CAN THE COMM'ONWEALTH PARLIAMENT ENACT "MANNER AND FORM" LEGISLATION?

Transcription

1 CAN THE COMM'ONWEALTH PARLIAMENT ENACT "MANNER AND FORM" LEGISLATION? By GEORGE WINTERTON* The author considers whether the Commonwealth can enact umanner 'and form" legislation, especially provisions enabling the House of Representatives to enact laws which are the subject of a deadlock between the Houses, and legislation entrenching civil liberties. He argues that the legislative power of the Commonwealth has the same properties as that of the United Kingdom Parliament, which can impose umanner and form" limitations on itself; parliamentary supremacy is procedurally self-embracing. Hence, the Commonwealth Parliament can do likewise, except in so far as the Commonwealth Constitution provides to the contrary. The Constitution does prevent Parliament requiring legislation to be enacted by specified majorities in Parliament, or substituting a new legislature for the present Parliament. But the Commonwealth Parliament can enactprovisionsrequiring legislation to be enacted in a specified form, and can establish an additional legislature for the enactment of legislation, including appropriation laws. Such legislation may be enacted pursuant to the procedure in section 57 of the Constitution, and could provide a method of avoiding a Supply crisis like that of INTRODUCTION Two of the principal issues of contemporary Australian constitutional law are the protection of civil liberties and the reconciliation of traditional notions of responsible government (whereby the government is responsible only to the House of Representatives) with the Senate's ability and apparent willingness to deprive a government of Supply. Both questions have arisen in other jurisdictions and solutions adopted there warrant consideration for possible adaptation to the Commonwealth. In respect of both issues, other common law jurisdictions have resorted to "manner and form" legislation 1 with some success, and this article examines whether such legislation might assist in solving these problems in the Commonwealth also. The Commonwealth Constitution pays very scant attention to civil liberties,2 and the international trend towards the constitutional protection of human rights has largely been ignored in Australia. This can probably * LL.B. (Hons), LL.M. (W.A.); Senior Lecturer, Faculty of Law, University of New South Wales. The author wishes to thank Mr Keven Booker of the Faculty of Law, University of New South Wales, for his comments on an earlier draft of this article. 1 This term, derived from the proviso to s. S of the Colonial Laws Validity Act 1865 (U.K.), refers to legislation stipulating the manner or form in which future legislation dealing with the stipulated subject must be enacted. 2.See Commonwealth Constitution SSe 80, 92, 99, 116, 117. ct. s. 127 (repealed in 1967). 167

2 168 Federal Law Review [VOLUME 11 be attributed to the belief that the common law afforded adequate protection to civil liberties, recognition of the disadvantages of a rigid, practically unamendable and judicially-interpreted constitutional Bill of Rights, and the sheer difficulty of amending the Constitution in view of the referendum majorities required by section 128 of the Constitution. However, there has been increasing recognition of the inadequacy of the common law as a protector of civil liberties,3 especially in the light of international declarations and conventions to which Australia has felt obliged to become a party.4 Accordingly, recent Australian governments have begun to resort to statute for the protection of civil rights,s but so far the only major Commonwealth enactment of general application is the Racial Discrimination Act 1975,6 which affords minimal protection to human rights in Australia. 7 Commonwealth legislation, such as the Racial Discrimination Act 1975, has only limited utility, however. While inconsistent State legislation is rendered inoperative pursuant to section 109 of the Constitution, there is no diminution of the power of future Commonwealth Parliaments to impinge on the protected rights. Until the Commonwealth Parliament's freedom of action is restrained, the protection of civil liberty is feeble indeed. Of course, only a constitutional amendment could completely immunise civil rights from the operation of inconsistent federallegislation,8 but a "manner and form" provision, if the Common- 3 E.g. Evans, "New Directions in Australian Race Relations Law" (1974) 48 A.L.J. 479, ; Castles, "Human Rights, the Common Law and Australia's International Obligations" (1978) Justice No.7, 52; Scarman, English Law The New Dimension (1974) 14-21; Lord Scarman, "Fundamental Rights: The British Scene" (1978) 78 Columbia Law Review 1575, ; Lord Scarman, 396 H.L. Deb. 1346, 1347 (1978); Lord Wilberforce, "The Need for a Constitution in the United Kingdom" (1979) 14 Israel Law Review 269. ct. Lord Hailsham, The Dilemma of Democracy (1978) 132, 140,172, 174, Especially the United Nations' Universal Declaration of Human Rights (10 December 1948); the International Convention on the Elimination of All Forms of Racial Discrimination 1966, which Australia has ratified (effective 1969): Aust. T.S No. 40; the International Covenant on Economic, Cultural and Social Rights 1966, which Australia has ratified (effective 1976): Aust. T.S No.5; the International Covenant on Civil and Political Rights 1966 (effective 1976), which Australia ratified in See Castles, supra n. 3; Castles, "The Ratification of International Conventions and Covenants" (1969) Justice No.2, 1. S E.g. the Racial Discrimination Act 1975 (Cth); the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth); the Racial Discrimination Act 1976 (S.A.); the Sex Discrimination Act 1975 (S.A.); the Anti-Discrimination Act 1977 (N.S.W.); the Equal Opportunity Act 1977 (Vic.). 6 Implementing the International Convention on the Elimination of All Forms of Racial Discrimination 1966: Aust. T.S No Greater protection would have been afforded by the Human Rights Bill 1973 (Cth) which sought to implement the International Covenant on Civil and Political Rights and which lapsed when Parliament was prorogued on 14 February 1974 and was not subsequently reintroduced. See Crommelin and Evans, "Explorations and Adventures with Commonwealth Powers" in Evans (ed.), Labor and the Constitution (1977) 24, 47. See also the Human Rights Commission Bill 1980 (Cth). 8 It is widely acknowledged that a Parliament cannot deprive future Parliaments of the power to legislate on certain subjects. This has been held to be so regarding

3 1980] Can Commonwealth Parliament Enact Legislation? 169 wealth could validly enact one, would offer statutorily-protected rights some protection against offending federal legislation by requiring special majorities in Parliament, or the intervention of a referendum, for the enactment of contravening legislation, or by requiring a breach of the Bill of Rights to be express. Indeed, it has been suggested that, because Parliament would retain greater flexibility under a statutory Bill of Rights entrenched by a "manner" or "form" provision than under a constitutional Bill of Rights, the former is preferable, especially if Parliament might need to contravene the Bill of Rights in times of crisis. 9 ' The ill-fated Commonwealth Human Rights Bill 1973 sought to employ a "form" provision to entrench the protected rights against future federal legislation. Clause 5(2) and (3), modelled on section 2 of the Canadian Bill of Rights 1960, provided, inter alia, that inconsistent Commonwealth legislation enacted after, as well as before, the Human Rights Bill was to have no effect, to the extent of the inconsistency, unless it expressly declared that it should operate notwithstanding the Human Rights Bill. 1G Whether such legislation would be valid and effectual is considered below. Since the events of October-November 1975, when the Senate refused to pass the Appropriation Bills unless the Government called a general election, leading to the eventual dismissal of the Government and a double dissolution of Parliament, politicians, political scientists and constitutional lawyers have debated how the Constitution might be amended to prevent a repetition of those events, with their potential for chaos and civil strife. At the Hobart Constitutional Convention of 1976 the former (Labor) Prime Minister, Mr Whitlam, proposed a constitutional amendment to remove the Senate's power to block Supply.ll the Commonwealth: Wenn v. Attorney-General for Victoria (1948) 77 C.L.R. 84, 107 per Latham C.I.; the United Kingdom: Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 K.B. 733, 743, 746; the States: South Australia v. The Commonwealth (1942) 65 C.L.R. 373, 416 per Latham C.I.; McCawley v. R. [1920] A.C. 691; Commonwealth Aluminium Corporation Ltd v. Attorney-General (Qld) [1976] Qd.R. 231, 236, 239; ex parte Pennington (1875) 13 S.C.R. (L.) 305, 316; Friedmann, "Trethowan's Case, Parliamentary Sovereignty, and the Limits of Legal Change" (1950) 24 A.L.I. 103, 104. See also Winterton, "The British Grundnorm: Parliamentary Supremacy Re-examined" (1976) 92 L.Q.R. 591, Campbell, "Pros and Cons of Bills of Rights in Australia" (1970) Justice No.3, 1, 7, Cl. 5 of the Human Rights Bill 1973 (Cth) provides: "(2) Subject to sub-section (3), any provision of a law of Australia or of a Territory, whether passed or made before, on or after the commencing day, that is inconsistent with a provision of this Act does not, to the extent of the inconsistency, have any force or effect. (3) Sub-section (2) does not apply in relation to a provision of a law if an Act expressly declares that the provision shall operate notwithstanding this Act." 11 Official Record of Debates of the Australian Constitutional Convention (Hobart. 1976) 98.

4 110 Federal Law Review [VOLUME 11 Predictably, this was met by a counter-proposal by the (Liberal) Premier of Western Australia, Sir Charles Court, designed to entrench in the Constitution the Senate's power to force a double dissolution by blocking Supply.12 The Court amendment was carried at the next session of the Convention,13 but the stringent requirements of section 128 of the Constitution and the division of opinion on the issue along party lines ensure that a referendum to implement either proposal would have no prospect of success. Faced with the apparent insolubility of this question, other "solutions" have begun to emerge. In a recent paper, for instance, Mr Peter Johnston argued that the Commonwealth government must have the power to be "effective",14 and derived from this "principle of necessity"15 the proposition that the Governor-General can act to ensure the continuation of government notwithstanding the Senate's denial of Supply;16 whether the "principle of necessity" is implied in the Constitution 17 or is the grundnorm 18 or part of it is not made clear. 19 The fundamental importance of the Senate's power to withhold Supply and the virtual impossibility of amending the Constitution to remove it make inevitable the proliferation of questionable and dangerous theories relying on changing grundnorms and principles of necessity. But is there really no simpler, safer method of ensuring Supply to the government? Other jurisdictions have managed to control their Upper Houses' power to withhold Supply by enacting "manner" provisions whereby Appropriation Bills can become law without being passed by the Upper House. 20 This article considers whether such a legislative resolution is available to the Commonwealth. "Manner and form" legislation enables a prudent balance to be struck between the rigidity of constitutional limitations on legislative power and complete legislative freedom of action; it represents a flexible compromise between the two. It is, therefore, ideally suited to situations where Parliament means to ensure that future legislation on a subject is carefully considered 21 or meets with popular or other approval, yet 12Id Official Record of Debates of the Australian Constitutional Convention (Perth, 1978) Johnston, "Schizophrenic Sovereignty in the Federal Houses of Parliament. A Study in Constitutional Disjunction" (unpublished paper presented at a Centre for Independent Studies Conference on Constitutional Theory and Australian Practice, University of Sydney, 23 November 1979) 4-5 (to be published in proceedings of the Conference ed. by Haakonssen). 15Id.7. 16Id Id. 7, Id. 11, See the present writer's comment on Johnston's paper, supra n The Parliament Act 1911 (U.K.) s. 1; the Constitution Act 1902 (N.S.W.) s. 5A. ct. the Commonwealth Constitution s This is a major function of provisions requiring legislation impinging on protected civil liberties to do so expressly. See the Bill of Rights 1960 (Can.) s.2; the Human Rights Bill 1973 (Cth) cl. 5(2) and (3). See also Campbell, supra n. 9.

5 1980] Can Commonwealth Parliament Enact Legislation? 171 wishes the legislature to retain the power to amend or repeal the provision, especially in times of crisis, without the need to seek a constitutional amendment. 22 Moreover, provisions of "form" in a Bill of Rights requiring inconsistent legislation to declare expressly that it should operate notwithstanding the Bill of Rights if it is to be effective 23 ensure that the protected rights are not eroded surreptitiously. As Lord Hailsham observed: Even deliberate invasions of human rights would, at least, be pinpointed if the Canadian system were adopted, and it is at least arguable that a government would be deterred from deliberate encroachment made in the course of legislation only marginally important to them by the necessity to draw attention to the fact that their proposals would or might involve a breach of the Bill. 24 "Manner" provisions take many forms. Thus, for a variety of reasons, Parliament may require legislation on a particular subject to be enacted by specified majorities in the legislative Houses,25 may require approval at a referendum,26 or the approval of another body27 prior to the enact- 22 Of course, neither the United Kingdom Parliament nor the Australian legis.. latures can entrench provisions in any way other than "manner and form" legislation, supra n The Bill of Rights 1960 (Can.) s.2. Cf. the Human Rights Bill 1973 (Cth) cl. 5(2) and (3); Bill of Rights Bill 1976 (U.K.) cl. 3 (introduced by Lord Wade), in House of Lords, Report of the Select Committee on a Bill of Rights (H.L. 176) 1978, 41 (hereinafter Report of the Select Committee). Draft Bill of Rights cl. 9, in Wallington and McBride, Civil Liberties and a Bill of Rights (1976) 114. Contrast Bill of Rights Bill 1979 (U.K.) cl. 3 (introduced by Lord Wade) in Wade, "A Bill for Rights for the United Kingdom" (1980) 61 The Parliamentarian 65, Hailsham, supra n. 3, 174. Report of the Select Committee, supra n. 23, para. 16; Rippengal, Memorandum on the Question of Entrenchment, in House of Lords, Minutes of Evidence taken before The Select Committee on a Bill of Rights (H.L. 81) 1977, 2, para. 6 (hereinafter Minutes of Evidence); Zander, Minutes of Evidence, ide ; Wallington and McBride, supra n. 23, E.g. The Bribery Commissioner v. Ranasinghe [1965] A.C. 172; the Consti.. tution Act 1975 (Vic.) s.18(2) (see McDonald v. Cain [1953] V.L.R. 411); the Constitution Act (W.A.) s. 73 (2); the Electoral Act 1956 (N.Z.) s. 189(2) (a) (see Aikman, "Parliament" in Robson (ed.), New Zealand. The Development of its Laws and Constitution (2nd ed., 1967) 66-67); the Scotland Act 1978 (U.K.) s.66 (this Act was repealed by the Scotland Act 1978 (Repeal) Order 1979 (No. 928) made under the Scotland Act 1978 (U.K.) s. 85(3». 26 E.g. the Constitution Act 1902 (N.S.W.) ss.5b (upheld in Clayton v. Heffron (1960) 105 C.L.R. 214), 7A (upheld in Attorney-General for New South Wales v. Trethowan [1932] A.C. 526), 7B, 24A; the Constitution Act 1934 (S.A.) s. 88: the Constitution Act (W.A.) s. 73 (2); the Constitution Act (Qld) s. 53; the Electoral Act 1956 (N.Z.) s. 189(2)(b); the Northern Ireland Constitution Act 1973 (U.K.) s.1. Cf. the Commonwealth Constitution s E.g. the Statute of Westminster 1931 (U.K.) s.4; the West Indies Act 1967 (U.K.) s. 3(1). On the former provision see Winterton, supra n. 8, ; Hanks, "Re..Defining the Sovereign: Current Attitudes to Section 4 of the Statute of Westminster" (1968) 42 A.L.J. 286, ; Bistricic v. Rokov (1976) 135 C.L.R. 552, 561 per Jacobs J. (cf. Murphy J., ; and China Ocean Shipping Co. v. South Australia (1979) 27 A.L.R. 1, per Murphy J. dissenting); Copyright Owners Reproduction Society Ltd v. E.M.t (Au<'tralia) Ply Ltd (1958) 100 C.L.R. 597, 604, 625; contra, Wynes, Legislative, Executive

6 f 172 Federal Law Review [VOLUME 11 ment of certain legislation, or may even establish a new legislature with exclusive power to enact particular laws. 28 Other "manner" provisions are designed to resolve conflicts between the two legislative Houses; such legislation may provide for a joint sitting of both Houses, or may enable a Bill to become law upon the assent merely of the lower House and the Crown. 30 If Parliament wishes to secure the "manner and form" provision against repeal by a simple majority in both Houses it may resort to the device of "double entrenchment", whereby the "manner"31 or "form"32 provision itself can be amended or repealed only by legislation enacted in the prescribed manner or phrased in the specified form. 2. GENERAL CONSTITUTIONAL PRINCIPLES Since the Commonwealth Parliament has refrained from enacting "manner and form" legislation,33 the Australian courts have never had to considerwhetherithas thepowerto do so effectively. Sir Garfield Barwick has, indeed, spoken of "the Parliament" as "unalterably a bicameral legislature",34 but he was referring to "the Parliament" constituted by section 1 of the Constitution and without the slightest reference to "manner and form" legislation. Most academic commentators have likewise ignored the issue. 35 But the absence of direct authority on the question whether the and Judicial Powers in Australia (5th ed. 1976) On the latter section see Alexis, "The Classical Doctrine of Parliamentary Sovereignty As a Current Issue in West Indian Law" (1977) 1 Guyana Law Journal 41, E.g. Harris v. Minister of the Interior [1952] (2) S.A. 428 (A.D.), sub nom. Harris v. Donges [1952] 1 T.L.R. 1245; the European Communities Act 1972 (U.K.) s.2(4). 29 E.g. the Constitution Act 1902 (N.S.W.) s.5b(i). Cf. the Commonwealth Constitution s E.g. the Constitution Act 1902 (N.S.W.) s. SA; the Parliament Act 1911 (U.K.) ss.1 and 2, as amended by the Parliament Act 1949 (U.K.) s. 1. On the latter provision see Winterton, supra n. 8, 607. Professor Hood Phillips does not regard the Parliament Act 1911 as "manner and form" legislation; in his opinion it merely delegates legislative power: Hood Phillips and Jackson, Constitutional and Administrative Law (6th ed. 1978) 89, 143. He regards the Parliament Act 1949 (U.K.) as invalid because the delegate (the House of Commons and the Crown) exceeded the powers delegated to them by the Parliament Act 1911 (U.K.): ide 89-90, 143. Cf. Clayton v. Heffron (1960) 105 C.L.R E.g. the Constitution Act 1902 (N.S.W.) SSe 7A(I)(b), 7B(I), 24A(5); the Constitution Act 1975 (Vic.) S. 18(2) (b); the Constitution Act 1934 (S.A.) S. 88(1); the Constitution Act (W.A.) s. 73(2)(e); the Constitution Act (Qld) s. 53(1). ct. the Statute of Westminster 1931 (U.K.) s.4 (see Winterton, supra n. 8, 603). 32 Cf. the Human Rights Bill 1973 (Cth) cl. 5(2). 33 ct. the Human Rights Bill 1973 (Cth) cl. 5(2) and (3). 34 Western Australia V. The Commonwealth (1975) 134 C.L.R. 201, 217. In Cormack V. Cope (1974) 131 C.L.R. 432, 456 Barwick Col. called a bicameral system of Parliament "the basic concept of the Constitution". 35 Dr Wynes appears to believe that the Commonwealth could not establish an alternative legislature (supra n. 27, ), but his reasoning is not based on considerations peculiar to the Commonwealth Constitution, and he seems to hold the same view regarding the powers of the United Kingdom Parliament: ide 546; (1957) 31 A.L.J. 250, 251, 252. See also the apparently contradictory remarks in Nicholas, The Australian Constitution (2nd edt 1952)

7 1980] Can Commonwealth Parliament Enact Legislation? 173 Commonwealth can validly enact "manner and form" legislation does not mean that it must be considered in a vacuum. As with other legal questions on which there is a dearth of direct authority, the courts would examine the validity of Commonwealth "manner and form" legislation by reference to relevant constitutional principles, applied in the light of authorities in analogous jurisdictions. Because the Commonwealth was established by an Act of the United Kingdom Parliament and was born into a common law environment,36 its institutions must be interpreted in the light of the common law; they share the properties of their British equivalents except in so far as altered by the Constitution. Thus, the High Court has held that the institution of responsible government is implied in the Constitution 37 and the prerogative powers of the Crown are implied in the executive power of the Commonwealth vested in the Governor-General by section 61 of the Constitution. 38 Similarly, as suggested by the language of the Constitution,39 the ComlTIonwealth Parliament inherited those powers of the British Parliament which were not incompatible with its position under the Constitution. 40 The High Court has expressed this most clearly when considering whether the Commonwealth Parliament can delegate legislative power notwithstanding the provision that "[t]he legislative power of the Commonwealth shall be vested in a Federal Parliament" in section 1 of a constitution which implemented generally the separation of powers doctrine. In Dignan's case,41 for instance, Evatt J. said: The statesmen andlawyers concernedin theframing oftheaustralian Constitution, when they treated of "legislative power" in relation 36 E.g. Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd (1940) 63 C.L.R. 278, 304 per Dixon J. 37 The Victorian Stevedoring & General Contracting Co. Ply Ltd v. Dignan (1931) 46 C.L.R. 73, 114; The Commonwealth v. Kreglinger & Fernau Ltd (1926) 37 C.L.R. 393, 413; The Commonwealth v. The Colonial Combing, Spinning & Weaving Co. Ltd (1922) 31 C.L.R. 421, ; Amalgamated Society of Engineers v. The Adelaide Steamship Co. Ltd (1920) 28 C.L.R. 129, 147; Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth (1977) 139 C.L.R. 54, 87; McGraw-Hinds (Aust.) Pty Ltd v. Smith (1979) 24 A.L.R. 175, New South Wales v. The Commonwealth (1975) 135 C.L.R. 337, 373, 379, 498; Victoria v. The Commonwealth (1975) 134 C.L.R. 338, 405; Johnson v. Kent (1975) 132 C.L.R. 164, 169, 174; Barton v. The Commonwealth (1974) 131 C.L.R. 477, 498; In re Richard Foreman & Sons Pty Ltd, Uther v. Federal Commissioner of Taxation (1947) 74 C.L.R. 508, See s. 49. See generally SSe 1, 35, 51, Cf. the suggestion by Forster J. that the Northern Territory Legislative Council did not possess inquisitorial functions because the United Kingdom Parliament had not committed this function to the Commonwealth Parliament, so that the latter could not have passed it on to the Northern Territory Legislative Council (nor did it intend to): Attorney-General for the Commonwealth v. MacFarlane (1971) 18 F.L.R. 150, 157. The analysis of Forster J. is highly questionable: see Campbell, "Parliament and the Executive" in Zines (ed.), Commentaries on the Australian Constitution (1977) 88, (1931) 46 C.L.R. 73.

8 174 Federal Law Review [VOLUME- 11 to the self-governing colonies, had in view an authority which, over a limited area or subject matter, resembled that of the British Parliament. Such authority always extended beyond the issue by Parliament itself of binding commands. Parliament could also authorize the issue of such commands by any person or authority it chose to select or create. "Legislative power" connoted the power to deposit or delegate legislative power because this was implied in the idea of parliamentary sovereignty itself. 42 Dixon J. was of a similar opinion: It may be acknowledged that the manner in which the Constitution accomplished the separation ofpowers does logically or theoretically make the Parliament the exclusive repositary of the legislative power of the Commonwealth. The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. 43 There is no reason why these remarks on the similarity between the nature of "legislative power" in the United Kingdom and in the Commonwealth, matched, as they are, by similar dicta regarding the Australian States," should be confined to the question of delegation of legislative power and should not be of general application. In view of the oftobserved si~ilarity between the nature of "legislative power" in the United Kingdom and that in the States 45 (which constitutionally resemble colonies in some respects), it would be strange indeed if the resemblance between the "sovereign" British Parliament and the "sovereign" Commonwealth Parliament was not greater still. Accordingly, consideration of the Commonwealth Parliament's power to ep.act "manner and form" legislation must begin with an examination of whether the British Parliament and legislatures which share its conception of "legislation"-primarily the Australian States and Canada -can do so effec~ively. It will, of course, be necessary finally to consider the effect of the provisions of the Commonwealth Constitution on the, general conclusions derived from consideration of the other "British" legislatures. Because the Constitution makes' provision regarding the "manner" of legislation, but not its "form", the Commonwealth Parlia, ment's power to enact "manner" legislation may not be identical to its Old (emphasis added). 43ld (emphasis added); quoted in Attorney-General for Australia v. R. (Boilermakers' case) [1957] A.C. 288, 321. R. v. Kirby; ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254, 276; Dixon, "The Law and the Constitution" (1935) 51 L.Q.R. 590, 606; Dixon, Jesting Pilate (1965) E.g. Cobb v,. Kropp [1967J 1 A.C. 141; Powell v. Apollo Candle Co. Ltd (1885) 10 App. Cas Cf. Hodge v. R. (1883) 9 App. Ca$ E.g. McCawley v. R. [1920] A.C. 691; Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394, Cf. Dixon, "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 A.L.I. 240; Dixon, Jesting Pilate (1965) 203.

9 1980] Can Commonwealth' Parliament Enact Legislation? 175 power to make provision regarding the "form" of future enactments. However, because most authorities in the United Kingdom, Canada and the Australian States treat "manner and form" legislation as a whole, it will be so treated here while the analogous constitutions are considered. A. The United Kingdom Whether the British Parliament can impose effective "manner and form" restraints upon itself is a contentious issue and is likely to remain so until the question is finally resolved either by the courts or by an unambiguous political determination, such as a declaration by a legally constituted Constitutional Convention. 46 For about thirty years, academic opinion has been divided into two great camps, depending on the respective interpretation of the British grundnorm or "rule of recognition"47-that whatever the "Queen in Parliament" enacts is law. Adherents of the traditional view, espoused by Dicey,48 that the supremacy or "sovereignty" of Parliament is "continuing" in all respects, maintain that Parliament, by a simple majority in both Houses, can amend or repeal any legislation whatever, and no attempt to fetter future Parliaments either as to the content or the "manner and form" of enactment of future legislation can be effective. 50 There is, admittedly, some diversity among the proponents of this view; some adopt Dicey's rider that Parliament can abdicate "sovereignty",51 but the purists deny even this qualification of completely "continuing" supremacy.52 The traditional view of parliamentary supremacy is still widely adhered t0 53 and, if it were ultimately to prevail, the United Kingdom Parliament would lack the ability to impose binding "manner and form" requirements upon itself. Proponents of this view deny that Parliament has already enacted any "manner and form" legislation; they regard the Parliament Acts 1911 and 1949 (U.K.)54 and section 2 of the European 46 See Wallington and McBride, supra n. 23, 86, for the interesting suggestion that the Law Lords might issue a Practice Statement, as they did in 1966 on the question of precedent in the House of Lords: [1966] 1 W.L.R But see Rippengal's critical comment on this suggestion: Minutes 0/ Evidence, supra n. 24, 4, para Hart, The Concept of Law (1961) 92, , 145, Dicey, Introduction to the Study 0/ the Law 0/ the Constitution (10th edt 1959) Hart, supra n. 47, E~g. H. W. R. Wade, "The Basis of Legal Sovereignty" [1955] Cambridge Law Journal 172, 190; Hood Phillips, supra D. 30, 84, 91 (but ct. id., 55-56); E. C. S. Wade, Introduction to Dicey, supra n. 48, lxxv; Wynes (1957) 31 A.L.J. 251, Dicey, supra n. 48, n. 1; Hood Phillips and Jackson, supra n. 30, 91. See generally Winterton, supra n. 8, H. W. R. Wade, supra n. 50, 196. But see H. W. R. Wade, Constitutional Fundamentals (1980) 37-39, 40 suggesting a new judicial oath as the solution to the problem of entrenchment. 53 See references supra n. 50 and infra n. 87; Winterton, supra n. 8, 616. M See Hood Phillips and Jackson, supra n. 30, 89; H. W. R. Wade, supra D. SO ; H. W. R. Wade, supra D. 52,

10 176 Federal Law Review [VOLUME 11 Communities Act 1972 (U.K.)55 as provisions delegating legislative power, section 4 of the Statute of Westminster 1931 (U.K.) as repealable by the British Parliament without Dominion request and consent,56 and some would even deny Parliament the power to abolish the House of Lords. 57 However, the orthodox interpretation of parliamentary supremacy has been under increasing challenge since the early 1950s when, in the aftermath of Harris v. Minister of the Interior,58 British constitutional lawyers began to realise that a "sovereign" legislature need not always be constituted in the same way.59 A preponderance of academic opinion now supports the view that the rule of parliamentary supremacy is "selfembracing",60 at least as to procedural requirements, so that Parliament, in enacting legislation, is obliged to obey the current law regarding the procedure or "manner and form" of legislating, which it may, of course, alter, but only by enacting legislation in the presently stipulated "manner and form".61 It is submitted that this interpretation is to be preferred. 62 The "self-embracing" supremacy interpretation gives Parliament greater flexibility to mould the Constitution to contemporary requirements; this is especially important at present in light of Britain's obligations 55 E.g. Lord Diplock, "The Common Market and the Common Law" (1972) 6 The Law Teacher 3, 6-8; Hood Phillips and Jackson, supra n. 30, 74, E. C. S. Wade, supra n. 50, lxiv, lxxxviii; British Coal Corporation v. R. [1935] A.C. 500, 520; Latham (1957) 31 A.L.J But see references supra n. 27; Blackburn v. Attorney-General [1971] 1 W.L.R. 1037, 1040 per Lord Denning M.R., "Freedom once given cannot be taken away"; Ndlwana v. Hotmeyr, N.O. [1937] A.D. 229, 237 per Stratford A.C.J., "Freedom once conferred cannot be revoked". (This case was not followed in Harris v. Minister of the Interior [1952] (2) S.A. 428, 472, but this dictum was unaffected thereby.) 57 Mirfield, "Can the House of Lords Lawfully be Abolished?" (1979) 95 L.Q.R. 36. Contra Winterton, "Is the House of Lords Immortal?" (1979) 95 L.Q.R. 386; Hood Phillips and Jackson, supra n. 30, [1952] (2) S.A.428 (A.D.), sub. nom. Harris v. Donges [1952] 1 T.L.R E.g. The Bribery Commissioner v. Ranasinghe [1965] A.C. 172; _Attorney General for New South Wales v. Trethowan (1931) 44 C.L.R. 394, 426 per Dixon J. 60 Hart, supra n. 47, E.g. Winterton, supra n. 8, ; de Smith, Constitutional and Administrative Law (3rd ed. 1977) 87-90; Jennings, The Law and the Constitution (5th ed. 1959) , ; Mitchell, Constitutional Law (2nd ed. 1968) 78-82; Dixon, '~The Common Law as an Ultimate Constitutional Foundation" (1957) 31 A.L.J. 240, 244; Dixon, Jesting Pilate (1965) 211; Marshall, Constitutional Theory (1971) 53; Heuston, Essays in Constitutional Law (2nd ed. 1964) 23-31; E. C. S. Wade and Phillips, Constitutional and Administrative Law (9th ed. by Bradley, 1977) 74; Derham, (1957) 31 A.L.J See also Aikman, supra n. 25,40, 66-69; Northey, "The New Zealand Constitution" in Northey (ed.), The A.G. Davis Essays in Law (1965) 149, 168, 170, discussing the rule of parliamentary supremacy in New Zealand. 62 A dictum of Lord Morris of Borth-y-Gest in British Railways Board v. Pickin [1974] A.C. 765, 790 is not to the contrary; he was referring only to the justiciability of the "internal procedures" of Parliament, such as Standing Orders, not to "manner and form" legislation. For an example of the difficulties which the orthodox interpretation of parliamentary supremacy could cause, see Mirfield, supra n. 57; Winterton, supra n. 57,

11 1980] Can Commonwealth Parliament Enact Legislation? 177 under the Treaty of Rome and under the European Convention for the Protection of Human Rights and Fundamental Freedoms because, in respect of both treaties, there is a distinct risk that the constitutional rigidity imposed by the orthodox interpretation of parliamentary supremacy will cause Britain inadvertently to breach its international obligations from time to time. For this reason, most recent discussions of the rule of parliamentary supremacy have considered it in regard to Britain's obligations in the European Economic Community and the question whether Britain should enact a Bill of Rights to implement domestically the European Convention on Human Rights. It is on these issues that judges have commented, even if only extra-judicially, thereby throwing some light on the direction in which the rule of parliamentary supremacy is likely to evolve. The European Court of Justice, whose interpretation of Community law, including the Treaties, binds British courts,63 has held that where directly applicable Community law is inconsistent with the law of a member State the Community law prevails,64 even as against a member State's Constitution. 65 The European Court has re-emphasised these principles very strongly in a recent case oo in which it held that any recognition that national legislative measures which encroach upon the field within which the Community exercises its legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by member-states pursuant to the Treaty and would thus imperil the very foundations of the Community.61 The Court made it crystal clear that a national court must ignore any provisions of national law inconsistent with directly applicable Community law, even if enacted subsequently to the relevant Community law. [A] national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the 63 European Communities Act 1972 (U.K.) s. 3(1). 64 Costa v. E.N.E.L. [1964] C.M.L.R. 425, 456; re Export Tax on Art Treasures (No.2) [1972] C.M.L.R. 699, 708. See also Siskina v. Distos Compania Naviera S.A. [1979] A.C. 210, 262 per Lord Hailsham (Lord Simon and Lord Russell concurring); Shields v. E. Coomes (Holdings) Ltd [1978] 1 W.L.R. 1408, 1415 per Lord Denning M.R.; Macarthys Ltd v. Smith [1980] 2 C.M.L.R. 217, Internationale Handelsgesellscha/t mbh v. Ein/uhr & Vorratsstelle fur Getreide & Futtermittel [1972] C.M.L.R. 255, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (No.2) [1978] 3 C.M.L.R. 201 (hereinafter cited as Simmenthal). 67Id.283.

12 r 178 Federal Law Review [VOLUME 11 court to request or await the prior setting aside of such provision by legislative or other constitutional means. 68 The question inevitably arises whether the rule of parliamentary supremacy would prevent a British court implementing the Simmenthal decision. Theanswer depends on section 2 of the European Communities Act 1972 (U.K.) and the appropriate interpretation of the rule of parliamentary supremacy. In section 2(1) Parliament provided that directly applicable Community law extends to the United Kingdom, and dealt with possible inconsistency between Community law and national law in section 2(4). [A]ny enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section...69 No matter which interpretation of parliamentary supremacy is adopted, section 2(4) enables a British court to give primacy to Community law over inconsistent national legislation as long as the Community law or the European Communities Act 1972 (U.K.) is the later provision because, even if section 2 be treated merely as delegating legislative power, the Community law will be the later "statute" and the usual rule that a later statute prevails over an inconsistent earlier one 70 can be applied. 71 However, difficulty arises when the conflict is between Community law and a later post-accession statute. 72 Community law requires that the former prevail,73 but a British court could not so decide consistently, 68 Id. 284 (emphasis added). 69 Emphasis added. 10 Leges posteriores priores contrarias abrogant: see Pearce, Statutory Interpretation in Australia (1974) For the possible situations of inconsistency between Community law and national law, see Wade and Phillips, supra n. 61, The view stated in the text supra may need qualification in regard to the fourth situation discussed by Wade and Phillips: "Conflict between a post-accession statute and a later E.E.C. regulation". S.2(1) of the European Communities Act 1972 (U.K.) does not expressly confer on directly applicable Community law the status of a statute, as s.2(4) appears to do in regard to statutory instruments made pursuant to s.2(2). Nevertheless it is submitted that the combination of s. 2(1) and (4) may be regarded as a "Henry VIII clause", with the result that a Community regulation may override an earlier post-accession statute. This was indeed the view of the House of Lords' Select Committee on a Bill of Rights: Report of the Select Committee, supra n. 23, para Cf. regarding s.2(2) and (4), H. W. R. Wade, Administrative Law (4th ed. 1977) 701; de Smith, supra n. 61, 328 n. 28; Hood Phillips and Jackson, supra n. 30, 96; Report of the Select Committee, ibid. But if the statute clearly intended to restrict the direct application of Community laweither in general, or a particular provision of it (a very unlikely event)--on the orthodox interpretation of parliamentary supremacy, it must prevail: see Wade and Phillips, supra n. 61, 130. See also Trindade, "Parliamentary Sovereignty and the Primacy of European Community Law" (1972) 35 Modern Law Review 375, 397. ' n Lord Mackenzie Stuart has cautioned not to "overdramatise the situation", and suggests that a political, rather than a legal, solution would be found: The European Communities and the Rule of Law (1977) 16. '13 Simmenthal, supra n. 66.

13 1980] Can Commonwealth Parliament Enact Legislation? 179 with the orthodox, completely "continuing" interpretation of parliamentary supremacy.'4 However, if the "self-embracing" interpretation of parliamentary suprelnacy is adopted, section 2 of the European Communities Act 1972 (U.K.) could be interpreted as having substituted a new legislature, comprising the three components of the British Parliament and the legislative organs of the Community, for the enactment of legislation on subjects covered by directly applicable Community law,75 with the result that "Parliament" as usually constituted lacked the power to enact the inconsistent measure,76 which should, accordingly, be held invalid. 7 '7 British courts have yet to face this issue squarely. The general question of parliamentary supremacy once Britain joined the Community was left open in Blackburn v. Attorney-Generap,g and, although it has been suggested that the National Insurance Commission has already given Community law priority over subsequent national legislation,79 the decisions are ambiguous and compatible with a liberal approach to statutory interpretation whereby the statute is treated as impliedly subject to Community law. SO Among the judges, Lord Denning M.R. has been the most eloquent commentator but, notwithstanding emphasis on the supremacy of Community law,sl he has indicated that British courts 74 Hood Phillips, "Has the 'Incoming Tide' Reached the Palace of Westminster?" (1979) 95 L.Q.R. 167, 169, 171; Hood Phillips and Jackson, supra n. 30,76-77, 99; Hood Phillips, "High Tide in the Strand? Post-1972 Acts and Community Law" (1980) 96 L.Q.R. 31, 33; Trindade, supra n. 71, passim; Wade and Phillips, supra n. 61, ; Lord Diplock, Minutes of Evidence, supra n. 24, 95. It is possible however that a court would hold that by s. 2 of the European Communities Act 1972 (U.K.) Parliament had abdicated its "sovereignty" over matters falling within the jurisdiction of the Community. But see Trindade, ide Winterton, supra n. 8, This is, indeed, suggested by the language of the European Court in Simmenthal, quoted supra in the text accompanying n. 67, which appears to adopt a "covering the field" concept close to that employed by the High Court regarding s.109 of the Commonwealth Constitution. Cf. Clyde Engineering Co. Ltd v. Cowburn (1926) 37 C.L.R. 466, 489; ex parte McLean (1930) 43 C.L.R. 472, 483. See Freeman, "The Division of Powers Between the European Communities and the Member States" (1977) 30 Current Legal Problems 159 for a discussion of the question (familiar to Australian constitutional lawyers) whether Community powers are concurrent or exclusive. 77 Jaconelli, "Constitutional Review and Section 2(4) of the European Communities Act 1972" (1979) 28 International and Comparative Law Quarterly [1971] 1 W.L.R. 1037, , See especially re an absence in Ireland [1977] 1 C.M.L.R. 5 (National Insurance Commissioner (U.K.», discussed in Freestone, "The Supremacy of Community Law in National Courts" (1979) 42 Modern Law Review 220, 223; and Warner, "The Relationship Between European Community Law and the National Laws of Member States" (1977) 93 L.Q.R. 349, 366 n. 29. For other decisions of the National Insurance Commissioner (U.K.) see Freestone, ide 223, D Hood Phillips, supra n. 74, 95 L.Q.R. 167, , and Hood Phillips and Jackson, supra n. 30, 91, Shields v. E. Coomes (Holdings) Ltd [1978] 1 W.L.R. 1408, ; Macarthys Ltd V. Smith [1979] 3 All E.R. 325, 329; Macarthys Ltd v. Smith [1980] 2 C.M.L.R. 217, 218. See also Siskina v. Distos Compania Naviera S.A. [1979]

14 180 Federal Law Review [VOLUME 11 must apply statutes even if inconsistent with prior Community legislation. 82 But, because such a decision would contravene Britain's Community obligations, it is likely that if a conflict between such provisions arose for determination the courts would give Community law priority,83 presumably by adopting the "self-embracing" interpretation of the rule of parliamentary supremacy.84 Similar issues surround the question whether Britain should adopt a Bill of Rights to afford civil rights and liberties greater protection and enable the United Kingdom to fulfil its obligations under the European Convention on Human Rights 1950, which it ratified in The A.C. 210, 262; Lord Hailsham, supra n. 3, 137; Macarthys Ltd v. Smith [1979] 3 All E.R. 325, per Cumming-Bruce L.J.; Macarthys Ltd v. Smith [1980] 2 C.M.L.R. 217, "[O]nce a Bill is passed by Parliament and becomes a Statute, that will dispose of all this discussion about the Treaty. These courts will then have to abide by the Statute without regard to the Treaty at all": Felixstowe Dock & Railway Co. v. British Transport Docks Board [1976] 2 C.M.L.R. 655, Moreover, in H.P. Bulmer Ltd v. J. Bollinger S.A. [1974] Ch. 401, 418 and Application des Gaz S.A. v. Falks Veritas Ltd [1974] Ch. 381, 393, Lord Denning M.R. characterised the Treaty of Rome as merely "equal in force to any statute". (For a critical comment on these dicta, see Warner, supra n. 79, 365.) See also Macarthys Ltd v. Smith [1980] 2 C.M.L.R. 217, 219 per Lord Denning M.R. A more recent dictum illustrating the supremacy of Community law is ambiguous and cannot be regarded as a clear assertion that it would prevail over contrary later legislation. In Shields' case, supra n. 81, 1415, Lord Denning M.R. said: "Suppose that... Parliament... were to pass a statute inconsistent with article 119 [of the Treaty of Rome, which provides that: 'Each member state shall... ensure... that men and women [shall] receive equal pay for equal work.']: as, for instance, if the Equal Pay Act 1970 gave a right to equal pay only to unmarried women. I should have thought that a married woman could bring an action in the High Court to enforce the right to equal pay given to her by article 119". In this illustration, the statute and the treaty would be "inconsistent" only on a "covering the field" test, but not directly inconsistent, unless the Act provided that married women should not receive equal pay; it is unclear in which sense Lord Denning M.R. meant "gave a right... only". Cf. Colvin v. Bradley Bros Pty Ltd (1943) 68 C.L.R. 151, and see generally Murray-Jones, "The Tests for Inconsistency Under Section 109 of the Constitution" (1979) 10 P.L. Rev. 25. See also the article by Rumble, supra p. 40. Subsequently, Lord Denning M.R. stated that British courts should apply legislation inconsistent with Community law if Parliament departed from the latter intentionally and expressly: Macarthys Ltd v. Smith [1979] 3 All B.R. 325, 329. See also ide 334 per Lawton L.I. 83 Lord Mackenzie Stuart, supra n. 72, 17; Warner, supra n. 79, 365. Cf. Scarman (1974), supra n. 3, 27, 81 fi. and "Law and Administration: A Change in Relationship" (1972) 50 Public Administration 253, Contra, Lord Diplock, Minutes of Evidence, supra n. 24, 95; Hood Phillips, supra n. 74, 95 L.Q.R. 167,171. M Winterton, supra n. 8, See generally Jaconelli, Enacting a Bill of Rights: The Legal Problems (1980); Report of the Select Committee, supra n. 23; Minutes of Evidence, supra n. 24; 396 H.L. Deb (1978); Wallington and McBride, supra n. 23 passim; Hood Phillips and Jackson, supra n. 30, ; Wade and Phillips, supra n. 61, ; Anderson, Liberty, Law and Justice (1978) 53-54; Zander, A Bill of Rights? (2nd ed. 1979). Contra, Lord Lloyd of Hampstead, "Do we Need a Bill of Rights?" (1976) 39 Modern Law Review 121; Griffith, "The Political Constitution" (1979) 42 Modern Law Review 1, 12 fi.

15 1980] Can Commonwealth Parliament Enact Legislation? 181 difficulty, essentially, is that the rule of parliamentary supremacy may impose limitations upon the extent to which Parliament can entrench a Bill of Rights, and un-entrenched Bills of Rights afford weak protection, especially in times of crisis. 86 The orthodox, completely "continuing" interpretation of the rule of parliamentary supremacy would deny Parliament the power to entrench a Bill of Rights effectively against express or implied repeal or amendmentby a simple majorityin bothhouses ofparliament;81 any entrenching provision would be treated as having only moral force. 88 Within the confines oftheorthodox doctrine, an effectively entrenched Bill of Rights would probably be possible only if Parliament completely transferred its "sovereignty" to a new legislature 89 which was subject to a Bill of Rights entrenched in a written constitution; in other words, a completely "new constitutional settlement".90 An entrenched Bill of Rights is possible, however, if the rule of parliamentary supremacy is interpreted as procedurally "self-embracing", allowing Parliament to impose effective procedural or "manner and form" limitations upon the future exercise of legislative power, at least in so far as they do not constitute de facto substantive restrictions on Parliament. 9t But there is no need for Parliament to seek to impose substantive restraints; a Bill of Rights could be adequately entrenched by a procedural restriction, either of "form", like the Canadian Bill of Rights,92 or of "manner"93 or both. A number of leading English judges have recently advocated the adoption of an entrenched Bill of Rights 94 and, although doubts persist 86 Scarman (1974), supra n. 3, Report of the Select Committee, supra n. 23, paras 14, 23; Minutes of Evidence, supra n. 24, 4-10 paras 14 fi. per Mr Rippengal, 91, 94 per Lord Diplock, 277 per Professor Hood Phillips, 364, per Lord Scarman; Hood Phillips and Jackson, supra n. 30, Hood Phillips and Jackson, ide 450; Lord Scarman, "Fundamental Rights: The British Scene", supra n. 3, Cf. the discussion in the New Zealand Parliament on enacting s. 189 of the Electoral Act 1956 (N.Z.): Aikman, supra n. 25, Dicey, supra n. 48, 39-40, 69n; Winterton, supra n. 8, Scarman (1974), supra n. 3, 27, 70, 74-77, 81-82; Hood Phillips and Jackson, supra n. 30, 91, 447; Hood Phillips, Reform of the Constitution (1970) ; Minutes of Evidence, supra n. 24, 277 per Professor Hood Phillips, 364 per Lord Scarman. 91 Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394, 442 per McTiernan J., dissenting; Commonwealth Aluminium Corporation Ltd v. Attorney-General (Qld) [1976] Qd.R. 231,236 per Wanstall S.P.J.; Friedmann, supra D. 8, 104; de Smith, supra n. 61, 90; Winterton, supra n. 8, 605; Lumb, The Constitutions of the Australian States (4th ed. 1977) Hailsham, supra n. 3, 174; Report of the Select Committee, supra n. 23, para. 16; Rippengal, "Memorandum on The Question of Entrenchment" in Minutes of Evidence, supra n. 24, 2, para. 6; Zander in Minutes of Evidence, ide ; Wallington and McBride, supra n. 23, 85-86, 114; Wade and Phillips, supra n. 61, 543. ct. the Human Rights Bill 1973 (Cth) cl. 5(2) and (3). 93 E.g. Lord Salmon, quoted by Lord Wilberforce, supra n. 3, Lord Wilberforce, id ; Lord Hailsham, supra D. 3, 174, ;

16 182 Federal Law Review [VOLUME 11 as to whether effective entrenchment is possible under the present Constitution,95 some of their extra-judicial comments suggest that the British courts would enforce a "manner and form" provision, as in Trethowan,96 Harris,97 Ranasinghe 98 and Drybones. 99 One of the strongest indications of this is a recent comment of Lord Wilberforce: I know that legally, or at least in legal theory, no entrenchment is possible, given the sovereignty of Parliament, because you cannot prevent Parliament by a majority of one vote altering the entrenchment provisions. But I think that this is too theoretical. In a democratic country, with a true respect for the rule of law, entrenchment provisions, requiring special majorities, or special procedures, over which the Courts, or a Court, have control, can be an important restraint. Canada has tried, in its Bill of Rights, a kind of demi-entrenchment and this cannot be said to have failed. No government is lightly going to over-ride these restraints, or if it does, it may suffer, as the case of India showed. So we should not give way to the theorists, and we should firmly entrench essential provisions. 1 If, as appears likely, the courts would treat the rule of parliamentary supremacy as procedurally "self-embracing" in the context of a Bill of Rights, there would be no justification for adopting a different approach to other questions, such as the supremacy of European Community law. B. Canada The Canadian Parliament, unlike the British, but like the Australian, is subject to a written constitution 2 which makes provision regarding the "manner" of legislation, so that the attitude of Canadian judges and lawyers to "manner and form" provisions would seem prima facie to be of particular relevance to Australia. Scarman (1974), supra n. 3, 15-21, 69; Lord Scarman, "Fundamental Rights: The British Scene", supra n. 3, See Lord Denning's Lord Fletcher Lecture (10 December 1979) noted in The Times 12 December 1979, 2. The Law Lords who participated in the House of Lords debate on the Report of the Select Committee on a Bill of Rights were divided on the question whether to approve Lord Wade's Bill, incorporating the European Convention on Human Rights 1950 into British law. Lords Scarman, Salmon and Hailsham of St. Marylebone voted in favour, and Lords Diplock, Morris of Borth-y-Gest and Elwyn-Jones L.C. voted against. See 396 H.L. Deb fi. (29 November 1978). See also 402 H.L. Deb. 999 fi. (8 November 1979). 95 E.g. Lord Scarman, "Fundamental Rights: The British Scene", supra n. 3, 1585: "under the existing constitution it is not possible to entrench... a Bill of Rights against amendment or repeal by a bare majority in Parliament...". See also supra n Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394, affirmed [1932] A.C Harris v. Minister of the Interior [1952] (2) S.A. 428 (A.D.). 98 The Bribery Commissioner v. Ranasinghe [1965] A.C R. v. Drybones [1970] S.C.R But see text accompanying nne infra p.185. t Supra D. 3, see also Lord Hailsham, supra n. 3, 17l. 2 The British North America Act 1867 (U.K.) (hereinafter cited as "B.N.A. Act").

17 1980] Can Commonwealth Parliament Enact Legislation? 183 A number of Canadian constitutional scholars have asserted that the Canadian Parliament can enact binding "manner and form" legislation,3 and have drawn no distinction between provisions relating to "manner" and those regarding "form". But judicial recognition has been accorded only to the Canadian Parliament's power to enact an effective "form" provision,4 and suggestions that it could enact a binding "manner" provision as wells rely on assertions regarding the power of the United Kingdom Parliament to do so. Opinions on the power of the Canadian Parliament to enact binding provisions regarding the "manner" in which future legislation can or must be enacted are, in any event, not directly relevant to Australia because the Commonwealth's constitutional position is distinguishable from Canada's in two respects. First, the enactment of "manner and form" legislation 6 by the Canadian Parliament would fall within its power to amend the Constitution;' the Commonwealth Parliament lacks an equivalent power. 8 Secondly, section 17 of the British North America Act (U.K.)9 differs-perhaps significantly-from its Australian counterpart. to Accordingly, the Canadian position is relevant to Australia only in so far as it concerns "form" provisions, and experience in that regard has centred on the Canadian Bill of Rights. Section 2 of the Canadian Bill of Rights 1960 provides: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe... any of the rights or freedoms herein recognized and declared E.g. Tarnopolsky, The Canadian Bill of Rights (2nd rev. ed. 1975) , 112, 141; Hogg, Constitutional Law of Canada (1977) R. v. Drybones [1970] S.C.R. 282, (hereinafter Drybones) discussed infra p Professor Conklin is "sceptical of the success of classifying the [Canadian Bill of Rights] as a 'manner and form' requirement": Conklin, "Pickin and its Applicability to Canada" (1975) 25 University of Toronto Law Journal 193, 206. S E.g. supra n. 3 p Although the B.N.A. Act s. 91 (1) would appear to include "form" legislation, the Supreme Court has not regarded the Canadian Bill of Rights 1960 as a constitutional amendment: Attorney-General of Canada v. Lavell [1974] S.C.R. 1349, See Tarnopolsky, supra n. 3, p. 183, 152. '1 B.N.A. Act s. 91 (1); Hogg, supra n. 3, p. 183, 202. But see re Authority of Parliament in Relation to the Upper House [1980] 1 S.C.R See the Commonwealth Constitution s S. 17 provides: "There shall be one Parliament for Canada, consisting of the Queen,... the Senate, and the House of Commons." 10 The Commonwealth Constitution s. 1: "The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives...". See also text accompanying nne infra pp Emphasis added. The Canadian Bill of Rights applies "only to matters coming within the legislative authority of the Parliament of Canada": Canadian Bill of Rights 1960 s. 5(3).

18 184 Federal Law Review [VOLUME 11 In R. v. Drybones 12 the Supreme Court of Canada was confronted for the first time with a statutory provision 13 which could not be "so construed and applied as not to... infringe... any of the rights" recognised by the Bill of Rights and did not expressly declare that it should operate notwithstanding the Bill of Rights. By a majority of six to three, the Court held the provision "inoperative".14 Ritchie J., who delivered a jud~ment in which five judges 'concurred,15 stated clearly the consequences of conflict between a statutory provision and the Bill of Rights. [Section] 2 is intended to mean and does mean that if a law of Canada cannot be "sensibly construed and applied" so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is inoperative "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights".16 Although, as yet, the Supreme Court has not held any other statutory provision inoperative pursuant to section 2, the continued authority of Drybones is unquestioned. 11 It must be noted, however, that Drybones concerned legislation enacted prior to thebill of Rights, so the latterwould have had priority in any event by application of the usual rule that a later statute overrides inconsistent earlier legislation;18 the effect would have been that section 94(b) of the Indian Act (Canada) was impliedly repealed by the Bill of Rights. Such reasoning is, of course, excluded if the offending legislation was enacted subsequently to the Bill of Rights, yet clearly the Bill of Rights was intended to apply to such legislation,19 and it has been recognised, in Supreme Court dicta, that it would. 20 Indeed, in Drybones itself, Ritchie J. was concerned to establish that he was not holding that section 94(b) of the Indian Act (Canada) was impliedly repealed by the Bill of Rights. I think a declaration by the courts that a section or portion of a section of a statute is inoperative is to be distinguished from the 12 [1970] S.C.R The Indian Act (Can.) s. 94(b). 14 [1970] S.C.R. 282, 297, Fauteux, Martland, Judson, Hall and Spence JJ. Cartwright C.J., Abbott and Pigeon JJ. dissented. 16 [1970] S.C.R. 282, 294 (emphasis added). See also Attorney-General of Canada v. Lavell [1974] S.C.R. 1349, 1382 per Laskin, Hall and Spence JJ. dissenting. 11 E.g. Attorney-General of Canada v. Lavell [1974] S.C.R Supra n The Canadian Bill of Rights s. 5(2) provides: "The expression 'law of Canada' in Part I [which includes s. 2] means an Act of the Parliament of Canada enacted before or after the coming into force of this Act..." (emphasis added). Indeed s. 2 itself implies this; earlier legislation could hardly be expected to provide that it should "operate notwithstanding the Canadian Bill of Rights": see Brandt, Comment (1977) 55 Canadian Bar Review 705, Miller and Cockriell v. R. [1977] 2 S.C.R. 680, 686 per Laskin C.J., Spence and Dickson JJ.; Attorney-General of Canada v. Lavell [1974] S.C.R. 1349, 1388, See also Brandt, ide ; Hogg, supra n. 3 p. 183, 438.

19 1980] Can Commonwealth Parliament Enact Legislation? 185 repeal oj such a section and is to be confined to the particular circumstances of the case in which the declaration is made. The situation appears to me to be somewhat analogous to a case where valid provincial legislation... ceases to be operative by reason of conflicting federal legislation.21 Some academic commentators have questioned whether Drybones was correct in holding the offending enactment "inoperative",22 and presumably capable of revival if section 2 of the Bill of Rights were materially amended or repealed. 23 They suggest that section 2 requires offending legislation to be declared invalid,24 at least if enacted after the Bill of Rights.'25 It is submitted that Drybones was, nevertheless, correctly decided; the meaning of section 2 of the Bill of Rights is somewhat obscure 26 and altogether too shaky a basis on which to base a declaration that legislation is invalid, especially on the ground of conflict with a mere statute, not the Constitution. 27 Moreover, the decision of Ritchie J. was a prudent one; employing section 2 to render conflicting legislation "inoperative" means, essentially, that the section is interpreted as a direction to the courts to interpret prior and subsequent legislation as impliedly subject to the Bill of Rights. 28 Of course, a later statute could override section 2 by directing the courts to apply it notwithstanding section 2 of the Bill of Rights, but this would, in jact, require the express declaration contemplated by section 2 itself. In short, Drybones' application of section 2 treats it as an interpretation provision directing courts in their application of conflicting legislation; after all, section 2 directs laws to be "so construed and applied...".29 Construing section 2 in this way is not incompatible with orthodox notions of parliamentary supremacy, even when applied to subsequent legislation; section 2 could render subsequent legislation "inoperative" even if the Dicey/Wade interpretation of parliamentary supremacy were adopted [1970] S.C.R. 282, Id. 297, 298; see Tarnopolsky, supra n. 3 p. 183, ; Hogg, supra n. 3 p. 183, 437, n. 22. Cf. Jaconelli, supra n. 77, for a note on allegedly similar decisions of European courts. 23 Hogg, ibid. Cf. Butler v. Attorney-General jor Victoria (1961) 106 C.L.R Tarnopolsky, supra n. 3 p. 183, 112. But see Hogg, ide Hogg, ibid. 26 Cf. the much clearer provisions in the Human Rights Bill 1973 (Cth) cl. 5(2) and (3); cl. 9 of the Draft Bill of Rights in Wallington and McBride, supra n. 23 p. 171, 114; and cl. 3 of the Bill of Rights Bill 1976 (U.K.). 27 Cj. Curr v. R. [1972] S.C.R. 889, 899 per Laskin, Abbott, Hall, Spence and Pigeon JJ. 28 Lord Hailsham of St. Marylebone, Minutes of Evidence, supra n. 24 p. 171, 16-17, 22, 25. Cj. Tarnopolsky, supra n. 3 p. 183, Emphasis added. Contrast the comment on this phrase by Pigeon J., dissenting, in Drybones [1970] S.C.R. 282, Nevertheless, some have seen Drybones as inconsistent with traditional notions of parliamentary supremacy, at least if applied to legislation enacted after the Bill of Rights. Abbott J., for instance, has lamented that "the Canadian Bill of Rights has substantially affected the doctrine of the supremacy of Parliament. Like any other statute it can of course be repealed or amended, or a particular law declared to be applicable notwithstanding the provisions of the Bill. In form the supremacy

20 186 Federal Law Review [VOLUME 11 But could a provision like section 2 of the Canadian Bill of Rights, if appropriately worded, render subsequent legislation invalid, not merely inoperative? The Canadian Parliament could probably enact such a provision pursuant to its power to amend the Constitution in certain respects,31 as could the British Parliament if the rule of parliamentary supremacy were interpreted as procedurally "self-embracing".s2 But such a provision would not be effective if the orthodox Dicey/Wade interpretation of parliamentary supremacy were adopted. 33 Two cases, decided beforethe "self-embracing"interpretationof parliamentary supremacy had received serious consideration, contain dicta suggesting that Parliament cannot bind itself by a "form" provision, but both dealt with provisions materially different from section 2 of the Canadian Bill of Rights and clause 5(2) and (3) of the Commonwealth's Human Rights Bill In The South-Eastern Drainage Board (South Australia) v. The Savings Bank of South Australia 34 the High Court considered the effect of section 6 of the Real Property Act 1886 (S.A.), which provided: No law, so far as inconsistent with this Act, shall apply to land subject to... this Act-nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply "notwithstanding the provisions of 'The Real Property Act 1886' ".35 Four Justices held that section 6 was not a law "respecting the Constitution, Powers, and Procedure" of the legislature within section 5 of the Colonial Laws Validity Act 1865 (U.K.); hence, that provision did not require legislation amending section 6 to be enacted in the specified form. 36 Accordingly, section 6 was, at most, an interpretation of Parliament is maintained but in practice I think that it has been substantially curtailed. In my opinion that result is undesirable, but that is a matter for consideration by Parliament not the courts": Attorney-General 0/ Canada v. Lavell [1974] S.C.R. 1349, 1374 per Abbott J., dissenting. (Emphasis added.) ct. the view that cl. 3 of the Bill of Rights Bill 1976 (U.K.) could not effectively enable the Bill of Rights Act to prevail over subsequent inconsistent legislation: see Report 0/ the Select Committee, supra n. 23 p. 171, paras 17 and 23 (see also paras 21 and 38); Mr Rippengal, Minutes 0/ Evidence, supra n. 24 p. 171, 2-3 (paras 7-11). But see contra, ide 16-17, 22 (Lord Hailsham of St. Marylebone) 169, 170 (Mr Wallington). 31 The B.N.A. Act s. 91(1), and supra nne 6,7 p ct. Wade and Phillips, supra n. 61, 543; Wallington and McBride, supra n. 23 p. 171, 86, See the comments of H. W. R. Wade, supra n. SO, ; Hood Phillips and Jackson, supra n. 30 p. 172, 83 and E. C. S. Wade in Dicey, supra n. 48, xlix. 34 (1939) 62 C.L.R Emphasis added. 36 (1939) 62 C.L.R. 603, 618 per Latham C.J., 623 per Starke J., 625 per Dixon J., 636 per McTiernan J. Strictly speaking, the question before the Court was whether the South-Eastern Drainage Act was a law "respecting the Constitution, Powers, and Procedure" of the legislature, not whether the Real Property Act s. 6 was. The High Court's analysis was erroneous because it cannot be assumed that an Act of the kind referred to in s. 6 would have the same character as s. 6 itself.

21 1980]. Can Commonwealth Parliament Enact Legislation? 187 provision;37 it could not prevent the legislature manifesting an intention to make a contrary provision without employing the stipulated form. The South Australian Parliament had manifested such an intention in the South-Eastern Drainage Act (S.A.).38 Evatt J. concluded, however, that the South-Eastern Drainage Acts were not inconsistent with the Real Property Act 1886,39 but declared (obiter) that, even if they had been, section 6 would have had no effect. [Section 6] purports to control future parliaments of South Australia in any legislation affecting land under the Real Property Act by requiring that unless such legislation is couched in a certain literary form (i.e., containing the words "notwithstanding the provisions of 'The Real Property Act 1886''') it cannot affect land under the Act. For instance, it would not be sufficient if the Parliament used the phrase "In spite oro the provisions of the Real Property Act 1886". In my opinion the legislature of South Australia has plenary power to couch its enactments in such literary form as it may choose. It cannot be effectively commanded by a prior legislature to express its intention in a particular way. Maugham L.J. has, I think, said something to this substantial effect in Ellen Street Estates Ltd v. Minister of Health. 41 But this is an even clearer case... Sec. 6 is not a mere interpretation section, for it is not expressed to operate only so far as the contrary intention does not appear. It purports to lay down a rigid rule binding upon all future parliaments. It declares that, however clearly the intention of such parliaments may be expressed..., that intention shall not be given effect to unless it contains the magic formula. I think that the command in sec. 6 was quite ineffective and inoperative. 42 It is submitted that the dicta in The South-Eastern Drainage Board case have little direct relevance to the question whether the Commonwealth can enact a binding "form" provision; only Evatt J. considered the provision in any detail, and he emphasised that section 6 of the Real Property Act 1886 went so far as to require a "magic formula".43 Moreover, it is important to bear in mind that no reference was made See Campbell, "Comment on State Government Agreements" (1977) 1 Australian Mining and Petroleum Law Journal 53, (1939) 62 C.L.R. 603, 625 per Dixon J., 636 per McTiernan J. Contra, ide 634 per Evatt J. 38 Id. 618, 623, 628, Id Evatt J.'s emphasis. 41 Evatt J. referred to [1934] 1 K.B. 590, (1939) 62 C.L.R. 603, (emphasis added). Evatt J. did not refer specifi.. cally to S. 5 of the Colonial Laws Validity Act, but his remark (634) that Trethowan's case was irrelevant must be taken to mean that, like the other judges, he considered S. 5 inapplicable here. 43 Indeed, Latham C.J. characterised s. 6 as one purporting to "prescribe the contents of an Act which the legislature has power to pass" (1939) 62 C.L.R. 603, 618 (emphasis added) in which case s.6 would not be a "manner and form" provision at all.

22 188 Federal Law Review [VOLUME 11 to the procedurally "self-embracing" interpretation of parliamentary supremacy.44 The other case in which allusion was made to the effect of a "form" provision is Ellen Street Estates Ltd v. Minister of Health,45 in which it was argued that section 46 of the Housing Act 1925 (U.K.) could not have impliedly repealed portions of the Acquisition of Land (Assessment of Compensation) Act 1919 (U.K.) because section 7(1) of the latter Act provided: The provisions of the Act or order by which the land is authorised to be acquired... shall... have effect subject to this Act, and so far as inconsistent with this Act those provisions shall... not have effect. This argument was rejected, it being unequivocally declared that Parliament cannot effectively bind itself with respect to the subject matter of legislation;46 parliamentary supremacy is not substantively "self-embracing".47 It had been argued that the effect of section 7(1 ) was that legislation seeking to amend the 1919 Act must repeal section 7(1) expressly, not merely by implication. 48 This was rejected, Maugham L.I. saying: I am quite unable to accept that view. The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature. 50 It is submitted that this dictum is more widely expressed than was necessary for the decision in the case 51 and, in any event, was obiter because section 7(1) did not purport to specify a "form" for the enactment of subsequent legislation. 52 Moreover, the orthodox interpretation of parliamentary supremacy was still unquestioned in England in 1934, and the Court of Appeal did not consider other possible interpretations Thus, Latham C.l. merely said that "[i]t is recognized as a general principle of English constitutional law that one parliament cannot bind its successors...": (1939) 62 C.L.R. 603, 617. See also Campbell, supra n. 36 p. 186, [1934] 1 K.B. 590 (C.A.). 46/d per Scrutton L.J. Talbot J. concurred, although, like Avory J. in Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 K.B. 733, 743, he thought that s. 7(1) was not intended to apply to future legislation: [1934] 1 K.B. 590, Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 K.B Ellen Street Estates Ltd v. Minister of Health [1934] 1 K.B. 590, 597. See also Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 K.B. 733, See also ide [1932] 1 K.B. 733, 746 per Humphreys l. 60 Ellen Street Estates Ltd v. Minister of Health [1934] 1 K.B. 590, 597. Emphasis added. Talbot J. concurred. Gl Wade and Phillips, supra D. 61, Jennings, supra n. 61, Heuston, supra n. 61, 27; Lord Hailsham of St. Marylebone, Minutes of Evidence, supra n. 24 p. 171, 16.

23 1980] Can Commonwealth Parliament Enact Legislation? 189 Ellen Street Estates Ltd v. Minister of Health has, therefore, little direct relevance to the question whether Parliament can enact a binding "form" provision. 54 C. The Australian States Unlike the Parliaments of the United Kingdom, Canada 55 and Australia;56 the Australian State legislatures remain subject to section 5 of the Colonial Laws Validity Act 1865 (U.K.),57 which provides: [E]very Representative Legislature 58 shall... have... full Power to make 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... Colony.59 It is clearly implied in section 5 of the Colonial Laws Validity Act that a representative legislature can enact a binding "manner and form" provision by a law respecting its constitution, powers and procedure, and this is well established by judicial authority.oo Obviously, in so far as decisions upholding State "manner and form" provisions were based on section 5, they are not relevant to the Commonwealth, which is not subject to that provision, but it has occasionally been held that even those "manner and form" provisions which fall outside section 5 of the Colonial Laws Validity Act can be effective. 61 Undoubtedly, the most authoritative decision to this effect was that of six Justices of the High Court in Clayton v. HefJron,62 in which section 5B of the Constitution 54 Mitchell, supra n. 61, 76-77; Auburn, "Trends in Comparative Constitutional Law" (1972) 35 Modern Law Review 129, 133; Jennings, supra n. 61, 163. But cf. the significance given to the dictum of Maugham L.J. by the followers of the orthodox interpretation of parliamentary supremacy: see H. W. R. Wade, supra n. 50 p. 175, ; Hood Phillips and Jackson, supra n. 30 p. 172, 83; E. C. S. Wade, supra n. 50 p. 175, xlix; Rippengal, Minutes of Evidence, supra n. 24 p. 171, 3, 5 (paras 8-11, 15), criticised by Lord Hailsham of St. Marylebone, ide Statute of Westminster 1931 (U.K.) SSe 2(1), 7(1). 56 Id. SSe 2(1),8; Statute of Westminster Adoption Act 1942 (Cth) s But cf. Statute of Westminster 1931 (U.K.) s.7(2) extending s.2 to the Canadian Provinces. 58 Defined by the Colonial Laws Validity Act 1865 (U.K.) s. 1; the Australian States are included. 59 Emphasis added. 60 Attorney-General for New South Wales v. Trethowan [1932] A.C. 526 (P.C.); Taylor v. Attorney-General of Queensland (1917) 23 C.L.R. 457; Clayton v. Heffron (1960) 105 C.L.R. 214, , 262 per Fullagar J., 275 per Menzies J.; Commonwealth Aluminium Corporation Ltd v. Attorney-General (Qld) [1976] Qd.R. 231, per Hoare J., dissenting; McDonald v. Cain [1953] V.L.R. 411, 419, 426, See generally Lumb, supra n. 91, ; Lumb, "Fundamental Law and the Processes of Constitutional Change in Australia" (1978) 9 F.L. Rev. 148, , 180; Campbell, supra n. 36 p. 186, Cf. Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394,419 per Rich J. 62 (1960) 105 C.L.R. 214, per Dixon C.J., McTiernan, Taylor and Windeyer JJ., Kitto J. concurring 265, per Menzies J. But see id., 258 per Fullagar J.

24 190 Federal Law Review [VOLUME 11 Act 1902 (N.S.W.) was upheld under the legislature's power to "make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever".63 A similar opinion was voiced recently by Hoare J. (obiter") in the Supreme Court of Queensland: Even apart from the express provisions of the proviso to s. 5 of The Colonial Laws Validity Act, if there is an express legislative provision concerning the manner and form of subsequent legislation, then that manner and form must be observed: Bribery Commissioner v. Ranasinghe,65 distinguishing McCawley v. The King.66, 67 Although these decisions on State legislative power are not directly applicable to the Commonwealth because the State legislatures have constituent power,68 but the Commonwealth Parliament does not, certainly nothing said therein would indicate that the Commonwealth lacks the power to enact binding "manner and form" provisions. 3. "MANNER AND FORM" IN THE COMMONWEALTH Consideration of British, Canadian and State authorities has shown, it is submitted, that the Commonwealth Parliament, being a legislature of the British type, could enact binding "manner and form" legislation in the absence of a constitutional provision to the contrary. Hence, the effect of the Commonwealth Constitution must now be considered. Because the Constitution affects each kind of "manner and form" provision differently, each will be considered separately. A. "Form" Provisions The CommonwealthParliamentclearly has power to enact a provision, like section 2 of the Canadian Bill of Rights,70 which merely directs the courts in their interpretation of valid legislation; such a provision would 63 The Constitution Act 1902 (N.S.W.) s His Honour held that the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) s. 4 did fall within s. 5 of the Colonial Laws Validity Act 1865 (U.K.): Commonwealth Aluminium Corporation Ltd v. Attorney-General (Qld) [1976] Qd.R. 231, [1965] A.C [1920] A.C Commonwealth Aluminium Corporation Ltd v. Attorney-General (Qld) [1976] Qd.R. 231, 247 per Hoare J., dissenting. 68 "The Legislature was endowed with constituent as well as ordinary legislative power": Clayton v. Heffron (1960) 105 C.L.R. 214, 251 per Dixon C.l., McTiernan, Taylor and Windeyer JI., Kitto I. concurring 265; Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394, 420 per Rich J., per Starke J., , 433 per Dixon J., 443 per McTiernan I., affirmed [1932] A.C. 526; McCawley v. R. [1920] A.C. 691; McDonald v. Cain [1953] V.L.R. 411, 433. For possible limits on State constituent power, see Lumb, supra n. 61 p. 189, , and supra n. 91, 111; Gill v. State Planning Authority (1979) 20 S.A.S.R. 580, 589 (a questionable obiter dictum). 69 Commonwealth Constitution s See also the Human Rights Bi (eth) cl. 5(2) and (3).

25 1980] Can Commonwealth Parliament Enact Legislation? 191 fall within the express incidental power,'1 if not the incidental power implied in the grant of every legislative power. 12 The position would be less clear in regard to "form" legislation which provided that legislation not enacted in the specified form would be invalid, not merely inoperative. Prima facie it too would fall within the express or implied incidental powers, and the fact that it could also be characterised as a law with respect to the exercise of Commonwealth legislative power (a subject not listed in sections 51 or 52) ought not to make it ultra vires. 73 However, it might be argued that such a provision sought to alter the Constitution in a manner other than that specified in section 128 of the Constitution and was, therefore, invalid. 74 Whether this is so depends essentially on whether the grant of legislative power in section 51 includes the power to enact such a "form" provision; if it does, the Constitution itself has granted Parliament this power and its exercise cannot be a breach of section 128. It is submitted that the concept of "legislative power" conferred on the Commonwealth Parliament,1G interpreted in light of the experience of other "British" legislatures, includes the power to enact such a binding "form" provision because the supremacy of the Commonwealth Parliament, like those of Britain and Canada, is procedurally "self-embracing". B. Specified Majorities in Parliament The Commonwealth Parliament could not validly prohibit the enactment of legislation unless it is passed by specified majorities in either or both Houses 76 because sections 23 and 40 of the Constitution expressly provide that questions arising in the House and the Senate "shall be determined by a majority of votes"; the additional provisions of the sections suggest that "majority" means a simple majority,77 its usual meaning. 78 A "manner" provision seeking to change these provisions would be invalid for contravening section 128 of the Constitution. 71 Commonwealth Constitution s. 51 (xxxix). 72 E.g., Victoria v. Commonwealth (the A.A.P. case) (1975) 134 C.L.R. 338, per Jacobs J. 13 On the modern characterisation doctrine, see Seamen's Union of Australia v. Utah Development Co. (1978) 22 A.L.R. 291, 316 per Mason J.; Murphyores Incorporated Pty Ltd v. Commonwealth (1976) 136 C.L.R. 1, 22 per Mason J.; Melbourne Corporation v. Commonwealth (1947) 74 C.L.R. 31, 79 per Dixon J., adopted in Fairfax v. Federal Commissioner of Taxation (1965) 114 C.L.R. 1, 13 per Kitto J. 74 Section 128 provides: "This Constitution shall not be altered except in the following manner:-." 'Ii Commonwealth Constitution s For examples of such provisions, see supra n. 25 p Lumb and Ryan, The Constitution of the Commonwealth of Australia Annotated (2nd ed. 1977) 49, Cf. Commonwealth Constitution s. 128 paras 1 and 2 which require absolute majorities.

26 192 Federal Law Review [VOLUME 11 C. Substituted Legislature Nor can the Commonwealth Parliament substitute a new legislature for the present Parliament,79 either by adding an additional element to the present legislative process (such as the consent of the electors SO or another body81) or by creating a completely new body for the enactment of certain laws,82 because the legislative power of the Commonwealth is conferred on the present Parliament by section 1 of the Constitution. 83 Any provision depriving Parliament of that power would be an invalid attempt to alter the Constitution otherwise than as provided by section 128. The High Court has, indeed, recognised that Parliament cannot abdicate its legislative power,84 and Barwick C.J. has declared that "Parliament is essentially, and without due amendment of the Constitution, unalterably a bicameral legislature...".85 Hence, this type of "manner" provision is beyond the legislative capacity of the Commonwealth. D. Alternative Legislature Finally, can the Commonwealth Parliament establish an additional or alternative legislature for the enactment of certain kinds of legislation, such as Bills on which the two Houses of Parliament disagree? Such "manner" legislation might provide for a joint sitting of both Houses,86 enable a Bill to become law without the concurrence of the Senate 81 or, like Part III of the Northern Territory (Self-Government) Act 1978 (Cth) establish a new legislature for a Territory. This is, probably, the most significant issue regarding "manner and form" legislation in the Commonwealth because, if valid, it has the potential to prevent a recurrence of the October-November 1975 Supply crisis. 79 Wynes, supra n. 27 p. 171, For examples of such provisions, see supra n. 26 p For examples of such provisions, see supra n. 27 p E.g., the South Africa Act 1909 (U.K.) SSe 35(1) and 152, requiring a joint sitting of both Houses of Parliament: see Harris V. Minister 0/ the Interior, [1952] (2) S.A. 428 (A.D.) sub nom. Harris v. Donges [1952] 1 T.L.R See also Commonwealth Constitution SSe 58-60, entrenching the legislative role of the Crown. ct. In re the Initiative and Referendum Act [1919] A.C. 935, 944 (P.C.). 84 Giris Pty Ltd v. Federal Commissioner of Taxation (1969) 119 C.L.R. 365, 373 per Barwick C.J.; The Victorian Stevedoring & General Contracting Co. Pty Ltd v. Dignan (1931) 46 C.L.R. 73, 121 per Evatt J.; ex parte Walsh & Johnson, In re Yates (1925) 37 C.L.R. 36, 83, 107 per Isaacs J. See also In re the Initiative and Referendum Act [1919] A.C. 935, 945 (P.C.). ct. the position under State constitutionallaw: Cobb & Co. Ltd V. Kropp [1967] 1 A.C. 141, 155, 157 (P.C.), adopting R. v. Burah (1878) 3 App. Cas. 889, 905 (P.C.); Commonwealth Aluminium Corporation Ltd v. Attorney-General (Qld) [1976] Qd.R. 231, Western Australia v. Commonwealth (1975) 134 C.L.R. 201, 217. See also Cormack V. Cope (1974) 131 C.L.R. 432, 456 per Barwick C.J. 8GE.g., the Constitution Act 1902 (N.S.W.) s.5b(i). Cf. Commonwealth Constitution s E.g., the Constitution Act 1902 (N.S.W.) s. 5A; the Parliament Act 1911 (U.K.) ss.1 and 2, as amended by the Parliament Act 1949 (U.K.) s.l.

27 1980] Can Commonwealth Parliament Enact Legislation? 193 Although legislation enacted pursuant to such a "manner" provision might be regarded by the courts merely as delegated or subordinate legislation, it is submitted that it should have a higher status, especially if enacted by as representative and prestigious a body as the House of Representatives or a joint sitting of both Houses. In many cases it might make little practical difference whether legislation enacted pursuant to a "manner" provision had the status of subordinate legislation or some higher status more closely akin to that of ordinary legislation, but in marginal cases it could be significant; examples are challenges to such legislation on the ground that it was enacted for an improper purpose,88 that it unlawfully sub-delegated legislative power,89 that it purported to amend existing legislation without proper authority,90 that it sought to increase its maker's powers 91 or, perhaps, that its provisions were too uncertain. 92 Although, in a general sense, the framework of the Commonwealth Constitution was based on the separation of powers doctrine, it is well established that the vesting in Parliament of "the legislative power of the Commonwealth"93 is not a bar to Parliament delegating legislative power to another body,94 as long as Parliament retains control over the exercise of power by the delegate; Parliament cannot validly abdicate its legislative power. 95 But Parliament does not abdicate legislative power merely by delegating it 96 because, at the very least, it can always repeal the delegating statute. Moreover, although legislative power is usually delegated to the government, which is responsible to the legislature, thereby affording Parliament an additional (albeit often theoretical) 88 Pearce, Delegated Legislation in Australia and New Zealand (1977) ch Id. ch. 25; de Smith, Judicial Review ot Administrative Action (3rd ed. 1973) ; Allen, Law and Orders (3rd ed. 1965) ; Whitmore, Principles 0/ Australian Administrative Law (5th ed. 1980) ct. "Henry VIII clauses": see generally H. W. R. Wade, supra n. 71 p. 178, , Allen, ide , Pearce, supra n. 88 p. 193, paras ct. Professor Hood Phillips' argument that the Parliament Act 1949 (U.K.) is not an "Act of Parliament" because the legislature constituted pursuant to the Parliament Act 1911 (U.K.) s.2 had no power to enact it: Hood Phillips and Jackson, supra n. 30 p. 172, 89-90, 143; Hood Phillips, supra n. 90 p. 181, Pearce, supra n. 88 p. 193, ch Commonwealth Constitution s Baxter v. Ah Way (1909) 8 C.L.R. 626; Roche v. Kronheimer (1921) 29 C.L.R. 329; Huddart Parker Ltd v. Commonwealth (1931) 44 C.L.R. 492, 506, 512, 518; The Victorian Stevedoring & General Contracting Co. Pty Ltd v. Dignan (1931) 46 C.L.R. 73 (hereinafter cited as Dignan's case); Radio Corporation Pty Ltd v. Commonwealth (1938) 59 C.L.R. 170; Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1, ; Esmonds Motors Pty Ltd v. Commonwealth (1970) 120 C.L.R. 463, ; Commonwealth v. Carkazis (1978) 23 A.C.T.R. 5, 10; Golden-Brown v. Hunt (1972) 19 F'.L.R. 438, See cases cited supra D. 84 p Dignan's case (1931) 46 C.L.R. 73, 102 per Dixon J., 118 per Evatt J.; Attorney-General tor Australia v. R. [1957] A.C. 288, 315 (P.C.) (hereinafter cited as Boilermakers' case).

28 194 Federal Law Review [VOLUME 1.1 means of controlling its delegate's exercise of power,91 Parliament may delegate legislative power to other bodies,98 and occasionally does SO.99 In sum, the separation of powers doctrine does not prevent Parliament delegating legislative power;! nor, for the same reasons, should it be a bar to the establishment by Parliament of an alternative or additional manner of legislating. The High Court has, however, suggested occasionally, and always obiter, that there may be a limit to the breadth of the power which Parliament can validly delegate. 2 Like another limitation on Commonwealth legislative power,s the restriction is usually' based, somewhat 91 For comment on the importance of the institution of responsible government for parliamentary supervision of delegated legislation, see Dignan's case (1931) 46 C.L.R. 73, 114, 120 per Evatt J.; Radio Corporation Pty Ltd v. Commonwealth (1938) 59 C.L.R. 170, 184 per Latham C.J.; Boilermakers' case [1957] A.C. 288, Dignan's case (1931) 46 C.L.R. 73, per Evatt J. With respect, Dr Pearce's doubts on this point (Pearce, supra n. 88 p. 193 para. 505) seem unwarranted, especially in view of this dictum of Evatt J. See also Giris Pty Ltd v. Commonwealth (1969) 119 C.L.R. 365; R. v. Federal Court 0/ Bankruptcy, ex parte Lowenstein (1938) 59 C.L.R. 556, 565 per Latham C.J.; Dignan's case (1931) 46 C.L.R. 73, 84 per Gavan Duffy C.J. and Starke J. 99 E.g., the Northern Territory (Self-Government) Act 1978 (Cth), Part ni. But query whether this Act should be regarded merely as one delegating legislative power; it is better described as one establishing a new legislature. 1 Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1, per Fullagar J.; Giris Pty Ltd v. Commonwealth (1969) 119 C.L.R. 365, 373 per Barwick C.J. But the separation of powers doctrine may impose some outer limit to Parliament's power; in Giris Pty Ltd v. Federal Commissioner 0/ Taxation (1969) 119 C.L.R. 365, 379 Kitto J. said (obiter): "If [the Income Tax Assessment Act (Cth) s. 99A(2)] had the effect of setting the Commissioner free, in choosing between s.99a and s.99, to do what he thought fit within the limits of the powers of the Parliament, possibly it should be held invalid as an attempt to invest an officer 0/ the executive government with part 0/ the legislative power 0/ the Commonwealth." (Emphasis added.) Menzies J. made a somewhat similar comment (also obiter): "It is true that at some point in a process of parliamentary abnegation, such as the Act reveals in s.99a and other sections, the shifting of responsibility from Parliament to the Commissioner would require consideration 0/ the constitutionality 0/ the delegation but I cannot deny validity to s. 99A on the ground that it is unconstitutional for Parliament to give to the Commissioner the power to determine that, in a particular case, it would be unreasonable to apply the section": ide 381. (Emphasis added.) It should be noted that Menzies J. did not indicate whether the delegation would face limitations based on the separation of powers doctrine or the need for a valid characterisation. Windeyer J. was contentto observe, enigmatically, that s. 99A was "very close to the boundary": ide 385. He did not specify the boundary he was referring to. 2 See supra n. 1 p. 194; Dignan's case (1931) 46 C.L.R. 73, 101 per Dixon J., per Evatt J.; Wishart v. Fraser (1941) 64 C.L.R. 470,488 per McTiernan I.; Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1, 257 per Fullagar J. ct. Gill v. State Planning Authority (1979) 20 S.A.S.R. 580, 589 (a questionable obiter dictum). 3 That the Commonwealth may not, usually, "single out", or discriminate against, the States. For attempts (unconvincing) to base this limitation on the characterisation doctrine, see Melbourne Corporation v. Commonwealth (1947) 74 C.L.R. 31, per Latham C.J., per Williams J.; Victoria v. Commonwealth (1971) 122 C.L.R. 353, , per Barwick C.J., Owen J. concurring. The other justices in both cases rejected this approach. 4 But see Giris Pty Ltd v. Federal Commissioner 0/ Taxation (1969) 119 C.L.R. 365, 379 per Kitto J. '

29 1980) Can Commonwealth Parliament Enact Legislation? 195 disingenuously it would seem, on the characterisation doctrine, it being suggested that legislation delegating very wide powers to make laws with respect to a section 51 subject matter may, at some point, cease to be laws with respect to that subject matter, and become laws with respect to the legislative power of the Commonwealth. s Dixon J. expressed this well in Dignan's case: I... retain the opinion... that Roche v. KronheimerG did decide that a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting thevalidity of an Act creating a legislative authority.1 Evatt J. was of the same opinions and instanced a provision that "The Executive Government may make regulations having the force of law upon the subject of trade and commerce with other countries or among the States'" as one which would be invalid, being, "in substance and operation, not [a law with respect to trade and commerce with other countries or among the States], but a law with respect to the legislative power to deal with the subject of trade and commerce with other countries or among the States".10 McTiernan J. has also expressed much the same view. Theuncertaintyorwidth of the subject matter with respect to which the Executive is given power to make regulations may prevent the law attempting to confer such power being a law with respect to any subject within the legislative powers of Parliament. II With all respect, it is difficult to reconcile these views with the modem characterisation doctrine, which may be stated succinctly in these words of Evatt J. in Dignan: "[A] Commonwealth enactment is valid if it is a law with respect to a granted subject matter, although it is also a law I See the dicta cited in text accompanying nne 7, 8, 10, 11 infra. G (1921) 29 C.L.R (1931) 46 C.L.R. 73, 101. sid Id Id. 120 (emphasis added). Fullagar J. suggested a similar fate for an Act giving a power "to make regulations with respect to bankruptcy", not given in aid of specific parliamentary legislation: Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1, Wishart v. Fraser (1941) 64 C.L.R. 470, 488. McTiernan J. cited Dignan's case (1931) 46 C.L.R. 73, 101.

30 196 Federal Law Review [VOLUME 1.1 with respectto the exercise oflegislative power."12 Surely a law delegating even very broad legislative power over a section 51 subject is a law with respect to that subject notwithstanding that it may also be characterised as a law with respect to the exercise of Commonwealth legislative power, a subject not included in section 51 ;13 if so, it must be valid. If there is to be any limitation on the Commonwealth Parliament's power to delegate legislative power it must, therefore, be based squarely on the separation of powers doctrine, as Kitto J. hinted at in Giris Pty Ltd v. Federal Commissioner of Taxation. 14 It is submitted, however, that the High Court should not depart from its long-standing view that the separation of powers doctrine does not preclude the Commonwealth Parliament delegating legislative power in the broadest terms. 15 The position regarding "manner" legislation of the type under consideration-which is likely to be framed in very wide terms-should logically be the same. Apart from the establishment of territoriallegislatures,16 which raises few constitutional questions, other foreseeable uses of this type of "manner and form" provision raise issues which should be considered briefly. First, would a "manner and form" provision, like sections 1 and 2 of the Parliament Acts 1911 and 1949 (U.K.) or section 5A of the Constitution Act 1902 (N.S.W.), which enables a Bill to become law with the assent only of the House of Representatives and the Governor-General, contravene section 57 of the Constitution? One has 12 (1931) 46 C.L.R. 73, 121. Dixon J., concurring ide See also cases cited supra n. 73 p Sawer, "The Separation of Powers in Australian Federalism" (1961) 35 A.L.J. 177, (1969) 119 C.L.R. 365,379, quoted supra n. 1 p See Dignan's case (1931) 46 C.L.R. 73, per Dixon J., 119, 121 per Evatt J.; Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1, per Fullagar J.; Giris Pty Ltd v. Federal Commissioner of Taxation (1969) 119 C.L.R. 365, 373 per Barwick C.J. However, in Dignan's case the High Court did not go so far as to declare the separation of powers doctrine irrelevant to the definition of limits to the Commonwealth Parliament's power to delegate legislative power. Thus, Dixon J., who believed the constitutional framework to be based on the separation of powers (46 C.L.R. 73, 96-98, 101) wrote: "Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority" (id. 101); and even Evatt J., who held that the separation of powers doctrine was embodied only loosely in the Constitution (id ), observed that "[t]he fact that the grant of power is made to the Executive Government rather than to an authority which is not responsible to Parliament, may be a circumstance which assists the validity of the legislation. The further removed the law-making authority is from continuous contact with Parliament, the less likely is it that the law will be a law with respect to any of the subject matters... in sees. 51 and 52 of the Constitution": ide 120 (emphasis added). It has been suggested that the Boilermakers' case [1957] A.C. 288, necessitates a reconsideration of Dignan's case. See Sawer, supra n. 13 p. 196, , and comments by Menhennitt, (1961) 35 A.L.J. 190, and Benjafield, ibid. With respect, this writer would argue, with Sir Kenneth Bailey, id 195, that the Privy Council expressly refrained from questioning Dignan's case ([1957] A.C. 288, 315, ) which, therefore, does not require reconsideration. See also Wynes, (1961) 35 A.L.J See the Northern Territory (Self-Government) Act 1978 (Cth), Part III.

31 1980] Can Commonwealth Parliament Enact Legislation? 197 only to read section 57 to see that it is a purely permissive provision, and nothing therein suggests that it is to be the only way in which disagreements between the two Houses can be resolved. Although, undoubtedly, the constitutional framers never contemplated a "manner and form" provision like sections 1 and 2 of the Parliament Act 1911 (U.K.), and expected the section 57 procedure to be the way in which disagreements between the Houses would be resolved, their lack of foresight cannot detract from the plain language of section 57. Secondly, would a "manner and form" provision enabling a Bill to become law without receiving the Royal Assent contravene section 58 of the Constitution?17 It is submitted that ~t would not because section 58, unlike its United States counterparts,18 does not require all proposed laws passed by both Houses to be presented for the Royal Assent;19 it prescribes only what the Governor-General shall do "[w]hen a proposed law passed by both Houses of Parliament is presented to [him] for the Queen's assent".20 Hence, once again, even though the framers may not have contemplated the possibility of the enactment of legislation without the Royal Assent,21 nothing in the Constitution prohibits it. It might also be argued that an alternative legislature comprising the House of Representatives and the Governor-General would contravene the final paragraph of section 53 of the Constitution because the Senate would not "have equal power with the House of Representatives" in respect of proposed laws enacted by the new body. This argument is considered below when section 53 as a whole is examined. It is submitted there that the "proposed laws" to which section 53 refers are those under consideration by the "Parliament" established by section 1 of the Constitution; that is, laws to be enacted pursuant to the constitutionally conferred legislative power. The Constitution did not contemplate and, hence, did not purport to regulate, the enactment of laws by a legislature 11 Ct. In re the Initiative and Referendum Act [1919] A.C. 935, 944 discussed in Hogg, supra n. 3 p. 183, , See U.S. Constitution Art. I 7(2) and (3). The latter provides: "Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary... shall be presented to the President...": Art. I 7(3). But even this provision has not ensured that every resolution (with legislative effect) passed by both Houses is submitted to the President for his approval. See, e.g., discussion of the "legislative veto" in McGowan, "Congress, Court, and Control of Delegated Power" (1977) 77 Columbia Law Review 1119, ; Fisher, The Constitution Between Friends (1978) ; Stewart, "Constitutionality of the Legislative Veto" (1976) 13 Harvard Journal on Legislation 593; Tribe, American Constitutional Law (1978) , and 1979 Supplement, 17; Corwin, The Constitution and What It Means Today (14th ed. 1978'1) 37; Henry, "The Legislative Veto: In Search of Constitutional Limits" (1979) 16 Harvard Journal on Legislation 735, Contrast s. 7(1) Northern Territory (Self-Government) Act 1978 (Cth): "Every proposed law passed by the Legislative Assembly shall be presented to the Administrator for assent." 20 Commonwealth Constitution s. 58 para Commonwealth Constitution SSe 58 para. 2 and 59 certainly do not appear to contemplate it.

32 198 Federal Law Review [VOLUME IJ other than the Commonwealth Parliament. If a provision like section 2 of the Parliament Act 1911 (U.K.) contravened the final paragraph of section 53 the result would be strange indeed: Parliament could delegate legislative power to an outside body but not to the House of Representatives or the Senate APPROPRIATION ACTS The Commonwealth Parliament is unlikely to enact a general "manner and form" provision to resolve deadlocks between the two Houses because section 57 is adequate for that purpose so far as ordinary legislation is concerned; and statutes passed pursuant to section 57 would rest on a firmer constitutional basis than legislation enacted through a "manner and form" provision like sections 1 and 2 of the Parliament Act 1911 (U.K.). Moreover, a double dissolution offers a more lasting political resolution of the deadlock, and that can occur only if the provisions of section 57 are satisfied. However, the time limits imposed by section 57 make it unsuitable for resolution of a deadlock between the Houses over Supply,2S unless Appropriation Bills and Supply Bills are introduced into Parliament earlier than at present or moneys for "the ordinary annual services of the Government"24 are appropriated for more than one year at a time. Hence, a "manner and form" provision of the type discussed above26 offers a real possibility of avoiding a recurrence of the Supply crisis of October-November It is, therefore, appropriate to consider some of the constitutional hurdles such legislation would face. First, an Act providing that moneys may, in certain circumstances, be appropriated by a law approved by only the House of Representatives and the Governor-General would be characterised as a law with respect to "the appropriation of moneys" or "the power to appropriate moneys", but Parliament is not expressly given power to enact such laws; it has power merely to appropriate moneys.27 However, such legislation could be supported, it is submitted, under the incidental powers, express and 22 Presumably, Commonwealth Constitution s. 53 para. 5 prevents the Senate having greater power than the House of Representatives; except as provided in s. 53, their powers are equal. 23 This was noted by Sir John Kerr in his "Detailed Statement of Decisions" of 11 November 1975 in "The Fourth Double Dissolution, 11th November, 1975" (1975) 49 A.L.I. 645, This phrase occurs in Commonwealth Constitution SSe 53 para. 2 and 54; for its meaning, see Odgers, Australian Senate Practice (5th ed. 1976) ; Lumb and Ryan, supra n. 77 p. 191, The phrase "the ordinary annual services of the Government" is not sufficiently explicit to require money for such items to be appropriated for no more than one year at a time. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 670. Cf. the much more explicit language of Art. I 8(12) of the United States Constitution: "... but no appropriation of money to that use shall be for a longer term than two years." 26 See supra p. 192, D. Alternative Legislature. 27 Commonwealth Constitution SSe 81, 96.

33 1980] Can Commonwealth Parliament Enact Legislation? 199 implied,28 attaching to section 81. Surely it is incidental to the appropriation of moneys, especially for "the ordinary annual services of the Government", that a means be found to enable the moneys actually to be appropriated. Is it not incidental to the appropriation power to ensure that the government does not disintegrate or collapse through lack of funds? Secondly, section 83 provides that "[n]o money shall be drawn from the Treasury... except under appropriation made by law". Would an appropriation by an alternative legislature be one made by "law"? It is submitted that it would be. An "appropriation made by law" is one made either 'by the Constitution itself29 or "under the authority of a valid law of the Commonwealth".30 If, as was suggested above, the Commonwealth Parliament can enact "manner and form" legislation of this kind, a law enacted by the alternative legislature would satisfy section 83. Moreover, even if "law" in section 83 be interpreted to mean "a law made by the Commonwealth Parliament",31 an enactment of the alternative legislature, being one made by authority of "a law made by the Commonwealth Parliament", would, it is submitted, be a "law" within section 83. Of course, an Appropriation Act enacted by the alternative legislature must satisfy section 81. It must specify the purposes for which the moneys are appropriated;32 they must be "purposes of the Commonwealth",33 and not contravene any constitutional prohibition.- The requirement in section 81 that moneys be appropriated "in the manner... imposed by this Constitution" is clearly a reference to the provisions of sections 53, 54, 56 and 83; section 81 does not impose any additional "manner" requirement. 36 Finally, does section 53 guarantee the Senate a veto in respect of 28 See Inglis Clark, Studies in Australian Constitutional Law (2nd edt 1905) 45. The restrictive interpretation given s. 51 (xxxix) in Attorney-General for Commonwealth v. The Colonial Sugar Refining Co. Ltd [1914] A.C. 237, 256 has not prevailed: see Sawer, Cases on the Constitution of the Commonwealth of Australia (3rd edt 1964) See, e.g. Victoria v. Commonwealth (hereinafter cited as the A.A.P. case) (1975) 134 C.L.R. 338, per Jacobs J. 29 A.A.P. case (1975) 134 C.L.R. 338, 353, 371; Attorney-General for Victoria (ex rei. Dale) v. Commonwealth (hereinafter cited as the Pharmaceutical Benefits case) (1945) 71 C.L.R. 237, A.A.P. case, ide 353 per Barwick C.I.; Pharmaceutical Benefits case, ide 271 per Dixon I. 31 Pharmaceutical Benefits case, ide 250 per Latham C.I.; A.A.P. case, ide 371 per Gibbs I.-, 386 per Stephen J., 392 per Mason J., 411 per Jacobs I. 32A.A.P. case, ide 360, 404, 422; Pharmaceutical Benefits case, ide 253. See also A.A.P. case, ide 338, For the interpretation of this phrase in s. 81, see A.A.P. case, ide passim and Pharmaceutical Benefits case, ide passim. 54 A.A.P. case, ide 421. so Pharmaceutical Benefits case (1945) 71 C.L.R. 237, 253; A.A.P. case, ide 421.

34 200 Federal Law Review [VOLUME 11 every appropriation law? Sections 53 and 56 make five provisions with respect to the Senate's powers regarding Appropriation Bills: 1. Proposed laws appropriating moneys shall not originate in the Senate A proposed law appropriating moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House of Representatives The Senate may not amend proposed laws appropriating moneys for the ordinary annual services of the Government. 3S 4. "The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein...."39 5. "Except as provided in [section 53], the Senate shall have equal power with the House of Representatives in respect of all proposed laws."40 Obviously, an appropriation law enacted by the House of Representatives and the Governor-General would not contravene the first three provisions listed. Nor would it breach the fourth because the Senate's power to return a Bill to the lower House is clearly predicated on the Bill being transmitted to the Senate in the first place; the clause is insufficiently explicit to be interpreted as conferring on the Senate a power to review and return all proposed laws 41 appropriating moneys for the ordinary annual services of the Government. It would, indeed, be ironic if section 53, a provision giving the House of Representatives priority over the Senate in financial matters,42 were to prevent the Senate being by-passed in such matters when it could validly be by-passed in all others. Only the fifth provision is a possible barrier to the adoption by the Commonwealth of a provision like section 1 of the Parliament Act 1911 (U.K.) or section 5A of the Constitution Act 1902 (N.S.W.). The High Court has suggested that the final paragraph of section 53 would be interpreted literally; as Barwick C.J. said: "Section 53 of the Constitution makes it abundantly clear that the Senate is to have equal powers with the House of Representatives in respect of all laws other than those 36 Commonwealth Constitution s. 53 para Id. SSe 53 para. 1 and 56. as Id. s. 53 para Id. s. 53 para Id. s. 53 para See also the discussion infra p. 201 on the meaning of "proposed laws" in Commonwealth Constitution s Proposed laws imposing taxation are treated by Commonwealth Constitution s. S3 in the same way as proposed laws appropriating moneys for the ordinary annual services of the Government.

35 1980] Can Commonwealth Parliament Enact Legislation? 201 specifically excepted."43 The Court has held that the Senate can reject an Appropriation Bill. 44 It is possible that a Commonwealth provision like section 5A of the Constitution Act 1902 (N.S.W.) would founder on the final paragraph of section 53. However, it is submitted that if the phrase "proposed laws" in section 53 is read in context, as it must be, it means "proposed laws" enacted by the Parliament established by section 1 of the Constitution, the only Commonwealth legislature to which the Constitution refers, with the exception of the extra-ordinary legislatures established by sections 57 and 128. Moreover, an appropriation law enacted by the alternative legislature can be said to have Senate approval because the statute constituting the new legislature must have received the consent of the Senate or its constitutional equivalent. 4li It is submitted, therefore, that section 53 would not prevent the Commonwealth Parliament validly enacting a provision like section 5A of the Constitution Act 1902 (N.S.W.). 5. CONCLUSION Although the Commonwealth Parliament cannot enact "manner and form" legislation requiring laws to be passed by specified majorities in Parliament or by a legislature other than the Parliament established by section 1 of the Constitution, it can validly enact two types of "manner and form" provision of great utility. First, Parliament could enact a provision, like section 2 of the Canadian Bill of Rights 1960,46 which makes conflicting legislation not enacted in the specified form "inoperative".47 Indeed, Parliament could probably go further and provide that conflicting legislation, even if enacted after the Bill of Rights, should be invalid, not merely inoperative. These "form" provisions are useful devices for entrenching a statutory Bill of Rights against inadvertent amendment, as has been done in Canada. Secondly, the Commonwealth Parliament could establish an additional or alternative legislature for the enactment of legislation on subjects within Commonwealth legislative power. As in the United Kingdom and New South Wales, such a "manner" provision could provide a means of overcoming disagreements between the Houses of Parliament. If, as has been submitted, section 53 of the Constitution does not prevent the establishment of an alternative legislature, comprising the House of 43 Victoria v. Commonwealth (the P.M.A. case) (1975) 134 C.L.R. 81, 121; cf. 143 per Gibbs J., 185 per Mason J. 44 Id. 121, 143, 168, 185; Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394, 420. This was also the view of Sir John Kerr in his statements of 11 November 1975 (supra n. 23 p. 198, ), and Barwick C.J. in his letter of 10 November 1975 to Sir John Kerr (id ). 45 I.e. enactment pursuant to s. 57 of the Commonwealth Constitution. 46 Or cl. 5(2) and (3) Human Rights Bill 1973 (Cth). 47 R. v. Drybones [1970] S.C.R. 282.