Opinion Number. 1717


commonwealth powers bill commonwealth powers bill: reference of matter by new south wales: whether alteration of constitution or powers of legislative council of new south wales: whether law respecting the powers of the legislature of new south wales

Key Legislation


The Solicitor-General
  1. In my opinion, a negative answer should be given.(1)
  2. Section 7A of the New South Wales Constitution Act 1902, so far as material, is as follows:
    1. The Legislative Council shall not be abolished nor, subject to the provisions of sub-section (6) of this section, shall its constitution or powers be altered except in the manner provided in this section.
    2. A Bill for any purpose within sub-section (1) of this section shall not be presented to the Governor for His Majesty’s assent until the Bill has been approved by the electors in accordance with this section.
  3. Mr. Normand(2) does not indicate the particular matters from which he thinks doubt may arise. But there are I suppose two points in the Commonwealth Powers Bill to which the query might possibly be directed:
    1. the fact that clause 2 of the Bill refers matters to the Commonwealth Parliament;
    2. the fact that clause 3 prohibits the repeal or amendment of the Commonwealth Powers Act without a referendum.
  4. In view of section 7A of the New South Wales Constitution Act, the Commonwealth Powers Bill could not validly be passed without a referendum if it altered either the ‘constitution’ or the ‘powers’ of the Legislative Council of New South Wales. In my opinion however it does not do so. Without going into detail, I state my reason broadly in two propositions:
    1. The Constitution Act of New South Wales, no less than the Colonial Laws Validity Act 1865, requires a distinction to be drawn between the constitution and powers of the Legislature, on the one hand, and the constitution and powers on the other hand of the respective Houses thereof;
    2. Even assuming the Commonwealth Powers Bill to contain provisions altering either the constitution or the powers of the Legislature of New South Wales, it contains no provisions altering either the constitution or the powers of the Legislative Council.

The Commonwealth Powers Bill offers in this regard an instructive contrast with the provisions of one of the Queensland Acts (the Parliamentary Bills Referendum Act, 1908), which were considered by the High Court in Taylor v. Attorney-General of Queensland, 23 C.L.R. 457.

The referendum provisions in that Act were designed to enable the Royal Assent to be given to Bills passed twice by the Legislative Assembly and approved by the electors at a referendum, despite their rejection by the Legislative Council. Such a measure could properly be treated as a measure altering the powers of the Legislative Council; see e.g. per Gavan Duffy and Rich J.J. at page 478. None of the provisions of the Commonwealth Powers Bill have any similar effect. Though they prescribe that certain formalities, extraneous altogether to the Houses, must be complied with before certain clauses of Bills are presented for the Royal Assent, they leave completely unaffected the functions and powers of each House of the Legislature.

I think (as Mr. Normand himself does) that there is real doubt whether clause 2 of the Commonwealth Powers Bill is properly to be regarded as a law respecting the powers of the Legislature of New South Wales. Even if I am wrong here however that makes no diff erence at all to the general proposition on which my view is based.

[Vol. 35, p. 114A]

(1) The original heading stated: whether section 7A of the New South Wales Constitution Act avoids the Commonwealth Powers Act in New South Wales.

(2) Parliamentary Draftsman (Victoria).