Attorney-General (NSW) v Trethowan

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Citation: Attorney-General (NSW) v Trethowan (1931) 44 CLR 395.

This information can be found in the textbook,[1] pp 194-197.

Contents

Background Facts

  • After the abolition of the Legislative Council in Queensland, NSW tried to do the same. This attempt failed, and in 1929 the government sought to safeguard against future attempts by amending the Constitution Act 1902 (NSW) by adding in s7A which declared that the Legislative Council could not be abolished except by referendum. Then within this, s7A (6) said that s7A could not be repealed except by referendum.
  • Later, the government tried to abolish the Legislative Council without a referendum, and two councillors sued for an injunction to prevent the Bill from being presented.

Legal issues

Judgment

Rich and Dixon JJ:

  • If a ‘manner and form’ provision has not been “doubly-entrenched”, a parliament is free to legislate to remove the entrenchment and amend the protected provision by its own sovereignty under the doctrine of parliamentary sovereignty.
  • It was found that if s7A “entrenched” the constitutional status of the Legislative Council, s7A (6) made it a “double-entrenchment”.
  • For measures affecting the constitution, powers and procedure of the State legislature, the requirement of submission to a referendum is a valid ‘manner and form’ requirement (though it should be noted that it is not the only entrenchment mechanism).
  • There are steps for manner and form analysis:
    • Is the amending law a law “respecting the Constitution, powers and procedure of the Legislature” (these are the laws which will attract manner and form restrictions)?
    • If so, you must ask whether the manner and form requirement is effective:
      • If there is double entrenchment, then it will be.
        • Then the law will only be effective if the amending law is passed according to this manner and form requirement (s6) .
      • If there is single entrenchment, then it is not, and the State can repeal the law with the manner and form requirement, and easily pass the amending law.
    • If the manner and form provisions is not abided by, then it merely means that the law “shall have no force or effect”, it is not invalidated. This is to uphold the idea of parliamentary sovereignty - the parliament can pass the law as it wants, but it just won't have any effect.

References

  1. Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).
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