Glew v Shire of Greenough [2006] WASCA 260

The appellant raised a number of grounds, including the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003, which was contended has “removed Her Majesty and the Crown”, that there is some constitutional impediment to the State Parliament exercising legislative authority in relation to fee simple or freehold land, the fate of the 1988 referendum regarding the recognition of local government, and the 1999 republican referendum, and that the State Parliament cannot legislate for the imposition of taxation by way of the levying of rates on real property. The Court held that the appellants’ submissions are based on a misunderstanding of the Commonwealth and State Constitutions and are entirely lacking in legal merit.

“The Constitution which was superimposed on, and assumes the existence of, pre‑existing State Constitutions which not only continued, but which were able to be altered in accordance with their terms. So far as legislative power was concerned, s 51 of the Commonwealth Constitution listed most of the legislative powers of the Commonwealth.  The legislative powers in section 51 were not expressed to be exclusive, but that both State and Commonwealth Parliaments would be able to make laws in relation to the matters set out in that list, and only where the Commonwealth had passed a law in relation to one of those listed subject matters, and a State law was inconsistent with the Commonwealth law, that the State law would become invalid or inoperative (section 109). Taxation, which is referred to in s 51(ii), is a non‑exclusive power, so that both State and Commonwealth Parliaments can pass laws dealing with taxation, and where the Commonwealth has not legislated, it remains both politically and practically possible for the States to impose taxation; an example of such a tax would be land tax. The Commonwealth Constitution can be altered only in the manner provided by s 128 of the Constitution. This was what happened in relation to the referendum concerning local government, to which the appellants refer. The Commonwealth Parliament has no power over local government. However, pursuant to s 128, it passed a law submitting to the electors the question of whether the Commonwealth Constitution should be amended so as to make provision for local government. However, the failure of a referendum does not either expressly or impliedly prohibit either the Commonwealth Parliament or the Parliament of any State from passing legislation which is otherwise within its power and which touches on the same subject matter as the proposed referendum question.”

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