Opinion Number. 1500

Subject

Statute of Westminster text of Bill for Statute of Westminster: provisions relating to imperial legislation dealing with matters within exclusive power of States: request for legislation by state alone: request for legislation by commonwealth alone

Key Legislation

STATUTE OF WESTMINSTER 1931 (U.K.) (22 & 23 Geo. V c. 4)

Date
Client
The Secretary, Prime Minister

The Secretary, Prime Minister’s Department, forwards a communication from the United Kingdom giving the text of the Bill for the Statute of Westminster which is about to be introduced in the Parliament at Westminster. The bill includes the clauses in the resolutions of the Commonwealth Parliament except the second half of paragraph 2 of clause 4 of the resolution of 28 July 1931.

The Dominions Office have been asked the reason for the omission of that clause and have been advised that it has been intentionally omitted in view of the resolution of 22 October which appeared to render these words unnecessary.

I am asked to advise on the question raised.

The second half of paragraph 2 of clause 4 of the original resolution provides as follows:

Nothing in this Act shall be deemed … to authorise the Parliament or the Government of the Commonwealth, without the concurrence of the Parliament and Government of the States concerned, to request or consent to the enactment of any Act by the Parliament of the United Kingdom on any matter which is 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.

The supplementary resolution provides as follows:

Nothing in this Act shall be deemed to require the concurrence of the Parliament and Government of the Commonwealth of Australia in any law made by Parliament with respect to 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, in any case where it would have been in accordance with the constitutional practice existing before the commencement of this Act that Parliament should make such law without such concurrence.

In my opinion the supplementary resolution is not in substitution for the concluding words of clause 4 in the Schedule to the original resolution, and I think that those words should not be omitted from the Statute of Westminster.

Both clauses referred to legislation by the Parliament at Westminster in respect of matters within the exclusive power of the States. But they cover different ground.

The supplementary resolution applies to a request made by a State for such legislation and declares that the Statute does not require the concurrence of the Commonwealth in a case where it is not required by existing constitutional practice.

The other clause applies to a request by the Commonwealth for such legislation and declares that the Statute does not authorise such a request without the concurrence of the State.

Taken together they provide that, as to matters within the exclusive power of the States:

  1. a request by a State alone is authorised except where the existing constitutional practice requires the concurrence of the Commonwealth; and
  2. a request by the Commonwealth alone is not authorised.

There does not appear to be any overlapping of the two provisions and in my opinion the omission of the latter provision would not be in accordance with the resolution passed by the Houses of the Parliament.

[Vol. 25, p. 338]