Opinion Number. 1718


Commonwealth powers bill
commonwealth powers bill: reference of power by victoria: whether victorian reference act requires statutory majority or reservation for king’s assent: whether ‘alteration in the constitution of the Legislative Council or Legislative Assembly’: meaning of ‘constitution’

Key Legislation

VICTORIA CONSTITUTION ACT 1855 (U.K.) (18 & 19 Vict. c. 55) ss I, LX: Constitution (Reform) Act 1937 (Vic) s 4: COLONIAL LAWS VALIDITY ACT 1865 (U.K.) (28 & 29 Vict. c. 63) s 5: CONSTITUTION s 74: AUSTRALIAN STATES CONSTITUTION ACT 1907 (U.K.) (7 Edw. VII c. 7)


There shall be established in Victoria, instead of the Legislative Council now subsisting, one Legislative Council and one Legislative Assembly to be severally constituted in the manner hereafter provided, and Her Majesty shall have power by and with the advice and consent of the said Council and Assembly to make laws in and for Victoria in all cases whatsoever.

Note that legislative powers are not vested in the Houses, either separately or together. The constitution of each House is ‘several’. The exercise of the legislative power of the Parliament is collective, and is vested in His Majesty, with the advice and consent of
both Houses.

The indirect legal effect of clause 2 of the Bill is to transform the legislative power of the State with respect to certain matters from an exclusive power to a power concurrent with that of the Commonwealth. In considering whether or not the High Court’s certificate is required for an appeal to the Privy Council under section 74 of the Commonwealth Constitution, the Court has given close consideration to questions concerning the limits of the constitutional powers of the Commonwealth and the States respectively. It may perhaps be inferred from the judgments that what this Bill does may be called an alteration in the constitutional powers of the State Parliament. But that does not make it, and in our opinion nothing does make it, an alteration in the ‘constitution’ of either House.

As to clause 3, it is true that a majority of the High Court in Attorney General for New South Wales v. Trethowan3 treated a similar provision as a law respecting the ‘powers’ (as distinct from the ‘constitution’ on the one hand, and the ‘procedure’ on the other) of the Legislature of New South Wales. But here again there is the clearest difference between the Legislature as a whole and its respective Houses alone. Even if the ‘constitution’ of the Houses includes their function, clause 3 of the Bill makes no change whatever in the function that the Constitution Act assigns to each of them–viz., to give advice on and consent to Bills.

  1. We agree entirely with Mr. Wilbur Ham, K.C.,(1) and Mr. Normand,(2) and broadly for the reasons they have given, that under the Constitution Act of Victoria the Commonwealth Powers Bill requires neither statutory majorities nor reservation for the King’s assent.
  2. Statutory majorities are not required under section LX of the Constitution Act and section 4 of the Constitution (Reform) Act 1937, unless a Bill is one which makes ‘an alteration in the constitution of the Legislative Council or Legislative Assembly’. In our opinion, there is nothing in the Bill which can have this effect.
  3. We consider that the Bill may properly be regarded as making an alteration in the constitution of the State of Victoria, and possibly, in some senses at any rate, in the constitution of the Legislature of Victoria also. But that is not at all to the point. Not every alteration in the Constitution of the State, not even every alteration in the constitution of the Legislature of Victoria, requires statutory majorities. To hold otherwise is to depart from the language–the very exact language–in which the Constitution Act deals with the matter. For the Constitution Act draws a clear distinction between the Legislature as a whole and the two Houses thereof. The Legislature includes the King, as well as the Council and the Assembly. The Constitution Act draws an equally clear distinction between the ‘constitution’ of the Houses and the ‘powers’ of the Legislature as a whole.
  4. The word ‘constitution’ has no fixed invariable meaning. Though it does have the one basic meaning of ‘nature, composition or make-up’, it has a number of different applications. Sometimes, when the body concerned is a legislature, its ‘constitution’ will be used in a sense that will include the law-making power; sometimes it will not: as for example in section 5 of the Colonial Laws Validity Act 1865. In the Constitution Act of Victoria it clearly does not, at any rate as applied to the Houses. For section I of the Act declares that:
  5. How, therefore, can the Commonwealth Powers Bill possibly be said to make any alteration in the ‘constitution’ either of the Legislative Council or of the Legislative Assembly? The Bill does two things, and two things only. By clause 2 it ‘refers’ certain matters to the Parliament of the Commonwealth. By clause 3 it enacts a special manner and form in which alone it can itself be amended. Neither of these things touches the ‘constitution’ of either House.
  6. In a word, the view that statutory majorities are necessary rests on a confusion between the constitution of the State, or of the Legislature, on the one hand, and the constitution of the respective Houses on the other. For this confusion the Constitution Act, in our opinion, affords no foundation at all.
  7. What we have said above as to statutory majorities applies equally to reservation for His Majesty’s assent under the Constitution Act, as affected by the Australian States Constitution Act 1907.

[Vol. 35, p. 111]

(1) Opinion No. 1715.

(2) See Opinion No. 1716.

(3) (1931) 44 CLR 394.