Altering State Constitutions

McCawley was a justice of the Supreme Court, and his story is an interesting one. The Constitution Act 1867 purported to provide that all appointments to the Supreme Court be for life:

“The commissions of the present judges of the Supreme Court of the said colony and of all future judges thereof shall be continue and remain in full force during their good behaviour…”

Subsection 6(6) of The Industrial Arbitration Act 1916 (Qld) limited this appointment to seven years:

“The President and each Judge of the Court of Industrial Arbitration shall hold office as President and Judge of the said Court for seven years from the date of their respective appointments, and shall be eligible to be reappointed by the Governor in Council as such President or Judge for a further period of seven years.”

In McCawley v The King [1918] HCA 55, the High Court dismissed the appeal, finding that subsection 6(6) of the Industrial Arbitration Act 1916 was inconsistent with the provisions of the Queensland Constitution as it stood when the Act was passed, and that subsection 6(6) of the Industrial Arbitration Act 1916 is therefore void and inoperative. Higgins J. dissented:

“In England the question to be considered could not arise, because there is not any written Constitution. The power of Parliament is unlimited. The question could not well arise in connection with the Commonwealth Constitution, for the Constitution provides that no amendment of it can become law until after both Houses of Parlia­ment pass a Bill containing the proposed amendment, and it is approved of by the electors qualified to vote for the election of the House of Representatives in the manner and subject to the conditions set out in sec. 128. Any Act inconsistent with the Constitution, before amendment, is always held by this Court to be ultra vires. Queensland has a written Constitution also; but it is contended – after it has been in existence as a Constitution for fifty one years, that Acts inconsistent with it can be passed before any amendment of the Constitution, just as freely as in England, where there is no written Constitution or other limitation to the powers of Parliament: in fact, that the Constitution can be ignored, as my brother Higgins put it during the argument, as if it were a Dog Act. Sec. 5 of the Colonial Laws Validity Act does allow the Queensland Legislature to amend the Constitution Act of 1867, but if the contention of the appellant is right the Imperial Act has the effect of doing away with the colonial Constitutions as such, and allowing colonial legislatures to pass legislation without recognizing that there is an existing Constitution.”

McCawley appealed this decision to the Privy Council, who upheld the validity of subsection 6(6) of The Industrial Arbitration Act 1916 (Qld) as validly altering the Queensland Constitution which contemplated that all appointments to the Supreme Court be for life. Although recognising that the Queensland Constitution was a flexible constitution, one which could be amended expressly or, impliedly as in this case, the Privy Council recognised that the Queensland Parliament possessed limited sovereignty:

“The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted.”

“It is of the greatest importance to notice that where the Constitution is uncon­trolled the consequences of its freedom admit of no qualification whatever. The doctrine is carried to every proper consequence with logical and inexorable precision. Thus when one of the learned Judges in the Court below said that, according to the appellant, the Constitution could be ignored as if it were a Dog Act, he was in effect expressing his opinion that the Constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject matter. The fundamental contention of the respondents in this appeal requires the conclusion that the Constitution of Queensland is in the sense explained above a controlled Constitution. The inquiry ought not to be, and in fact is not, a very difficult one; and it is proposed shortly to examine the principal points which arise; but it is important at the outset to notice that the respondents do not find themselves in the position which they would occupy under any genuinely controlled Constitution with which their Lordships are familiar. In such a case, confronted with the objections by which they are met in this appeal, they would have no difficulty in pointing to specific articles in the legislative instrument or instruments which created the Constitution, prescribing with meticulous precision the methods by which, and by which alone, it could be altered. The respondents to this appeal are wholly unable to reinforce their argument by any such demonstration. And their inability has involved them in dialectical difficulties which are embarrassing and even ridiculous. They are, for instance, driven to contend—or at least they did in fact contend—that if it were desired to alter an article of the Constitution it was in the first place necessary to pass a repealing Act; and in the second place by a separate and indepen­dent Act to make the desired change effective. Counsel for the respondents, in fact, though perhaps unnecessarily, went so far as to maintain that the attempted modification would not be effectively carried out by a single Act, even if such an Act incorporated the provisions of the two Acts which, in his view, required a separate existence.”

Citing Section 5 of the Colonial Laws Validity Act 1865, the Privy Council went on to say:

“It would indeed be difficult to conceive how the Legislature could more plainly have indicated an intention to assert on behalf of colonial Legislatures the right for the future to establish Courts of Judicature, and to abolish and reconstitute them, than in the language under consideration; nor were the framers of this Act content with making provision for the future. Adhering to their fundamental purpose, which was to remove doubts as to the validity of colonial laws, they affirmed in terms that every colonial Legis­lature should be deemed at all times to have had full powers in the matters in question. Upon this part of the case their Lordships do not think it useful to expend time upon a more detailed examination of the materials which were so much discussed in the Courts below and which have been the subject matter of argument before the Board. In their view it is evident that unless the Act to consolidate the laws relating to the Constitution of the Colony of Queensland which was passed in 1867 contributed some new and special quality to, or imposed some new and special restriction upon, the Constitution of that Colony the argument for the respondents upon the matters hereto­ fore discussed wholly fails.”

Section 5 of the Colonial Laws Validity Act 1865:

The plenary nature of state legislative power

The words “peace, order and good government” are to be understood as conferring ample and plenary power on the States to legislate for any matter having a connection with the State. The State can make any “fact, circumstance, occurrence or thing” in or connected with the State a subject of legislation (Broken Hill South Ltd (Public Officer) v The Commissioner of Taxation (New South Wales) (1937) 56 CLR 337, at 375 per Dixon J).

Prior to Federation, there was a number of cases decided by Privy Council ruled that when not subject to a specific restriction, powers of colonial Parliaments were as “plenary and ample” as powers of British Parliament, as referred to by the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) HCA 55 (at 14):

“The power to make laws “for the peace, welfare, and good government” of a territory is indistinguishable from the power to make laws “for the peace, order and good government” of a territory. Such a power is a plenary power and it was so recognized, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies. The plenary nature of the power was established in the series of historic Privy Council decisions at the close of the nineteenth century: R v Burah (1878) 3 App Cas 889, Hodge v. The Queen (1883) 9 AppCas 117, Powell v. Apollo Candle Company (1885) 10 AppCas 282, and Riel v. The Queen (1885) 10 AppCas 675. They decided that colonial legislatures were not mere agents or delegates of the Imperial Parliament.”

For a decade a fashion developed in the colonies for people to challenge colonial laws that gave an executive officer, or a licensing board, the power to make delegated legislation. Counsel argued that the colonial parliaments, being delegates of the ‘imperial’ parliament, could not further delegate their power. Three of these cases went on appeal to the Privy Council, and each time the law was held to be valid. In R v Burah (1878) an Indian Act had imposed special laws on an area subject to unrest, and the Lieutenant Governor of Bengal had been given power to extend the area. Burah had been sentenced to death under the special laws, for a murder committed in the extended area.

In Hodge v R (1883) an Ontario Act had authorised District Licensing Boards to make laws by resolution. Hodge had been convicted of a breach of a resolution (by allowing billiards to be played in his bar).

In Powell v Apollo Candle Co Ltd (1885) a NSW Act had empowered the Governor (acting on advice of the Cabinet) to impose customs duty on a product if it seemed to be a substitute for another dutiable product. Duty had been imposed on stearine that the Candle Co had imported (presumably to make candles out of), at the same rate as the duty on candles. In each case, the Council held that the law validly authorised the regulations and therefore the regulations were valid.

In Burah their Lordships held that, although a parliament of a self-governing colony is subject to any express limits that the UK Parliament might choose to impose, within those limits it ‘is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of the Parliament itself’. In Hodge they said it again. In Powell, presumably sighing under their noble breaths and wondering why Burah had not been cited in the New South Wales courts, they said it a third time. None of the cases involved a challenge to by-laws made by a local government, though the Toronto District Licensing Board was a pretty similar body. If there had been such a case the application of the principle would have been clear – if authorised by a Local Government or similar Act, properly interpreted, by-laws would be perfectly valid. This had been made quite clear by the time the colonies federated.

Robert Garran also describes the plenary powers of the State parliaments as such on page 509 of The annotated constitution of the Australian Commonwealth, citing these cases as authorities on the matter. See article on State Legislative Powers.

So ultimately, the position of the law is that the powers to amend or even replace their own constitutions are within the powers of a State Parliament, and therefore they can be altered merely by enacting legislation inconsistent with their articles.