; and of the allowance of a Bill which has been reserved by the Governor for the signification of the Sovereign's pleasure. The section, as Sir Kenneth Roberts-Wra s saidonls yha "i matteya , f evidence".ro 144

100. So far as New South Wales is concerned, the proof of assent to Bills, whether by the Governor or after reservation, is sufficiently covered by sections 3 and 4 e Interpretatioofth 1897f o t .nAc Proo disallowancf fo s ei no longer a practical consideration: Roberts-Wray describes the doctrin disallowancef o e n independeni , t British countries, as "merely a museum piece".145 73 101. The 1929 Conference on the Operation of Dominion Legislation, after pointing out that the doctrine had fallen into desuetude, reported that: The present constitutional position is that the power of disallowance can no longer be exercised in relation to Dominion legislation. Accordingly, those Dominions who possess the power to amend their Constitutions in this respect can, by following the prescribed procedure, abolis legae hth l power of disallowanc f the ei e casdesireo ys th e n I . of those Dominions who do not possess this power, it would be in accordance with constitutional practice, requesteo thats e Dominiof i ,th y b d n concerned e Governmenth , Unitee th f dto Kingdom should ask Parliament to pass the necessary legislation.146

102. Australia e reasoo Therth n s y i en wh n States should be in any different position from the Australian Commonwealth n thii s connexion y safelma t concludee I yb . l d al that r fo , practical purposes, no power of disallowance remains, and proof of disallowance of Acts will not be required.

103. As to the proof of Bills reserved - now confined under the Governor's instructions of 1900 and the Australian States Constitution Act 1907 to a narrow compass - there o practican e b n ca l justificatio r retaininnfo g section6 of the Colonial Laws Validity Act. Commonly, litigation concerning Bills has been determined on demurrer (e.g., Trethowa . Pedennv 147 Clayto Heffro. f proonv I . f) 8 n14 necessarys i , ther e mean ar edoinr sfo unde o gs e commo rth n law. If legislative facilitation is needed, the State's 149 74

legialation ow n would suffice.

104. Section 6 of the Colonial Laws Validity Act was passed under such different constitutional circumstances from thos todaf eo unded yan r such limited conditionf so world communication, that it must be regarded as outmoded. functions eithew It no e r sar unnecessar e sufficientlar r yo y covered by existing State legislation. The section should not be retained as part of the law of the Australian States.

B. e StatutSectioth f Westminsteo f e o n3 r (Extra-territorial Legislative Power) e sectioTh 105n .provide s that: herebs Ii t y declare enacted an d d thae tth Parliament of a Dominion has full power to make laws having extra-territorial operation.

106. In Australia, section 3 applies solely to the Commonwealth e States th e matte o Th t s investigate. wa t r no , d by the 1929 Conference on the Operation of Dominion Legis- lation which recognized that the States had good grounds to secure similar power, but that was "a matter primarily for consideration by the proper authorities in Australia". e authoritieTh nothind di s assero gt t State interestso s , that it remains true that the States have no power based on statute to pass any extra-territorial legislation. But their position has been ameliorated by the course or judicial 75 interpretation over the intervening years.

107. Well before d bee.193ha nt 1i demonstrate d that careful draftin statutef go s could,defeat most practical restriction extra-territorian so l 191 y powerB 6 . Professor Keith regarded it as "extremely doubtful whether the retentio territoriae th f no l limitatio Dominiof no n legislation serves any useful purpose". 152 It rather served, he thought, to promote the discussion of difficult points of law without any public advantage.

Definition 108. The power to make laws of extra-territorial force is a characteristic of a fully sovereign, independent state. Professor Wheare, relying Commonpartle th n yo s debatn o e the Statute of Westminster Bill, offered the following definitio observationd nan : Extra-territorial legislation simply means legislation which attaches significance for courts withi e jurisdictionth facto nt d eventsan s occurring outsid jurisdictione eth . This does not imply that one state can pass laws for another State, or that several systems of law will be in operation regulating a particular sphere within y givean n state meant I . s only "that each nation e capacitth s legislato ha yt e outsidn ow e s ...it territory n subjects ow respec n i s , it sucn i ,f to h mako t es a the y mwa amenabla lawe th s ,a o et administere n courtsow s it , when i d n they come withi s jurisdiction".nit 153

109. The emphasized word "nation" was, in its context, synonymous with "Dominion" as then understood within the 76 British Empire. Henc Australiae eth n Commonwealtha s a , Dominion for the purposes of the Statute of Westminster, has plenary extra-territorial legislative power. 154 But the Australian States are not Dominions, do not enjoy such power e samth e n i comprehensiv edoctrine th sense d extraf an ,o e - territorial incompetence has been described as remaining "a clo n theigo r sovereignty".5 15

110. The imposition of extra-territorial incompetence has long been criticized. As early as 1917 Salmond maintained that: No colonial legislature can make laws for a place outsid e e limitcoloneth th f syo t thi ..Bu .s rule is not a peculiarity of colonial constitutional appliet lawI . s equall legislatioe th o yt e th f no Imperial Parliament, moro whicn es hpoweha o rt make laws which will operat Prancn ei e thae nth Victorian Legislature has power to make laws which forcn wili Canadan e i leb onle Th y. difference is thaterritoriue tth Imperiae th f mo l Parliament is the whole Empire and not merely the United Kingdom, wherea territoriue sth coloniaa f mo l legislatur limites boundariee i th y e b dth r so Colony. But although the Imperial Parliament cannot make laws for France, it can make laws for the United Kingdoe th pary indee r an f t o (o mr dfo Empire) with respec personso Pranco t t d ean , things, and acts being done in Prance. It can make murde treasor ro n don Parin i e scriminaa l offence punishable in London, and the maxim extra territoriu dicents miu i impun paretun eno r would be pleade prosecutiovaia n i dn ni y suc an h r nfo offence. Since, therefore, this maxi s powerlesmi s 77 to restrict such legislatio pare th f to n no the Imperial Parliament in respect of offences committed outsid e Britisth e t i h n Empireca w ho , operate to invalidate similar legislation by a colonial parliament in respect of offences committed beyond the limits of the colony? 15 6 practicae Th l111 .answe o Salmond'rt s rhetorical endurine questiofoune th b n o di t gs ni vitalit ninef yo - teenth century colonial constitutional practice. By about the middl thaf o e t centur w adviser opinione la yth e th sf so e Colonia makine t th on inflexibl th a o f t go l d Officle ed eha rule that British Colonies were legislatively incompetent e extra-territoriath n i l sense. Professor D.P. O'Connell s correctlha y historicae summeth p u d l reasoning behind this approach - "its basis [was] clearly one of policy: relationships with foreign nationals outside the colonial boundaries raised questions of international law affecting the Imperial Government and the latter could not be com- promise possibly b d y irresponsible colonial legislation". 157

Judicial Decisions 112. The policy received its most severe application Macleod'n i s Cas 8 where 15 Prive th e y Council n effecti , , held that a Colony could not legislate in respect of anything occurring outside its boundaries. There were several intervening related judgement importancf o s e unti e Boarlth d decided to relax that severity in the case of Croft v. Dunph froe Statute thin cu I th m1933. n t tooy i s i it k15e 9 of Westminster which, in this connexion, as Professor Bailey s pointeha d out s negativ,wa e rather than positive, aiming "to sweep awa ya bod restrictivf o y e casw ratheela r thao nt confe a rsubstantiv e power".160 78 113. That case has been said to have disposed of the doctrine of colonial extra-territorial incompetence, though the opinio helds ni , tha case d "implicationtth eha s only direco Dominione n th d tr ha fo relevancd s an e colonieth o et s and doubtful relevance to the Australian States".161 Despite that analysis, the trend of judicial decision in New South Wale tendes sha d latterl strengtheo yt viee nth w takey nb Evatt, J., in Trustees Executors & Agency Co. v. Federal Commissioner of Taxation16216 2 that Croft v. Dunphy "should resul confininn ti vera o ygt small compass indeee dth supposed territorial restrictions upon the legislative powers e seveth f no Parliament f Australia".so 163

114. So far as the Privy Council was concerned, any former severit approachinn yi problee takee gb th o y nt m ma have been abandoned following the judgement in Wallace Brothers v. Commissioner of Income Tax, Bombay 164 where it hels wa d that: w thaterrie "Therla o rulth tn f o s ei - e torial limits of a subordinate legislature define the possible legislativs scopit f o e e enactment mar r so fiele kth d open to its vision ... Concern by a subordinate legislature with affair personr so s territorn outsidow c y it therefore yma e sugges querta y whethe legislature rth trutn i s hei minding its own business. It does not compel the conclusion that it is not".165 partx E n eI Iskra notabla 115166. e instance occurred of a Hew South V/ales court's favourably accepting an element of extra-territoriality in a State enactment relating to the criminal law.167 There, Brereton, J., after analysing English and Australian authorities, concluded that: The decisione effecth f o t thas si legislatura t e may give a statute extra-territorial operation if 79 that statute is for the peace, order and good necessargovernmens i t e i State th r d yfo f an ,to mors it e effective; do operatio o t o s o thant d en t and it may even, for that purpose, enact that an dont ac e outsid State punishabla th es i e e offence, provided there is in the prohibited act an element sufficiently connected wit e Statee hth Th . problem of punishing the offender, if outside the State, is as irrelevant as that of enforcing the judgemen Ashburn ti . Eills yv e cano Th .f no construction establishin presumptioga n against extra-territoriality, no less than s.17 of the Interpretation Act of 1897 in the case of New South Wales, still applies t Macleod'bu , so n Cas s i e longer authority for any absolute and arbitrary rule that a subordinate legislature cannot make punishable by its courts an act done outside the s earlA 192s ya 1169. J.G . Latha d territorexpressemha e yth d it governs, if it ever was.168

opinion tha restrictione tth extra-territorian so l law- making powers were not tied to the clement of extra-territor- ialit peacee th mad w yr vies , la alonefo ehi ordea w n I .r d gooan d governmen colona thef s to (a yn understoodn a s wa ) exceptio ordinare th o nt y rulwould e an valie db d even though it had some operation beyond the territory of that colony.16 9 vere th y n poino s thaf o twa tt I exception tha192e th t 9 Conferenc Operatioe th n eo Dominiof no n Legislation widened the powers conferre n "Dominionso d " unde e Statutrth f o e Westminster n thisI . , accordin Professoo gt r W.P.M. Kennedy e Universitth f o f Torontoyo e Conferencth , e exceede s powerit d : The Imperial Conferenc 1S2f o e 6 suggested thae th t Conferenc f 192o e 9 should discuss "the practicability 80 and most convenient method" of giving extra- territorial Dominiolawa e effec f th so o t n "where such operatio ancillars ni provisioo yt n for the peace, order and good government of the Dominion". The Imperial Conference of 1929, lightl witd yan discloseo h n d caten reasonsf ao , brushed aside the limitation ... and, boldly exceeding their reference, agreed on the general terms accepted in 1930 and incorporated in the Statut Westminster.f eo 170

117. In the result, although it may be that the Australian States have a capacity to legislate extra- territorially, they are restricted in such legislation to furtherin peacee gth , welfared gooan d 17governmen1 e th f 17o t 1 areas under their respective control. The Commonwealth Parliament, on the other hand, has a completely unqualified power to legislate with extra-territorial effect.

Revenue Laws 118. In this area the tendency has been for judicial decision confiro st m thaStatee th t s have power extraf so - territorial legislation. Once again, these t powerno e sar unlimited t musbu , t comply wit peacee hth , orde d gooran d government formula, and hence the object of the legislation must have some reasonable connexion witlegislatine hth g State. celebrateA 119. d enunciatio e principleth f no s involved s mad wa y Dixoneb , J. n Broke,i n Hill South Ltd. ,v Commissione Taxationf ro : The power to make laws for the peace, order and 81 good governmen Stata f to e doe enablt sno e th e State Parliamen Imposo tt referency eb somo t e e act, matter or thing occurring outside the State V a liability upon a person unconnected with the State whether by domicile, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occur- rence or thing in or connected with the territory the occasio impositioe th f no n upo persoy nan n concerned therei liabilita f no taxatioo yt r no y otheofan r liability alss i ot I withi. e nth competenc legislature th f o e baso e t th e imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carryin businesn go s there, or even remoter connexions. If a connexion exists, it is for the legislature to decide how far it should go in the exercise of its powers.172 172 e PrivTh y 120Council. n Johnsoi , . Commisionenv f ro Stamp Duties thought that such statement of the law "pro- cecde righn o d t principle" alst I o 3 17 approve. detera r do - mination of the Mew South Wales Supreme Court in Attorney- General v. Australian Agricultural Co. that "the legislature w SoutNe hf o Wale a subordinat s si e legislature ... legislation on any subject-matter which has no relevant territorial connexion whatever with New South Wales falls outside the legislature poweth f w Soutro Ne hf eo Wales".e th n I 174 view of the Privy Council then, and of local Courts subsequently, slight territorial connexions would suffice to save State legislation from failing for extra-territorial incompetence. 82 121. Thus in Myer Emporium Ltd, v. Commissioner of Stam Soutw pNe Dutieshe Waleth hels y wa db s 17t i 5Cour t of Appeal thaface incorporatiof tth to compana f no n yi New South Walesufficiena s swa t territorial connexioo nt render transfer capitashares f so it n si l liabl locao et l stamp duty, irrespectiv theif eo r "location d placan " f eo registration. Walsh, J.A., observed: In my opinion, the incorporation of the Company in New South Wales does constitute a sufficient connexion relation i , charga o nt e imposed upon the transfe shara f than ro ei t Companye Th . whol vers eit share y valu d th existenc ean f eo e rest upon and are capable of being affected by e law th thif so s State doet I t answe.sno r thiE. thaty tsa o , foreiga whe n share o nth s nei register must i ,regardede tb r purposefo , r sfo which it is necessary to give to the share a local habitation beins a , g situate than di t able b place ey thar undema holdee o ,t tth i rf ro the laws and in the courts of that place to enforce rights in relation to it. The important thing is that the existence of the share depends upon th ew Sout lawNe hf so Wales doe o S presencs .sit e e brancth n ho registe n Canberrri a t woul..I . d be within competence if the New South Wales Parliament decided (howevere b unlikel y ma t yi enaco t tha) woult so ti thao d t sharen si companies incorporated unde laws rit s e b wer o t e held onl locay yb l y "foreignersresidentb t no d san " or that no transfer to a foreigner should be valid. A fortiori, it can enact that transfers, including transfer foreignerso st e subjec b o t suco t e har , 83 conditions aa it may stipulate, including the payment of some charge. If the foreigner chooses to invest in shares in a New South Wales company, he must submit to the conditions attaching to his exercise of that choice.176 176

122. The same judge pursued that rationale in Thompson v. Commissioner of Stamp Duties.17177 a similar case arising shortly afterwards. The Privy Council, on appeal, substantially affirmed the view, while pointing out the difficulty of laying dow ngeneraa l rule. Accordin Boare t th "i do g t appears from decided cases that thero "relevann s ei t territorial connexion connexioe th f i " n wit territore hth y of [the State] is too slight. There is an element of degree involved".178

123. It follows that where there is no territorial nexus whateve foune b n supporo applicatiode i rt th f to f no extra-territorial legislation wilt i , l fail. thaf 17O 9t a recent reminder is the High Court decision in Welker v, Hewett,180 where Kitto, J., whose judgement was generally agreed to by four members of the bench, observed: The question that arise whethes si Parliamene rth t Soutw ofNe h Wale powes s ha dea o rt l [undea r particular Act] withit witno persos a hni o nwh its territory. It has the power, of course, if baso t limito ies ts a applicatioe w sth la e th f no its operation upon some connexion thaabsene tth t [person] has with New South Wales, provided that the connexion is auch as to make the enactment of the law relevant to the peace, welfare and good government of New South Wales; but otherwise it 84 Parliamene th nots generao r ha n , fo s tha l power o makt • e stranger s territorit o st y s liablit n ei court judgemento st sentencer f so o y wa y sb enforcing contribution revenue e th th o f st eo State.181

124. We note the observations of Professor O'Connell, made in 1968, that: The doctrine of extra-territorial legislative incompetence is a necessary factor in the distributio powef no r withi British-typna e federation sometimes i t I . s proposed thae tth Australian States should seeabolitioe kth f no the doctrine f theI .y succeede achievinn i d g this, the constitutional structure, notably in x fieldta e , th woul weakened.e b d 182 developmene e lighth th f to n e authoritiesI th f 125to . , that interpretation mus viewee tb d with great doubtn I . our view, in the fiscal field, the Commonwealth would be neither strengthened nor weakened by a statutory grant of extra-territorial legislative power to the States and the States woul somewhae db t strengthened. They already enjoy large powers, the line of judicial decisions showing the exten manned an t theif ro r territorial limitations.183

Territorial Waters e subjecTh f extra-territoria126o t . l legislative competence has received_recent and special emphasis by the adumbration of conflict between Commonwealth and State Governments concerning control of the marine waters surrounding the continent, of the bed of the continental shelf, and of mineral deposits therein likelihooe Th . sucr o d ha 85 controversy was foreshadowed by Professor D. P. O'Connell (the Adelaidt a n w ReadeLa en ri University papea n i )r "Problems of Australian Coastal Jurisdiction" published in 1959.184 After elaborating upo e areanth difficultf so y he concluded that "the problem is one of collision between two incompatible doctrines, the sovereignty of the constituent element federaa n si l system d theian , r lacf ko responsibility in international relations. The way a court will approach the problem of maritime boundary will in the last resort depend upon its attitude to federalism as a theory and system of government".185

127. The perceptiveness of O'Connell's thesis was not fully appreciate r wideldno y supportet i e tim s th a e t a d "flew in the face of Australian constitutional tradition". However, the acceptance of material portions of it, substantially verbatim, by the Canadian Supreme Court in 1967 encouraged reconsideration. O'Connell re-stated his position, with particular reference to maritime boundaries and the continental s articlshelfhi n i ,e "Problem Australiaf o s n Coastal Jurisdiction" n commentari d e papean th n ro y 187 "Sovereignt d Jurisdictioan y n over Australia" n Coastawaters l . R.DDr .y b Lumb.188

128. Then followe materiaa d l pronouncemene th y b t High Cour n Bonse ti Mauchiaa L whicn . i rv e exten th h. t of the Commonwealth Parliament's constitutional powers in respec marinf o t d submarinan e e domai s considerednwa e Th . defendant, prosecute r breacfo d n oceai h n waters, somx i s e miles from the coast of New South Wales, of a Commonwealth prohibition against trawling with net f smalleso r mesh than that regulated, appealed to the High Court. It was there argued that the prohibition was beyond constitutional com- 86 petence n assessinI . g that question Barwick, C.J.d an , Windeyer, J., although, urged by counsel not to do so, made analysin a respective th f so e position Commonwealte th f so h and the States concerning maritime boundaries and control over marine waters and submerged lands beyond low-water mark.

129. They both concluded that State territorial limits end at low-water mark, the Australian Colonies never having acquired froImperiae mth l Parliament territorial jurisdiction beyond that point.190 On or after Federation, the Common- wealth, in their determination, acquired the former imperial contro f "territorialo l waters" (those withi marine non e e leagucoas th d ove f an to e r whic Admiral'e hth s authority historically extended); and subsequently beyond that limit. Windeyer, J., considered that the Commonwealth's "sovereignty" extende o "alt d l form f ownershipso , rule, dominiond an , power known to our law, which are capable of existing in the open sea and sea-bed". Barwick, C.J., was "not as ready as Windeyer, J. o upse,t e statuth t o respectinsqu g fisheries", t "disguisno d preferencs di buhi e th centralisa r efo t solutio whao nt essentialls i t probleya federalismf o m . The view he takes that the sea-bed is intrinsically Common- wealth derive s judgemenhi n si onlt no ty fro legalistia m c analysi e caseth f s so t als ...bu o fros viewmhi n federso - alism as a system designed to resolve the international issues which an evolving society projects".191 The reasons e judgementth r fo e intricatar s d interestingan e o d t bu , not call for further analysis here. ' ••

130. Encourage thosy b d e pronouncement e Commonwealtsth h Government introduce Territoriaa d Continentad an a lSe l Shelf Bill in April, 1970.192 The preamble to the Bill 87 declared that the territorial sea "is within the sovereignty of Her Majesty" and that Australia "as a coastal stat sovereigs eha n right respecn si certaif to n submarine areas, known as the continental shelf, adjacent to its coas beyont t bu limite territoriae dth th f so e lth r seafo , purpose of exploring those submarine areas and exploiting their natural resources". Claus proceedee5 cone th -o t d clusion that "the sovereignt respecn territoriaye i th f o t l sea, and in respect of the airspace above the territorial sea and in respect of the bed and subsoil of the territorial sea, is vested in and exercisable by the Crown in right of the Commonwealth". Consideration of the Bill, after early vicissitudes, appears at the time of writing this paper havo t , e been postponed indefinitely.

131. A confirmatory grant of extra-territorial legislative severae poweth o rt l States wil givt lno e them constitutional powers over territor whico yt h they hav o title en detere Th . - mination of that title is an independent matter and the claims of none of the parties involved would be affected if State extra-territorial powers were confirmed by statute. It could bo that their express enunciation would be some use e coursedu n ifi , off-shore mineral deposits were worked unde n arrangemena r kina uncommot f dno o t- Americn i n d aan Canada - for the sharing of royalties between Federal and State Governments. s advicVictoriae hi th n c I t e n132 Governmen. t soon afte e passinStatute rth th f f Westminstergo o e , Professor Bailey concluded extra-territorialite th f o , y question, that there would be "no substantial legal reason for or against the extension of section 3 to the States. The decision 88 would turn largely on political questions of status and prestige" 3 Tha19 . s stilti l trueStatee th : sr havefa s a , aknowe sw , suffere materiao dn l detrimen exclusioy tb n from the section, the advantages flowing from adopting it would be relatively limited. However, it is worth noting that powea extra-territoriaf ro l legislatio bees nha n generally conferred by the Imperial Parliament on British countries acquiring responsibl independenr eo t government since eth second World War.194

133. Of greater importance is the possibility of there being some unusual areas of the law in which a statutory grant of extra-territorial competence may be of potential use. 195 State jurisdictions over piracy iure gentium and by statute depend substantially on power derived from the United Kingdom. Should State legislatio than no t subject be desired, its area of operation may be limited if the doctrin extra-territorialitf o e y remains. d Piracan , yof similar offences relating to, aircraft present novel areas where such wide authorit value f y o als yma e ob .

C. e StatutSectioth f Westminstef o eo n4 r (Request r Imperiasfo l Legislation) e sectioTh 134n .reads : No Act of Parliament of the United Kingdom passed afte e commencemenrth thif o tt sAc shall extenddeemee b r o extendo t ,da o t , Dominion as part of the law of that Dominion unlesexpressls i t si y declare than i t d tAc that that Dominio requesteds nha consented an , d to, the enactment thereof. 89 135. It is necessary to consider jointly with section provisione th 4 e Statutef sectiosth o f o ,n9 which are; (1) Nothing in this Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authorit e Stateth Australiaf f yso o t no , * being a matter within the authority of the Parliamen Governmenr o t Commonwealte th f to h Australiaf o . (2) Nothing in this Act shall be deemed to require the concurrence of the Parliament or Governmen Commonwealte th f to Australif ho a Parliamene madw th la y e e b th y i nan f t o United Kingdom with respect to any matter within the authority of the States of Australia, not bein mattega r withi authorite nth e th f o y Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing befor commencemene th e thif o tt sAc that the Parliament of the United Kingdom shall make thaw withoula t t such concurrence. (3) In the application of this Act to the Commonwealt Australif ho requese th a d an t consent referre n sectioi o t d n four shall mean the request and consent of the Parliament and Governmen e Commonwealthth f o t .

The section unsatisfactorye ar s t onlno n ,yi their obscure draftin whicf (o g h mor s saii e d below)t bu , als n theioi r substance materiae Th .l portion19 thef 7so m aren theori , leastt a y , house f cardsso r thefo ,y resn o t 90 the impossible foundation seekinf so diminiso gt e hth legislative competence of the United Kingdom Parliament in British countries. 198 Professor Wheare had little doubt that section 4 was "ineffective in law to restrict the United Kingdom Parliamen e spherth legislatinf o o et r gfo Dominioa n only wit requese hth consend tan thaf to t Dominion". 199 Mr. Justice Dixon said that the drafting of these sections: brough promotere th tStatute th f so e faco et face wit onle hth y limitation ther upos i e n the omni-competence of the Imperial Parliament. The limitation necessarily arises from that Parliament's supremacy over the law. No law it make deprivn sf supremacca o t ei y over that lase Th lawt .expressio legislativs it f no e will repeals all prior inconsistent laws. So long, therefore, as the Dominions remained under the jurisdictio e Britisth f no h Crowne th , theoretical Parliamene poweth f ro t Westminsteta r to make laws extending to them could not be extinguished.200

137. More recentl r KennetSi y h Roberts-Wras yha dispose sectiof o d sayiny b n4 g that "the convention that the United Kingdom Parliament did not legislate for Dominions without their consent was accepted and would have continued observee tb o d t giveeve f no sectio i n t statutorn d i ha 4 n y form". 201 He might well have added that the matter would have been better left to convention rather than forced into a legislative formula especially unsuited to a federal system. However s beeha nt s i i enacte, taket e i b d mus s w nan da t no found. Prom a practical viewpoint the section is best regarded in the terms once applied to it by Sir Owen Dixon. e preamblTh d sectio an ee saidh , n4 , "wil e completelb l y 91 effectual in fact to insure that the power of the British Parliament in reference to a Dominion will lie dormant unless and until the Dominion requests that it should be exerted in a specified manner. But they do not operate in law to diminish the power of that Parliament". 202

138. There is no doubt that sections 4 and 9(2) taken together ensure that the Commonwealth Parliament or Government may not solicit from the Imperial Parliament any legislation "with respect to any matter within the authority of the States", subject only to the "constitutional practice" existing before the passing of the Act.203 Sir Kenneth Bailey took the view that section 4 by itself did not place that restrictio e Commonwealthth n no . Without section 9(2), he said, section 4 must depend on the ordinary grammatical significance of the word "Dominion" as denoting "the whole Australian territorial communit yi.e.- e Commonwealthth , , including; the States". 204 Hence section 4, standing alone, would have curtailed imperial legislation for the States on all subjects unless the Commonwealth had requested and consented to the enactment thereof. In his conclusion, the States were fully justified in securing the insertion of section 9(2). They were not justified, however, in their fears that either section might permi Commonwealte th t o ht secure imperial legislation as of right, without regard to State wishes d withouan , e exercis y th tdiscretio an f o e n or deliberative judgement by the Imperial Parliament.205 e othe Wynesth . Dr n r,o hand139,. considers that section 4 could never have applied to the States, nor was section 9(2) really neede o clarift ds hi e point yth n I . view section 4 is to be construed, in effect, by substituting, s sectioa n 10(3) allows e expressioth , n "the Commonwealth. 92 Australiaf o Dominiona " r fo " " where therein appearing. The result is that Imperial Acts would not apply to the Commonwealth as part of the law of the Commonwealth without request and consent. Moreover, "the 'law of the Commonwealth' mean commod statute an sth whicw w nla ela h applies throughout the Commonwealth of Australia considered as a single indi- visible politicaaggregation a s a t l no severaf uni no d tan l States".206 Hence the section could have no application to imperial laws on subjects outside Commonwealth legislative power.

o sectiot s . WynesA Dr n 140 s 9(2)'i . opiniot i , n littls i tha t ti e more the historicana l curiosity symptomatic sensitivitiee ofth Statee th f 1931n effecse o i Th . f to e sub-sectionth e saysh , : is simpl preservo yt constitutionae eth l right of the States to approach the Imperial authorities wit requesha legislatior tfo n upo mattena r within their exclusive powers. Wher cone th e - currence of the Commonwealth was in "constitutional practice" previously required, it will still be necessary; but where this was not the case see. 9(2) simply preserves the rights of the States in this respects trui et I tha. thin ti s viee th w subsectio superfluouss ni s inserte wa t i t d bu , e requesath t e State th fouf o t f n ordero si r to clear up ... doubts. 207 n opea s ni questiot I 141n. wher Australiae th e n States stan respecn i d concurrenco t imperian i e l legislatior nfo matter whicn so authorit e hth Commonwealtf o y d Statehan s overlap - the laws relating to shipping, for example. No safeguard exist ensurStatee o st th righy o et san f to 93 requesting or consenting to such legislation. Conventions y exisma t tha e Statetth s shoul Invitee b d concuro dt , but, if that is so, they were little in evidence when it came to passing such fundamental constitutional measures as the Statute of Westminster itself, His Majesty's Declaration of Abdication Act 1936 and the Royal Titles Act 1953 - even though the States were materially affected by all of them. thif o Parn sI I workintII 142.g paper,e suggesw 208 t the adoption of the greater part of section 4 of the Statute of Westminster have W .e proceede e assumptioth n o d n that any necessary request will be by the appropriate legislature, without further confirmation by the Government concerned. The expression "Parliament and Government" was inserted in sectio e Statutth n f 9(3Y/estminstef o o e) meeo rt n a t Australian objection. The Bill had previously referred to the reques t the no d consen n tan s "Dominion"a wa f o t i d an , clear whether that contemplated action by the Government, Parliament e electorateth r o , r somo , e combinatio f them.no 209

143. Those problems do not now arise, it being clearly settled thae customarth t y vehiclt Ac r reques fo en a s ti Parliamene oth f t concerned. occasioo Thern s a i er fo n Governmen expreso t s itself independentl Parliamenf o y n i t this respecte contraryth n O . , :;lnc e Crowth es parni f to the legislature, suc intervention ha Governmena y b n t would be redundant.

2. Section 5 of the Statute of Westminster (Merchant Shipping)

144. Section 5 is as follows: 94 Without prejudic generalite th e o foret eth f -yo going provisions of this Act, sections seven hundred and thirty-five and seven hundred and thirty-si Merchane th f xo t Shipping Act, 1894, shall be construed as though reference therein Legislature tth o Britisa f eo h possessiond di , not include referenc Parliamene th o t ea f to Dominion.

145. This sectio inserteds nwa measura s a ,f eo clarificatio nrecommendatioe th only n o , 192e th f 9no Conferenc Operatioe th n o e Dominiof no n Legislatiod nan Merchant Shipping Legislation. e Paragrapth f o 1 h12 Conference's Report21121 1 states that: The Merchant Shipping Act, 1894, by section 735, now confers upon the Parliament of a Dominion limitea d powe repealf ro powee Th repeaf .ro l with regar Merchano dt t Shipping Acts undee rth new position will, however, be covered by the wider powe repeaf ro l containe generae th n i dl clause which we have recommended.

146. Our reference does not extend to considering the substance of Merchant Shipping legislation and no. proposal a for dealing with it are appropriate to our work on statute law revision. We believe that independent attention is being given to the formidable problems of rationalizing Imperial, Federa d Statlan e legislatio e subjectth n no . r presenFo 147t .purpose e mightsw , however, draw attention to the area of merchant shipping as illustrating particularl whicn i y Statha wa wel e el th Parliament no y tma n statutbeow mastes it e f booke Merchanro Th . t Shipping 95 Act, 1894, (Imperial s beeha )n frequently s amendewa d an d revised considerabl recentls ya 1970s ya 2 Thes.21 e amendments, we apprehend, whatever their position may be in relatio Commonwealte th o nt Australiaf ho , continu bino et d the States by paramount force. 96 III, PROPOSAL FOR UNITED KINGDOM LEGISIATION thine W k148 tha . time coms o tth n eha e s whei t ni longer appropriate, save in special cases to which we shall come, thaUnitee tth d Kingdom Parliamenta shouln i e db position to legislate so as to change the law in force in the State. We further think that the time has come when the legislative Statpowere th ef o sshoul freee db d froe mth limitations formerly appropriat positios it a Colono t es na y in the British Empire. The limitations to which we refer e thosar e doctrineth arisinf o extra-territoriaf o et gou l legislative incompetenc repugnancf o d lawe ean th f so o yt England, those arising out of control from England of the discretion of the Governor as regards assent to State Bills, and those arising out of provisions for reservation of State Bills and disallowance of State Acts. There are several reasons.

149. In the first place, the course of history has taken limitationse awae reasoth th y r nfo e contenTh . f o t the law of the State is no longer a concern of the United Kingdom Government.

150. In the second place, we think it appropriate to the present position of Australia as a nation that it, should be possible to find amongst the legislatures in Australia complete sovereign law-making powers. Except where the Commonwealth Constitution otherwise provides, there shoule a d no subject of possible legislation which is beyond the sum of the powers of the legislatures of the Commonwealth and the States. take, If n21 3together e constitutionth , f Australo s - n legislatureia s fai givo lt e such legislative powers, 97 Australia remain thao st t extent subordinat autonomout no d ean s as becomes a nation.

151. In the third place, there are fields, some of every day importance lawe th ,s governing whic e definehar r fo d Australia by United Kingdom legislation, unalterable by any Australian legislatur combinatioy an y b r o e Australiaf no n legislatures 4 Thes21 . e fields include important partf o s the laws relating to shipping and navigation.

e fourtth n I h place,152 . laws which Australiane b y sma properly concerne mako e liabldt ar e attaco e t e th n ki Courts for the reasons we have mentioned. For example, difficulties confront any Australian legislature which seeks to penaliz hijackine eth aircraff o g casen i t s where th e facts show no connexion with Australia.215 It is grotesque

that a person charged with such an offence in an Australian court should hav opportunitn ea escapinf o y g punishmeny tb reference to limits of legislative power surviving from colonial days.

153. In the fifth place, limits on legislative power may prompt the adoption of stratagems for the purpose of securing constitutional validity.We instance the suggestion that a State legislature might penalize, not bigamy anywhere in the world, but entry into the State of a person who had committed bigamy anywhere in the world.

154. We put forward for consideration a draft of a Unitee th f o d Kingdot Ac n a m r BillParliamenfo 216 deao t l with the position of New South Wales. In doing so we do not preten o usur t dfunctioe th p Parliamentarf no y Counsel, either 98 Englann i elsewherer do . Ratherforwart pu e e drafw ,dth t embodimenan sa somethinn ti g like legislative languagf eo the proposal foregoin e lighe th th make f sw to n i e g review.

155. The draft Bill is confined to meeting the position of New South Wales. The needs of New South Wales are special to the extent that maintenance of the present state of affairs calls for the enactment in a United Kingdom Act of somethin preservo gt latteeffece e eth th f rto parf o t section 5 of the Colonial Laws Validity Act 1865.217 Other States may have the same or other special needs. We hope, however, that the draft Bill will serve as a basis for discussion. Consideration may show that the States should seek the passing of a Bill along generally similar lines for each State, or should seek the passing of a single Bill for Statese th l .al

156. The question arises whether the Statute of Westminster requires tha Bila t l alonr linee ou gth f so proposal should be passed by the United Kingdom Parliament only at the request and with the consent of the Parliament and Government of the Commonwealth. It is our view that 218 foundet e drafAc th n n ta o d Bill woul e t extenth no d o t d Commonwealte th Commonwealtf o w la he withith s par ha f o t n anthed meaninthat thg eo questiof sectionn shoul 4 ofd thbe giveStatutn ea negativof Westminstere answer. 219

o comment e section th e n draf o th n o t o y f tso e W 157. Bill.

158. Sectio concernes i n1 d witlawe hth s affectine th g Sovereign. Although the section is placed first in the Bill, 99 it deals with points which have arisen incidentalle th n yi course of our consideration of questions of repugnancy and the operation as regards the States and the Commonwealth of United Kingdom legislation. drafe Sectioth tf o Bil n2 l would be inconvenient if it applied to United Kingdom Acts touching the succession to the throne or matters of regency. Althoug drafe hth t sectio realln1 y operate exception a s sa n e draftth o t som o sectiot ed extenan exception a n2 s ta o nt the draft section 6, it seems appropriate to put draft beginnine sectioth Bile t a th l 1 nf go becaus e th f o e constitutional importanc subjecs it f o et matter. basia e Quee Th s governmene cnha th par 159n i t. f o t the Commonwealthe Stateth d san e CommonwealtTh . h Constitutio e Constitutioth d nan n Act, 1902 (N.S.W.), assume thaSovereige purposeth e t th r thosf nfo o s e conatitutions will be the Sovereign of the United Kingdom. 220 A different idea could not have been entertained at the time those constitutions were framedifferena d an d t idea could hardly be entertained today.

160. However e identificatioth , e Sovereigth f o n n depends on the law of the United Kingdom. The law in question is largely, perhaps altogether, embodied in United Kingdom Acts•22 2211 passed before the adoption by the Commonwealth Parliament of section 4 of the Statute of Westminster became effective. These United Kingdom Acts extend to the Common- wealth as part of the law of the Commonwealth and extend to e State e Actth Th o f s o . th w e la Stat e th s pare a f o t extend by necessary intendment if not by express words. Further, the provisions of the Commonwealth of Australia Constitutio referrint nAc Queee th no gt (tha Quee, is t n Victoria) extend to that Queen's heirs and successors in the 100 sovereignty of the United Kingdom.22 2

161. An alternative and perhaps better view is that the constitutions of the Commonwealth and of the State take as the Sovereign for their own purposes the Sovereign for the time being of the United Kingdom. On this view, it is not a matter of the law of the United Kingdom extending to the Commonwealt sense State th th e n r i e hthato r example fo , , the Merchant Shipping Act extendo s rathet bu , mattera f ro ascertaining referency b , whole th eo e t stat affairf o e n si the United Kingdom, includin relevane gth w t la fact d san (whether thaw extendtla placeo st s outsid Unitee eth d Kingdom or not), who is for the time being the Sovereign of that Kingdom.

162. As regards the Commonwealth, the constitutional conventions noticepreamble Statutth e th n i do ef t eo Westminster, and section 4 of the Statute, are appropriate to meet the problems which may arise. The law touching the succession to the throne ought not to be changed without the Parliamenassene th Commonwealthe f to th f f i to d an 3 ,22 it is necessary that a United Kingdom Act on the subject should extend to the Commonwealth as part of the law of the Commonwealth t woulAc de th nee, havo e request d eth d tan consenParliamene th f o t d Governmentan e th f to Commonwealth. e arrangementTh 163. s mentione paragrapn i d appea2 h16 r afforo t s t u osufficienda t measur consultatiof o e f o n Australian mattern si s touching successio thronee th o nt . It would unduly complicate relationships withi Commone nth - wealth of Nations, if consultation of the Government or Legislatur State th ef eo wer e also required. 101 , howeverIf e vie. 164th ,. w expresse n paragrapi d 0 16 h e righth ts i one ,drafe sectioth tf o Biln2 l mightf i , unqualified, involve that a United Kingdom Act touching the succession to the throne would be ineffective as regards the State unless passed at the request of the legislature of the State t seemI . s best n ordei , o escaprt e this inconvenience, time th tha e e lawUnitee r beinth tth fo s f do g Kingdom touchin successioe gth throne th o net should continuo t e extene Stateth s theo a ,dt e pasty th hav ,n i ewithou e th t y requesLegislature an neeth f do y Statee b t th f .o e

f occasioI 165.n shoulw relatinla de o th arist g r fo e the succession to the throne to diverge as between the Unitee th Commonwealthane d don an d e Statee th th n d o s an h Kingdoe otheth rn o mhand , basic constitutional changes woul requirede b d , eithe furthey rb r United Kingdom legislation or by some action authorized by the Commonwealth Constitution. It is not useful now to attempt to foresee and leave roosucr mfo h changes.

166. Similar considerations e delegateapplth o yt d performance of the royal functions. Here we speak of such matters as regency and the powers of counsellors of state under the Regency Acts of the United Kingdom,225 not of the aettled constitutional arrangements for the Governor-General of the Commonwealth, the Governor or Lieutenant Governor of the State, and administrators of government. Occasions would be rare for the performance of royal functions in respect of the Commonwealth or a State by a regent or other delegate, but might arise, for example, if the appointment of Governor-Generaa Governoa r lo r were required. 102 167. The Regency Act 1937 (U.K.) appears to extend to e Commonwealt th e Stateth s o partt a s f thei d o an h r laws respectively Regence Th Regence t 1946 th 22 .yAc d t 3an yAc 1953 presumably extend to the States as part of their laws but do not have the declaration required by section 4 of the Statute of Westminster and hence do not extend to the Commonwealt laws it pars ha .f o tTher thus i e divergenca s e regence th n i y law s betweesa Unitee nth d e Kingdoth d an m States on the one hand and the Commonwealth on the other hand.

168. As in matters of succession to the throne, it seems s tharighu to t matter regencf o s y r shoulfo e db United Kingdom legislation, withou nee y r requesan tdfo r o t consent by the legislature of the State.

169. Sectio e drafnth 1(2f to )Bil l woule d th den o t y Bill any effect on the law respecting the royal style and titles. It seems that changes in the royal style and titles were, before 1931, made from time to time by proclamation Untiee undeth f do r Kingdot authoritAc n a m f Parliamento y , t constitutionabu l practicet requirno e assend th di e; f o t any other Parliament. 222277 The present position is that the Queen may, with the assent of the Parliament of the Common- wealt Australif ho other ao r MembeCommonwealte th f ro f ho Nations, adop proclamatioy b t n i stylna e d titleus an er fo s relatio o that n t Member."228

170. Neithe e Governmenth r e Legislaturth r e no tth f o e State has, so far as we are aware, ever been consulted on questions relatin e royath o lgt styl titlesd an e t seemI . s ts inappropriatou proposo t e y changan e thin i e s position. 103 The matter is best left to arrangements made by representatives e Uniteofth d Kingdom Commonwealte th , Australif ho d aan other Member Commonwealte th f so Nations.22f o h 9

e drafTh t 171sectio. adoptn2 substance sth sectiof o e n 4 of the Statute of Westminster. The draft Bill being a Unitee th drafBil a r df lfo o tKingdo m Parliament, "Act" thaf o tt meanParliamentAc n sa .

172. Statute Sectioth f Westminstef o o e n4 r callr sfo not only a request for, but also consent to the enactment e Uniteoth f d Kingdoquestionn i t e requiremenmAc Th . f o t consent does not seem useful and does not occur in the draft sectio recognizee W . n2 , however, that other considerations, such as the convenience of uniformity, may show that the draft sectio shoul2 n d follo wStatute sectioth f o e 4 n of Westminste requiriny rb g consen addition i t requesto nt , e drafTh t 173sectio. deal3 n s with extra-territoriality. It is based on section 3 of the Statute of Westminster but omit e declaratorth s y words e effec declaratioa Th .f to n that the Legislature has the power in question might be inconvenient might I . t retrospectively validate State legislatio o o wouln t s w invalidwhice o no b d s o i hT . legislate in the dark and might occasion injustice. Under the draft sectio Legislature th 3 n e could itself make laws to deal with problems arising out of the invalidity of earlier State legislation.

174. So much for the wording of the draft section 3. What woul e achieve db s enactment it y b d ? Since 1933, when Crof Dunph. s decidedtv wa 0 e doctriny23 th , f extrao e - territorial legislative incompetenc s com haveha o t e e little, 104 perhaps no, operation. There remains, however, some room for argument that the reasoning in Croft v. Dunphy. concernes witwa ht i legislatio s da Dominioe th f no f o n Canadat necessarilno s i , y applicable fulth n i eo lt legislation of the State.

175. Territorial considerations may indeed still be relevant to the validity of State legislation: the want of a sufficient territorial connexion may show that the legislation is not for the peace, welfare and good government questioe th t e State.23generalls Bu i nth f 1o y considered today as one of construction of the Constitution Act, rather grounthaa f no invaliditf o d y extraneou Constitutioe th o st n Act. thae drafe b th ty tna sectiot I woul3 n 176.d directly override the territorial limitation ascribed today to the expression "for the peace, welfare and good government of Soutw Ne h Wales". drafe th tf I 23sectiohavt 2 no ed thandi t operation, woult i t leastda , when read wit e drafhth t section 4, authorize an amendment to the Constitution Act, eliminato t s a e requiremeno s eth 1902 , t that laws muse tb e peaceth r , fo welfar d gooean d governmen e Stateth f .o t

removae Th thes177f lo . e territorial limitationa s si worth-while objective. The limitations still occasionally frustrat e intentionth e Statf so e legislatures, eithey rb discouraging attempt legislationt a s constraininy b r o , g the Court holo st d legislation invalid. 233

178. The draft section 3 would not infringe the legislative powers of the Commonwealth. Tc whatever extent 105 the enlarge e b Statpowere drafe th y th ema f ty so d b sectio n 3, State legislation must always yield to Commonwealth legislation by force of section 109 of the Commonwealth Constitution.

e takinTh g 179awa .f territoriao y l limitation. e th n so legislative State powerth ef so woul d havmais it en effect by taking awagroune yon whicn do hcoura t administering th eState lawth ef so must trea s invalidStata a t t eAc . It would not affect the rules of the conflict of laws (supplemented in Australia by section 118 of the Commonwealth Conatitution) whereb countre courya on f o ty will determine r hoeffecfa w t givee oughb n thao i nt t countrlawe th s o yt of another country.

drafe Th t sectio180. taken4 muco place s f th sho f o e section 5 of the Colonial Laws Validity Act 1865 as is necessar preservo yt positioe th e n whereby laws respecting the Legislature may be put beyond repeal or amendment by ordinary legislative procedures. e drafTh t sectio181. drop4 n e firsth s t limf o l section 5 of the 1865 Act (down to "therein"). This limb deals with laws respecting court f judicatureso s i t I . unnecessary in the presence of the general power which the Legislature has under section 5 of the Constitution Act. drafe Th t sectio182. als4 n o drop referencee sth n i s section 5 of the 1865 Act to United Kingdom Acts, letters patent and Orders in Council as possible means whereby requirements as to manner and form may be made. These means 106

are inappropriate to the present independence of the State as regards the government in the United Kingdom.

183. We turn to the draft section 5. Subsection. (1) would enacgeneraa n i t l for provisioma n simila n effecri t e firstth o t lim sectiof bo e Statutth n f f o 2(2o e ) Westminster (dow o "undet n y sucan rh Act"). Since eth principle embodie subsectioe th n i dimportann a s ni t constitutional principle, it seems to us fitting to express it in a short, general and positive form. The draft section 5(2) supplements subsectio o thats ) ,(1 n read togethere th , subsection e equivalensar firse th to t lim sectiof bo n 2(2) of the Statute of Westminster.

184. The draft section 5(3) is equivalent to the second limb ("and the powers" and so on) of section 2(2) of the Statute of Westminster. e drafTh t sectio185. wouln6 d hav doubla e e operation. Firs woult i t d maintai predominance nth lawe th s f mentioneo e d e subsectioth n i n (1d thu)an s prevent legislation interfering wit federae hth l syste Australian i m . Second specifyiny b , g the Commonwealth Constitution and those United Kingdom Acts whic hprevaio t alon e ar el over State Acts woult i , d emphasiz otherwise th e e unlimited legislative powers which would be given to the State.

186. The draft section 6(2) abandons the doctrine of repugnancy, both as that doctrine existed before the passing of the Colonial Laws Validity Act and in the form which the doctrine took under that Act. Instead e drafth , t section 6(2) adopts a test of inconsistency along the lines of section 107 109 of the Commonwealth Constitution. The latter section has received much Judicia d othelan r learned expositios it d nan effect is well understood. It is convenient to do so because in this way there would be introduced a common test for determinin validite gth Statf yo e legislatio casen ni f so alleged conflict with United Kingdo Commonwealtr o m h legislation doubtfus i t I . l whether y substantiatheran s i e l difference between the tests of repugnancy under the Colonial Laws Validity Act and inconsistency under section 109 of the Commonwealth Constitution. 234

187. The draft section 7 would abolish requirements for the reservatio Legislature Billf th no e f so th r efo significatio Majesty'r He f no s pleasure thereone Th . requirements which still survive235 are inappropriate to the present independence of the State as regards the United Kingdom. We believe that there is no case in living memory of assent to a reserved Bill being withheld.

188. The draft section 7 is not enough to put an end to the requirements of clause VIII of the Instructions to the Governo Octobe9 2 f o r r 1900 6 23 Tha. t clause provides that the Governor shall not, excep n specifiei t d cases, asseno t Bills of specified classes. It is clear enough that the clause contemplates thaBille th t s concerned wil reservede lb , n terms i e clausf somethinbuo I th s t. y e sa doe gt sno lik e the draft sectio adopteds i n7 , steps shoul takee db havo t n e clause VIII revoked.

189. The draft section 8 is to an effect similar to that Australiae f sectioo th f o 2 n n States Constitutio t 1907nAc . mattea s A soof ro d order, State Acts passed before th e commencement of the United Kingdom Act which we now propose ought to have this measure of confirmation. The draft 108 sectio largs ni e termenougs it allo o st n repeae hi wth y lb statutf o y revisiow wa la e previouf no s confirmatory United Kingdom Acts. e drafTh t sectio190. nwoul9 d take awar Majesty'yHe s power to disallow a State Act. As in the case of the reservatio Billsf no believe w , e that o casthern n s ei i e living memor Stata beint f yo Ac e g disallowed e poweTh .r becoms ha e inappropriate agrees 192n n I a wa . t 9 t i da Imperial conference that the current constitutional position was that the power of disallowance could no longer be exercised in relation to Dominion legislation.237 We believe that the position is the same today in relation to State legislation.

191. The power of disallowance is, it seems, a prerogative power, regulated by statute. It therefore seams bes enaco t n affirmativa t e abolitio e powerth f ,no rather than merely repea existine lth g regulatory 192enactments.. 23Th9 e draft section 10 defines words used in the

Bill. It does not call for further comment.

193. The draft section 11 deals with repeals. We go on to comment on each of the enactments proposed for repeal.

194. The provisions proposed for repeal in the Australian Constitutions Act 1842, and in section 3 of the New South Wales Constitution Act 1855, relate to instructions to the Governor concerning assent to colonial Bills, to the 109

reservatio coloniaf no disallowance th l o t Bill d san f o e colonial Acts. The proposal for repeal rests partly on the view that instructions from England to the Governor on the exercis powers hi f assenf o eso Stato t e n a Bill e sar anachronism. Otherwise, the proposals are consequential on sections 6 and 8 of the draft Bill.

195. We propose that section 4 of the New South Wales Constitutio 185t repealede nAc b 5 . That section gavo t e the colonial legislature power to alter or repeal the Act 7 Vic1 . No.41 e Constitutioth , f 1855o e latte Th t .n Ac r Act was wholly repealed by the Constitution Act, 1902. It may be that the power in section 4 of the United Kingdom Acs thu185f o twa 5s exhauste n 1902i d . Whethes i t ri exhausted or not, the section is unnecessary in the presence of section 5 of the Constitution Act, 1902, and either Coloniae sectioth f o l5 n Laws Validit 186t sectior yAc o 5 n 4 of the draft Bill.240 e proposH e repeath e196 f sectio. lo f theo nI . Australian Constitutions Act 1862, so far as the section relateStatee e sectioe placth th Th o f .t o se n woule b d taken by section 8 of the draft Bill.

197. We propose the repeal of the Colonial Laws Validity Act 1865, so far as the Act relates to the State. Sectio 1 dealn s with interpretatio standd an n fallr o s s with the remainde e Actth .f o r Section dea3 d l an wit 2 s h repugnancy: their place would be taken by sections 5 and 6 of the draft Bill. Section 4 saves Acts assented to by the Governo n disobedienci r Majesty'r He o t e s instructionss it : place would be taken, as to the past, by section 8 of the 110

draft Bill and, as to the future, by section 7 of the draft Bill.241 Sectio s beeha nn5 discussed above s placit :e woul takee db drafe sectioy th nb tf o Bill n4 . Section6 is largely unnecessary State courte th th :ef o stak e judicias a r Statefa e l th Acte notico S th f . o s f o e evidentiary provisions may be necessary, they can be enacted by the State Legislatures. He therefore propose the repeal of section 6 without the enactment of United Kingdom legislatio places it n .ni concernet Sectiono s i n7 d with w SoutNe h Wales.

e proposW repeae 198reference th eth . w f lo Ne o et South Wale Coloniae section th i s f o l2 n Acts Confirmation Act 1894 e sectioTh . n would the t apple n no th Act o t yf o s colonw SoutNe f ho y Wales s placIt .e woul takee b d y b n e drafsectioth tf o Bill8 n .

199. We propose the repeal of the Australian States Constitution Act 1907. The proposal for the repeal of sectioconsequentias i f that o tAc n1 proposae th n lo o lt adopt section 7 of the draft Bill. Section 8 of the draft f 1907.o t Ac e 24wor e woul2th f l sectioth o ko Bil d df o 2 n

e drafTh t200 sectio. 1 (shor1 n t title) doet calno s l for comment. NEW SOUTH WALES BILL 1972

ARRANGEMENT

Section 1. The Sovereign. 2. Extension of Acts to the State. 3. Extra-territoriality. 4. Laws respectin e Legislatureth g . 5. Repugnancy. 6. Inconsistency with dominant laws. 7. Requirement for reservation of State Bills abolished. 8. Confirmatio Statf no d coloniaan e l Acts. o morN 9.e disallowanc f Stateo e Acts. 10. Interpretation. 11. Repeal. 12. Short title.

A BILL

To make provision respectin Sovereige gth relation ni o nt Soutw e StatNe th f heo Wales , concernin applicatioe gth n e law oEnglanth f o s relation di State d th an eo nt concerning the powers of the legislature of the State; to abolish requirement reservatioe th r sfo Billf no f so the legislatur significatioe th State r th fo ef eo f o n Her Majesty's pleasure thereon; to confirm certain Acts of the State and Acts of the colony of New South Wales; to abolish powers of disallowance of Acts of the State; and for purposes connected with the matters aforesaid.

T ENACTEI E B D etc. 112

1. - (1) The laws of England respect- The Sovereign. ing the succession to the throne and the performance of the royal functions by regent, counsellors of state or other persons shall extend to the State as part of e Stateth f .o w la e th

(2) Thi t doew respectint affecsAc la sno e tth g the royal styl d titlesean .

2. - (1) An Act passed after the Extensiof no e th Act o st commencement of this Act shall not extend State. Geo.3 2 2 2& 5 e th f o w la e State tth oth s par a ef o t 4 s.4c. . State unlesexpressls i t si ythat e Ac declare th te th n i d Legislatur s requesteeha e enactmendth Acte th .f o t

(2) This section does not affect the operation of subsectio f sectioo ) (1 n above.n1

3. - (1) The legislature shall have Extra- territoriality. full powe mako rt e laws having extra- 22 & 23 Geo.5 territorial operation. 4 s.3c. .

(2) This section has effect subject to section 6 below.

e legislaturTh ) (1 - 4. e shall have Laws respect- e th g in full powe mako rt e laws respectins git Legislature. 28 & 29 Vict. constitution, powers and procedure: c.63 s.5. Provided that such laws must be passed in such manner and form as may from time to time be required by e timth e r bein fo Statee n forcw th i g la n .i ey an (2) This section has effect subject to section 6 below. 113

e legis w th mad la y eb -A ) (1 5- . Repugnancy. Geo.3 2 2 2& 5 lature afte commencemene rth thif t o sAc c.4 s.2(2). shall not be void or inoperative on the groun Englandf o d w repugnans i thala .t e i t th o tt

(2) For the purposes of sub- 22 & 23 Geo.5 c.4 s.2(2). Englanf o sectio w abovela d) e n(1 th , includes any existing or future Act and any order, rule or regulation made unde existiny ran futurr go e Act.

(3) The legislature may repea l3 Geo.&2 2 52 4 s.2(2)c. . or amend any existing or future Act, or y orderan , rul regulatior eo n made unde y existinran r go Statee th f .o w la e th pars i f o tt i s futura r fa e o Acts n i ,

(4) This section has effect subject to section 6 below.

e purposeth r f Fo thio s ) s(1 - 6. Inconsistency with dominant section ,followinge eacth o f n ho t bu , law. other lawdominana s - ,i w tla (a) the Commonwealth of Australia Constitution Act; e Constitutio(bth ) e Commonwealtth f no f ho Australia; (c) the Statute of Westminster 1931; (d) this Act.

(2) e th w Whermad la y b ea e Commonwealth of Australia Legislatur inconsistens ei t wit dominha - Constitution, s.109. t law an lattee ,th r shall e prevailth d an , former shall, to the extent of the inconsistency, be invalid.

7. The Governor shall not be Requirement for reservat- require y existinan y b d futurr go e Act, ion of, State Bills abolished. Orde n Councili r , letters patent, instruction other so r instrumenty othean y rb meansr o , o t , 114 significatioe reservth r fo eMajesty'r He f no s pleasure thereon, any Bill passed by the Legislature after the commencement of this Act.

8. - (1) Where an Act of the Legis- ConfirmatioConfirmationn of Statd ean and lature has been assented to by the coloniall Acts.. 7 Edw.7 c.7 GovernoMajestr name He f th eo yn ri before s.2(1). s.2(l). the commencement of this Act, the Act of the Legislature is neved no an tinvalis rwa wan- r f fo dto e th r fo (a )t reservatioAc e th e Bil r th lfo f no significatio r Majesty'He f no s pleasure thereon; or (b) laying of the Bill before both Houses of Parliament.

(2) Thise th sectio f o t n Ac doe t n appla sno o yt Legislature which has been disallowed by Her Majesty before the commencement of this Act.

n thiI (3)s sectio- n "Governor" includes the Governor for the time being Soute colonw oth fNe e persohf o y th Wale d nsan for the time being lawfully administering the governmen e colonyth f o t. "Legislature" include Legislature sth e from timo t e time of the colony. "State" include e colonysth .

9. An Act of the Legislature NNo more disdis-- allowancf f o o e which has been assented to by the Governor State Acts. on behalf of Her Majesty shall not, after the commencemen f thio t s Acte subjecb , o disallowanct r He y b e Majesty. 115

10. In this Act, unless the contrary Interpretation, intention appears- "Governor" mean Governoe e timsth th e r beinrfo f o g the State and includes the person for the time being lawfully administering the government of the State; "Legislature" mean Legislature sth e from tim timo et e e Stated th an f ;o "State" means the State of New South Wales.

e enactment11Th . s mentione n di Repeal, Schedule th f o thio t e2 column sd an 1 s Ace repeale tar extene th o dt specifiee columth n d i f o n3 Schedule.

12. This Act may be cited as the New Short title. South Wales Act 1972. 116

SCHEDULE Section 11

REPEALS

Chapter Short Title Extent of Repeal

5 & 6 Vict. The Australian section e wordI th , s 31 n c.76. Constitutions "but subject neverthe- Act 1842. less to the Provisions contained in this Act, and to such Instruction's as may from Time to Time be give than i n t Behalf r MajestyHe e y th b d , an " words "r tha,o e th reserves such Bilr lfo the Signification of Her Majesty's Pleasure thereon". . 40 d Sectionan 3 3 , 32 s

9 Vict1 . & . 8 1 The New South n sectio I e wordth , s3 n c.54. Wales Consti- e Instructionth "and o st tutiot nAc be conveye Governoro t d s 1855. for their Guidance in relation to the Matters aforesaid e Disth -d an , allowance of Bills by r Majesty,"He . Section 4.

Vict6 2 2.5& The Australian Section 1, so far as the c.ll. Constitutions section relates to the t 1862Ac . State.

Vict9 2 2 8.& The Colonial Laws e whols Th a er Actfa o ,s c.63. Validitt yAc the Act relates to the 1865. State.

Vict7 5 5& .6 The Colonial Acts In section 2, the words c.72. Confirmation Act "New South Wales". 1894.

7 Edw.7 The Australian whole s Th a er Actfa o ,s c.7. States Consti- the Act relates to the tutio t 1907nAc . State. 117

APPENDIX A THE COLONIAL LAWS VALIDITY ACT 1865 9 Vict.2 (2 & 8 , c.63) [Jun 1865, e29 ]

AN Act to remove Doubts as to the Validity of Colonial Laws.

Whereas Doubts have been entertained respectine gth Validity of divers Laws enacted or purporting to have been enacted by the Legislatures of certain of Her Majesty's Colonies, and respecting the Powers of such Legislatures, and it is expedient that such Doubts should be removed:

herebt i e B y enactee Queen'th y db s most Excellent Majesty d wit e Advican hth y d Consenb Lorde ,an e th sf o t Spiritua Temporald lan d Commonsan , thin i , s present Parliamen tAuthorite assembledth e samey b th ,d f yo an , as follows:

1. Interpretation e terTh m "colony" shalr He n thi li t includf o Ac s l al e Majesty's possessions abroa whicn i d h there shall exist a legislature, as herein-after defined, except the Channel Islands n [Britis Ma e Isl f th ,o e h India..]. e termTh s "legislature d "coloniaan " l legislature" shall severally signif authoritye yth , other thae th n Imperial Parliamen Majestr He f to n Council i y , competent to make laws for any colony: e terTh m "representative legislature" shall signify any colonial legislature which shall comprise a legislative body of which one half are elected by inhabitants of the colony: e terTh m "colonial law" shall include laws madr fo e y colonan y eithe sucy rb h legislatur aforesais ea y b r o d r MajestHe Counciln i y : 118

An Act of Parliament, or any proviaion thereof, shall, in construing this Act, be said to extend to any colony when it is made applicable to such colony "by the express words or necessary intendment of any Act of Parliament: The term "governor" shall mea officee nth r lawfully administering the government of any colony: The term "letters patent" shall mean letters patent under the Great Seal of the United Kingdom of Great Britain and Ireland.

2. Colonial laws, when void for repugnancy Any colonia respecy an shalr w whicn o i lla t e s lb hi repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authorit Parliamentf o sucf yo t hAc e havinr o ,th n gi colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, e extentth o f suco t h repugnancy t otherwiseno t bu , e b , remaid an n absolutely void inoperativean d .

3. Colonial laws, when not void for repugnancy No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provision somf o s eParliamentf o suc t hAc , orderr o , regulation as aforesaid.

4. Colonial laws not void for inconsistency with instruction governoro st s No colonial law passed with the concurrence of or assented e governohereaftee b th y colony o y an tt b o f r o ro o , rs passe r assente o de deeme b shal r , o o havt d to d e leb been voi inoperativr o d reasoy eb ny instruction an onl f yo s 119

with referencsubjece th r o t suco ew t thereo hla f which may have been give suco nt h behalgovernon o r o f fo y rb Majestyr y instrumenHe an y b , t other tha lettere nth s patent or instrument authorizing such governor to concur in passing or to assent to laws for the peace, order, and good governmen f suco t h colony, even though such instruction referree b sucn y i sma ho d t letter s patent or last-mentioned instrument.

5. Colonial legislatures may establish, etc., courts Representativ- w ofla e legislature altey sma r their constitutions Every colonial legislature shal deemele b have d t a dan , l timeal havo st e had, full power withi s jurisdictionit n to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein d everan ;y representative legislature shall, in respect to the colony under its jurisdiction, l e deemetimeb al have o havd t t sa d an ,e had, full power to make laws respecting the constitution, powers, and procedur f suco e h legislature; provided that such laws shall have been passed in such manner and form as may fro mParliamentf o tim t timo t eAc requiree b ey an , y b d letters patent, Order in Council, or colonial law for the time bein saie forcn th gi d n colonyei .

6. Evidence of passing, disallowance, and assent The certificate of the clerk or other proper officer of a legislative body in any colony to the effect that the documen whics attacheo i t t t trua hi s ey i d an cop f o y colonia governoe w assenteth la l y b f suco o rt d h colony, or of any Bill reserved for the signification of Her 120 Majesty's pleasure by the said governor, shall be prima facie evidence that the document so certified is a true copy of such law or Bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such Bill has been duly and properly passed and presented to the governor; and any proclamation purportin publishee b o gt y authoritdb e governoth f o y r in any newspaper in the colony to which such law or Bill shall relate, and signifying Her Majesty's disallowance y sucan hf o colonia Majesty'r He lr o law, s asseny an o t such reserved Bil aforesaids la , shal prime lb a facie evidenc sucf o e h disallowanc assentr o e . And whereas doubts are entertained respecting the validit certaif o y n Acts enacte reputer o de b o t d enacted by the legislature of South Australia: Be it further enacte s followsda :

7. Certain Acts enacted by legislature of South Australia to be valid l law reputeAl r so d laws enacte purportinr o d havo t g e been enactesaie th d y legislatureb d y personb r o ,r o s bodie time personf o sth e r beinsfo g actin s sucga h legislature, which have receive r assene He th d f o t Majesty in Council, or which have received the assent of the governor of the said colony in the name and on behalf of Her Majesty, shall be and be deemed to have been valid and effectual from the date of such assent l purposeal r fo s whatever: Provided, that nothing herein contained shal deemee b l givo t d e y effecan o t law or reputed law which has been disallowed by Her Majesty s expireds beeha ha r no r ,o lawfull , y repealed, w disallowancpreveno t rla e th t repear y o ean f lo law. 121 APPENDIXB

THE STATUTE OP WESTMINSTER 1931 givo t et effecAc n A certaio t n resolutions passey db Imperial Conferences held in the years 1926 and 1930 (22 Geo.5, c.4 I Dec/I ) . 1931/ Whereas the delegates of His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years r Loroou fd nineteen hundre twenty-sid dan nineteed xan n hundre d thirtan d concud ydi makinn ri declaratione gth s and resolutions set forth in the Reports of the said Conferences:

y wa y b t d whereaou mee s An d propei t an se t i so rt of preamble to this Act that, inasmuch as the Grown is the symboe freth ef lo associatio membere e th th f nf o o s British Commonwealt Nationsf thes ho e a unite ar yd an ,d by a common allegiance to the Crown, it would be in accord witestablishee th h d constitutionae l th positio l al f o n members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal 3tyle and Titles shall hereafter requir assene Parliamente th e th s wel a tf o l f so Parliamene e Dominionth th Unitee l f o th al s f sa do t Kingdom:

accorn d i wherea An s i d t witi se establishe th h d constitutional position that no lav; hereafter made by the Parliamen Unitee th f to d Kingdom shalf o l y extenan o t d the said Dominions as part of the law of that Dominion otherwis ee reques th tha t d witna e consenan t. hth f o t that Dominion: 122

Arid wherea necessars i e ratifyingt th si r yfo , confirming and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enactefore authority du b m n Parliamene i d th f o y t of the. United Kingdom:

And whereas the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the matters aforesaid hereaftes i s a n thii rcontainedt Ac s :

How, therefore, be it enacted by the King's most Excellent Majest witd advice an th h d consen y b yan e f o t the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of e same th s followa , s :-

.1 Meanin f "Dominiongo n thii t " Ac s expressioe th n thiI t sAc n "Dominione th " f o mean y san following Dominions e Dominioth ,y sa , f o o t ntha s i t Canada, the Commonwealth of Australia, the Dominion of New Zealand, . . . the Irish Free State and Newfoundland.

2. Validity of laws made by Parliament of a Dominion e Colonia(1Th ) l Laws Validity Act, 1865, shalt no l apply to any law made after the commencement of this Act by the Parliament of a Dominion. w mad o provisiola n e y d aftean an f w o nr la o (2N ) the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that e th f Englando o t w s repugnanii la r to ,e th o t 123

provisions of any existing or future Act of 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 Dominion shall include the power to repea r amen o ly sucan d h Act, order, rul regulatior o e n e th f o w la e same th th s pari e f s o ta r fa o s n i Dominion.

3. Power of Parliament of Dominion to legislate extra- territorially It is hereby declared and enacted that the Parliament oDominiofa fuls nha l powe mako rt e laws having extra- territorial operation.

4. Parliament of United Kingdom not to legislate for Dominion except by consent Parliamenf o t Unitee NAc oth f do t Kingdom passed after the commencement of this Act shall extend, or be deemed t othaf o extend tw Dominioa la o t e , th s par na f o t Dominion unless it is expressly declared in that Act that that Dominio s requestednha d consentean ,e th , to d enactment thereof.

5. Powers of Dominion Parliaments in relation to merchant shipping Without prejudice to the generality of the foregoing provisions of this Act, sections seven hundred and thirty-fiv seved ean n hundre thirty-sid an d e th f xo Merchant Shipping Act, 1894, shal e construeb l s thougda h reference thereilegislature th o t n Britisa f o e h possessio t includno d di ne referenc Parliamene th o t e t of a Dominion.

6. Powers of Dominion Parliaments in relation to Courts of Admiralty Without prejudic e generalitth o e foregoint eth f o y g 124

provisions of this Act, section four of the Colonial Court Admiraltf so y Act, 1890 (which requires certain reservee e significatiolawb th o st r fo d s Majesty'Hi f no s pleasure or to contain a suspending clause), and so much of section severequires a thaf nt o tAc approvae sth l of His Majesty in Council to any rules of Court for regulating the practice and procedure of a Colonial Court of Admiralty, shall cease to have effect in any Dominio fros na e commencemen mth thif o t s Act.

7. Savin r Britisgfo h North America Act d applicatiosan n Canado t t Ac a e oth f (1) Nothing in this Act shall be deemed to apply to the repeal, amendmen alteratior o t Britise th f no h North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. (2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada powere legislaturee th th o f t so d an sucf so h Provinces. (3) The powers conferred by this Act upon the Parliamen Canadf o t upo r alegislatureo e nth e th f so Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively.

8. Savin r Constitutiogfo n Act Australif so w Ne d aan

Nothin thin gi shalt sAc deemee b l confeo t d y poweran r to repea alter o l Constitutioe rth e Constitutioth r no n Commonwealte th Acf o t Australif o h Constitutioe th r ao n Dominioe th Zealanw Acf Ne o t f no d otherwise than ni accordanc w existine la wit e hth g befor e commencementh e t f thio s Act. 125 9. Saving with respect to States of Australia (1) Nothing in this Act shall be deemed to authorise the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia. (2) Nothing in this Act shall be deemed to require the concurrence of the Parliament or Government of the Commonwealte madth w Australif ho la y eb y an n ai Parliamen Unitee th f dto Kingdom with respecy an o t matter withi authorite nth e Stateth f Australiaf yo so , not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing before the commencement of thi that Parliamene Ac sth t e Uniteth f tdo Kingdom should make that law without such concurrence. (3) In the application of this Act to the Common- wealt f Australiho requese ath d consentan t referreo t d n sectioi n fourequese th r shald consenn an t mea l f o t the Parliament and Government of the Commonwealth.

10. Certai o applt n o t Australia t ysectionno t Ac f so , New Zealand or Newfoundland unless adopted (l e )followin th Non f o e g section f thiso s Act, thas i t o sayt , sections two, three, four, fiv d sixan e , shall extend to a Dominion to which this section applies as part of the law of that Domion unless that section is adopteParliamene t th Ac Dominiony e b y dth an f to d an , of that Parliament adoptin y sectiogan y ma thif no t sAc provide that the adoption shall have effect cither from the commencemen fror o f thimo t sAc suc h later dats a e is specified in the adopting Act. 126 Parliamene (2Th ) y sucan hf to Dominio aforesais na d may at any time revoke the adoption of any section referre n subsectioi o t d n (l f )thio s section. e Dominion(3Th ) whico st h this section appliee sar the Commonwealt Australiaf ho Dominioe th Zealanw , Ne f no d and Newfoundland.

11. Meanin f "Colonygo n futuri " e Acts Notwithstanding anything in the Interpretation Act, 1889, the expression "Colony" shall not, in any Act of the Parliament of the United Kingdom passed after the commencemen thif o t s Act, includ Dominioa e y an r no Province or State forming part of a Dominion.

12. Short title This Act may be cited as the Statute of Westminster, 1931. 127 Notes 9 Geo.I e o providadminist th Vt r 1c.83Ac . efo n - "A , tration of Justice in New South Wales and Van Diemen's Land, more th e r aneffectuafo d l Government r thereofothefo d r an , Purposes relating thereto".

3 Geo. 2 o giv t & Ve t 2 c.42 effecAc n ,"A o certai t 2. n resolutions passed by Imperial Conferences held in the years 192d 1930"an 6 .

4 Vict6 o constitut& t . 3 t 6 c.12Ac n e ,"A th e 3. Commonwealt Australia"f ho .

4. 25 November 1886 in Command Paper C. 5091, vii (published in Accounts and Papers 8, Vol.56, 1887). A general historical analysi e earlth yf so Conference containes si n di "Correspondence Relating to the Future Organization of Colonial Conferences", Command Pape 278. rCd 5 (publishen i d Account d Paperan s s 13, Vol.77, 1906 t )57ffe papera Th .f o s l Conferenceal s held between 183 d 1937 an e collecte 7ar n i d M. Ollivier, The Colonial and Imperial Conferences, Vols.l- III, (1954). A detailed commentary on the whole series of Conferences may be found in A. B. Keith, Responsible Government e Dominionsth n i ed.2 ( . , 1928), Vol.11 a brie d , fan 117 ; 0ff revieanonymoun a n i w se articlth d an es "ImperialConference Statute of Westminster", (1932) Law Times,53.

5. This actio s see wa ny Professo nb r Keith, loc. cit., as an outcome of the Imperial Federation movement in the period after 1883. 128 6. J.C. Anderson, "Dominion Status", (19308 ) Canadian Bar Review. 32 at 38.

7. Command Pape . 859r0 6 (publishe n Accounti d d san Paper Vol.59, s8 , 1897), 631.

8. Command Paper C. 7553 (published in Accounts and Paper , Vol.56s6 , 1894), 337.

9. Papers Relating to the Conference, Command Paper Cd. 1299 (publishe n Accounti d d Papersan Vol.66, 12 s ; 1902)1 45 , at 464.

. 10 Op., cit., 615.

11. Votes and Proceedings of the Parliament of N.S.W. 1903 (1), 571.

12. The circumstances of the case are succinctly summarized in G. Sawer, Australian Federal Politics and Law 1901-1929 (1956): 3l , "[The Vondel]was a Dutch ship whose crew deserted in Adelaide in 1901. The Dutch government complained to the governmen e Uniteth n di t Kingdom thae Soutth t h Australian authorities had not assisted the Dutch Consul to arrest the men as required by a Convention of 1856 applying to the colonies. The Secretary of Stat r Foreigefo n Affairs sen n inquirmattee a t th n o ry through the Secretary of State for the Colonies (Joseph Chamberlain e Governor-Generath o t ) e Commonwealthth f lo , Deakid an Ministes a n Externar fo r l Affairs then asked the South Australian government for a report. The South 129 Australian government objecte thio t d s inquiry being made through the Commonwealth, claiming that it should have been mad Chamberlaiy eb n direc Souto t h Australia through its Governor".

13. Vote d Proceedingsan s , supra not , 696e11 .

14. Ibid.. 697.

15. Ibid.. 632.

16. Correspondence Relating to the Colonial Conference 1907, Command Paper Gd. 3340 (published in Accounts and Paper , Vol.548 s , 1907), 743.

17. Ibid., 749-50.

. 18 Ibid., 755.

19. Ibid., 760 and 763-4. For a continuation of the correspondenc e Commanse e d Pape . 352Cd r 4 (publishen i d Account Paperd an s , Vol.558 s , 1907), 711.

20. See Secretary of State's despatches of 31 August1 9 and 5 December 1906, Command Paper Cd. 3340, 752 and 759,

21. Command Paper (Cd. 3340. 772-4.

22. Ibid.. 754-5.

23. Minute f Proceedingsso , Command Pape 352. rCd 3 (publishe n Accounti d d Paperan s Vol.55, 9 s , 1907), 118. 130 24. Command Pape . 3340rCd , 757.

25. Ibid.. 769-71.

26. Ibid.. 769.

27. Even Professor Keith, who was generally hostile to the manner in which the States had been treated, acknowledged this, op. cit.. 615.

28. Constitution of the Commonwealth of Australia (2 ed., 1910) . ,352-3 cf 348- d .an 9

29. Command Paper Cd. 3523, 52 and 93.

30. Vote d Proceedingan s Victoriae th f o s n Legislative Assembly, 1907 (2), 1185.

31. Summary of Proceedings of Imperial Conference, 1926, Command Paper Cmd. 2768. 13 ,

- 32. F.L.W. Wood n J.Ci ,. Beaglehole (ed.) w ZealanNe , d and the Statute of Westminster (1944), 108.

33. Command Paper Cmd. 2768, 14.

r KeitSi h Hancock34. , Surve Britisf o y h Commonwealth Affairs. Vol.1, (1937), 263. A notable verbal summary was also mad y W.Mb e . Hughee debatee Statutth th n n si o f s o e Westminster Adoption Bill, 1942, Commonwealth Parliamentary Debates. Vol.172, 1425: "Considere wholea e s repora dth , t was indeed a wonderful document. Almost metaphysical in 131 some of its references to Imperial relations, it was, nevertheless, intensely realistic. purposs it Abov s l ewa eal political. It took stock of everything. Nothing escaped t noteI it e presenc. dth e representative th f eo Canadaf so , South Africa and the Irish Free State; it knew very well what each wanted, and gave it to them. It was all things to menl al . Every Prime Minister went away perfectly satisfied - Mr. Bruce because it altered nothing that affected Australia Mackenzi. Mr , e King becaus taught i e t Lord Byng where he got off, and General Hertzog because he was able to assure the burghers that the King of England was no longer the Kin Soutf go h Africa, althoug s truwa et hi thaKin e th tg of South Africa was also King of England. As for the representatives of the Irish Free State, they, too - or some of them - were for the time being satisfied".

35. Command Paper Omd. 3479.

36. Commonwealth Parliamentary Papers. General Session 1929-30-31,Vol.II.No.102, containing alsfule oth l texf to the Conference Report.

37. Summary of Proceedings, Command Paper Cmd. 3717, 17.

38. Ibid.

39. A discussion is contained in W.P.M. Kennedy, "The Imperial Conferences 1926-1930. The Statute of Westminster" w Quarterl(1932La 8 4 ) y Review. 191 Joh. Cf Ewart. nS , "The Statute of Westminster, 1931, as a Climax in its Relation o Canada"t , (1932 0 Canadia1 ) r ReviewnBa . 111; H.S. Nicholas, 132 "The Statut Westminstef eo e Constitutioth d ran Canada"f no , (1950 Australia4 2 ) w JournalnLa . 147.

40. Hon. Secretary, The Dominion League of Western Australia to the Premier, Western Australia, 9 July 1931, cop Victorian i y n Crow Officw nLa e file P31/2382.

41. (1931) 31 S.R. (N.S.W.), 183.

42. Letter to the Premier, Tasmania, 2 March 1931, Tasmanian State Archives PD1/484. On 17 March 1931 the Lieutenant-Grovernor of Tasmania sent a secret telegram to the Secretary of State for the Dominions which, in part, t passeAc saidn y Imperiadb "A : l Parliament ... should contain reservation Australiao st n State theif o s r constitution[s_] which by Commonwealth Constitution (existing only as it does by the provisions of Commonwealth of Australia Constitution Act which is an Imperial Act) are to remai thes na y were when Commonwealth Constitutios wa t nAc passed. An enactment which could possibly be construed as giving Commonwealth Parliament powe aboliso rt h State Constitutions would probably immediately be used by Common- wealth Parliamen aboliso t Statese hth e consequence Th . s f gravesmigho e b t t possible character e StateTh . s havt eno been heard and my ministers claim and I think rightly that the States must be heard before legislation passed which might end in their abolition". Tasmanian Archives, loc. cit. The special apprehension Tasmaniaf so n politicians were apparent in a letter written on behalf of the Government on Augus7 t 1931 contendes wherwa t ei d that "the proposed Stat- ute is not really called for; that the people of Australia or of Tasmania, in particular, have expressed no desire that 133 the Empir e basith f eso shoul fundamentalle db y alteren i d this manner; tharighe tth appeao e Imperia t th o lt l Parliament to protect Tasmania, a small State, from dominatio othee th ry n b State Australif so a shoule db preserved, and that if the proposed Statute becomes law, it involves a departure from an important feature of Imperial relations which existed when the State entered into Federation", ibid.

43. Undated memorandum "Statute of Westminster" in Victorian Crown Law Office file. Cf. Agent General for Victori Premiero at , Victoria y 1931Ma , 8 2 ,Appendi n i xE K.H. Bailey, The Statute of Westminster. 1931 (1935), 58.

44. Commonwealth Parliamentary Debates. Vol.130, 3415.

45. Ibid.. Vol.131, 4065.

46. Ibid.

47. Commonwealth Parliamentary Papers, General Session 1929-30-31, Vol.11, No.269, 391.

48. Reproduced as Appendix C in Bailey, op. cit., 56.

49. Telegram Prime Ministe Premieo rt r Tasmani3 a1 October 1931, Tasmanian Archives loc. cit. (No.211). The Premier replied, 19. October 1931: "Statut f Westminsteo e r appreciate greatly your evident desir meeo et t States point of view but feel that the present is the time for this State to place on record its protest against certain portions of Statute stop Cannot understand how passage of Statute should 134 bmatteea greaf ro t urgency atop Government feels thas ta resolutio protesf no pendinw no s ti shoule gw d take opinion of House on matter", ibid. An informative summary of the reason Tasmaniar sfo n uneasiness abou Statute th t s ei contained in The Mercury (Hobart), 1 October 1931, 7.

50. Commonwealth Parliamentary Debates. Vol.154, 1152. Western Australian Parliamentary Debates. Vol.86 (New Series), 4038, 4060, 4188, 4207; ibid.. Vol.87, 52407 1 , November 1931, where, in answer to questions, the Premier stated thae recentltth y passed Commonwealth resolutiod ndi not meet Western, Australia's protest, and that he had cabled Government's hi s disapproval;, West Australian (Perth Jul9 2 ) y 1931, 14, 30 July 1931, 13. The first step towards secession was taken by the introduction of a Bill on 18 November 1931, Western Australian Parliamentary Debates. Vol.87 (New Series), 5415.

51. Telegram Premier South Australia to Premier Tasmania Novembe9 1 , r 1931, Tasmanian Archives loc. cit. Advertiser (Adelaide), 13 November 1931, 18, and 17 November 1931. 8 ,

52. Acting Agent Genera r Tasmanilfo Premiero at , Tasmania, 26 November 1931, Despatch 541, Tasmanian Archives loc. cit. Cf. Agent General for South Australia to Agent General for Victoria, 2 December 1931, reproduced as Appendix F, Bailey, op. cit.. 59; and Agent General for Victoria to Premier, Victoria Novembe4 2 , r 1931, Victorian Croww nLa Office file P/31/4304. 135 53. . The stages of the Bill were the King's Speech, Parliamentary Debates (Commons). Vol.259, c.45; first reading, ibid.. c.273; second reading, ibid.. c.117; 3ff committee, ibid.. Vol.260, c.245 ff; third reading, ibid., c.368; Parliamentary Debates (Lords). Vol.83, c.17. 6ff

54. Parliamentary Debates (Commons). Vol.259, c.1182.

55. Ibid.. c.1183.

56. Ibid.. c.1189.

57. Ibid.. Vol.260, c.294.

58. Parliamentary Debates (lords). Vol.83, c.199.

59. An assessment confirmed by Professor Keith in "Notes on Imperial Constitutional Law", (1932) 14 Journal of Comparative Legislatio d Internationanan l Lawd series3r . , 101.

60. Manley 0. Hudson, "Notes on the Statute of Westminster, 1931", (1932-3) 46 Harvard Law Review. 261 at 262.

61. "R.R.G.", "The Statut f Westminster[o e n i ] Australia", (1932) 13 British Year Book of International Law. 116.

62. R.T.E. Latham n Hancocki , , Surve f Britisyo h Commonwealth Affairs. Vol.1, (1937), 513. 136 63. Commonwealt d Coloniaan h w (1966)lLa , 256.

e AustraliaTh 64.n Quarterly Decembe4 1 . r 1931t a 4 ,2 40. Cf. the views of H.V. Evatt, The King and His Dominion Governors (1936) e Commonwealt, th 212n "I : Australif ho a action was not taken to include the States within the scope Statute ofth Westminsterf eo e parth n i o .t e du Thi s swa sudden dissolutio Federae th f no l Parliament towardd en e sth yeae ofth r 1931 absence parth n , i o t unanimitf eo y amongst the States, and in part to the undoubted fact that several of the State Governments were not sufficiently seized of the importance of protecting their relative status in the polity of the Commonwealth".

65. 10 Australian Law Journal Supplement. 96 at 100.

66. Particularly in paragraphs 60, 132 and 139 and notes 193, 197 and 203. The advice seems to have been prompted by a Crown Law Office Memorandum to the Attorney-General in 1932: e questioTh . n".. arises whethe e wholth r e matter should not, eve thit na s late stage referree b , suitablo dt e counser lfo consideration from the State point of view, and enable the Premier to make a suitable and considered reply to the Imperial Government and, if necessary, to the Commonwealth Government subjeca n o ,suc f o t h grave importancer Fo . instance, it might be considered expedient to suggest that the Statute of Westminster should be amended so as to make provisions like thos f s.7(2o e d (3an )) relatine th o gt Provinces of Canada, apply also to the Australian States". Victorian Crown Law Office files 32/67 and 32/993.

67. Ibid. , file 33/2655. 137 68. LetteMarc9 1 f hro 1936w SoutNe , h Wales Premier's Dept. file, 44/2808; oopy letter Premier, Victoria, to Prime Minister, 9 April 1936, ibid.

69. 23 June 1936, ibid.

70. "Proceeding Decisiond an s Conferencf so Commonf o e - wealth and State Ministers held in Adelaide, 26th to 28th August 1936", (South Australian Government Printer, 1936), . Commonwealt75Cf . h Parliamentary Debates. Vol.132, 1207.

71. "Proceeding d Decisions"an s , supra. 76 .

72. See below, paragraphs 88-91.

73. Sydney Morning Herald 0 Augus1 . t. Tasmani193712 , a s "verwa e Statuty th anxiou e Westminstef eo se o st r adopted", Acting Premier, Tasmania, to Premier, Victoria, 26 August 1937, Victorian Crow Officw nLa e file.

74. Attorney-General, Victoria, to Attorney-General, Commonwealth, 1 July 1937, Victorian Crown Law Office file.

75. Attorney-General, South Australia, to Premier, Victoria, 26 August 1937, Victorian Crown Law Office file; Commonwealth Parliamentary Debates, Vol.154, 1152.

76. Attorney General w SoutNe , h Wales Attorneyo t , - General, Victoria 1 Augus1 , t Soutw 1937Ne ,h Wales Premier's Dept. file 44/2808 . CommonwealtCf . h Parliamentary Debates. loc. cit. 138 77. . Commonwealth Parliamentary Debates, ibid. Premier, Western Australia, to Premier, Victoria, 31 August 1937, Victorian Crown law Office file:- "The Government of Western Australia after legal advic carefud ean l consideratiof o s ni the opinion that even the suggested preamble and the proposed assurances by the Commonwealth Government will be inadequate to protect fully the constituent States of the Commonwealth against legislation whic Commonwealte hth h Parliament wile lb e Statutabl th paso t e f Westminstef si o e adoptes ri d an d prejudiciae whicb y hma theio t l r statu self-governins sa g colonies... For these reasons the Government of Western Australia prefer proteso st t agains adoptioe tth e th f no Statut Westminstef o e r rather tha givo nt qualifiea e d approval to such adoption by suggesting the inadequate protection suggestee soughth y b t d special preambl Governmend ean t assurances".

78. Commonwealth Parliamentary Debates. Vol.154. 92 ,

79. Sydney Morning Herald 8 Januar2 , y 193d (1938an 8 ) 11 Australian Law Journal. 368. r exampleFo e BritisTh 80, . h Empire Unio Australin i n a expressed its "grave concern" and resolved to organize public meeting protestf Practicae so Th n I . l Patriot Februar2 1 . y 1938, offer f hel so d mone pan y were solicited e objecth , t being: "Australians must be made aware of their danger... Ask your Federal Member to demand a Referendum - 'Are You in favou Separatiof ro n from Great Britain?'. r criticismFo " s of such view e Davisse d Maughan, lette Editoro rt , Sydney Morning Herald Octobe1 . .. FranDr rkd 1942an Louat ; ,4 , ibid.. 9 Septembe2 r 1942. 4 , 139 81. Sydney Morning Herald. 10, 23 and 30 September 1942, 6 respectively d an , 6 d an .page 5 , 4 s

82. "Statut f Westminsteo e r Adoption Bill" (froa m Nationae th cop n i y l Library, Canberra).

83. Ibid.. 15.

84. Commonwealth Parliamentary Debates. Vol.172, 1387.

85. Ibid.. 1476 e facTh .t was d alte, di thae t rth i t latter practice s DaviA . d Maughan pointed out, "The Statute of Westminster", (1939) 13 Australian Law Journal. 152 at 160: "We seem to have arrived at the result that the Imperial Parliament would hav poweo en paso rt s laws affecting us as citizens of the Commonwealth of Australia without the reques Parliamene th f to Governmend tan e th f to Commonwealth but that the Imperial Parliament would still retai fullese nth t powe s citizenlegislato a rt s u f r so efo the Stat Queenslan f eo y othe an f ro Statr o d thos n o e e subjects whic exclusivele har y withi legislative nth e powers of the States".

86. Commonwealth Parliamentary Debates, op. cit.. 1424. "Obviously", said the leader-writer in The Argus (Melbourne), 2 October 1942, 2, "there cannot be any strong public objectio bila o lnt which only ratifies decisions long since unanimously assented to by all the contracting parties, which has been accepted in principle by both Houses of the Australian Parliament, and which has been sponsored in turn by both of the great political parties". Cf. Sydney Morning Herald, l October 1942, 7. 140 87. Advice of 20 November 1942, New South Wales Premier's Department file, 44/2008.

88. Australian Federal Politics and Law. 1929-1949 (1963), 33.

89. The Statute of Westminster. 1931. (1935), 29 and 37-41. Compare B.J. McGrath, "Admiralty Jurisdiction and the Statute of Westminster", (1933) 6 Australian law Journal, 160 and 215.

90. That interpretation was also made by A.H. O'Connor, Crown Solicitor of New South Wales, in his advice of 20 November 1942, cited supra note 87.

91. (1965) 82 W.N. (N.S.W.), Part 1, 540 at 543.

92. J.G. Latham, Australia and the British Commonwealth (1929), 87.

93. Commonwealth Parliamentary Debates. Vol.154, 86.

94. Introduction to the Study of the Law of the Constitution. (9th ed., 1948), 105.

95. McCawlev v. The King [I920] A.C., 691 at 709.

96. Union. Steamship Co. of New Zealand Ltd. v. The Commonwealth (1925) 36 C.L.R., 130 at 155-6.

97. Commonwealth and Colonial Law (1966), 396. 141 98. Ibid.. 400.

99. From 1853 to 1867. A concise account of his extraordinary career appear Australian si n Dictionar Biographyf o y . Vol.3, (1969), 194.

100. "The Genesis of the Colonial laws Validity Act", (1967) The Juridical Review. 28; Imperial Control of Colonial Legislation 1813-1865 (1970), especially Part IV.

101. (1967) The Juridical Review,28 at 32, and cf. 57; d Imperiaan l Contro Coloniaf lo l Legislation. 167.

102. D.H. Pike, "Introduction of the Real Property Act in South Australia", (1960-62) 1 Adelaide law Review. 169 at 185. e besTh t researche103. d accoun Boothby'f to s idio- syncrasie bence th R.Ms hi n so . Haguew , La "Histor e th f o y in South Australia", (unpublished typescript, South Australian Archive microfild an s- m National Library), chapte. rV

104. 13 May 1863, Colonial Office Law Officers' Reports (C.O. 13/113) quoted by Swinfen, (1967) The Juridical Review. 29.

2 Geo.II2 105I .c.75 e Coloniath , l Leav f Absenceo e Act, 1782, sectio whicf o n2 h provided tha coloniata l Governor and Council might lawfully "amove" the holder of certain offices unde Crowe wilfur th nfo l absence neglecs hi , f to the duties of such office, or if he should "otherwise 142 misbehave therein".

106. Swinfen, op. cit.. 42. In this connexion, the advice r RoundelofSi l r R.PPalmeSi .d Collieran r that "the balance of reason and practical convenience is in favour of .extending such provisions to all Her Majesty's colonial possessions" probably influenced the Colonial Office; Report of 28 September 1864, quote e E.Gn di th .f o Blackmore w La e Th , Constitutio f Soutno h Australia (1894). 67 ,

107. Swinfen, op. cit.. 56 and 59.

108. In re The queen v. Marais [I902] A.C., 51, especially at 54, but note the reservations of Roberts-Wray, Commonwealt d Coloniahan w (1966)lLa , 399. e NadaTh . nv

King [I926] A.C.(482.

109. (1937) 58 C.L.R., 528 at 602.

110. Quoted fro r RogemSi r Therry, Reminiscencef so Thirty Years' Residence in New South Wales and Victoria (1863). Cf. the view of Sir Francis Forbes, first Chief Justice of New South Wales, in his "Remarks on opinion expressed by W.W. Burton" (1834) Historical Records of Australia. Series I,Vol.XVII t 534a 3 : 53 ,"Formin y m g opinion on what appears to have been the usual interpretation wore oth fd legislaturee repugnantth y upob t pu t ni s a ,s and Courts of the elder Colonies, and the Crown Lawyers to whom their enactments have been submitted d applyinan , y gm own min discoveo dt r whaImperiae tth l Parliament must have whict Ac he th create n i t legissa i f o -e us intende e th y db lative powe o meeunforeseert e providd th an t r efo n 143 exigencie wantd san thif so s remote Colony conceivI , e that the word waa intended to convey a meaning to this effect; that, in making laws 'for the peace, welfare, and good Governmen Colony'e th Governoe f o tth , Councid ran l shall take into their consideration the circumstances of the particular matter which requires legislative provisiond an , make such a law as may remedy any particular mischief, consistently with the general principles of the laws of England". trus i t e "I tha111t [th. e Colonial Laws Validity Act] had expressed in statutory form the principle that any Britise th colonia f o h t repugnanParliamenw Ac lla y an o t t extending to the Colony, or to any order or regulation made under such an Act, should, to the extent of the repugnancy, Britise beth voidt hBu .Parliamen sparinglo ts y exercised its residual authority that, in practice, the restraint thus stated was seldom encountered in the Dominions", Dixon, J., "The Statut Westminstef eo r 1931", (1936 0 Australia1 ) w nLa Journal Supplement . Eni97 dt a Campbell 6 9 . , "Colonial Legislation and the Laws of England", (1965) 2 University of Tasmania Law Review. 148.

112. (1868) 5 W.W. & a'B. (L), 7.

113. At 18.

114. (1915) 20 C.L.R., 148 at 166; cf. his joint judgement with Rich, J. n McCawle,i e KinTh g. yv (1919 6 C.L.R.2 ) , 9 at 48.

115. Supra, note 108. 144 generaa 168t r A Fo .116l discusaio. Keithe nse , Responsible Governmen e Dominionsth n ti . (2nd ed., 1928), 339 ff. Also Campbell, supra note 111, especially at 154-5, 158-9, 174-5.

117. (1925) 36 C.X.R., 130 at 147.

t 148A :118 .contras e viewtth Evattf so , J., expressed in Ffrost v. Stevenson (1937) 58 C.L.R., 528 at 604.

8 (fro14 d ed.t 2n A m , (1886)119. , 596).

120. (1926 7 C.L.R.3 ) , 393.

121. Cited supra, note 106.

122. At 410-11.

123. For instance, Re Scully (1937) 32 Tas.L.R., 3. commena r e A.CFo se t. Castles, "Limitation e Autonomth n o s y of the Australian States", (1962) Public Law. 175 at 184-5. See also, Castles "The Paramount Force of Commonwealth legislation Sinc e Statuteth Westminster"f eo , (19625 3 ) Australian Law Journal. 402.

124. The Queen v. McCarthy (1873) 4 Australian Jurist Reports. 155; Harris v. Davies (1885) 10 App. Cas., 279; The Attorney-General of the State of Victoria v. Moses [I907] V.L.R., 130; Limite. CobCo b& Krop. dv p, [I965R. . Qd ] 285. See also Aarons v. Rees (1898) 15 W.N. (N.S.W.), 88; Mitchel . Scalelv s (1907 C.L.R.5 ) , 405; Hazlewoo Webbe. dv r 145 (1934 2 C.L.R.5 ) , 268; Bridi . Messinev a (19656 6 ) S.R. (N.S.W.), 446. Keith.Cf . , Responsible th n i e Government Dominions. (2nd ed., 1928), Vol.1, 339; Repore th f to Conferenc Operatioe th n eo Dominiof no n Legislation, 1929, Command Paper Cmd. 3479, 17, para.46; Roberts-Wray, Commonwealt d Coloniahan w (1966)lLa , 400-1; Enid Campbell, "Colonial Legislatio Lawe th England"f s o d nan , (19652 ) University of Tasmania Law Review. 148 at 154 and 174-5.

Soutw Ne hs a Wale r fa concerneds si o S 125,. those laws of England require appliee e administratiob th o dt n i d f no justic Australiae sectioth y b ef o 4 n2 n Court 1828t sAc . The cases cited in the preceding footnote do not deal with e probleth me wordposeth y sb d "made applicable eth ..y .b express words ... of any Act of Parliament" (our emphasis) in section 1 of the Colonial Laws Validity Act 1865 and the words "shall be applied" in section 24 of the Australian Courts Act 1828, but we think that the course of authority and of practice is too strong to allow the questioning today of the proposition in the text.

126. Colonial Laws Validity Act 1865, sections 1, 2, 3.

127. By section 7(2).

128. "Limitations on the Autonomy of the Australian States", (1962) Public Law. 175 at 183.

129. Imperial Unity and the Dominions (1916), 140.

sense th whicn ei n I h tha130.t phras thes ewa n understood. As Keith remarked, op. cit.. 9, " 'Self-governing 146 Dominions morr o ' e shortly 'Dominions technicae th s i ' l term, first Invented at the Colonial Conference of 1907, for the aggregat five th e f eo colonie s possessing responsible government - Canada, the Commonwealth of Australia, New Zealand, the Union of South Africa, and Newfoundland".

131. Command Paper Cmd.2768. 17, item (d).

132. Command Paper Cmd.3479. 18, para.49.

133. Imperia lDominione Unitth d yan s (1916), 142.

134. See below, paragraphs 158-170.

135. J.G. Latham, Australia and the British Commonwealth (1929), 91.

e StatutTh Westminstef 136o e . Dominiod ran n Status (4th ed., 1949). 22 ,

137. "The Statute of Westminster", Part II, (1932) 5 Australia w Journal nla t 401-2 a 8 .39 .

138. [1932] A.C., 526.

t 539-40A 139..

140. E.g . H.V. . Evatt e Kin _Hid Th , gan s Dominion Governora (1936), 214-5; (1936 0 Australia1 ) w JournanLa l Supplement. 1O7; (1938) 11 Australian Law Journal. 377. W. Friedmann, "Trethowan's Case, Parliamentary Sovereignty, Limite th Legaf d o san l Change", (1950 Australia4 2 ) w nLa 147 Journal. 103. Cf. A.C. Castles, "Limitations on the Autonom e Australiath f yo n States", (1962) Public Law. 175 at 191.

141. See paragraphs 180-182.

142. New South Wales - Parliamentary Handbook (18th ed., Par) t 1965 III ; Wester,12 n Australi aAct- s etc. Relatino gt Parliament (1968), 176; Victoria - Votes and Proceedings of e Legislativth e Assembly (1901) unpaged, I , ; Tasmania- Journal e Parliamenth f so f Tasmanito a (1901), Vol.45, No.21; Queenslan Voted- Proceedingd san Legislative th f so e Assembly (1901) 975, I , ; South Australi a- Proceeding e th f so Parliamen f Soutto h Australia, ("Blue Book") (1901) , No.11611 , . Further requirements for reservation are made by the Australian States Constitutio 1907t nAc thost ,bu e requiremente sar outsid ambie Colonia e th esectiof th to f o ln4 Laws Validity Act. paragraphe Se s. 187-191143 .

144. Commonwealth and Colonial Law (1966), 405.

145. Ibid., 254.

. 146 Command Paper Cmd. 3479 , para.2312 , .

. 147 . (N.S.W;.)(1931S.R 1 3 ) , 183.

148. (1961) 61 S.R. (N.S.W.), 768. 148 149. Phipson on Evidence (llth ed., 1970), 1720.

150. Command Paper Cmd. 3479, 24. According to F. A. Trindade, "The Australian States and the Doctrine of Extra- territorial Legislative Incompetence" (1971) 45 Australian Journalw 240t a La State e 3 ,th 23 . s could readily amend their constitution declaro st e their extra-territorial power Evatt. Of . , (1936 0 Australia1 ) w JournanLa l Supplement. 107.

151. For example, Peninsular and Oriental Steam Navigation Company v. Kingston [I903] A.C., 471.

152. Imperia le Dominion th Unit d yan s (1916), 138.

Constitutionae Th 153. l Structur Commonwealte th f eo h (I960), 43. Compare the view of Evatt, "The British Dominion Mandatories"s sa , (1935 Proceeding1 ) e th f o s Australia w ZealanNe d ndan Societ Internationaf o y l Law7 .2 at 51: "The limits of extra-territorial jurisdiction permit- teinternationay db w cannolla statee tb d with precision. But, certainly, no State attempts to exercise such a jurisdiction in matters with which it has absolutely no concern whatever. Consequently, in actual practice, it would hardshio bn e p upo nDominioa restrico t o ns extras it t - territorial legislation tha foreigo tn n State should havea righ complaio t d provean , breaca ,n of internationaf ho l e Dominion'th n o w la s part".

154. Subjec limitationy an o tt kine th d f so contemplate d by Dixon, C.J., in The Queen v. Foster (1958-1959) 103 C.L.R. , 256 at 267 - "Since the adoption of the Statute of Westminster 149 by Act No.56 of 1942 it can be no objection to the validity of s law of the Commonwealth that it purports to operate outside Australia. The result may be an enlargement of federal power, but it is not an enlargement against which e Statuts.9(lth f Westminsteo f )o e havn rca e anythino gt say. 'That sub-section provides that nothing in the Act shall be deemed to authorize the Parliament of the Common- wealth of Australia to make laws on any matter within the authorit Statee th Australif f so yo beint ano mattega r within the authority of the Parliament or Government of the Commonwealth of Australia. Section 9(1) cannot have anything y againstsa o becaust ti obvious i t ei s that before eth Statutegroune wherd th an extra-territorialitf n o deo f i , y the Commonwealth lacked power, there als Statee oth s lacked power on the same ground". As to the contemporary meaning of "Dominion", see note 130.

155. D.P. O'Connell, "The Doctrin f Coloniaeo l Extra- territorial legislative Incompetence", w Quarterl(1959La 5 7 ) y Review. 318. Contrast the'view of Evatt, J., that "constitutionally speaking Statee statue th th , f f so o s Australia is equal to, or co-ordinate with, that of the Commonwealth itself. Sovereignty is not attributable to one authority mor otherse divides i th tha o t t ni , d between them in accordance with the demarcation of functions set out in the Commonwealth Constitution. Withi e limitnth prescribedo s , the legislative authorit Statee preciself th o f s o syi y equivalent qualit d potencyan Commonwealth"e th thao yt f to . Broken Hill South Limited v. Commisioner__of Taxation (1936- 1937) 56 C.L.R., 337 at 378. Trindade, op., cit., note 150, (241), takes the view that "the extra-territorial limitation as such therefors doe i exist d sno an t longeo en clora n go 150 the sovereignty of the Australian States". For an earlier criticism of O'Connell's assertion see Castles, "Limitations on the Autonomy of the Australian States", (1962) Public Law. 175 at 196-7.

156. "The Limitations of Colonial Legislative Power", w Quarterl(1917La 3 3 ) y 120t Reviewa . 7 11 .

157. The British Year Book of International Law 1958. (1959), 248-9.

158. Macleod v. Attorney-General for New South Wales [1891] A.C., 455.

159. [I933] A.C., 156.

160. "The Statut f Westminster"o e , (1932 Australia5 ) n Law Journal t 363a 2 .36 .

161. O'Connell . supr. t ci a . notop , e 157 t 251,a .

162. (1933 C.L.R.9 4 ) , 220.

163. At 235.

164. (1948 5 India7 ) n Appeals. 86 ,

. BritisCf . h98 Columbi t A 165a .Electri c Railwa. yCo e KinTh gLtd. v [1946, legislatur]A " t 542A.C.a : 7 52 , e which passes a law having extra-territorial operation may find tha ts enacte ha wha t i td canno directle tb y enforced, but the Act is not invalid on that account, and the courts 151 countrs oit f y must enforcw wit machinere la h th e eth y availabl o them"et .

. 166 (1963 3 S.R6 ) . (N.S.W.)t 538.

. MunrOf . Lombardov . o 167 [I964r pe ] 7 6 W.A.R t a .3 6 , Wolff, C.J.: "In my opinion, the State is competent to pass penal legislatio puniso nt withihs persoa i e o th nwh jurisdictio whost nbu e transgressio outsidt ac e n a eth s ni jurisdictio State th ef o declare nw e la whicb e o st hth punishable. This proposition would probably have been rejected for a long time after [Macleod'a Case - wrongly cited in the report], but later consideration of the juris- dictional element in modern taxing statutes would, it seems, cast e entirdoubth n eo t validit Macleod'f yo a Case". Contras e Carucher n I t t (1899 9 Q.L.J.) , 122, adopte n Regi d . v. Hildebrandt [I964] Qd.R.. 43 ,

168. At 552.

. 169 Australi e Britisth d ahan Commonwealth (1929). 80 ,

170. "The Imperial Conferences, 1926-1930 e StatutTh . e of Westminster", (1932) 48 Law Quarterly Review. 191 at 209. •

171. The phrases "peace, order and good good government" d "peacean , welfar d gooan e d government" appeae useb do t r interchangeably, thoug e connotationth h f "welfareo s e ar " semasiolosically wider than thos f "order"o e . Accordino gt Roberts-Wray, Commonwealth and Colonial Law (1966), 369, "though 'order d 'welfarer froan 'fa me synonymousar ' e th , e phrasth f o e e 'peaceus , welfar d gooan ed government1 makes 152 no difference". That phrase was applied to Australiaas earl 182s ya 3 unde Soutw rNe hs.XXIe 4 Waleth ( f t o Vs Ac Geo.IV c.96). Unde e Commonwealtrth h Constitution (s.51e th ) phrase "peace, order and good government" is used. The history and application of those words were reviewed by Windeyer e ,Quee Th J. . Fosten nv ,i r (1958-1959 3 C.L.R.10 ) , 256 at 306-8. In summary, as Dr. Wynes has put it - Legislative. Executiv Judiciad ean l Power Australin si a (4t- "Th1970). 8 ed he 11 word, s 'fo e peacerth , orded ran good government of the Commonwealth' do no more than authoriz utmose eth t discretio enactmene th n ni f to legislation and do not invest the Parliament with any general power/s/ outside those enumeratee th n di Constitution". Roberts-Wray (loc. cit.) take e samsth e view: "It is well established that whether a law is good, justiciabla foolisr o t wise d no ba s ,hi e issue. Whether particulaa r enactmen calculates ti mattea s da facf ro r to polic securo yt e peace, orde good ran d governmena t no s i t question into which the Courts will inquire. In short, it is apparent that the Courts have attached little value to the actual word havt sbu e concerned themselves wite hth general doctrine of legislative competence". A further comment appear n J..Bsi . Thomas, "The Off-Shore Mineral Resources Legislation", (1965) 38 Australian Law Journal. 408 at 409.

172. (1936-1937 t 6 375C.L.R.a 5 ) 7 . 33 ,

173. /1956/ A.G., 331 at 353.

174. (1934) 34 S.R. (N.S.W.), 571 at 574. 153 175. (1967 N.S.W.R.2 ) , 230.

t 245A 176. .

177. (1967) 86 W.N. (N.S.W.), Part2, 247.

178. [1969 A.C.t 1 ]335-6a 0 ,32 .

179. Roberts-Wray, Commonwealth and Colonial Law (1966), 388.

180. (1969 C.L.R.0 12 ) , 503. complementara 512t r A Po .181 . y extrao t vie s wa - territorial property see Permanent Trustee Oo. (Canberra) limited v. Finlayson (1968) 43 A.L.J.R., 42 and 0'Sullivan v. Dejneko (1963-1964) 110 C.L.R., 498.

. 182 "Problem Australiaf o s n Coastal Jurisdiction", (1968 2 Australia4 ) . Journalw 44 nLa t a 9 3 .

183. See also paragraphs 173-179.

184. The British Year Book of International Law 1958. (1959), 199.

185. At 259. He further expounded his views in an article "The Doctrine of Colonial Extra-territorial Legislative Incompetence", (1959) 75 Law Quarterly Review. 318. 154 186. "Offshore Sovereignty Asserted" (19704 4 ) Australian Law Journal. 189. See also J.B Thomas, "The Offshore Mineral Resources Legislation" (1965 Australia8 3 ) n w JournalLa . 408.

187. (1968) 42 Australian law Journal. 39. See also "Australian Coastal Jurisdiction n O'Conneli " l (ed.) Internationa Australin i w lLa a (1965), 246.

188. (1969) 43 Australian Law Journal. 421 and 441.

189. (1969) 43 A.L.J.R., 275.

190. In that connexion, the following note in Forsyth, Cases and Opinions on Constitutional Law (1869), 24, is of interest: "The jurisdiction of colonial legislatures extends to three miles from the shore. In an opinion given by the Law Officers of the Crown - Sir J. Harding, Queen's Advocate; Sir A.E. Cockburn, Attorney General; and Sir.R. Bethell, Solicitor Genera lwit- h referenc Britiso et h Guiana, Feb. 1855, they said: 'We conceive that the colonial legislature cannot legally exercise its jurisdiction beyond its territorial limit sthre- e milee th st a fro, shore or mth e- utmost, can only do this over persons domiciled in the colony who may offend against its ordinances even beyond those limits, but not over other persons'. In an opinion given by Harding. J r Si , Queen's Advocate n Augi , . e 1854th n ,o question within, what distanc Falklane coaste th th f f eo so d Islands foreigners might be legally prevented from whale d seaan l fishing e saidh , : 'Her Majesty's Government wile lb legally justified in preventing foreigners from whale and seal fishing within three marine miles (or a marine league) 155 frocoastse mth , such bein distance gth whicho et , according modere tth o n interpretatio usagd n an nations f eo cannona , - sho s supposei t reach'.o dt "

191. O'Connell, "The Australian Maritime Domain", (1970) Australia4 4 w Journal t 206nLa a 2 . 19 .

192. Commonwealth Parliamentary Debates (1970), 1276, 1897, 2242.

e StatutTh f Westminstereo 193 . . 1931 (1935). 37 .

r exampleFo ,194 Ceylo. n Independenc t 1947eAc , Ghana Independenc t 1957eAc , Sierra Leone Independenc t 1961eAc , Tanganyika Independence Act 1961, Jamaica Independence Act 1962, Trinida d Tobagdan o Independenc 1962t eAc , Gambia Independence Act 1964, Malawi Independence Act 1964, Malta Independence Act 1964, Guyana Independence Act 1966, Mauritius Independence Act. 1968, Fiji Independenc t 1970eAc . It migh mentionee tb d tha ordinare tth y practic bees eha o n t grant extra-territorial legislative power in wide terms identica Statute sectioo lt th f Westminsteo f o e3 n r 1931. w casesHowever fe r instanc a fo , n Independenci e , eth e Acts f Nigerio a (I960), Uganda (1962 d Kenyan ) a (1963)e th , following qualified grant has been made: "Any legislature establishe [countryr dfo pary an t r ]o thereo f shall have full power to make laws having extra-territorial operation, s thosa r es ofa law s relat mattero et s withi legislative nth e power f thao s t legislature". shora r tFo comment 195e A.C. se ,. Castles, "Limitations on the Autonomy of the Australian States", (1962) Public Law. t 200a 5 .17 156 196. See, for example, Reg, v. Hildebrandt [I964] Qd.R., 43; also paragraph 152 below.

197. W.A. Wynes, Legislative. Executive and Judicial Powers in Australia- (4th ed., 1970), 74. Bailey, The Statute of Westminster. 1931 (1935). 14, attempted to rationaliz e sectioneth e conclusio th d cam san o t e n that "s.9 (2) does operat defeao t e e interesto tantoth tpr e n I th . f so States e intentioth , n with whic mus4 regardee hs. tb s da having been originally drafte viz.d- , tha futurn ti o en Imperial law should apply in any part of Australia unless the Commonwealth has concurred in it"; and, at 17, "s.4 and s.9(2) still leav considerablea e field ope conventionao nt l understandings". Dixon, J. n "Th,i e Statut f Westminsteo e r 1931" (1936) 10 Australian Law Journal. 96 at 100, said of section 9(2) that "This provision is very obscure. If the subject matter is already within the exclusive authority Statese th y shoulf o wh , d they nee n Act?"a d .

198. Dixon, J., op. cit. P.J. Hanks, "Re-Defining the Sovereign: Current Attitudes to Section 4 of the Statute of Westminster", (1968 2 Australia4 ) w JournalnLa . 286. e StatutTh 199Westminstef eo . Dominiod ran n Status (4th ed., 1949), . Wynes153Cf . , loc, n poincit."I f o t- , law, so far as this section purports to limit the powers of the Imperial Parliament, it is of no effect".

200. 10 Australian Law Journal Supplement. 96 at 98. Cf. "The Law and the Constitution", (1935) 51 Law Quarterly Review. 590 at 595-6 and 611. 157 201. . Commonwealth and Colonial law (1966), 257.

202. 0p. cit.. 99-100.

203. A note on the significance of the words "constitutional practice existing" appears in Halsbury's Statute f Englanso d (3r 1968). d. ed Bailey23 , e Th , Statute of Westminster. 1931 (1935), 17-18, observed that: "This phrase clearly Implies that there are some natters, even within the exclusive jurisdiction of the States, in relatio whico nt Imperiae th h l Parliamen feet no ld di t itself free to make laws, even before the enactment of the Statute of Westminster, unless the Commonwealth had concurre e proposeth n i d d legislation. .. .haveI , however, foun difficult di imagino t e Imperial legislatioe th f no kin questionn i d Statute phras e refeI th th . t n o eI rt eno intrinsis aoit muc r hfo c importanc becauss ea appeart i e s to demonstrate conclusively that in laying down the conditions on which it will henceforward legislate for British communities overseas, the Imperial Parliament retains certain discretionary powers, and has not altogether excluded constitutional understandings, underlyin explainind an g e gth rule f stricso te concludin th law n I . g phras s.9(2)f eo t i , s thouga s e Imperiai hth l Parliamen u seeyo kf d saidt'I ha : Imperial legislation with referenc mattero et s within your own exclusive authority, you need not necessarily get the Commonwealth's somconsentn i et casebu ; give sfaiu w eyo r warning that we will not act unless the Commonwealth does concur1." Cf. W.N. Harrison, "The Statute of Westminster and Dominion Sovereignty", (1944 Australia7 1 ) Journalw nLa 2 28 . d 314an , especiall t 317 a yals. Marshall. Cf .oG , Parliament- y Sovereigntar e Commonwealtth d an y h (1957), 83-4. 158 204. . Bailey, op. cit.. 12.

205. Ibid.. 10-11. cit.. Op . .74 206.

207. Ibid.. 75 .

208. See paragraphs 171-172.

209. Wheare . cit.op , . 209. r exampleFo 210, . Cocos (Keeling) Islands (Requesd an t Consent) Act 1954 (Commonwealth); Christmas Island (Request and Consent t 195Ac ) 7 (Commonwealth) Zealanw Ne ; d Constit- ution (Request and Consent) Act, 1947.

211. Command. Paper Cmd. 3479.

212. Merchant Shipping Act 1970 (No.36).

213. Constitutional protections in the Commonwealth Constitution r examplfo , protectioe th e sectioy nb 2 n9 of trade, commerc d intercoursean e amongs e Statestth e ar , alterable by constitutional means within Australia, that is, by referendu d associatean m d steps undee rth sectiof o 8 n12 Constitution. The problems raised by this paper concern limitation legislativf so e power more properly withie nth cognisanc e Uniteth f eo d Kingdom Parliament. Furthere w , hert no e e concernear d witenlargemene hth legislative th f to e powers of the Commonwealth: again the Commonwealth Con- stitutio provision n ow make s it sthan ni t respect (especially Ss.51 (xxxvii), (xxxviii), 128). 159 214. We note paragraph (xxxviii) of section 51 of the Commonwealth Constitution paragrape Th . h runs- "The exercise withi Commonwealthe nth e th t a , request or with the concurrence of the Parliaments Statee th l so fal directl y concerned powey an rf o , which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the federal Council of Australasia". It is perhaps unlikely that the necessary request or concurrence will ever be given. On questions of extra-territorial legislative competence, the utility of the paragraph is much diminished by the words "within the Commonwealth". See Wynes, Legislative. Executive and Judicial Powers in Australia. (4th ed.,1970), 162.

215. Thus sectiona 32B, 154B, 204A, 204B, 204C of the Crimes Act, 1900 (N.S.W.) are not expressed to apply to acts done outside New South Wales and would be construed as not applying to such acts: .Interpretation Act, 1897-1969, s.17; Ex parte Iskra (1963) 63 S.R. (N.S.W.), 538, 548, 549. e Crimeth d sAn (Aircraft t 196Ac )3 (Cth. s detaileha ) d expressions of a variety of connexions with Australia (see section d 10)an ,s6 aome with doubtful f relevanco y an o et the enumerated subject matter Commonwealtf so h legislative power (see section 6(l)(c), (d)).

216. Commencin n pag go belowI eII .

217. See the Constitution Act, 1902, s.7A, and Attorney~General for New South Wales v. Trethowan C1932] A.C., 526.

218. Statut f Westminsteeo r 1931, ss.4, 9(3). 160 e WynesSe . , 219. op.. 75 cit., 74 .

220. Commonwealth of Australia Constitution Act, preambl d sectioean ; Commonwealtn2 h Constitution, ss.l, 61; Constitution Act, 1902 (N.S.W.) e Taylo, se s.3 d rAn . v. Attorney-General of Queensland (1917) 23 C.L.R., 457, 474, Isaacs, J. f Settlemeno t Ac e tTh (1700)221., ss.l,2s Hi ; Majesty's Declaration of Abdication Act 1936.

222. Commonwealth of Australia Constitution Act, s.2. federae Andth l agreemen peoplee Australiae th th f to f so n unioa Colonie r nfo 's unde s Unitewa e Crowe th rth f ndo Kingdom of Great Britain and Ireland": Commonwealth of Australia Constitution Act, preamble.

223. Statut Westminstef eo r 1931, second recitae th n li preamble.

224. Statute of Westminster 1931, s.4.

225. Regency Acts 1937 to 1953.

e Regencth e 1937,s.2(2)t Se yAc 226. , whereby declarations of incapacit r recoveryo y undee b e sectioo rth t e nar communicated to theDominion Governments: this provision seems to negate the ordinary presumption that United Kingdom legislation does not extend to British countries outside the United Kingdom. The presumption is discussed in Halsbury's Law f Englandso . -Vol.36, (3rd ed., 1961 t 428a ) , 429e Se . also Wade & Phillips' Constitutional Law (7th ed., 1965), 170; Ridges' go Constitutional Law (8th ed., 1950), 135; 161 Scott, The New Zealand Constitution (1962), 69.

227. See Ridge, op. cit.. 131; Halabury's Laws of England. Vol.7, (3rd ed., 1954), 212. e seconth e dSe recita preamble th e 228th n l.i o et Statute of Westminster 1931, the Royal Style and Titles Act 1953 (Cth.) and the Royal Titles Act 1953 (U.K.). It mathae yb proclamatiota royae th lf n o styl titled ean r sfo one Member of the Commonwealth of Nations ought to have the Royae Membersl assenth al le f to se Styl :Titled ean s t 195Ac 3 (Cth.), s.5.

229. There seems to be a case for a review of the wordin proclamatione th f 195y go Ma 38 2 whic f so h govere nth present royal styl titlesd an proclamatioe On . a f o s ni relation i Unitestyl e e d titleth us ean o nd t r sKingdofo m and all other the territories for whose foreign relations the United Kingdom Governmen responsibls i t e (llth supplement e Londotth o n Gazette y 1953)Ma 6 2 :, thia proclamation clearly does not embrace use in relation to New South Wales. Another proclamatio relation i styl e a titled us f ean o o nt r s sfo ni the Commonwealth of Australia and its Territories (Commonwealth Gazette. 29 May 1953, 1547; Commonwealth Statutory Rules 1901-1956, Vol.5, 5322): there is room for doubt whether this proclamation embraces use in relation to Hew South Wales.

230. [1933] A.C.,156.

r exampleFo , 231Welke. Hewet. rv t (1969 0 C.L.R.12 ) , 503.

e WindeyerSe e 232,Quee .Th J. . Fosten n,v i r (1959) 3 C.l.R.10 , 256, 306-308. Compare Menzies e sam, th J. en ,i 162 cas t pagea e s 300, 301. r exampleFo ,233 .Welke Hewett. rv . not1 above23 e .

234. Ffrost v. Stevenson (1937) 58 C.L.R., 528, 572, Dixon. J ,

235. Australian States Constitution Act 1907, s.l, and, indirectly, claus eInstructione VIIth f Io Governoe th o st r Octobeo9 f2 r 1900. Clause follow s VIIa s Ii s- "VIII. The Governor shall not, except in the cases hereunder mentioned, r namasseno Ou t e n i t any Bill of any of the following classes:- e divorc th y Bil r An f personlo fo e1. s joined togethe holn ri y matrimony. y BilAn l2. whereb y granyan f lan o tmoneyr o d , or other donation or gratuity, nay be made o himselft . y BilAn l3. affectin e currenc gth e State th f .o y y 3ile provisionAn lth 4. f whicso h shall appear inconsistent with obligations imposed upon Treatyy b s U . 5. Any Bill of an extraordinary nature and importance whereb r prerogativeOu y e th r o , right d propert san r subject Cu f yo t sno residin e trade Stateth d th r ean n o g,i shipping of the United Kingdom and its Dependencies may be prejudiced. 6. Any Bill containing provisions to which Our ascent has been once refused, or which have been disallowed by Us. Unles shale h * s l have previously obtaine r Ou d instructions upon ouch Bil Principar l ou througf o e lon h 163 Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification in the State of Our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requiring that such Bill be brought into immediate operation, in which case he is authorised to assent in Our name to such Bill, unless the same shall be Englandf o w repugnan inconsistenr la o ,e th o t t wity han obligations transimposeo t s i - d e Treatyy h upo b t s nBu U . mit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto."

e not 5 aboveSe 23 e .236.

237. Report of the Conference on the Operation of Dominion Legislatio Merchand nan t Shipping legislation, 1929, Command Paper Cmd. 3479, 12. The relevant provision in the Commonwealth Constitution is section 59, which is susceptible of removal by alteration of the Constitution by referendum and so on under section 128. There was an exception in relation to the Colonial Stock Act 1900, but the exception has been made obsolete by the Trustee Investments Act 1961 (U.K.) e Halsbury'Se . s Law' f Englando s d ed.3r ., Cumulative Supplement 1971 note to Vol.5, para.1012; compare Roberts- v/ray, Commonwealth and Colonial Law (1966), 230.

238. Roberts-Wray, ibid. e statutor. Th 227. y regulation by United Kingdom Act for the State comprises the Australian Constitution w SoutNe he 184t Waleth sAc 2d s.3san 2Constitutio n t 185Ac 5 s.3. s beeha nt I suggeste239. d that mere repeal woule b d 164 enough to achieve abolition: Roberts-Wray, op. cit.. 228.

240. See Attorney-General for New South Wales v. Trethowan [1932526, .A.C. ]

241. Section 4 of the Colonial laws Validity Act is not limite instructiono t d s relatin e reservatioth o gt f Billsno . The only relevant instructions, however, at present and for upward seventf so y years past e thos ar ,clausn i e e VIIf Io the Instruction Octobe9 2 f so r 1900 have W .e proposed that the clause shoul revokee b d f somethini d g likdrafe eth t sectio adopteds i n7 .

. 242 Provision Unitef so d Kingdom Acts requirine gth laying before Parliament of colonial Bills include - The Australian Courts Act 1828, s.29 (repealed by the Statute Law Revision Act 1874). e AustraliaTh n Constitution 1850t sAc , s.32 proviso (repeale Australiae th y b d n States Constitution Act 1907).

Printert Soutw Ne ,hBlight. WaleN . C .Governmen . sV