Clydesdale v Hughes [1934] HCA 38; (1934) 51 CLR 518 (13 September 1934)

HIGH COURT OF AUSTRALIA

Clydesdale Defendant, Appellant; and Hughes Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

13 September 1934

Rich, Dixon and McTiernan JJ.

Keenan K.C. and Walsh, for the appellant.

Hughes, in person.

Keenan K.C., in reply.

The Court delivered the following written judgment:—

Sept. 13

Rich, Dixon and McTiernan JJ.

This appeal arises out of an action for penalties under sec. 39 of the Constitution Acts Amendment Act 1899 of Western Australia, brought by the respondent as a common informer against the appellant, a member of the Legislative Council. Sec. 39 provides that, if any person under any of the disqualifications mentioned in the Act shall presume to sit or vote as a member of the Council, he shall forfeit the sum of £200 to be recovered by any person who shall sue for the same in the Supreme Court. Sec. 38 provides that, if any member of the Council after his election, amongst other things, accepts any office of profit from the Crown, except in the Forces, his seat shall thereupon become vacant. The Minister, to whom the administration of the Lotteries (Control) Act 1932 had been committed by the Governor, appointed the appellant to be a member of the Lotteries Commission pursuant to sec. 3 (c) of that Act. The appellant without resigning his seat in the Legislative Council accepted the office. Thereafter he sat and voted in the Council. The respondent issued his writ on 14th October 1933 in respect of the appellant's so sitting and voting. While the action was pending the Constitution Acts Amendment Act 1933 was passed, enacting that no disability, disqualification, or penalty should be incurred by a person then both a Member of Parliament and a member of the Lotteries Commission by reason of having accepted or continuing to hold the office of a member of the Commission.

The appellant in answer to the action relied upon this enactment as absolving him from any liability to the penalties sued for. He also maintained that he had not incurred any penalty, because, as he contended, the office of member of the Lotteries Commission was not, within the meaning of sec. 38 (6) of the Constitution Acts Amendment Act 1899, an office of profit from the Crown and that, even if it were, sec. 38 (6) does not impose a disqualification within the meaning of sec. 39. Upon the trial, before Northmore C.J., whose decision was affirmed by the Full Court, consisting of Draper and Dwyer JJ., the appellant failed in all these contentions. He was adjudged liable to a penalty of £200. Their Honors were all of opinion that the Constitution Acts Amendment Act 1933 did not, upon its proper construction, relieve the appellant of any liability to a penalty, which, before its enactment, he had incurred by sitting and voting. After consideration, we have reached the conclusion that the Act of 1933 sufficiently expresses an intention to exclude any liability arising from the acceptance by a Member of Parliament of the office of a member of the Lotteries Commission, whether by sitting or voting the member had already incurred the penalty before the commencement of the Act, or might, but for its enactment, afterwards do so. In the circumstances, we do not propose to enter upon a consideration of the other contentions of the appellant, but we shall confine our judgment to the operation of the Act of 1933.

That statute begins within the following preamble:—"Whereas doubts have arisen as to members of the Parliament of Western Australia having committed breaches of the provisions of section six of the Constitution Act 1889, or of sections thirty-two, thirty-four, thirty-seven, thirty-eight, or thirty-nine of the Constitution Acts Amendment Act, 1899, or of any one or more of the provisions of the said sections, or having incurred any disqualifications or penalties thereunder by acceptance of the office of a member of the Commission appointed under section three of the Lotteries (Control) Act, 1932, and of a fee as remuneration for their services as provided for in the said section: And whereas it is desirable to resolve such doubts."

It is to be noticed that the doubts to be resolved, which are recited by the preamble, include doubts as to members of Parliament having incurred disqualifications or penalties by accepting office in the Commission. Although in strictness it is the sitting or voting after disqualification that is penalized, the preamble states clearly enough the desirability of removing doubts upon the question whether in this manner a penalty has already been incurred. The enacting provision is expressed as follows:—"Notwithstanding the provisions of section six of the Constitution Act, 1889, or sections thirty-two, thirty-four, thirty-seven, thirty-eight, and thirty-nine of the Constitution Acts Amendment Act, 1899, no disability, disqualifition, or penalty shall be incurred by any person who is at present both a member of Parliament and a member of the Commission constituted under the Lotteries (Control) Act, 1932, by reason of having accepted or continuing to hold before or after the commencement of this Act the office of a member of the said Commission, or any emolument pertaining to that office, but no such office or emolument arising therefrom shall be held or enjoyed by any such Member of Parliament beyond the thirty-first day of December, one thousand nine hundred and thirty-four."

The words "shall be incurred" appear to us to be mandatory or imperative. They express the immediate will of the Legislature. Read in conjunction with the words following, namely, "by reason of having accepted or continuing to hold before or after the commencement of this Act" they ought not to be taken as expressing a prospective intention only. The section says, in effect, that the fact that a member has, before the enactment, accepted office in the Commission shall not expose him to a penalty, to a disability or to a disqualification. It is true, as pointed out by Dwyer J., that no penalty is incurred unless he sits or votes. But we are unable to regard this circumstance as contributing to an interpretation which leaves accrued liabilities untouched. Disqualification is an essential condition of liability to a penalty under sec. 39. It is incurred, if at all, when the office of profit is accepted. When the section enacts that, by reason of having accepted before the Act the office of member of the Commission, no disqualification shall be incurred, it must mean that his having accepted the office shall not constitute a disqualification. Apart, therefore, from the reference to penalty, inasmuch as in point of law the member must be taken never to have been disqualified, no liability to a penalty under sec. 39 could remain. Moreover the reference to penalty appears to us to bear an analogous interpretation. It treats the liability as depending upon the acceptance, whether prior or subsequent, of the office in the Commission, and says the liability shall not be so incurred. This does not mean that sitting and voting, only if after the Act, shall not expose to liability a person who has before or after the Act accepted the office. Whether accurately or inaccurately, the provision assumes the sitting and voting, and expresses itself as to the acceptance of the office. The "shall be" cannot be understood as a reference to future sitting or voting. It is the past and future acceptance of office to which it refers as a ground of liability. If further evidence of its meaning be required, the recital of doubts in the preamble shows, we think, conclusively, that the object was by declaratory enactment to settle a disputed question, not to make a mere prospective enactment. We think the provision is expressed with sufficient clearness to overcome the ordinary presumption against retroactive enactment or interference with accrued liabilities already put in suit.

The contention cannot be supported that, because sec. 38 renders vacant the seat of a member who comes within its provisions, the appellant cannot bring himself within the description contained in the Act of 1933, viz., a person who is at present both a Member of Parliament and a member of the Commission. It is apparent that the enactment, being directed to the removal of doubts by validation, speaks on the assumption that the challenged membership is not lost, and, therefore, that the member acting de facto may properly be described as a Member of Parliament.

The validity of the Act of 1933 was attacked. It was said that it amounted to an alteration or change in the Constitution of the Legislative Council, and, therefore, that under sec. 73 of the Constitution Act 1889, the second and third readings of the Bill required absolute majorities of the members of the respective Houses of Parliament. We do not agree that it effected a change in the constitution of the Legislative Council. In fact such majorities were obtained. But it appears that the enacting provisions of the original Bill were recast in the Council after it had left the Assembly, which thereupon accepted the amendments made by the Council. It was suggested that the Bill thus lost its identity, so that to comply with sec. 73 it needed a new introduction into the Assembly, and passage at its second and third readings by an absolute majority. We do not think that sec. 73 requires a Court to consider how far amendments allowed under Parliamentary procedure affect the substantial identity of the measure. The section relates to and speaks in terms of legislative procedure. It must be taken to recognize the possibility of substantial amendment in the other House after the passage of the Bill by the requisite majorities through the House where it originates. The exact requirements prescribed by the section were complied with. The Bill was not, in our opinion, one which needed reservation under the Australian States Constitution Act 1907, as was contended, and notwithstanding its retrospective operation, it is plainly within the legislative competence of the State Parliament.

For these reasons we think the appeal should be allowed.

The judgment of Northmore C.J. should be discharged, and judgment in the action should be entered for the defendant. We think that the appellant should have his costs of the proceedings in the Supreme Court after 1st December 1933, the date upon which the Constitution Acts Amendment Act 1933 was passed, including the costs of the appeal to the Full Court, and that he should have the costs of this appeal.

Appeal allowed with costs. Judgment of the Full Court and of Northmore C.J. discharged. In lieu thereof judgment in the action entered for the defendant. Order that the plaintiff respondent pay the costs of the appellant defendant of the proceedings in the Supreme Court after 1st December 1933 including the costs of the defendant's appeal to the Full Court. Order respondent to restore to the appellant the sum of £321 18s. 7d., being the amount of the penalty and costs received by him under the judgment. Stay of fourteen days.

Solicitors for the appellant, Lavan, Walsh & Seaton.

Solicitor for the respondent, C. Grief.