Case Facts
In this case, the Privy Council considered a fundamental question of constitutional law concerning the power of a colonial legislature to entrench provisions of its own constitution so as to bind future legislatures.
The Constitution Act 1902 (NSW) was amended by the Constitution (Legislative Council) Amendment Act 1929 (No 28 of 1929, NSW), which inserted s 7A into that Act. Section 7A provided that no Bill to abolish the Legislative Council of New South Wales should be presented to the Governor for His Majesty's assent until it had first been approved by a majority of the electors voting upon a submission to them in accordance with the section. Critically, s 7A(6) further provided that the same referendum requirement applied to any Bill to repeal or amend s 7A itself. This self-entrenchment provision was the central point of legal controversy in the case.
In 1930, both Houses of the New South Wales legislature passed two Bills: one to repeal s 7A Constitution Act 1902 (NSW), and one to abolish the Legislative Council. Neither Bill had been approved by the electors in accordance with the requirements of s 7A. The Bills were accordingly awaiting presentation to the Governor for royal assent.
On 10 December 1930, the first two respondents, who were members of the Legislative Council suing on behalf of themselves and all other members who were not defendants, brought proceedings in the Supreme Court of New South Wales (in Equity). They sought a declaration that the two Bills could not lawfully be presented to the Governor for assent until they had been approved by the electors in accordance with s 7A, and they sought injunctions restraining any such presentation. Interim injunctions were granted ex parte.
The Supreme Court of New South Wales (Street CJ, Ferguson, James and Owen JJ; Long Innes J dissenting) overruled the demurrers and granted both the declaration and the injunctions. The appellants — the Attorney-General for New South Wales and others — then appealed to the High Court of Australia, represented by Sir Stafford Cripps KC and Pritt KC (with A C Nesbitt). The High Court (Rich, Starke, and Dixon JJ; Gavan Duffy CJ and McTiernan J dissenting) dismissed the appeal, affirming the judgment below. The appellants then sought and obtained special leave to appeal to the Privy Council, limited to the questions of whether the Parliament of New South Wales had power to abolish the Legislative Council of the State, to alter its constitution or powers, or to repeal s 7A Constitution Act 1902 (NSW), except in the manner provided by s 7A.
Before the Privy Council, the appellants advanced two principal arguments. First, they contended that s 7A(6) was void and inoperative under s 2 of the Colonial Laws Validity Act 1865 as being repugnant to the plenary powers conferred by s 4 New South Wales Constitution Act 1855 and s 5 Colonial Laws Validity Act 1865. They further argued that the United Kingdom constitutional principle that Parliament cannot bind its successors should apply equally to the New South Wales legislature given its plenary powers. Second, they argued that the words "manner and form" in the proviso to s 5 Colonial Laws Validity Act 1865 referred only to matters of procedure internal to the legislature itself and could not encompass a provision making the exercise of legislative power conditional upon approval by a body — namely, the electorate — that was external to the legislature.
Held
The Privy Council affirmed the judgment of the High Court of Australia and dismissed the appeal. The Board held that both Bills could not lawfully be presented to the Governor for royal assent unless and until they had been approved by a majority of the electors voting in a referendum conducted in accordance with s 7A Constitution Act 1902 (NSW).
The Privy Council held that the whole of s 7A, including s 7A(6), was within the competence of the New South Wales legislature. The referendum requirement constituted a valid provision as to "manner and form" within the meaning of the proviso to s 5 of the Colonial Laws Validity Act 1865. The injunctions restraining presentation of the Bills to the Governor were accordingly upheld.
Ratio Decidendi
The ratio of the decision rests upon the proper construction and interaction of two imperial statutes: the New South Wales Constitution Act 1855 and the Colonial Laws Validity Act 1865.
s 4 New South Wales Constitution Act 1855 conferred on the New South Wales legislature the original power to alter or repeal its constitutional provisions. Section 5 of the Colonial Laws Validity Act 1865 provided that every representative legislature should have full power to make laws respecting the constitution, powers, and procedure of such legislature, provided that such laws should be passed in such "manner and form" as might 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.
The Privy Council held that this proviso was of central importance. A colonial legislature, exercising its power under s 5, was entitled to prescribe a particular manner and form for the enactment of future legislation on specified matters — including its own constitutional provisions. When such a manner and form requirement was validly prescribed by colonial law, it became a binding condition precedent to the lawful enactment of any legislation of the relevant class. A subsequent legislature wishing to alter or abolish those provisions was therefore obliged to comply with the prescribed manner and form. Any purported Act passed without observing that requirement would not be law; it would be a mere nullity.
The appellants' argument that "manner and form" could refer only to internal parliamentary procedure — such as the number of readings required or the requisite majority within the legislature — was rejected. The Privy Council held that a requirement for prior approval by a popular referendum fell within the phrase "manner and form" as used in the proviso to s 5. The proviso was not limited to matters purely internal to the legislature's own proceedings.
Equally, the appellants' argument derived from the United Kingdom doctrine of parliamentary sovereignty — that no Parliament can bind its successors — was held to be inapplicable to the situation of a colonial legislature whose powers derived from and were circumscribed by imperial statute. The colonial legislature did not enjoy the same absolute and unlimited sovereignty as the Westminster Parliament. Its legislative authority derived from s 5 of the Colonial Laws Validity Act 1865, and that section expressly contemplated that manner and form requirements could be imposed upon and bind successor legislatures. The self-entrenching s 7A(6) — which applied the referendum requirement to any Bill to repeal or amend s 7A itself — was therefore also valid and operative.
The essential principle established is that a colonial legislature possessing power under s 5 of the Colonial Laws Validity Act 1865 may validly entrench constitutional provisions by prescribing a mandatory manner and form for their alteration. Such requirements must be strictly observed, and any legislation purportedly passed in disregard of them is of no legal effect. Courts accordingly have jurisdiction to restrain the presentation of such Bills to the executive for royal assent by way of injunction.
Obiter Dicta
The Privy Council's analysis necessarily touched upon the broader question of the relationship between the doctrine of parliamentary sovereignty as understood in the United Kingdom and the position of colonial or dominion legislatures. The appellants explicitly invoked the doctrine — that no Parliament can bind its successors — as a reason why the New South Wales legislature should not be regarded as bound by the manner and form requirements it had itself prescribed in s 7A. The Board's rejection of this argument was strictly necessary to the decision; however, its observations on the inapplicability of the Westminster model of sovereignty to colonial legislatures operating under the framework of imperial statute have broader constitutional significance.
The case is frequently discussed alongside questions of whether a sovereign Parliament — such as the Westminster Parliament itself — might be capable of entrenching legislation against subsequent repeal by prescribing a special manner and form for its amendment. The Privy Council's reasoning, being premised upon the derived and statutory nature of the colonial legislature's power, does not directly resolve that question in the United Kingdom context. To the extent that any such discussion arises in the judgements of the courts below or in academic commentary drawing upon this decision, it remains obiter so far as the position of a fully sovereign Parliament is concerned. The case itself is authority only for the proposition relating to colonial legislatures acting within the framework of s 5 of the Colonial Laws Validity Act 1865.