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High Court of Australia |
QUEENSLAND v. THE COMMONWEALTH [1977] HCA 60; (1977) 139 CLR 585
Constitutional Law (Cth) - Precedent
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5), Murphy(6) and
Aickin(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Territories - Representation in Parliament - Senate and House of Representatives - Australian Capital Territory - Northern Territory - Territory senators given all powers of State senators - Territory members given all powers of members representing State electoral divisions - Representation - Connotation - Right to vote - The Constitution (63 & 64 Vict. c. 12), ss. 7, 121 , 122 - Senate (Representation of Territories) Act 1977 (Cth), ss. 4, 5 - Northern Territory Representation Act 1922 (Cth), ss. 3, 6 - Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth), s. 18.Precedent - Stare decisis - High Court - Constitutional question - Recent decision.
HEARING
Melbourne, 1977, May 4-6;DECISION
Nov. 28.2. Having heard and considered that argument, and having again considered those reasons, I remain firmly of opinion that s. 122 does not give to Parliament power to alter the composition of either the Senate or the House of Representatives by intruding therein a senator or senators, or a member or members elected, not by a State, or by the people of a State, but, on the contrary, elected by the residents of a Territory of the Commonwealth. (at p591)
3. As I earlier indicated, by no means can the definitive language of s. 7 and s. 24 be qualified by prefixing thereto the words "until the Parliament otherwise provides" or by giving s. 122 a construction which in effect does so. Certainly it cannot be done if the Constitution is read, as it should be, as a whole and as an instrument expressing a compact for a federation. Nor is there any reason, in my opinion, why those sections should be, or for that matter should have been, so qualified. The Constitution, unless altered in a constitutional manner, was intended to be permanent, just as the union of the people of the colonies "in one indissoluble Federal Commonwealth" upon the terms of the Constitution was intended to be permanent. (at p592)
4. I apprehend that a generation which did not experience the travail of obtaining the consent of those people and their governments to a union federal in its nature may find difficulty in accepting that the residents of a dependent territory are not part of a State or of the people of the Commonwealth for whom the Senate and House of Representatives were erected, and in understanding that the Constitution allowed of the formation of new States, if need be, out of dependent Territories, and that by that means residents of the Territories would become part of the people of the Commonwealth, being members of a State. Perhaps also, the significance of the protective function of the Senate is not now so readily understood as it was by those who, with no small amount of difficulty and effort, brought about the union of the people of the colonies in the terms of the Constitution. (at p592)
5. But, none the less, the Constitution is federal in its essential nature. It provides by s. 128 for the alteration of its terms. Where it allows of its terms being altered by the Parliament, it says so. "Until the Parliament otherwise provides" is the formula used to provide the occasion for such change. Section 51 (xxxvi) provides the power to effect the change. It is therefore of paramount significance that neither s. 7 nor s. 24 has any such prefix. It is to my mind beyond the bounds of possibility that it was intended by the enactment of s. 122 to import such a prefix to either of these sections: or to give the Parliament the power to depart from the federal nature of the Constitution. Consequently, I affirm the views I expressed in the abovementioned case and am of opinion that the Parliament lacks the power to alter the composition of the House of Representatives in the manner in which it purported to do by s. 6 of Northern Territory Representation Act 1922-1968 (Cth), and s. 18 of the Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth). (at p592)
6. But it has been pressed on the Court that even if convinced of its error, the Court should not depart from its earlier decision for two separate reasons. First, it is said the decision is recent, or, I suppose, too recent. Secondly, it is said that because the personal constitution of the bench has changed, the occasion should not be used to depart from the earlier decision. (at p593)
7. As to the first of these submissions, it is fundamental to the work of
this Court and to its function of determining, so far
as it rests on judicial
decision, the law of Australia appropriate to the times, that it should not be
bound in point of precedent
but only in point of conviction by its prior
decisions. In the case of the Constitution, it is the duty, in my opinion, of
each Justice, paying due regard to the opinions of other Justices past and
present, to decide
what in truth the Constitution provides. The area of
constitutional law is pre-eminently an area where the paramount consideration
is the maintenance of the Constitution itself. Of course, the fact that a
particular construction has long been accepted is a potent factor for
consideration: but it
has not hitherto been accepted as effective to prevent
the members of the Court from departing from an earlier interpretation if
convinced that it does not truly represent the Constitution. There is no need
to refer to the instances in which the Court has departed from earlier
decisions upon the Constitution, some of long standing. The Constitution may
be rigid but that does not imply or require rigidity on the part of the Court
in adherence to prior decisions. No doubt to
depart from them is a grave
matter and a heavy responsibility. But convinced of their error, the duty to
express what is the proper
construction is paramount. It is worthwhile, I
think, to recall what Sir Isaac Isaacs said in Australian Agricultural Co. v.
Federated
Engine-Drivers and Firemen's Association of Australasia (1913) 17
CLR 261, at p 278 :
"The oath of a Justice of this Court is 'to do right to all manner of
people according to law'. Our sworn loyalty is to the
law itself, and to the
organic law of the Constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors erroneously
thought it
to be, we have, as I conceive, no right to choose between giving
effect to the law, and maintaining an incorrect interpretation.
It is not, in
my opinion, better that the Court should be persistently wrong than that it
should be ultimately right". (at p593)
8. What I have written relates to longstanding decisions. Reluctance to
depart from them when thought to be wrong springs from
the length of time they
have stood and apparently been accepted. But that reluctance can have no
place, in my opinion, in relation
to a recent decision. To refuse to decide in
a constitutional case what one is convinced is right because there is a recent
decision
of the Court is, to my mind, to deny the claims of the Constitution
itself and to substitute for it a decision of the Court. If both old and new
decisions construing the Constitution, of whose error the Court is convinced,
must none the less be followed, then, to use Sir Isaac Isaacs' expression,
perpetuation
of error rather than the maintenance of the Constitution becomes
the paramount duty. I find no validity in the submission that the recency of
the Court's former decision gives it a quality
which precludes critical
examination of it or, indeed, departure from it. (at p594)
9. In dealing with the second submission, a distinction must be made between two quite disparate considerations. It may be granted that a change in the personal composition of the Court is not itself any reason to entertain the question whether the decision of a Court differently composed is erroneous. But, on the other hand, the fact that there has been a change in the personal composition of the Court since an earlier decision was given can be no reason, in my opinion, why any Justice should refrain from expressing what he is convinced is the right conclusion in the matter before the Court. (at p594)
10. In the present case, the question relating to membership of the House of Representatives has not been in terms decided. I do not think that the fact that the Justices who decided the case as to membership of the Senate are not now all members of the Court affords any reason why the Court or any Justice should follow that decision if convinced that it is wrong. In my opinion, the fact that there has been a change in the personal composition of the Court is not relevant to the performance of the Court's duty to maintain the Constitution. I am convinced that the earlier decision was erroneous and that it is not consonant with the maintenance of the Constitution and of its federal nature. Consequently, in my opinion, the relevant sections of the Northern Territory Representation Act 1922, as amended, and of the Australian Capital Territory Representation (House of Representatives) Act 1973, are invalid. (at p594)
11. I would overrule the demurrers. (at p594)
12. Since writing the above I have had the advantage of reading the reasons for judgment prepared by my brother Aickin. I agree with his conclusion that the preliminary objections to the maintenance of the suits should be overruled. I agree with his reasons for concluding that the former decision of the Court should not be followed. (at p594)
GIBBS J. In these three actions the plaintiffs seek declarations that the provisions of the Senate (Representation of Territories) Act 1973, and s. 6 of the Northern Territory Representation Act 1922-1968, and of s. 18 of the Australian Capital Territory Representation (House of Representatives) Act 1973, respectively, are beyond the powers of the Parliament of the Commonwealth and are invalid. The defendant, the Commonwealth of Australia, has demurred to the statement of claim in each action. (at p595)
2. The Senate (Representation of Territories) Act 1973 was passed at a joint sitting of the members of the Senate and of the House of Representatives held on 6th and 7th August 1974. It received the assent of His Excellency the Governor-General in the name of the Queen on 7th August 1974. Its provisions, so far as they are material, are set out in the judgments of members of the Court in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 . Their effect is that each of the Territories to which that Act applies - the Australian Capital Territory and the Northern Territory of Australia - are to be represented in the Senate by two senators for the Territory directly chosen by the people of the Territory voting as one electorate, that such senators shall have all the powers, immunities and privileges of a senator for a State, shall have a vote on all questions arising in the Senate and shall be counted for the purpose of deciding whether there is a quorum and that the provisions of ss. 16, 19, 20 and 42-48 of the Constitution shall apply in relation to such senators. Although a senator for a Territory is thereby made "in all important respects equal to a Senator for a State" (as Mason J. said in Western Australia v. The Commonwealth (1975) 134 CLR, at p 268 ), not all the provisions of the Constitution that apply to senators chosen by the people of the States are made applicable to senators for the Territories; in particular, the latter senators are not chosen for a term of six years. (at p595)
3. The Northern Territory Representation Act 1922-1968 provides, by s. 3,
that the representation of the Northern Territory in
the Parliament of the
Commonwealth shall consist of one member of the House of Representatives
elected in accordance with that
Act. By s. 6, which was inserted in its
present form by an amendment which came into operation on 15th May 1968, it is
provided
as follows:
"The member representing the Northern Territory has all the powers,
immunities and privileges of a member representing an
Electoral Division of a
State and the representation of the Northern Territory shall be on the same
terms as the representation
of such an Electoral Division."
Clearly enough this section was intended to entitle the member representing
the Northern Territory to vote on any question arising
in the House. (at p596)
4. The Australian Capital Territory Representation (House of Representatives)
Act 1973 came into operation on 16th October 1973.
By s. 4 "the Territory" is
defined to mean the Australian Capital Territory and the Jervis Bay Territory.
Section 5 provides that
the representation of the Territory in the House of
Representatives shall be by two members elected in accordance with the Act.
Section 18 provides as follows:
"(1) A member of the House of Representatives elected in respect of an
Electoral Division of the Territory has all the powers,
immunities and
privileges of a member representing an Electoral Division of a State and -
(a) shall be included in the whole number of the members of the House for
the purpose of ascertaining the number of members
necessary to constitute a
meeting of the House for the exercise of its powers and, if present, shall be
counted for the purpose
of determining whether the necessary number of members
are present; and
(b) has a vote on all questions arising in the House.to 48 (inclusive) of the Constitution, to the extent, if any, to which they do not apply, by virtue of the Constitution, in relation to a member of the House of Representatives in respect of an Electoral Division of the Territory apply, by force of this Act, in relation to such a member in the same way as they apply in relation to other members of that House."
(2) The provisions contained in sections 32, 33, 37 and 38 and sections 42
5. At a general election held on 13th December 1975, two persons were elected as senators for each of the Australian Capital Territory and the Northern Territory, a person was elected as the member representing the Northern Territory in the House of Representatives and a person was elected as a member of the House of Representatives in respect of each of the two Electoral Divisions into which the Australian Capital Territory and the Jervis Bay Territory was divided. The persons so elected were granted leave to intervene in these proceedings. (at p596)
6. At the outset it is convenient to dispose of a submission, made on behalf of the interveners, that this Court has no jurisdiction to entertain these proceedings. By s. 49 of the Constitution the powers, privileges and immunities of the Senate and of the House of Representatives shall, until declared by the Parliament, be those of the House of Commons at the establishment of the Commonwealth. It was submitted that at 1st January 1901 among the privileges of the House of Commons was the exclusive right to determine its own membership and to pronounce upon the credentials of any person claiming to be one of its members. The Parliament has not relevantly declared any privilege of the Senate or of the House of Representatives, so that those chambers possess the privileges which the House of Commons then had. It was submitted that it follows that the Senate and the House of Representatives themselves have exclusive right and jurisdiction to determine whether the persons elected as representatives of the Territories are senators or members of the House of Representatives, as the case may be. This argument is quite misconceived. The Court is not asked to determine the status of person claiming membership of the Senate or of the House of Representatives under a law admittedly valid. It is asked to declare that a number of laws, passed as laws of the Commonwealth, are outside the legislative power of the Commonwealth. It is clearly within the jurisdiction of this Court to answer such a question; indeed the Court has a constitutional duty to do so. The determination of a question whether a law passed by the Parliament is valid is not within the privileges of either House of the Parliament, nor could the Parliament validly declare that it had any such privilege. It is fundamental to our Constitution that it is the function of this Court to pronounce upon the validity of any law passed by the Parliament, including of course a law passed at a joint sitting. (at p597)
7. This Court has already pronounced on the validity of the Senate (Representation of Territories) Act 1973. It did so as recently as 10th October 1975 (Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 ). In that case a majority of the Court held that Act to be valid. The majority was comprised of McTiernan, Mason, Jacobs and Murphy JJ. Barwick C.J., Stephen J. and myself dissented. The State of Queensland, which now challenges that Act, was a party to the earlier challenge. It was submitted that in those circumstances the matter was res judicata. For reasons which will appear I need not discuss the principles governing res judicata and issue estoppel with a view to deciding whether there is any substance in this submission. I may however say that I entertain the gravest doubt as to whether either of those principles can have any application where a State and the Commonwealth are in contest as to the effect of a provision of the Constitution. (at p597)
8. I have considered again, with care, the judgments in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 , but with all respect to those who take a different view I remain of the opinion that the decision in that case was erroneous. The crucial question is whether the provisions of s. 122 of the Constitution operate as a proviso or exception to those of ss. 7 and 24. The former provision enables laws to be made for the government and the representation in the Parliament of Territories which, so long as they continue to have that status, must necessarily remain entirely subordinate to the Parliament of the Commonwealth. The latter provisions deal with the composition of the two Houses of the Parliament, with particular reference to the position of the States which became parts of the new federation. Notwithstanding the width of the words of s. 122, and the fact that it might have been expected that some Territories would grow in population and importance, or might possibly when they first became Territories already be developed and populous, I am unable to accept that a provision having the aims and scope of s. 122 was intended to prevail over ss. 7 and 24 which dealt with so important a matter as the composition of the Houses of the Parliament, and which were designed to balance the representation of the States in the new federation. The words of the latter sections themselves are quite opposed to the notion that they operate only until the Parliament otherwise provides, and that the protection which s. 7 was designed to give the States could be impaired or destroyed by giving the Territories a disproportionate or even a dominant voice in the Senate. The Senate itself could not prevent the passage of legislation having that effect if the procedure provided by s. 57 of the Constitution were invoked. That is not to say that the legislative power given by s. 122 should be read down because it may be abused, but that the fact that one suggested construction would deprive of any real efficacy what was apparently intended to be an important safeguard is relevant to be considered in deciding whether that construction is correct. I have stated my views on these matters more fully in Western Australia v. The Commonwealth (1975) 134 CLR 201 , and adhere to what I there said. I would only add that the discussion in Attorney-General (N.S.W.); Ex rel. McKellar v. Commonwealth ("McKellar's Case") (1977) 139 CLR at p 527 as to the operation of s. 24 of the Constitution shows the sort of difficulties that arise once it is held that the Senate may be composed of senators for the Territories as well as of senators for the States. (at p598)
9. It then becomes necessary for me to decide whether I ought to follow the
decision of the majority in Western Australia v. The
Commonwealth,
notwithstanding that I believe it to be wrong. There is of course no doubt
that this Court is not bound by its own
decisions. Further, it has been said,
and with some justification, that "the doctrine of stare decisis should not be
so rigidly
applied to the constitutional as to other laws" (see the passage
cited by Isaacs J. in Australian Agricultural Co. v. Federated
Engine-Drivers
and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261, at p 278 ) because
in such cases the
Parliament cannot
legislate to correct the errors of the
courts. It has
been said, too, that since this Court has the duty of
maintaining
the constitution,
it has a duty to overrule an earlier decision
if
convinced that it is plainly wrong. In the case already cited,
Isaacs J. went
on to say [1913] HCA 41; (1913) 17 CLR 261, at p 278 :
"Our sworn loyalty is to the law itself, and to the organic law of the
Constitution first of all. If, then, we find the law to be plainly in conflict
with what we or any of our predecessors erroneously thought it
to be, we have,
as I conceive, no right to choose between giving effect to the law, and
maintaining an incorrect interpretation.
It is not, in my opinion, better that
the Court should be persistently wrong than that it should be ultimately
right."
But like most generalizations, this statement can be misleading. No Justice is
entitled to ignore the decisions and reasoning of
his predecessors, and to
arrive at his own judgment as though the pages of the law reports were blank,
or as though the authority
of a decision did not survive beyond the rising of
the Court. A Justice, unlike a legislator, cannot introduce a programme of
reform
which sets at nought decisions formerly made and principles formerly
established. It is only after the most careful and respectful
consideration of
the earlier decision, and after giving due weight to all the circumstances,
that a Justice may give effect to
his own opinions in preference to an earlier
decision of the Court. (at p599)
10. It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the one hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed. However the present case does not lie at either of these extremes, and I have had much difficulty in deciding what course my duty requires. As the plaintiffs have urged, the decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 was recently given, and by a narrow majority. It has not been followed in any other case. It involves a question of grave constitutional importance. But when it is asked what has occurred to justify the reconsideration of a judgment given not two years ago, the only possible answer is that one member of the Court has retired, and another has succeeded him. It cannot be suggested that the majority in Western Australia v. The Commonwealth failed to advert to any relevant consideration, or overlooked any apposite decision or principle. The arguments presented in the present case were in their essence the same as those presented in the earlier case. No later decision has been given that conflicts with Western Australia v. The Commonwealth. Moreover, the decision has been acted on; senators for the Territories have been elected under the legislation there held valid. To reverse the decision now would be to defeat the expectations of the people of the Territories that they would be represented, as many of them believed that they ought to be represented, by senators entitled to vote - expectations and beliefs that were no less understandable because in my view they were constitutionally erroneous, and that were encouraged by the decision of this Court. (at p600)
11. When, in The Tramways Case (No. 1) [1914] HCA 15; (1914) 18 CLR 54, at p 69 , Barton J. said that "Changes in the number of appointed Justices can . . . never of themselves furnish a reason for review" of a previous decision, it may be that not all who had become his brethren agreed with him, but his statement in my respectful opinion ought to be regarded as, in general, correct, having regard to "the need for continuity and consistency in judicial decision" to which he there referred. Still less should the replacement of one Justice by another in itself justify the review of an earlier decision. Having considered all the circumstances that I have mentioned I have reached the conclusion that it is my duty to follow Western Australia v. The Commonwealth, although in my view it was wrongly decided. (at p600)
12. I feel bound to state now a qualification to the conclusion I have just expressed. I have said that in reaching that conclusion I have been influenced by the fact that the only circumstance that has occurred since the decision in Western Australia v. The Commonwealth was given that might justify a reconsideration of that decision is that one Justice has gone and another has taken his place. The other supervening circumstance, that the legislation there upheld as valid has been given effect by the election of senators, provides an argument against, not for, a review of the decision. Having regard to the very great importance, in preserving the federal balance of the Constitution, which attaches to Pt II of Ch. I of the Constitution, I consider that if the Parliament were further to distort the federal balance by legislating to provide for the election of more senators for the Territories, that would be a circumstance that might be regarded as sufficient to justify a reconsideration of the question whether Western Australia v. The Commonwealth should continue to be followed. (at p601)
13. Once it is decided to follow Western Australia v. The Commonwealth (1975) [1975] HCA 46; 134 CLR 201 , it is an inevitable consequence that s. 6 of the Northern Territory Representation Act 1922-1968, and s. 18 of the Australian Capital Territory Representation (House of Representatives) Act 1973, must also be upheld as valid. In Western Australia v. The Commonwealth (1975) 134 CLR, at p 249 , I left open the question whether legislation might validly be passed allowing the Territories to be represented by members of the House of Representatives. The indications contained in Pt II of Ch. I that every senator shall be a representative of the people of a State are stronger than the indications in Pt III that every member of the House of Representatives shall be chosen in one of the several States. However, in McKellar's Case (1977) 139 CLR at pp 540-544 I reached the conclusion that s. 24 of the Constitution is concerned only with members of the House of Representatives chosen in the several States, and that the words "the people of the Commonwealth" in the first paragraph of that section do not include the people of the Territories. In my opinion s. 24 provides that the House of Representatives shall be composed of - that is, shall be constituted only by - members chosen by the people of the Commonwealth in the several States, and s. 122 does not qualify that provision. If I were free to give effect to my own opinions, I would hold the two sections now challenged to be invalid. However, the decision of the majority in Western Australia v. The Commonwealth, that s. 122 operates as a proviso or exception to s. 24 as well as to s. 7, if followed, plainly requires it to be held that the sections are valid. It should be needless to add that both sections were passed before the decision in Western Australia v. The Commonwealth, so that their enactment is not a reason for reviewing that decision. (at p601)
14. For these reasons I would allow the demurrers. (at p601)
STEPHEN J. Some two years ago a full bench of this Court heard and, by a majority of four to three, determined in favour of the Commonwealth actions instituted by the States of Western Australia, Queensland and New South Wales challenging the validity of (inter alia) the Senate (Representation of Territories) Act 1973. One ground of such challenge was that the Act was beyond the legislative power of the Commonwealth. A majority of the Court concluded that the power conferred upon Parliament by s. 122 of the Constitution, to "allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit", extended to authorize the Act. (at p602)
2. The State of Queensland now again comes to this Court seeking a declaration that this same Act is beyond the legislative power of the Commonwealth; the State of Western Australia, in two separate writs, seeks declarations that the Northern Territory Representation Act 1922 and the Australian Capital Territory Representation (House of Representatives) Act 1973 are similarly beyond power. (at p602)
3. None of these actions can succeed unless the decision of this Court in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 is now to be overruled. That decision is squarely in point so far as concerns Queensland's action and although Western Australia's actions relate to different legislation, concerned with representation in the lower House rather than in the Senate, it is not easy to see how a result favourable to the plaintiff State can ensue so long as Western Australia v. The Commonwealth stands as good authority. Thus, although questions of res judicata and issue estoppel may also arise, as does a distinct question concerning the jurisdiction of this Court, it is to the question of the application of the principle of stare decisis, which arises so acutely in these cases, that I turn at the outset. (at p602)
4. This Court has always asserted its power to review its previous decisions; however to do so is exceptional and will only be undertaken after the most careful scrutiny of the precedent authority in question and after a full consideration of what may be the consequences of doing so. These two propositions require no citation of authority, they are axioms of our judicature. They are, however, propositions which differ very much in their respective qualities. The first is absolute in character and unqualified in meaning. The second is replete with adjectival qualifications and it is its precise application to the present case that I regard as decisive of the outcome of these present actions. (at p602)
5. As Dixon C.J. observed in Attorney-General (N.S.W.) v. Perpetual Trustee Co. (Ltd.) [1952] HCA 2; (1952) 85 CLR 237, at pp 243-244 , "This Court has adopted no very definite rule as to the circumstances inwhich it will reconsider an earlier decision." His Honour went on to refer to the history of constitutional interpretation as one factor and to the character of this Court as one of final resort as another, each of which went to make inappropriate any rigid rule that this Court might not reconsider its previous decisions. Such changes as have occurred since his Honour wrote have only added emphasis to his words, the High Court is now a court of final resort in a more absolute sense than it was in 1952. In addition, it is well recognized that the Court's ability to reconsider earlier decisions is of particular importance in the field of constitutional law. (at p603)
6. In these proceedings opposing counsel have each marshalled sets of divergent considerations which are said to support their competing submissions. Despite the powerful submissions which have been urged justifying a reconsideration of Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 submissions the attraction of which has not been diminished by the fact that I formed one of the minority in that case, I have concluded that it should not be reviewed but should be regarded as an authority determinative of this appeal. I will not set out all the rival considerations which have been urged but will confine myself to those matters which, together, have, for me, proved conclusive. (at p603)
7. The first concerns the nature of the precedent authority in question. It is a very recent decision in which all members of the Court participated and in which, after full argument, a majority, in elaborately reasoned judgments, dealt in specific terms and as the principal point for decision with the very matter now in question, the effect of the concluding words of s. 122 of the Constitution. The second relates to the nature of the subject-matter for decision; what was in issue was the interpretation of the words of the section in their context. There existed no precedent cases nor any settled principles of the law which provided clear guidance. The case was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence as conforming better than others to principle or to precedent. In such a context phrases such as "plainly wrong" and "manifest error", which have gained currency in this field, are merely pejorative. (at p603)
8. The third matter concerns the consequences involved in a reconsideration. As a result of Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 the peoples of the Territories have now attained representation in the Senate. To deny to these citizens of Australia the right to representation in the national Parliament was a course to which I considered that the words of the Constitution compelled me when writing my judgment in that case. I also recognized that the effect of my judgment might be to jeopardize their existing rights of representation in the House of Representatives. These considerations made more difficult the task of arriving at a decision in that case. But it is one thing to contemplate such consequences as flowing from one's perceived operation of the mandatory effect of the Constitution; it is quite another to regard them as the acceptable price of a personal decision to treat a particular precedent authority as appropriate for reconsideration. The force of this consideration is not, I think, diminished by an appreciation that continued Territory representation in the legislature involves a corresponding dilution of the strength of the representation of peoples of the States in that legislature. (at p604)
9. These are the principal reasons which have led me to conclude that I should regard myself as bound to follow the precedent authority of Western Australia v. The Commonwealth; this despite the fact that the arguments of counsel in the present cases would not have led me to decide that case at all differently. (at p604)
10. I do not couple my recognition of the authority of Western Australia v. The Commonwealth with any qualification turning upon the particular nature of any future exercise by Parliament of the power which it has been held to possess under s. 122. Once the meaning of the section has been authoritatively established and this Court has recognized that "representation" may involve the returning of fully fledged Senators by Territory electors, the section makes it abundantly clear that the extent of that representation is a matter for the Parliament. Just as it cannot be a matter for the Court to determine that extent, so too the nature of Parliament's exercise of its power in relation to extent of representation should not be a factor in determining, either now or in the future, the binding authority of Western Australia v. The Commonwealth. Consequences of that decision, as yet unforeseen and only manifesting themselves in the future, may at some time require its reconsideration; this is always an element in the application of stare decisis to constitutional law. But the spectre of excessive representation being afforded to a Territory is no unforeseen possibility, on the contrary the possibility was recognized and discussed in several judgments in Western Australia v. The Commonwealth. Once there is found to exist in Parliament a power to afford representation to a Territory "to the extent" to which Parliament thinks fit, the particular measure of that extent which Parliament may adopt can be no concern of the Court; the Court should not seek indirectly to control that measure by relying in the future upon what it may then regard as an excessive extent of representation as reason for then depriving a relevant precedent authority of its previous efficacy. (at p605)
11. What I have said does not, of course, affect the quite different situation which would arise were Parliament, in purported exercise of powers conferred by s. 122, to enact a law which might be seen to be other than a measure providing for Territory representation "to the extent and on the terms" thought fit by Parliament. Such a law would contain within itself the seeds of its own invalidity and would fall, regardless of the continued authority of Western Australia v. The Commonwealth. (at p605)
12. To follow Western Australia v. The Commonwealth necessarily requires that the action brought by the State of Queensland should be dismissed. A like result must, I think, follow in the two actions instituted by the State of Western Australia. The majority judgments in that case leave no room for any different conclusion. (at p605)
13. I mentioned earlier that these actions involve questions other than the application of the principle of stare decisis. So far as concern questions of res judicata and issue estoppel and their application to constitutional litigation, especially when it arises between entities of the federation, I prefer to reserve my decision until an occasion arises which calls for it. I do, however, note in passing that to apply either doctrine to such cases may lead, in isolated but possibly very important instances, to just that rigidity in constitutional interpretation which the Court has otherwise successfully avoided in the application of the doctrine of precedent to its previous decisions. (at p605)
14. The question of jurisdiction, raised in the course of argument, may be disposed of quite shortly. It was said that this Court lacks jurisdiction since what it is asked to do is to determine the status of Territory legislators; s. 49 of the Constitution declares the privileges of both chambers to be those enjoyed by the House of Commons at Federation and included in these privileges was the exclusive power to determine its own membership and the credentials of those claiming to be members of it. Since these actions seek a determination of the status of Territory Senators and Representatives they invite the Court to intrude upon the exclusive jurisdiction vested in the respective Houses of the Parliament. Some reliance was also placed upon s. 47 of the Constitution. (at p605)
15. The submission mistakes the nature of the actions instituted by the plaintiff States. By these actions it is particular exercises of Commonwealth legislative power affecting the constitution of Parliament itself, and not any entitlement of particular persons to fill seats in Parliament as it is by law constituted, that are challenged. The challenge is that the legislation exceeds the grant of power made by the Constitution. This Court possesses plenary jurisdiction to determine such actions. Were these actions to be decided in a sense adverse to validity not only would Territories have no entitlement to representation in Parliament but, as a necessary consequence, their chosen representatives would be deprived of any deliberative gathering in which they could represent their Territory electors. But this consequence does not of itself convert these actions into proceedings such as may be governed by s. 47 or s. 49 of the Constitution. The actions challenge the constitutional validity of exercises of the legislative power of Parliament and are properly the subject-matter of this Court's jurisdiction. (at p606)
16. I would allow each of the demurrers. (at p606)
MASON J. In answering the question which arose for decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 the Court was required to make a choice between competing interpretations. There was an apparent conflict between the provisions of s. 7 of the Constitution relating to the composition of the Senate and the provisions of s. 122 respecting the power to make laws allowing the representation of a Territory in either House. The resolution of this apparent conflict lay in acknowledging that either one or other of the two provisions was acknowledging that either one or other of the two provisions was to prevail. In this situation, as was to be expected, each of the competing interpretations was supported by arguments which required careful consideration. It seemed to me then in 1975, as it seems to me now on further reflection, that the arguments which support the view that s. 122 should be construed according to its terms and that it should prevail are the stronger and are to be preferred. This is not to say that the contrary opinion deserves to be described as wrong, incorrect or erroneous; it is merely to say that in resolving what is by no means an easy question I have found that one of the two proffered solutions is more acceptable than the other. (at p606)
2. I need not repeat what I said in Western Australia v. The Commonwealth and Attorney-General (N.S.W.); Ex rel. McKellar v. The Commonwealth (1976) 139 CLR at p 563 except to say that I find great difficulty in embracing the view that, although the "representation in either House" to which s. 121 refers is representation by voting members, the "representation . . . in either House" which s. 122 allows is necessarily limited to that of voteless delegates not forming part of the membership of the House. The similarity of the language of the two sections conveys no hint of such a stark contrast in meaning. And the very generality of Parliament's power to "allow the representation of" a "territory in either House of the Parliament to the extent and on the terms which it thinks fit" points away from the diminished notion of representation which the plaintiffs seek to sustain. (at p607)
3. Whether the representation of a Territory by a voting member in a House of the Parliament is consistent with the Federal compact depends upon the terms of the Federal compact as it is expressed in the Constitution. But in so far as the plaintiffs' case may be thought to draw independent support from considerations deriving from the Federal compact, it is to be noted that since Western Australia v. The Commonwealth was decided the Constitution was amended in 1977 so as to accord to the people in the Territories a vote in referenda for amending the Constitution. (at p607)
4. The power of Parliament to provide for representation of the Territories in the Senate is coextensive with its power to provide for their representation in the House of Representatives. As I said Western Australia v. The Commonwealth, in terms of Territory representation no distinction can be drawn between the House and Senate. The apparent conflict between s. 7 and s. 122 is reflected in the relationship which exists between s. 24 and s. 122. It was not suggested in argument in this case that any relevant distinction could be drawn between representation in the Senate and representation in the House. The result is that if the Court were to depart from its earlier decision the departure would necessarily entail the invalidity of the legislation providing for Territory representation in the House of Representatives as well as in the invalidity of the legislation providing for Territory representation in the Senate. (at p607)
5. However, as it is my view that Western Australia v. The Commonwealth was correctly decided, I would uphold the demurrers in the three actions. (at p607)
JACOBS J.
QUEENSLAND v. THE COMMONWEALTH (at p607)
2. The question raised in this action, namely, the validity of the Senate (Representation of Territories) Act 1973, is the same as that which fell to be decided in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 . I have reconsidered my conclusion in that matter, as I was bound to do when the question was reargued. The question is one of considerable importance in the parliamentary framework of our Constitution and should be settled. If the earlier decision was a consequence of a chance constitution of the Court, now is the time for it to be reviewed. A recent decision, if it were thought by the Court or a majority of the Court as it is now constituted to be wrong, should be corrected earlier and not later. I realize that a result of an overruling of that earlier decision after the passing of the recent referendum would mean that under the Constitution there would be the anomaly that residents of the Territories would be entitled to vote in referenda to amend the Constitution but not to vote to elect representatives to the Senate (or, as shall appear, to the House of Representatives also). But the existence of this anomaly would not be a reason why the decision, if it be considered wrong, should not be overruled. (at p608)
3. But, having thus re-examined the question, I cannot conclude that the decision of the majority in the earlier action was wrong. Indeed, my further consideration has reinforced my earlier conclusion. If it were not for the fact that some of my brethren for whose opinions I have the greatest respect, have taken a view different from mine, I would have thought that the conclusion of the majority in Western Australia v. The Commonwealth was inevitable. I do not thereby mean to say that there is no difficulty in reconciling the operation of s. 7 with that of s. 122 but that the language of those sections when they are read one with another admits only the conclusion that s. 122 cuts down or impinges upon the apparently absolute terms of s. 7 and makes impossible the conclusion that the language of s. 7 cuts down the apparently conflicting language of s. 122. The latter can operate as a proviso to s. 7 - "the Senate shall be composed of senators for each State, provided that the Parliament may allow the representation of a Territory in the Senate to the extent and on the terms which it thinks fit". But s. 7 cannot operate as a proviso to s. 122. To state that "The Parliament may allow the representation of a Territory in the Senate to the extent and on the terms which it thinks fit provided that the Senate shall be composed of senators for each State and shall not include senators for any territory" hardly makes sense. How can the Parliament allow a territory to be represented in the Senate to the extent and on the terms which it thinks fit if it has no power to allow the territory to be represented by a member of that House of the Parliament or by a member with voting rights? If the Territory may be allowed to be represented but its representative is not allowed to be a member, or to vote, then the Territory may not be allowed to be represented in the House to the extent and on the terms which the Parliament thinks fit but to some other extent and on some other terms. This must be so unless the word "representation" is given some special limited meaning which excludes membership or membership with voting rights, or unless Parliament may not exercise the power conferred on it by s. 122 "as it thinks fit" but may only exercise a limited power. I am not clear from the argument which of those limitations is primarily advanced. (at p609)
4. The submission, in so far as it has depended upon the language of the Constitution and not upon a generalized concept of rights flowing from the essential nature of federalism, has been compelled to rely on some limitation of the meaning of the word "representation". But how can the word be given a special limited meaning which will exclude membership? The words of s. 122 are "representation of such territory in either House of the Parliament". They are not "representation before" or "at either House". The representation envisaged is representation in the body itself, not external to it. And representation in such a body includes membership of the body. (at p609)
5. Then it is said that even though the Parliament may allow the presence of
persons in the Senate chamber representing a Territory
and, possibly even if
representatives of a Territory may be members of the House, no right to vote
can be allowed by the Parliament.
This submission is based on the approach
that the words "to the extent and on the terms which it (the Parliament)
thinks fit" confer
a discretion on the Parliament but a limited discretion
only. If these final words did not appear in s. 122 then it would be possible
that the word "representation", despite its wide meaning, could be limited in
its application or operation
by the context. But the final words do appear and
no limitation is expressed. When in such a document as a Constitution a
provisions says that in a particular matter the Parliament may act "as it
thinks fit" there is no way in which a limitation on
the power can be implied
or somehow read in. The power extends not only to the extent of representation
as in s. 121 but to the terms of representation. I see no alternative to
taking these words to mean what they say. I would uphold the demurrers
in
respect of the Senate (Representation of Territories) Act 1973.
WESTERN AUSTRALIA v. THE COMMONWEALTH (at p610)
6. The questions in these actions are the validity of s. 6 of the Northern Territory Representation Act 1922 and of the Australian Capital Territory Representation (House of Representatives) Act 1973 respectively. The question is whether the Parliament may allow representation of the Northern Territory and the Australian Capital Territory in the House of Representatives by members of the House with all the rights of members elected in the various States. The language of s. 24 of the Constitution does not raise the problem of construction and of reconciliation with s. 122 as directly as does s. 7. But the underlying question is no different from that with which I have already dealt. And the answer must be the same. I would therefore also uphold the demurrers in these actions. (at p610)
MURPHY J. In the first case, Western Australia challenged the validity of the Australian Capital Territory Representation (House of Representatives) Act 1973 and the Northern Territory Representation Act 1922-1968 which authorize the election of members of the House of Representatives by the Australian Capital Territory and the Northern Territory. In the second case, Queensland challenged the validity of the Senate (Representation of Territories) Act 1973 which authorizes the election of members of the Senate by these two Territories. The plaintiffStates claim that the Commonwealth has no constitutional power to make the laws, and the Commonwealth has relied on s. 122 of the Constitution as sufficient constitutional power. (at p610)
2. If the decision of this Court in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 upholding the validity of the Senate (Representation of Territories) Act 1973 is followed, both plaintiffs must fail. (at p610)
3. Stare decisis. Past judicial decisions should not be elevated to a status higher than the Constitution itself. The doctrine of stare decisis is not part of the Constitution and the High Court is not debared from altering its previous decisions. As I have said before, the task is to apply the Constitution, not the judicial decisions (Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110, at p 137 ). (at p610)
4. I have carefully considered the plaintiff's submissions but find no reason to alter my previous opinion that the Senate (Representation of Territories) Act is valid (Western Australia v. The Commonwealth (1975) 134 CLR, at pp 279-287 ). (at p610)
5. Presumption of Validity. It should be emphasized that (except where observance of a constitutional guarantee or prohibition is in question) there is a presumption of the validity of legislation. The presumption is so strong that it is often expressed as being displaced only by demonstration beyond reasonable doubt that the legislation is invalid (I referred to this in Attorney-General (W.A.); Ex rel. Ansett Transport Industries (Operations) Pty. Ltd. v. Australian National Airlines Commission (1977) 138 CLR, at p 492 ). The presumption is an attribute of the respect which the judiciary, the unelected branch of government, accords to the acts of the elected representatives of the people.
6. Some arguments were based on the general relationship of the Territories to the rest of the Commonwealth and on applicability of various provisions of the Constitution to the Australian of various provisions of the Constitution to the Australian Capital Territory and Northern Territory. Both the Territories are "parts of the Commonwealth" and their people are "people of the Commonwealth" (see s. 5 of the Commonwealth of Australia Constitution Act). In my opinio, provisions such as ss. 80, 116 and 118 of the Constitution apply to the Territories. (at p611)
7. The plaintiff claimed that the Senate is a States House. However, a senator for a State elected by the people voting as one electorate represents the people of the State in the same way as members of the House of Representatives from a State represent the people of the State (after an election at large) or the people of a division (when elected by division) (see ss. 7 and 29 of the Constitution). Section 7 contemplates that senators also may be elected from divisions within a State. If this system were adopted, senators would represent the people of the divisions which elected them. Senators for a State (even those chosen to fill casual vacancies under s. 15 of the Constitution) have no constitutional or other duty to represent the Parliament or Government of the State. (at p611)
8. The words "representation in either House" in s. 122 of the Constitution appropriately refer to membership by a voting member. The word "representation" includes representation by non-voting persons, but the point is whether it includes representation by voting members. Section 122 would be quite unnecessary if its representation provision only gave power to allow non-voting delegates to represent a Territory. Parliament could do this without s. 122 (as in the United States) and either House could do it without legislation. Under s. 50 of the Constitution, either House could make rules or orders allowing representation of the other territories before the House or any Committee by delegates who had no voting or other membership rights, and could also make rules or orders for such representation when the Houses are conducting business jointly (either in the whole or in Committee). In any of these cases, provision could be made for permanent or ad hoc representation. (at p612)
9. Since 1936, when the Northern Territory was given representation in the House of Representatives by a member with voting rights (restricted for some years to Northern Territory matters), the Parliaments have interpreted s. 122 as authorizing them to allow representation of the Territories by voting members in one or both Houses of Parliament. This interpretation is correct. (at p612)
10. In Attorney-General (N.S.W.); Ex rel. Mckellar v. The Commonwealth (1977) 139 CLR at p 527 , it seemed to me questionable whether a senator for a Territory could be President of the Senate. Section 5 of the Senate (Representation of Territories) Act, which states that a senator for a Territory has all the privileges of a senator for a State intends that such a senator can be President. The legislation is presumed valid, and after consideration, I am not satisfied that this presumption is displaced. The effect of s. 5 of the Act is also that a senator for a Territory satisfies the qualification necessary for a person to continue for a period of more than three months as a Minister of State (see s. 64 of the Constitution). Similarly with the legislation for territorial members of the House of Representatives. Such a member may be chosen as Speaker and satifies the qualification in s. 64 of the Constitution. (at p612)
11. The three challenged Acts are valid. The demurrers should be allowed. (at p612)
AICKIN J. In each of these three matters the defendant, the Commonwealth of Australia, demurred to the statement of claim and the demurrers were set down for hearing before the Full Court. In the first of these actions the State of Queensland and Her Majesty's Attorney-General for the State of Queensland seek a declaration that the Senate (Representation of Territories) Act 1973 is beyond the powers of the Parliament of the Commonwealth. That Act provides in effect that the Australian Capital Territory and the Northern Territory shall each be represented in the Senate by two senators directly chosen by the people of the Territory voting as one electorate and that such senators shall have all the powers, immunities and privileges of a senator for a State, shall be included in the whole number of senators for the purpose of a quorum and shall have a vote on all questions arising in the Senate. (at p613)
2. In the second action the State of Western Australia and Her Majesty's Attorney-General for Western Australia seek a declaration that s. 6 of the Northern Territory Representation Act 1922- 1968 is beyond the powers of the Parliament of the Commonwealth. Section 3 of that Act provides that "The representation of the Northern Territory in the Parliament of the Commonwealth shall consist of one member of the House of Representatives elected in accordance with this Act." (at p613)
3. Section 6 (which was amended in 1968) provides as follows:
"The member representing the Northern Territory has all the powers,
immunities and privileges of a member representing an
Electoral Division of a
State and the representation of the Northern Territory shall be on the same
terms as the representation
of such an Electoral Divison." (at p613)
4. In the third action the State of Western Australia and Her Majesty's
Attorney-General for that State seek a declaration that
s. 18 of the
Australian Capital Territory Representation (House of Representatives) Act
1973 is beyond the powers of the Parliament
of the Commonwealth. Section 18 of
that Act provides as follows:
"(1) A member of the House of Representatives elected in respect of an
Electoral Division of the Territory has all the powers,
immunities and
privileges of a member representing an Electoral Division of a State and -
(a) shall be included in the whole number of the members of the House for
the purpose of ascertaining the number of members
necessary to constitute a
meeting of the House for the exercise of its powers and, if present, shall be
counted for the purpose
of determining whether the necessary number of members
are present; and
(b) has a vote on all questions arising in the House.to 48 (inclusive) of the Constitution, to the extent, if any, to which they do not apply, by virtue of the Constitution, in relation to a member of the House of Representatives in respect of an Electoral Division of the Territory apply, by force of this Act, in relation to such a member in the same way as they apply in relation to other members of that House." (at p613)
(2) The provisions contained in sections 32, 33, 37 and 38 and sections 42
5. In Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 this Court had
to consider proceedings in which
in separate actions
the State of Western
Australia and the
State of Queensland challenged the validity of the Senate
(Representation
of Territories)
Act 1973 namely the same Act as is challenged
in the first of these proceedings. The relief sought in the earlier
action by
the
State of Queensland was a declaration in the
same terms as is now sought.
A majority of the Court held that the relevant
provisions
of that Act were
valid, Barwick C.J., Gibbs
and Stephen JJ. dissenting. (at p614)
6. Problems arise in the present proceedings by the State of Queensland because the issue decided in the demurrer in the 1975 action is exactly the same as the issue raised by the demurrer in the present action. The terms of the statement of claim and of the declaration sought are not distinguishable. It did not appear in the course of the present proceedings whether in the earlier action steps were taken beyond the order of the Court in which the demurrer was upheld. It is not I think necessary to pursue the question whether there was a judgment on record in favour of the Commonwealth. Although there are significant differences between the questions of res judicata properly so called and issue estoppel, they are not material for present purposes. A demurrer under the Rules of this Court is as clear a way as may be devised of raising a precise issue and having it decided, even though a demurrer may raise more than one issue and the judgments actually deal with only one such issue. In answer to the suggestion that there might be difficulties in the way of the State of Queensland succeeding in its action, a number of points were taken but it is not necessary to deal with them all. It was said that the parties were different because in the present action not only is the State of Queensland a party, but also the Attorney-General for the State of Queensland representing not the body politic but the people of that State. It was said also that rules with respect to res judicata and issue estoppel were merely rules of public policy which should give way to other and more potent rules of public policy preserving to the States the right to challenge the validity of Commonwealth legislation even if that legislation had been the subject of an earlier unsuccessful challenge, lest such legislation became immune from a second challenge for want of a competent plaintiff. Thirdly it was said that questions of res judicata and issue estoppel were merely rules of evidence of no significance or relevance in demurrer proceedings. (at p614)
7. As to the third point, I think there is no foundation for the proposition that the rule with respect to issue estoppel is merely a rule of evidence. Nothing is, I think, more clear than that an issue estoppel may arise in respect to a question of law just as it may in respect to a question of fact. It is sufficient to say that the two leading Australian cases on issue estoppel, Hoysted v. Federal Commissioner of Taxation (1925) 37 CLR 290; (1926) AC 155 (Privy Council) and Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 (High Court), both demonstrate that what may be described as a "bare" question of law may be the subject of issue estoppel in circumstances in which no question of fact arises. Unless issue estoppel has to be regarded as no more than a mere branch of res judicata properly so called, there does not appear to be any statement to the effect that it is a rule of evidence or a "mere rule of evidence". In my view issue estoppel is a distinct doctrine, related to but different from res judicata. Moreover I would respectively differ from the view expressed in Spencer Bower & Turner on Res Judicata, 2nd ed. (1969), p. 9 that "The rule of estoppel by res judicata, which, like that of estoppel by representation, is a rule of evidence" and from the views expressed in the cases to which the learned author refers, if they do indeed enunciate such a general proposition. There is no settled view as to whether estoppel in pais is to be regarded as a rule of evidence - see the cases and text writers referred to in Spencer Bower & Turner on Estoppel by Representation, 2nd ed. (1966), pars 5-7, pp. 6-9 - though the author prefers that view. No doubt issue estoppel in relation to an issue of fact may operate so as to affect the evidence in somewhat the same manner or produce the same result, as a rule of evidence might, but that is a very different matter from saying that issue estoppel as such is a mere rule of evidence, which is a quite inadequate description. (at p615)
8. It is not necessary for me to express a view on the question whether some overriding public policy would prevent what would otherwise be an issue estoppel arising in a constitutional case because I have formed the view that the presence of the Attorney-General as an additional party prevents an issue estoppel from arising. Generally speaking when an Attorney-General sues to enforce a public right or liberty he does so as representing Her Majesty's subjects, and not the body politic of the government unit in which he holds office. The presence of the State of Queensland as a plaintiff adds emphasis to the Attorney's separate role, even though he appears by the same counsel as the State. So regarded, the position is the same as that dealt with in the Second Uniform Tax Case (Victoria v. The Commonwealth) [1957] HCA 54; (1957) 99 CLR 575, at p 654 , per Fullagar J. Accordingly these preliminary points do not prevent a consideration, or rather a reconsideration, of the merits of the propositions put forward in the first of these actions. (at p616)
9. Another point of a preliminary nature was raised in the course of argument, namely whether this Court had jurisdiction to entertain these actions because of s. 47 and s. 49 of the Constitution. I agree with the reasons given by Gibbs J. and Stephen J. for regarding this argument as misconceived and do not wish to add to them. (at p616)
10. Notwithstanding that the argument on behalf of Western Australia in its two actions was advanced first it is convenient to consider the Queensland action relating to the Senate before turning to the proceedings which relate to the House of Representatives. (at p616)
11. The question of the validity of the legislative provisions with respect to the Senate was argued in full, as if being argued de novo, but so far as I am able to ascertain from the judgments of the Court in the previous case, no new argument was put forward. (at p616)
12. Since the questions which arise with respect to the composition of the Senate in the Queensland action are identical with those which arose in the previous action, and since those questions were fully dealt with in the judgments in that case, there is nothing to be gained by repeating the analysis of the propositions and the reasons which led the members of the Court to their respective conclusions. For my own part I have concluded that the views expressed in the judgments of Barwick C.J., Gibbs J. and Stephen J. are to be preferred. There are however certain observations which I would wish to add on the relation between s. 7 and s. 122, and their proper construction, which have assisted my conclusion that the minority judgments are correct and the majority judgments are incorrect. An examination of Pt II of Ch. I of the Constitution shows repeated reference to situations dealt with on the basis that the provisions there made shall be either "subject to this Constitution" or "until the Parliament otherwise provides". The latter expression or its equivalent may be found in s. 3, in s. 7 in the first three of the four paragraphs, in s. 8 and s. 9, in s. 10 which uses the compound expression "until the Parliament otherwise provides, but subject to this Constitution", and s. 22, all relating to the Senate. It is found also in s. 24, s. 29, s. 30, s. 31, s. 34 and s. 39, all dealing with the House of Representatives, and s. 46, s. 47, s. 48 and s. 49, dealing with both Houses. The structure of each of Pts II, III and IV dealing with the Senate, the House of Representatives and both Houses of Parliament appears to me therefore to deal expressly with the extent to which they are subject to alteration by the Parliament and there is therefore no basis for construing other sections of the Constitution as conferring power to alter or vary the operation of those provisions otherwise than pursuant to an alteration of the Constitution itself. (at p617)
14. It may be observed that in the first paragraph of s. 7 there is, in relation to one aspect of its operation, an express provision that it is "until the Parliament otherwise provides". It would be odd indeed if the whole of that section is required to be read as subject to an overriding proviso that it is "subject to such provision as the Parliament may make under s. 122". (at p617)
15. Section 121 provides "the Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit." Section 7 provides that "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate." The number of senators for each State is to be regulated by the Parliament subject to the proviso that equal representation of the Original States is to be maintained and that no Original State shall have less than six senators. It appears to me that it would not be within the power of the Parliament under s. 121 to admit or establish a new State upon the basis that there were to be no senators "for" such State or that they were to be selected otherwise than by being "directly chosen" by the people of such State, nor any members of the House of Representatives chosen in such State. Section 121 shows that it is only the "extent", and not the fact or mode, of representation which is committed to the Parliament. The requirement of s. 9 that laws prescribing the method of choosing the senators shall be uniform for all States and the provisions in s. 7 that "the senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General" are expressed in terms clearly applicable to new as well as to Original States. The position as to members of the House of Representatives is the same by virtue of s. 24, s. 29 and s. 30. Parts II and III of Ch. I thus prescribe features essential to statehood, namely there are to be one or more senators "for a State" and a number of members of the House of Representatives to be elected in each State, the number being determined by the constitutional formula in s. 24. (at p617)
16. They are senators "for" each State, but they must be "directly chosen" by the people of the State and, until Parliament otherwise provides, voting as one electorate. In truth they "represent" the people of the State as a single unit or group, and not the State as a body politic. I do not consider that the use in s. 11 of the expression "the failure of any State to provide for its representation in the Senate" requires any contrary view to be adopted. Under Pt II the Houses of the Parliament of a State sitting together (not the Parliament as such) and its Governor in Council (for very temporary purposes) each have functions to perform with respect to filling casual vacancies in the Senate pursuant to s. 15, and the Parliament of a State may make laws prescribing the method of choosing (by the people) the senators for that State under s. 9. The use of the term "representation in the Senate" in s. 11 does not in my opinion warrant the conclusion that the senators in any sense "represent" the body politic which is comprised by the State itself and s. 121 does not suggest any such notion. It speaks simply of "representation" in respect of each State and that expression picks up the provisions of Pts II, III and IV dealing with the members of the Senate and of the House of Representatives to be "directly chosen by the people of the State" and "directly chosen by the people of the Commonwealth . . . in the several States in proportion to the respective numbers of their people" respectively. Thus the meaning and content of the expression "representation" in s. 121 is supplied and controlled by Ch. I and there is thus no need to add anything in s. 121 to the word "representation" itself. (at p618)
17. By way of contrast s. 122 speaks of "the representation of such territory" in either House of the Parliament, not of the representation of the people of such Territory or of representatives chosen directly by the people of such Territory. The difference in language, viewed in the context of Pts I and II appears to me to show that it was not contemplated by s. 122, nor within the ordinary meaning of its words in their context, that persons who provide the means of "representation of such territory" could be members of the federal legislature. Those words themselves seem to me to indicate plainly a quite different kind of "representation" from that which is prescribed in Pts I and II of Ch. I and in s. 121, namely, representation of the body politic which comprises the Territory, however it may be organized internally. Such representation may take a variety of forms short of the provision of persons who are members of either House of the Parliament. However representation of a body politic (to whatever degree it may be subordinate) is in sharp contrast to the kind of representation provided in Ch. I and to which s. 121 is linked. Whatever the mode chosen may be it necessarily will be representation of the body politic, something which is outside the contemplation of Ch. I. (at p618)
18. Another aspect of this view is that the Constitution appears to me to draw the clearest of distinctions between States and Territories and the construction of s. 122 adopted by the majority in the previous case blurs and indeed tends to obliterate this distinction in a manner contrary to the general scheme of the Constitution, and contrary to what I regard as the proper construction of s. 122 itself. The federal nature of the Parliament, and of the Constitution itself, reinforces the conclusion which in my view follows from the words used in the sections to which I have referred. (at p619)
19. What I have said above is not intended to convey that I am not in full agreement with the reasons expressed in the judgments of Barwick C.J., Gibbs J. and Stephen J. in the previous case, which I respectfully adopt, nor to indicate that I have overlooked the importance of looking at the Constitution as a whole. (at p619)
20. I have been dealing so far primarily with the position of the Senate, though much of what I have said applies also to the House of Representatives. The previous decision dealt only with the composition of the Senate, but the argument in the present case on behalf of Western Australia did not differ in any material respect from the argument advanced in the previous case in respect of the Senate. It appears to me that, if the provisions of s. 122 act as a proviso to s. 7 of the Constitution, then they must equally operate as a proviso to s. 24. As it is my own opinion that s. 122 does not so operate in relation to s. 7, it is necessary to consider its relation to s. 24. The reasons which I have set out above concerning the proper construction of s. 122 appear to be equally applicable to its relationship with s. 24. Section 24 provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth and it goes on to provide that the number of members "chosen in the several States shall be in proportion to the respective numbers of their people". It then provides for the ascertainment of the number of members of the House of Representatives as being as near as practicable twice the number of senators. The mode for determining the number of members to be chosen in each State is directed to using up the total so ascertained by its allocation among the States " in proportion to the respective numbers of their people". All of this is consistent only with the House of Representatives being composed of members chosen only by the people of the several States, whether original or otherwise. (at p619)
21. The reasons which were expressed by Barwick C.J., Gibbs J. and Stephen J. in the previous case appear to me to apply equally to the position of the House of Representatives. For what I have myself said it will be apparent that I regard the same considerations as applicable to membership of the House of Representatives, as are applicable to membership of the Senate. It is therefore my opinion that the legislative provisions challenged in the two actions by the State of Western Australia, as well as those challenged in Queensland's action, are beyond the powers of the Parliament of the Commonwealth. (at p620)
22. The question therefore arises whether I should regard it as proper in these cases to exercise the choice, which members of this Court undoubtedly have, not to follow a previous decision with which I find myself unable to agree. (at p620)
23. It has long been settled that this Court is not bound by its previous decisions, but equally settled that the undoubted power to overrule should be exercised only with great caution and for "strong reasons". It has been said that constitutional cases stand in a special position and that there the force of precedent is less strong but, as Kitto J. said in Hughes & Vale Pty. Ltd. v. New South Wales [1953] HCA 14; (1953) 87 CLR 49, at p 102 , "Even in constitutional cases, however, it is obviously undesirable that a question decided by the Court after full consideration should be re-opened without grave reason." (at p620)
24. In Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. (1952) 85 CLR
237, at pp 243-244 Dixon J. said, "This Court has
adopted no very definite
rule as to the circumstances in which it will reconsider an earlier decision"
and went on to say:
"But there appears to me to be no ground for reconsidering the decision
in Quinc's Case [1944] HCA 1; (1944) 68 CLR 227
unless it be a
sufficient ground simply that
the opposite conclusion is to be preferred. It is evident that the
decision
was reached
only after
a very full examination of the question. It cannot be
said that any compelling consideration or
important authority was
overlooked
or that the decision conflicts with well established principle or fails to go
with a definite
stream of authority. It
is a recent
and well considered
decision upon what is evidently a highly disputable question. The question
stands by itself. The
decision does
not affect some wider field of law so that
its importance goes beyond the matter in hand."
In the joint judgment of Latham C.J., Rich, Dixon, McTiernan and Webb JJ. in
Perpetual Executors and Trustees Association of Australia
Ltd. v. Federal
Commissioner of Taxation (Thomas' Case) it was said [1949] HCA 4; (1949) 77 CLR 493, at p
496 :
"The Court is not bound by its previous decisions so as absolutely to
preclude reconsideration of a principle approved and
applied in a prior case,
but, as was stated in Cain v. Malone [1942] HCA 20; (1942) 66 CLR 10 , the exceptions to the
rule are
exceptions which
should be allowed only with great caution and in
clear cases.
Barton J. in The Tramways Case [1914] HCA 15; (1944)
18 CLR 54, at p 69 , which
has been referred to by Mr. Tait said: 'I have never thought that it was not
open to this Court
to review
its previous decisions
upon good cause. The
question is not whether the Court can do so, but whether it will, having due
regard
to the need for continuity
and consistency in judicial decision.' His
Honour proceeded to say: 'Changes in the number of
appointed
Justices,' - (and
I would
add, changes in the personnel of the bench, which happens to deal with
the first case or a
second case)
- 'can, I take it, never
of themselves
furnish a reason for review.' His Honour continued: 'But the Court can always
listen to
argument as to whether it
ought to review a particular decision, and
the strongest reason for an overruling is that a
decision is
manifestly wrong,
and its
maintenance is injurious to the public interest.' In the present case,
there are no circumstances
which
would justify, in accordance
with those
principles, an overruling of the decision in Milne's Case [1944] HCA 20; (1944) 69 CLR
270 .
The only circumstance which is really
relied upon for the purpose of
persuading the Court to reconsider the
decision is that
it was a majority
decision. This is plainly
an insufficient ground for asking the Court to
overrule a previous
considered decision
of five justices. It may be that
considerations
are present in constitutional cases, where Parliament is not
in
a position to change
the law, which do not arise in other cases.
In what I
have said I make no reference to constitutional cases."
No specific guidance is there provided with respect to constitutional cases,
nor is any assitance provided in the application of
the expression "that a
decision is manifestly wrong, and its maintenance contrary to the public
interest". (at p621)
25. The expression "manifestly wrong" has many times been used to indicate a
basis upon which a prior decision may be overruled.
With great respect to
those who have used it, the expression, used without some qualification or
explanation, suggests a subjective
criterion not easily applied to distinguish
one opinion from another. It seems to have been first used in Australian
Agricultural
Co. v. Federated Engine-Drivers and Firemen's Association of
Australasia [1913] HCA 41; (1913) 17 CLR 261 which was the first case
in which it
was held
that this Court was free to reconsider its earlier decision. Isaacs
J., basing
himself on the practice of
the Privy Council
and the Supreme Court of the
United States, said (1913) 17 CLR, at pp 278-279
"Whatever else may be said with respect to the reconsideration of former
decisions - and it is unnecessary here to consider
the principles upon which
the Court should act in particular cases - so much at least emerges as is
undoubtedly beyond challenge,
that where a former decision is clearly wrong,
and there are no circumstances countervailing the primary duty of giving
effect
to the law as the Court finds it, the real opinion of the Court should
be expressed.
In my opinion, where the prior decision is manifestly wrong, then,
irrespective of consequences, it is the paramount and sworn
duty of this Court
to declare the law truly."
and Higgins J. agreed with that view (1913) 17 CLR, at p 288 . Gavan Duffy and
Rich JJ. agreed in the conclusion saying only that
they regarded the view of
the minority in the earlier case as correct. In Ex parte Brisbane Tramways Co.
Ltd. [1914] HCA 15; (1914)
18 CLR 54
the question was whether Whybrow's Case [1910] HCA 33; (1910) 11 CLR 1
should be overruled. Griffith C. J. said (1914)
18 CLR, at p 58 :
"In my opinion it is impossible to maintain as an abstract proposition
that the Court is either legally or technically bound
by previous decisions.
Indeed, it may in a proper case be its duty to disregard them. But the rule
should be applied with great
caution, and only when the previous decision is
manifestly wrong, as, for instance, if it proceeded upon the mistaken
assumption
of the continuance of a repealed or expired Statute, or is contrary
to a decision of another Court which this Court is bound to
follow; not, I
think, upon a mere suggestion that some or all of the members of the later
Court might arrive at a different conclusion
if the matter was res integra.
Otherwise there would be grave danger of a want of continuity in the
interpretation of the law."
Barton J. expressed his view in the passage already set out above in the
quotation from the judgment of the Court in Thomas' Case
(1949) 77 CLR, at p
496 . Isaacs J. said (1914) 18 CLR, at p 70 "I have on a former occasion
indicated what appears to be the duty
of this Court to correct an erroneous
interpretation of the fundamental law." Gavan Duffy and Rich JJ. said (1914)
18 CLR, at p
83
"If the law is clear either way, it is as a general rule our duty to
expound it in that way even if in doing so we decline
to follow a prior
decision of this Court, but we should not interfere with settled law for light
cause. We think we should be wrongly
using our undoubted power if we set aside
a considered decision of this Court unless we were convinced that it was
wrong. We are
not convinced that the decision in Whybrow's Case is wrong, and
for that reason we think it must stand." (at p622)
26. It was only Griffith C. J. who qualified or explained the expression
"manifestly wrong". This view was applied in The Commonwealth
v. Brisbane
Milling Co. Ltd. [1916] HCA 39; (1916) 21 CLR 559 which overruled Baume v. The Commonwealth
[1906] HCA 92; (1906)
4 CLR 97 . Griffith C. J. said
(1916) 21 CLR, at p 563 : "I pointed out
that Baume's Case, which was not a considered judgment,
had proceeded upon a
manifest
misapprehension of the effect of s. 2 of the Judiciary Act." (at
p623)
27. It is not altogether clear whether Griffith C. J. sought to apply this
test, when Foggitt, Jones & Co. Ltd. v. New South
Wales
[1916] HCA 28; (1916) 21 CLR 357 was
overruled in Duncan v. Queensland [1916] HCA 67; (1916) 22 CLR 556 . In the former
case on
5th May 1916 the Court (Griffith
C. J., Barton, Isaacs, Rich JJ., Gavan Duffy
J. dissenting)
held that certain provisions
of the Meat Supply for Imperial
Uses Act
1915 (N.S.W.) were invalid as contrary to s. 92. In the latter
case,
decided on 25th October
1916, the Court (Griffith C. J., Higgins,
Gavan Duffy,
Powers and Rich JJ., Barton and Isaacs JJ.
dissenting) overruled Foggitt,
Jones & Co. Ltd. v. New South Wales. Griffith
C. J. said (1916) 22 CLR, at pp
581-582
"The conclusion at which I have arrived is inconsistent with the
decision of this Court in the case of Foggitt, Jones &
Co.
v. New South Wales,
in which it was held that a Statute of New South Wales, not distinguishable in
its terms from the Act now
under
consideration, did not authorize the
Government of New South Wales to prevent the export of stock. That case was
very briefly,
and I regret to say, insufficiently, argued and considered, on
the last day of the Sydney Sittings. The section corresponding to
s. 7 of the
Meat Supply Act was not referred to either in argument or in the judgments. It
was not suggested that the stock were
impressed with anything in the nature of
a trust, or were placed in custodia legis. The arguments which now commend
themselves
to me as conclusive did not then find entrance to my mind. In my
judgment that case was wrongly decided, and should be overruled."
The other members of the majority agreed with his conclusions without
commenting directly on the basis for overruling the previous
decision other
than to say that they had arrived at a different conclusion. Isaacs J.
dissented in a characteristically vigorous
judgment in which, after referring
to the fact that earlier cases had dealt with s. 92, he said (1916) 22 CLR, at
p 616 :
"The latest instance was Foggitt, Jones & Co. v. New South Wales, in May
this year, and with respect to a precisely similar
State Act passed by New
South Wales. I cannot agree with the learned Chief Justice in his observation
that that case was in any
way hastily considered. One of the judgments was
written - my own - and I refer to it at page 364 to show that the very matters
now dealt with were argued and considered. The result was then thought to be,
as indeed it is, the necessary conclusion from the
most carefully considered
judgment in the Wheat Case [1915] HCA 17; (1915) 20 CLR 54 ."
It remains to observe that Duncan v. Queensland survived for somewhat longer
than Foggitt, Jones & Co. Ltd. v. New South Wales,
but was overruled in its
turn five years later in W. & A. McArthur Ltd. v. Queensland [1920] HCA 77; (1920) 28 CLR 530
and
was not revived on
the overruling of the other proposition enunciated in
that case (i.e. that s. 92 did
not bind the Commonwealth)
in James v. The
Commonwealth (1936) 55 CLR 1;(1936) AC 578 . In McArthur's Case, Knox C. J.,
Isaacs
and Starke
JJ. said in their joint judgment
(1920) 28 CLR, at p 555 :
"The prohibition by a State Legislature of inter-State sales of
commodities either absolutely or subject to conditions imposed
by State law is
in our opinion, a direct contravention of s. 92 of the Constitution, and the
freedom guaranteed by that section is so fundamental a provision of the
Constitution that it is not permissible for a majority of a Full Bench of this
Court in full agreement as to constitutional principle and interpretation
to
follow the decision in Duncan's Case if in their opinion it is wrong in law.
Especially is that so in this instance in view
of the previous decision of
this Court in Foggitt, Jones & Co.'s Case." (at p624)
28. The expression "manifestly wrong" is however an accurate and appropriate
description for cases which have been overtaken by
subsequent decisions in the
same field where a different approach has prevailed. A recent example of this
kind of case is Hughes
v. Tasmania [1955] HCA 30; (1955) 93 CLR 113 which was overruled in
Pilkington v. Frank Hammond Pty. Ltd. [1974] HCA 13; (1974)
131 CLR 124 after a series of
decisions which took a different course diverging further and further from its
basis. Barwick
C.J.
said (1974) 131 CLR, at p 151
:
"I am of the opinion that neither the actual decision nor the reasons
given therefore in Hughes v. Tasmania are now supportable.
The decision and
the reasons are, in my opinion, quite inconsistent with the later decisions to
which I have referred and the reasons
which support them: and in my respectful
opinion are not in accordance with the Constitution. It is now appropriate, in
my opinion, that the case be expressly overruled."
It is a case the error in which was made "manifest" by later decisions. In the
same category are Huddart Parker & Co. Pty.
Ltd.
v. Moorehead [1909] HCA 36; (1909) 8 CLR 330
, overruled in Strickland v. Rocla Concrete Pipes Ltd. [1971] HCA 40; (1971)
124 CLR 468 ,
and Milk Board (N.S.W.)
v. Metropolitan Cream Pty. Ltd. [1939] HCA 28; (1939) 62 CLR 116
overruled in North Eastern
Dairy Co. Ltd. v. Dairy Industry Authority of
N.S.W.
[1975] HCA 45; (1975) 134 CLR 559 . The Engineers' Case [1920] HCA 54; (1920)
28 CLR 129 stands on
its own but the reasons for establishing a new approach to
constitutional
interpretation and for overruling
the Railway Servants' Case [1906] HCA 94; (1906) 4 CLR 488
included the view that there was inconsistency
and confusion in the
earlier
cases and that no clear principle
emerged from them. (at p625)
29. No simple guide is available on the question whether a prior
constitutional decision should be overruled. Generally speaking
satisfaction
that it is wrong has not alone been regarded as sufficient. Some further
guidance is to be obtained from cases more
recent than Thomas' Case (1949) 77
CLR 493 . In Hughes and Vale Pty. Ltd. v. New South Wales [1953] HCA 14; (1953) 87 CLR 49, at
p 70 , Dixon
C.J. expressed his reasons for refusing to overrule McCarter v.
Brodie as follows [1950] HCA 18; (1950) 80 CLR 432
:
"The strength of the considerations against refusing to follow that
decision is very great. It is a recent decision of the
Court dealing with the
very question of the authority of the Transport Cases. It was fully considered
and, whether many of the
reasons and the conclusion of those cases are, as I
think, or are not, at variance with the principles expounded in the Banking
Case (1), nothing has occurred since this Court decided McCarter v. Brodie
adding to or altering the considerations then before
the Court. These
circumstances, in my opinion, make it right to decline to enter upon a
reconsideration of McCarter v. Brodie unless
independent reasons exist for
overruling it which appear to be imperative.
I do not waiver at all in my belief that the transport cases cannot be
reconciled with principle or in the opinion that the
grounds on which they
were in fact decided have for the most part been expressly rejected in the
judgment of the Privy Council
in the Banking Case, but I do not regard that as
enough. I believe, however, that I would regard it as an imperative judicial
necessity
to overrule McCarter v. Brodie if it appeared inevitable that the
consequences of the decision would extend beyond the subject of
commercial
transport by road and would make it necessary to hold that over the whole area
of inter-State trade commerce and intercourse
a power existed in every
legislature to impose a prohibition subject to a licence to be granted or
refused at the discretion of
the Executive. At first sight it may seem that
these consequences ought logically to ensue, if the decision is allowed to
stand.
Nevertheless, after a full re-examination of the Transport Cases in the
light of the reasons of the majority of the Court in McCarter
v. Brodie, I
have come to the conclusion that the application of these cases may be
confined to the particular conditions or considerations
which arise from the
fact that the railways and the roads form facilities for the carriage of goods
(and presumably of passengers)
for the provision and maintenance of which the
State is responsible. I do not mean to suggest that in these conditions or
considerations
a ground can be found which in my opinion would suffice to
support the decisions in the Transport Cases as correct or upon which
by
itself the judges who decided those cases were, or would have been, content to
place them."
In the Second Uniform Tax Case [1957] HCA 54; (1957) 99 CLR 575 the Court unanimously
refused to overrule the First Uniform
Tax Case (South
Australia v. The
Commonwealth
[1942] HCA 14; (1942) 65 CLR 373 ) in so far as it dealt with the meaning and
operation
of s. 96 of the Constitution. Dixon C.J. said (1957) 99 CLR, at pp
610-611 :
"Once the interpretation is accepted in full which the decisions in
Victoria v. The Commonwealth [1926] HCA 48; (1926) 38
CLR 399 , and
in Moran's Case (1939) 61
CLR 735 combine to place upon the section it becomes difficult indeed to find
safe ground
for saying
that the condition of the grant of finanacial
assistance may not be that a particular form of tax shall
not be imposed
by
the State.
The interpretation flowing from these two decisions is not
consistent with the view that there must
be a need for
relief or a reason
for
giving assistance which is not itself created by the Commonwealth legislation
connected with
the grant.
It is inconsistent
with the view that the terms or
conditions cannot require the exercise of governmental powers of the
State and
require the State
to conform with the desires of the Commonwealth in the
exercise of such powers.
. . .my opinion, be impossible to disregard the cumulative authority of the three cases I have discussed and conclude that ss. 5 and 11 of the Tax Reimbursement Act are invalid. I therefore think that the validity of that Act must be upheld."
But even if the meaning of s. 96 had seemed more certain, it would, in
30. However a majority of the members of the Court (Dixon C.J., McTiernan,
Kitto and Taylor JJ., Williams, Webb and Fullagar JJ.
dissenting) did overrule
the First Uniform Tax Case [1942] HCA 14; (1942) 65 CLR 373 in so far as it decided that s.
221 (1) (a)
of the Income
Tax and Social Services Contribution Assessment Act
1936-1956 was valid. Dixon C.J., after discussing the provisions
of the
sub-section
and the nature of the taxation and the incidental
powers, said
(1957) 99 CLR, at pp 615-616 :
"For the reasons I have given I would, if it were not for the authority
of South Australia v. The Commonwealth [1942] HCA
14; (1942) 65
CLR 373 , have held a clear
opinion that s. 221 (1) (a) is ultra vires.
It is, however, one thing to hold a clear opinion opposed to a decision
of this Court and another thing to decline to follow
the decision. After full
consideration, however, I have come to the conclusion that upon the question
of the validity of par. (a)
of s. 221 (1) I should take the exceptional course
of not following the decision.
I shall summarise my reasons for this view and then develop a little
more fully the first of the reasons I shall give. It
is that I regard the
decision as isolated, as receiving no support from prior decisions and as
forming no part of what in one metaphor
is called a stream of authority and in
another a catena of cases. Secondly, I think the decision gives an application
to the constitutional
doctrine of incidental powers which may have great
consequences and which I believe to be unsound. What I have said already in
dealing in principle with the validity of s. 221 (1) (a) will be enough to
indicate why I say this. In the third place the question
relates to the
Constitution and falls within s. 74 and affects the States in many aspects
besides 'uniform tax'.
The foregoing reasons, though stated separately, are interdependent but in
combination they appear to me to form ground enough
for departing on this
point from the authority of South Australia v. The Commonwealth.",
and he went on to deal in detail with each of those three reasons. McTiernan
J. said (1957) 99 CLR, at pp 625-626 that he considered
that his previous
decision on this point was based on the defence power but could not be
justified under the taxation power as
the other members of that Court thought
it could. He therefore did not follow the earlier decision "because I think it
is manifestly
wrong". Kitto J. agreed with Dixon C.J. and Taylor J. referred
to the wartime circumstances in which the predecessor of s. 221 (1)
(a) was
enacted and the manner in which it then operated and said (1957) 99 CLR, at p
661 :
"These considerations induce me to think that the question which now
arises in relation to s. 221 (1) (a) is clearly distinguishable
from the
question which arose in South Australia v. The Commonwealth and that nothing
that was then said requires us to conclude
that the sub-section, as
re-enacted, is valid." (at p628)
31. In The Commonwealth v. Cigamatic Pty. Ltd. (in liq.) [1962] HCA 40; (1962) 108 CLR 372 ,
the Court (Dixon C.J., Kitto, Menzies,
Windeyer
and Owen JJ., McTiernan and
Taylor JJ. dissenting) overruled
the decision In re Foreman & Sons Pty. Ltd.;
Uther v.
Federal Commissioner
of Taxation (Uther's Case) [1947] HCA 45; (1947) 74 CLR 508
(Latham C.J., Rich, Starke and Williams JJ., Dixon
J. dissenting) in so far as
it
treated as valid provisions
of s. 297 of the Companies Act, 1936 (N.S.W.)
which provided an order
of priority for the payment of
debts in a company
liquidation
which was inconsistent with the priority due to Crown debts when
in an administration of assets
they come into competition with
debts of equal
degree due to subjects of the Crown. Uther's Case
had decided that the State
Act
overrode the claims of the Crown
in right of the Commonwealth. Dixon C.J.
said (1962) 108 CLR, at
pp 377-378 :
"Indeed in Uther's Case Rich J. actually says: 'In so far as the right
of the Crown in the right of the Commonwealth to rank
as a preferential
creditor is based merely on the prerogative of the Crown as such, I see no
reason why the State legislature cannot
validly abridge or abolish it just as
it could any other Crown prerogative of this sort'. Except by adopting such a
doctrine I
cannot see how it could be thought that State legislative power
could directly deprive the Commonwealth of the priority to which
it is
entitled under the law derived from the prerogative. Believing, as I do, that
the doctrine thus involved is a fundamental
error in a constitutional
principle that spreads far beyond the mere preference of debts owing to the
Commonwealth I do not think
we should treat Uther's Case as a decisive
authority upon that question which we should regard as binding. It is not a
question,
as it appears to me, of interpreting some positive power of the
State over a given subject matter. It is not a question of making
some
implication in favour of the Commonwealth restraining some acknowledged
legislative power of the State. If you express the
priority belonging to the
Commonwealth as a prerogative of the Crown in right of the Commonwealth, the
question is whether the
legislative powers of the States could extend over one
of the prerogatives of the Crown in right of the Commonwealth."
Kitto J. agreed with Dixon C.J. Menzies J. said (1962) 108 CLR, at p 389 :
"I have come to the conclusion that the dissenting judgment was correct
and the Commonwealth Constitution does not permit a State parliament to
deprive the Crown in right of the Commonwealth of its prerogative rights. In
so far as Uther's
Case decided to the contrary it should, in my opinion, be
overruled. In justification for this conclusion I cannot do more than
express
my assent to the dissenting judgment of Dixon J. on the point in question.
Were the matter not one of vital constitutional
importance I would have been
disposed to accede to the plea of stare decisis, notwithstanding the diversity
of the paths whereby
the members of the Court who constituted a majority
arrived at their conclusion, but on such a fundamental matter a 'clear
conviction
must find expression in the appropriate judgment', to use the
language of Viscount Simonds in Attorney-General for Australia v.
The Queen
(1957) 95 CLR 529, at p 548; (1957) AC 288, at p 323 ."
Windeyer J. agreed with Dixon C.J. and Owen J. agreed with Menzies J. Taylor
J. in dissenting said (1962) 108 CLR, at p 385 :
"The decision in Uther's Case has stood for some sixteen years and
during this period it has regulated the respective rights
of parties in
winding-up administrations, and no doubt, the uniform Companies Acts of the
various States which have been enacted
recently were framed on the view that
Uther's Case authoritatively settled the substantial question with which it
dealt. These
are cogent matters for consideration in determining whether we
should disturb the decision but if it is to be reconsidered then
both the
constitutional question with which the Court was then concerned and the effect
of s. 32 of the Sales Tax Act are open
to re-examination." (at p630)
32. The cases to which I have referred above show that some general
considerations have emerged which assist in the determination
of the question
whether a previous constitutional decision regarded as erroneous may, or
should, be overruled. The first is that
there should be no inhibitions about
overruling a decision, the error of which has been made manifest by later
cases which however
have not directly overruled it. The second is that the
Court will be slow to overrule, or should refuse to overrule, cases which
"go
with a definite stream of authority" and do not "conflict with well
established principle". The third is whether the prior
decision can be
confined as an authority to the precise question which it decided or whether
its consequences would extend beyond
that question. The fourth is whether the
prior decision is isolated "as receiving no support from prior decisions and
as forming
no part of what in one metaphor is called a stream of authority and
in another a catena of cases." The fifth is whether it concerns
"so
fundamental a provision of the Constitution", or involves a question of such
"vital constitutional importance", that its consequences are likely to be far
reaching even though
not immediately foreseeable in detail. It is obvious that
this list cannot be regarded as exhaustive and that the factors overlap
to
some extent. (at p630)
33. One further relevant consideration remains to be mentioned. Thomas' Case [1949] HCA 4; (1949) 77 CLR 493 and Hughes and Vale Pty. Ltd. v. New South Wales (1953) 87 CLR 49 were decided at a time when an appeal by special leave lay to the Privy Council in respect of the kind of matters dealt with in each case. That position was changed in relation to constitutional matters and all matters of federal jurisdiction by the Privy Council (Limitation of Appeals) Act 1968, and in respect of all other matters by the Privy Council (Appeals from the High Court) Act 1975, so that this Court is now in all respects a court of ultimate appeal. The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at least to some extent. It remains however a serious step, not lightly to be undertaken. (at p630)
34. In seeking to apply such guidance as I can obtain from the cases to which I have referred, as well as other instances where the Court has overruled a previous decision, I have formed the view that this is not a case where it can be said that the previous decision has been "acted upon" in the sense of the discussion in cases such as Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. [1970] HCA 16; (1970) 122 CLR 504 (HC); (1974) 129 CLR 576; (1974) AC 710 (PC) and Point v. Federal Commissioner of Taxation (No. 2) [1970] HCA 55; (1971) 124 CLR 669 , notwithstanding that elections have been held and persons so elected have sat in each House and acted as members thereof. (at p631)
35. Neither do I find it persuasive to say that a case is either so recent, or of such long standing, that it should not be overruled. It cannot be the proper approach to say that only cases which have stood for a moderate, but not excessive, length of time may be overruled. Neither common sense nor precedent supports such a view. In truth the arguments advanced in this case, save as to the age of the prior decision, would be equally applicable to almost every occasion in which the Court has overruled a previous decision. Each such argument raises an important matter for consideration but no single one of such arguments, nor all in combination, is necessarily decisive. (at p631)
36. The decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 in 1975 cannot be described as going with a definite stream of authority. It is not one which can be confined to the precise point there decided, as is demonstrated by the reliance on its reasoning to support the legislation concerning "Territory members" of the House of Representatives. It is one which has far-reaching consequences for the structure of the Parliament of the Commonwealth, the full extent of which is not yet visible. It is the first and only decision on a fundamental question concerning the status of States and Territories in the federal structure and the composition of the Parliament in the "indissoluble federal union". For one who takes a different view as to the meaning of the constitutional provisions and the significance of the Constitution read as a whole, the effect of that decision upon the structure of the Parliament and the federation itself, and on what I regard as fundamental constitutional principle, provides the basis and the justification, in the absence of any settled stream of authority, for concluding that it is proper that the decision should be overruled. (at p631)
37. I would therefore overrule the demurrers. (at p631)
ORDER
Demurrers allowed with costs.Actions dismissed with costs.
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