Opinion No. 1714
commonwealth powers bill
commonwealth powers bill: reference of powers: whether bill effective to ensure that reference and laws enacted pursuant thereto are limited to specified five year period
COMMONWEALTH POWERS (WAR) ACT 1915 (NSW): CONSTITUTION s 51(xxxvii)
22 December 1942
The Adelaide Advertiser of December 18th published the text of an opinion by Mr. Ligertwood, K.C., that the Commonwealth Powers Bill 1942 as drafted at the recent Convention does not give legal effect to the intention that the reference should be limited in time nor to the intention that laws passed under the reference should cease to have full force and effect after the expiration of the five-year period; and that this is the result of the form in which the Bill is drawn. Shortly, the opinion is based on the fact that, whilst the general frame of the Bill follows the Commonwealth Powers (War) Act 1915 of New South Wales, certain words alleged to be material have been omitted.
After careful consideration of the opinion we entirely disagree with it.
Before considering the words not included in the Convention’s Bill we propose to set out what is included in the Bill. In the first place its long title is ‘A Bill for an Act to refer certain matters to the Parliament of the Commonwealth until the expiration of five years after Australia ceases to be engaged in hostilities in the present war’.
Next, the preamble recites the holding of the Convention and the fact that it was resolved at the Convention ‘that the reference should be for a period ending at the expiration of five years after Australia ceases to be engaged in hostilities in the present war’.
Clause 2 enacts that ‘the following matters are hereby referred to the Parliament of the Commonwealth, that is to say’; then follows the list of matters.
Clause 4 is as follows:
This Act, and the reference made by this Act, shall commence on the date upon which it is assented to, and shall continue in force for a period ending at the expiration of five years after Australia ceases to be engaged in hostilities in the present war; and no law made by the Parliament of the Commonwealth with respect to matters referred to it by this Act shall continue to have any force or effect by virtue of this Act or the reference made by this Act after the expiration of that period.
Clause 4 makes it clear that the Act and the reference made under the Act are limited in time to the specified period and also that the Act and the reference made thereunder shall not be construed to support the continuance after the specified period of any law made by the Commonwealth Parliament in pursuance of the powers referred.
We proceed to consider the words which were contained in the New South Wales Act of 1915 and are not contained in the Convention Bill. First, in the New South Wales Act the operative section referring the matters was prefaced by the words ‘subject to the limitations and conditions in this Act contained’.
Next, the section of the New South Wales Act corresponding to clause 4 of the Convention Bill instead of saying ‘and no law made by the Parliament of the Commonwealth … shall continue to have any force or effect by virtue of this Act or the reference made by this Act’, said ‘and are subject to the limitation that no law made by the Parliament of the Commonwealth, etc’.
As to the preliminary words in the operative section of the New South Wales Act, we are of opinion that they have no legal effect but are merely a flag or signal indicating that elsewhere in the Act limitations are imposed.
In a long Act such a flag is useful to direct attention to those limitations. For instance, in section 51 of the Constitution of the Commonwealth the words ‘subject to this Constitution’ (‘the Parliament shall subject to this Constitution have power, etc.’) call attention to the fact that in a number of sections scattered throughout the Constitution limitations are contained on this power. In a short Bill such as the Commonwealth Powers Bill now under consideration, consisting only of a preamble and four clauses, such a flag is unnecessary, especially in view of the fact that the limitation to five years has already been flagged in the long title and in the preamble. The flag would only mean ‘subject to clause 4’; and clause 4 itself makes it clear that clause 2 is subject to it.
The words ‘subject to the limitation that’ are equally unnecessary at the beginning of the second sentence of clause 4. That sentence is clearly a limitation on the provisions of the Act and on the reference, and the fact that it is not described in so many words as a limitation does not alter the fact that it is a limitation. There is no magic in the use of the word ‘limitation’ itself.
Shortly put, the New South Wales Act provides that the Act and the reference are subject to the limitation that no law, etc. shall continue in force by virtue of the Act or the reference and the Convention’s Bill provides that no law etc. shall continue by virtue of the Act or the reference.
The two sections are identical in meaning and effect.
Superfluous words which do not alter the meaning or effect are better avoided. And an excellent reason against inserting them in the South Australian Bill at this stage is that the New South Wales Bill has been passed in the exact form agreed on at the Convention. Variations in other States might serve as foundation for an argument against the validity of the time limit as expressed in the New South Wales Act. We do not think this argument would be valid; but the presumption that changes in form were intended to achieve changes in substance might prove awkward.
Mr. Ligertwood states correctly that the Parliament of South Australia has no power to make a law directly fixing the period within which a law of the Commonwealth shall operate. This, however, is not what clause 4 does. It provides that no law of the Commonwealth with respect to matters referred ‘shall continue to have any force or effect by virtue of this Act or the reference made by this Act’. That is a very different matter. It merely means that this Act and the reference made by this Act shall not continue to support any law after the expiration of that period.
We have also been shown a copy of the Advertiser of December 19th in which a report by Mr. Hannan, Crown Solicitor for South Australia, is set out. We note that Mr. Hannan’s report does not state, as Mr. Ligertwood’s opinion does, that the Bill is not effective for the purpose. He merely suggests a doubt. In our opinion, there are no grounds for any such doubt, in view of the very clear intention expressed in three places in the Act that the reference was for a limited time.
There is, of course, a question which is not yet settled by authority, whether section 51(xxxvii) of the Commonwealth Constitution enables a State Parliament to make a reference which is limited in time or revocable. In our opinion, the provision does enable that to be done. If that is so, then, in our opinion, the Convention’s Bill is properly worded to give effect to the intention of the Parliament, quite as effectively as if the suggested words were inserted.
We understand Mr. Ligertwood and Mr. Hannan to agree with the view that we have above expressed, that a State may validly fix a time limit. But we understand them to be of the further opinion that this cannot be validly accomplished unless the Bill making the ‘reference’ expressly states the time limit (by way either of limitation or of condition) as a part of the actual definition of the matters referred; and that the validity of the limitation as expressed in the Bill is open at least to doubt.
We do not share this doubt. We are prepared to assume (though we must not be understood to agree) that a time limit can only be effective if it is regarded as part of the definition of the actual matters referred. The only question then is whether the time limit in the present Bill can be so regarded. We think that it can, and indeed must. The fact that the Bill makes a limited post-war reference is made abundantly clear from one end of the Bill to the other. Though the word ‘limitation’ is not used, the words actually used can, we think, operate only as an express limitation of the ‘reference’ made by clause 2. All the clauses of the short Bill are closely linked together, both internally and by the recital in the Preamble. Even if another construction were possible, which would destroy the validity of clause 4 as a limitation upon the ‘reference’, no court would we think so construe it. Construction ‘magis ut res valeat quam pereat’ would, we think, be plainly indicated here, even if the matter were otherwise open to doubt.
The suggestion that, in face of the plain intention of the Bill and its clear expression, the Court might hold that the reference was valid and the limitation invalid, is contrary to all the recognized canons of construction.
Mr. Ligertwood further suggests that any exercise by the Commonwealth Parliament of the powers arising from this ‘reference’ should be so expressed, and should also contain the time limit fixed. We think however that this proposal is unnecessary and would in practice be unworkable. It would be unnecessary because, by reason of clause 4 of the present Bill, the ‘reference’ would cease to support a Commonwealth law at the end of the prescribed period, no matter whether the law itself so provided or not. It would be unworkable because the new powers are not expressed in a form which makes them exclusive of the existing powers. On the contrary, there is a great deal of overlapping. In any case, the subject-matters of particular Commonwealth laws do not necessarily coincide with the subject-matters of legislative power, as set out in the Constitution. The task of the Parliament is to use any or all of its powers to accomplish the legislative ends it desires. We think it would be objectionable to impose artificial fetters along the lines suggested upon the form of Commonwealth legislation. If at the expiration of the post-war five-year period, no additional powers have been secured for the Commonwealth in the relevant fields, the Parliament of the Commonwealth may be obliged to carry out an extensive revision of its existing legislation. But there is, in our opinion, no valid reason for restricting the form of Commonwealth legislation, during the ‘reference’ period in the manner suggested.
[Vol. 35, p. 24]