¹ Gough, Fundamental Law in English History (1971); Corwin, “The 'Higher Law' Background of American Constitutional Law” (1928-1929) 42 Harvard Law Review 149; Haines, The Revival of Natural Law Concepts (rep. 1965).

² The concept of “grundnorm” is central to Kelsen's theory of law and sovereignty: General Theory of Law and the State (1945) 110-114, 131-134, 369-373, 395-396. Hart's “rule of recognition” is developed in The Concept of Law (1961) 92 ff.

³ For a recent discussion of the doctrine see Winterton, ''The British Grundnorm: Parliamentary Supremacy Re-examined” (1976) 92 L.Q.R. 591.

⁴ Ss. 1, 2 as amended by Parliament Act, 1949.

⁵ Commencing with the Reform Act (Representation of the People Act) 1832, the franchise was extended in 1867, 1884, 1885, 1918 and 1928.

⁶ I.e. the method of electing members (whether by means of first-past-the-post,preferential or some proportional representation method) or the rules relating to the re-distribution of electoral districts.

⁷ Smith, De, Constitutional and Administrative Law (2nd ed. 1973) 99-109Google Scholar.

⁸ Haines, Revival of Natural Law Concepts (1965) esp. Chs 1, 2, 3, 4, 12.

⁹ The word refers to the existence of a constitution as having an independent root or as being “home-grown”: Wheare, The Constitutional Structure of the Commonwealth (1960) Ch. IV 89 ff. Marshall, Constitutional Theory (1971) 58 ff.

¹⁰ Lumb, , The Constitutions of the Australian States (4th ed. 1977) Chs. 1, 2Google Scholar.

¹¹ See also Quick and Garran, Annotated Constitution of the Commonwealth of Australia (1901) 123 ff. for a discussion of the comparative aspect.

¹² E.g. s. 80 (trial by jury in certain cases), s. 92 (freedom of interstate trade),s. 116 (freedom of religion), s. 117 (rights of residents in states).

¹³ Lumb, , The Constitutions of the Australian States (4th ed. 1977) 102-104Google Scholar.

¹⁴ A similar distinction is made by the Indian Supreme Court in Kesavanda v. Kerala [1973] S.C.R. Supp. 1 where a majority considered that while the fundamental rights provisions of the Indian Constitution could be amended there were certain structural principles of the Constitution which were not subject to amendment.

¹⁵ Quick and Garran, op. cit. 706.

¹⁶ The arguments are summarized in Howard and Saunders, “The Blocking of the Budget and the Dismissal of the Government”, Ch. 8 in Evans (ed.), Labour and the Constitution, 1972-1975 (1977) 251 ff.

¹⁷ Ellicott, id. 288-296.

¹⁸ However, Howard, “Legal and Constitutional Implications” in Dutton (ed.), Republican Australia? (1977) 60 at 67 considers that there is scope for legislation defining the powers of the Governor-General more closely. It is considered, however, that such legislation, if it restricted the powers conferred on the GovernorGeneral by the various sections of the Constitution (e.g. ss. 5, 57, 64) would be unconstitutional.

¹⁹ See also Hart, The Concept of Law (1961) 93, on the relationship between rules of recognition and rules of change.

²⁰ [1920] A.C. 691, 703-704. Infra p. 169.

²¹ Constitutional Alteration (Mode of Altering the Constitution) Bill 1974 which purported to substitute “one half” for “a majority” of the States in the fo11rth paragraph of s. 128.

²² Marshall, , Parliamentary Sovereignty and the Commonwealth (1957) 114-115Google Scholar.

²³ By requiring, for example, a two-thirds majority for legislation altering the constitution of the Upper House.

²⁴ Infra pp. 172-174.

²⁵ Cf. Hart, The Concept of Law (1961) 107 “... The rule of recognition exists only as a complex, but normally concordant, practice of the Courts, officials and private persons in identifying the law by reference to certain criteria.”

²⁶ Lumb and Ryan, The Constitution of the Commonwealth of Australia Annotated (2nd ed. 1977) 1-6.

²⁷ The meaning of the word is explained inn. 9.

²⁸ And therefore the transformation of six individual colonial systems into a federal system of government.

²⁹ On the negotiations between the colonial and Imperial authorities on the question of appeal to the Privy Council and the ultimate compromise reached see Quick and Garran, op. cit. 228 ff.

³⁰ Statute of Westminster Adoption Act 1942 (Cth). The adoption was dated back to the outbreak of war (3 September, 1939).

³¹ Wheare, , The Constitutional Structure of the Commonwealth (1960) 108Google Scholar.

³² Roberts-Wray, , Commonwealth and Colonial Law (1966) 252Google Scholar.

³³ The development of an Australian grundnorm is closely associated with the development of Australian nationhood: New South Wales v. Commonwealth (1975) 8 A.L.R. 1, 16 (Barwick C.J.), 90 (Mason J.); Bonser v. La Macchia (1969) 122 C.L.R. 177, 189 (Barwick C.J.).

³⁴ Marshall, Parliamentary Sovereignty and the Commonwealth (1962) Ch. 6, 76 ff.

³⁵ Wheare, The Constitutional Structure of the Commonwealth (1960) Ch. 3, 58 ff.

³⁶ Id. 62.

³⁷ Id. 63.

³⁸ Id. 64. Indeed even without s. 8 of the Statute, the Constitution of the Commonwealth would have remained as “supreme law”: Wheare, op. cit. 68.

³⁹ Such legislation would infringe the principles of national independence and sovereignty which had matured by 1942 (not 1901 as Murphy J. asserts in Bistricic v. Rokov (1976) 11 A.L.R. 129, 140). See also n. 33. On the question of the operation of the convention before the Statute of Westminster see Copyright Owners Reproduction Society Ltd v. E.M.I. (Aust.) Pty Ltd (1958) 100 C.L.R. 597, 612 per Dixon J.

⁴⁰ Marshall, Parliamentary Sovereignty and the Commonwealth (1962) 116-117. Cf. Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976), who states at page 543 that the Constitution can be amended at any time by Imperial enactment.

⁴¹ [1935] A.C. 500, 520.

⁴² Ndlwana v. Hofmeyr [1937] A.D. 229, 237. See also Marshall, Constitutional Theory (1974) 61.

⁴³ Wynes, , Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 541Google Scholar. Marshall, , Parliamentary Sovereignty and the Commonwealth (1962) 115Google Scholar.Sawer, , “The British Connection” (1973) 47 A.L.J. 113, 114 n. 3Google Scholar. But Sawer does admit that such legislation should be preceded by action under s. 128.

⁴⁴ As a matter incidental to the execution of the legislative power (i.e. the naming of Statutes).

⁴⁵ As was provided for in s. 4 of the Acts Interpretation Act 1973 (Cth).

⁴⁶ Bailey, “The Abdication Legislation in the United Kingdom and in the Dominions” (1938) 3 Politica 18. On the questions of royal succession and regency see Maughan, “The Statute of Westminster” (1939) 13 A.L.J. 152, esp. 160.

⁴⁷ But see also, Marshall, Parliamentary Sovereignty and the Commonwealth (1962) 114-115.

⁴⁸ “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every state and of every part of the Commonwealth, notwithstanding anything in the laws of any State... “

⁴⁹ “ ...The laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.”

⁵⁰ Particularly in the light of the wide interpretation given to the external affairs power in New South Wales v. Commonwealth (1975) 8 A.LR. 1. See alsoR. v. Foster; ex parte Eastern and Australian Steamship Co. (1959) 103 C.L.R.256.

⁵¹ “ 'The Commonwealth' shall mean the Commonwealth of Australia as established under this Act.

'The States' shall mean such of the Colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia and South Australia including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called 'a State'.

'Original States' shall mean such States as are parts of the Commonwealth at its establishment.”

⁵² “The Federal Council of Australasia Act 1885 is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State' by the Parliament thereof.”

⁵³ “After the passing of this Act the Colonial Boundaries Act 1895 shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.”

⁵⁴ 58 & 59 Viet. c. 34.

⁵⁵ Lumb, and Ryan, , The Constitution of the Commonwealth of Australia Annotated (2nd ed. 1977) 31-32Google Scholar.

⁵⁶ Sawer, “Some Legal Assumptions of Constitutional Change” (1957) IV Annual Law Review (University of W.A.) 1, 5. Latham, “Changing the Constitution” (1953) 1 Sydney Law Review 14, 19. Canaway, “The By-Pass to Constitutional Reform” (1940) 13 A.L.J. 394, 398; “The Evolution of S. 128 of the Constitution” (1940) 14 A.L.J. 274, 276; Cowen, “The Constitutional Aspects” in Dutton (ed.), Republican Australia? (1977) 44, 57-59; O'Connell, id. 23, 37-38; Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 542 (but with doubts as to the elimination of the Monarchy).

⁵⁷ Such a doctrine although true in the historical context is not a legal doctrine which can be applied by the Court to limit Commonwealth powers: the Engineers case (1920) 28 C.L.R. 129.

⁵⁸ Or providing for the secession of one of its parts: Marshall, Parliamentary Sovereignty and the Commonwealth (1962) 115-117. It is considered that the words “indissoluble federal Commonwealth” in the Preamble, while demonstrating the nature of the political compact into which the Colonies entered, do not generate a doctrine of fundamental law superior to the amending procedure laid down in s. 128.

⁵⁹ On the assumption that bills passed by the Houses would need to be signed into law by some official outside those Houses.

⁶⁰ Wynes, op. cit. 540.

⁶¹ “Some Legal Assumptions of Constitutional Change”, op. cit. 4-5.

⁶² And which are made binding by force of s. 5 of the Colonial Laws Validity Act.

⁶³ Canaway, “The Evolution of S. 128 of the Commonwealth Constitution” (1940) 14 A.L.J. 274, 276.Cf. Wynes, op. cit. 542, n. 42.

⁶⁴ Wynes, op. cit. 6-7.

⁶⁵ Ibid.

⁶⁶ Mccawley v. R. (1918) 26 C.L.R. 9, 51-52. (Isaacs and Rich JJ. considered that a State's judicature (including the appeal to the Privy Council) and executive structure were part of its Constitution). Cf. Higgins J. in Commonwealth v. Kreglinger & Fernau Ltd and Bardsley (1925) 37 C.L.R. 393, 426.

⁶⁷ Lumb, , The Constitutions of the Australian States (1965) Ch. 5Google Scholar.

⁶⁸ (1931) 44 C.L.R. 394.

⁶⁹ Id. 426-427. The incapacity of the British Parliament to bind itself by manner and form provisions has of course been questioned in recent writings: see also Winterton, “The British Grundnorm: Parliamentary Supremacy Re-examined” (1976) 92 L.Q.R. 591, 596 ff. for a summary of views.

⁷⁰ Lumb, , The Constitutions of the Australian States (4th ed. 1977) Chs. 1, 2Google Scholar.

⁷¹ Indeed, the law-making power of the Tasmanian Parliament is derived from ss. 7 and 14 of that Act while that of the South Australian Parliament is indirectly derived from those sections.

⁷² Campbell, “Colonial Legislation and the Law of England” (1965) 2 Tasmanian University Law Review 148.

⁷³ The Queensland Constitution Order in Council incorporated the requirements of the Australian Constitutions Act 1842, s. 31 imposing a duty on the Governor to abide by Royal Instructions relating to assent, disallowance and reservation of Bills.

⁷⁴ Blackmore, The South Australian Constitution (1894) 64 ff.

⁷⁵ [1920] A.C. 691.

⁷⁶ But see the judgment of Murphy J. in Bistricic v. Rokov (1976) 11 A.L.R.129, 139-140.

⁷⁷ (1976) 11 A.L.R. 129, 132. Cf . Jacobs J. at 135: amending or modernizing laws may apply.

⁷⁸ Ukley v. Ukley [1977] V.R. 121, 129-130.

⁷⁹ The law-making powers conferred on the Australian colonial Parliaments by the Australian Constitutions Act 1850 are vested in the South Australian Legislature by s. 5 of the Constitution Act of that State.

⁸⁰ Western Australia Constitution Act (Imp.) 1890, s. 5, The Constitution Act 1889, s. 2 (W.A.).

⁸¹ (1931) 44 C.L.R. 394.

⁸² Id. 428.

⁸³ (1960) 105 C.L.R. 214.

⁸⁴ Id. 252.

⁸⁵ [1920] A.C. 691, 712. However Isaacs J. in Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 457, 475-476, and Griffith C.J. in Cooper v. Commissioner of Income Tax (Qld.) (1907) 4 C.L.R. 1304, 1314, considered that the power of constitutional alteration conferred by the Queensland Order in Council of 1859 still survived.

⁸⁶ (1907) 4 C.L.R. 1304.

⁸⁷ Id. 1313-1314.

⁸⁸ [1920] A.C. 691.

⁸⁹ Id. 714.

⁹⁰ The relevant portion of s. 5 is as follows: “... Every Representative Legislature shall, in respect to the Colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such Legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the time being in force in the said Colony.” The operation of the section is discussed in Lumb, The Constitutions of the Australian States (4th ed. 1977) 98 ff.

⁹¹ Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 457. Clayton v. Heffron (1960) 105 C.L.R. 214.

⁹² Trethowan v. Attorney-General for New South Wales (1931) 44 C.L.R. 394(H.C.); [1932) A.C. 526 (P.C.).

⁹³ Lumb, op. cit. 102-103.

⁹⁴ Id. 101-102.

⁹⁵ Id. 103-104.

⁹⁶ Id. 111-112.

⁹⁷ (1960) 105 C.L.R. 214.

⁹⁸ Id. 249-250.

⁹⁹ In this respect the doctrine of fundamental law applied by courts in systems outside the Colonial Laws Validity Act may be referred to: Bribery Commissioner v. Ranasinghe [1965] A.C. 172, Harris v. Donges [1952] 1 T.L.R. 1245.

¹ For a discussion of political reasons for the legislation see O'Connell, , “Monarchy or Republic” in Dutton (ed.), Republican Australia? (1977) 23, 32Google Scholar. The position of the Governor was not fully incorporated into the Queensland Constitution Act of 1867, remaining dependent to a large extent on Letters Patent and Royal Instructions.

² Section 6 adding new section 14. This section has the effect of making express what was formerly implied, that is, the right to exercise a “reserve” power of appointment and dismissal of Ministers, taking advice on this matter from sources outside the Premier or his Cabinet. In this respect it amounts to quite a “radical” transformation of existing practice.

³ (1917) 23 C.L.R. 457.

⁴ Id. 473.

⁵ Id. 474.

⁶ Whether, in any case, it is within Constitutional capacity of a State Parliament to abolish the office of Governor will be discussed later. Infra p. 175 ff.

⁷ Constitution Act Amendment Act 1975 (S.A.).

⁸ Section 7 inserting new section 88. The Act also provides for an appeal from an order of the Commission to the Supreme Court on questions of law. Its validity was upheld in Gilbertson v. State of South Australia (1977) 14 A.LR. 429.

⁹ Section 1 (2).

¹⁹ For differing interpretations of the term “repugnancy” in s. 2, see Union Steamship Co. of New Zealand Ltd v. The Commonwealth (1925) 36 C.L.R. 130,148 (Isaacs J.). Attorney-General for Queensland v. Attorney-General for the Commonwealth (1915) 20 C.L.R. 148, 178.

¹¹ (1976) 11 A.L.R. 129, 132.

¹² Australian Constitutions Act 1842, ss. 31, 32, 33, 40. Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 457, 475 (Isaacs J.). Re Scully (1937) 32 Tas.L.R. 3, 40-44 (Clark J.). Much of the content of these provisions is now covered by the Australian States Constitution Act 1907.

¹³ On the assumption that this falls under the rubric of “State constitutions”.Supra n. 66.

¹⁴ (1917) 23 C.L.R. 457, 474. See also Clayton v. Heffron (1960) 105 C.L.R.251.Re Scully (1937) 32 Tas.L.R. 3, 40 ff.

¹⁵ Roberts-Wray, Commonwealth and Colonial Law (1966) 22.

¹⁶ Usually in the form of a combination of the local Constitution Act and Letters Patent establishing the office of Governor. On the nature of Letters Patent see Roberts-Wray, op. cit. 143-146.

¹⁷ [1919] A.C. 935.

¹⁸ Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 473.

¹⁹ In Toy v. Musgrove [1891] A.C. 272 it was held by the Victorian Full Court that the Governor of the State of Victoria was not a Viceroy and did not exercise all the prerogative powers of the Monarch. However, for practical purposes today there are few prerogatives which are not exerciseable by a State Governor, the only significant ones being the prerogative of honours and the prerogative of incorporation by royal charter. Other limitations relating to reservation of bills are imposed, as we have seen, by statute.

²⁰ Keith, Responsible Government in the Dominions (1912) I, 361 ff.

²¹ Id. 365. In the second edition (1927) Keith expresses the limitations in this way: ''The true limitation on the autonomy of Parliament is that it cannot by its action alter vitally the status of the territory for which it legislates” (at 312).

²² Id. 368. “Colonial” in this context would appear to include all those legal systems which have not achieved full autonomy. See also Zines, ''The Growth of Australian Nationhood and its effect on the Powers of the Commonwealth” in Zines (ed.), Commentaries on the Australian Constitution (1977) esp. 10-15, and the authorities cited therein.

²³ [1926] A.C. 482.

²⁴ Zines, op. cit. 12.

²⁵ [1935] A.C. 500.

²⁶ [1947] A.C. 127.

²⁷ Derived from the Imperial Parliament: British Coal Corporation v. R. [1935] A.C. 500, 519.

²⁸ The major prerogatives are those relating to the exercise of powers affecting the parliamentary system (dissolution etc.) while the minor prerogatives are those establishing exceptions in favour of the Crown to general rules applying to the community (such as preference for Crown debts). The minor prerogatives are subject to statutory repeal: Roberts-Wray, op. cit. 379, 557-559. But see Keith, Responsible Government in the Dominions (2nd ed. 1927) 310, for a criticism of the distinction.

²⁹ Of course a Dominion legislature may enact such legislation under a “peace, welfare and good government” head of power. Croft v. Dunphy [1933] A.C. 156,163. See also Zines, op. cit. 12, 41.

³⁰ (1917) 23 C.L.R. 457, 474, 478, 481.

³¹ Id. 474. See also Re Scully (1937) 32 Tas.L.R. 1, 42.

³² In Re Initiative and Referendum Act [1919] A.C. 935, 945: “It does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence.” Commonwealth Aluminium Corporation Limited v. Attorney-General for Queensland [1976] Qd.R. 231, 236-237 (Wanstall J.).

³³ Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 457. Clayton v. Heffron (1960) 105 C.L.R. 214.

³⁴ Supra n. 32.

³⁵ [1976] Qd.R. 231.

³⁶ In the instant case the argument (which was rejected by the majority) was that a provision in an Act sanctioning a developmental agreement between a Company and the State of Queensland to the effect that the agreement could only be varied by an agreement between the responsible Minister and the Company (which variation was subject to veto by the Legislative Assembly) could not prevent a later Parliament from legislating to amend the agreement in the ordinary manner. It would appear that implicit in the judgment of Wanstall J. was the principle that to incorporate a private company into the legislative process would be an abdication of authority: [1976] Qd.R. 231, 236-237.

³⁷ But the requirements for frequency of redistributions operating in the Commonwealth sphere by force of s. 24 of the Commonwealth Constitution (see Attorney-General of Australia (ex parte McKinlay) v. Commonwealth of Australia (1975) 7 A.LR. 593) would not apply in the State sphere. However see the judgement of McTiernan and Jacobs JJ. at 615 on the meaning of the phrase “representative democracy”.

³⁸ While this requirement is embodied in two of the Constitution Acts (Victorian Constitution Act, s. 51 South Australian Constitution Act, s. 66) it rests on convention in the other states. The principle might be formulated in this way: if a constitutional amendment bill were passed allowing Ministers to hold office without obtaining a seat in Parliament or requiring them to obtain a seat within a reasonable period of time, such a bill would be subject to challenge as infringing a basic principle of the Constitution (State).

³⁹ Lumb, , The Constitutions of the Australian States (4th ed. 1977) 68Google Scholar.

⁴⁰ Friedmann, “Trethowan's Case, Parliamentary Sovereignty and the Limits of Legal Change” (1950) 24 A.L.J. 103, 105-106.

⁴¹ This is associated with the doctrine that a State Parliament cannot abdicate its authority. By imposing an impracticable requirement, the power of amendment is effectively taken away from the State Parliament which is endowed with a full law-ma.king authority.

⁴² The example is referred to in the judgment of the Privy Council in McCawley v. R. [1920] A.C. 691, 704.

⁴³ (1939) 62 C.L.R. 603.

⁴⁴ (1960) 105 C.L.R. 214, 250.

⁴⁵ [1976] Qd.R. 231.

⁴⁶ This is the method of classification adopted by Hoare .J. in the Comalco case: [1976] Qd.R. 231, 248.

⁴⁷ R. v. Sharkey (1949) 79 C.L.R. 121, 149 (Dixon J.); Commonwealth v.State of Queensland (1975) 7 A.L.R. 351, 381-382 (Murphy J.). See also Sawer,“The British Connection” (1973) 47 A.L.J. 113, 115-116.

⁴⁸ Commonwealth v. State of Queensland (1975) 7 A.L.R. 351, 361-362 (Gibbs J.); Mccawley v. R. (1918) 26 C.L.R. 9, 51-52 per Isaacs and Rich JJ.

⁴⁹ Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 76-77.

⁵⁰ Ukley v. Ukley [1977] V.R. 121, 129-130. Wynes, op. cit. 77-78.

⁵¹ Supra n. SS.

⁵² Ukley v. Ukley [1977] V.R. 121, 129-130.

⁵³ For a discussion of this placitum see Nettheim, ''The Power to Abolish Appeals to the Privy Council” (196S) 39 A.L.J. 39, 44 ff; Lumb and Ryan, op. cit. 190-191; O'Connell, op. cit. 38.

⁵⁴ Lumb and Ryan, op. cit. 190-191.

⁵⁵ Contrast the views of Dixon C.J., McTiernan, Taylor and Windeyer JJ. in Clayton v. Heffron (1960) 105 C.L.R. 214, 251, emphasizing the continuation of the legislative power of the States pursuant to ss. 106 and 107 of the Commonwealth Constitution with the views of Barwick C.J. (New South Wales v. Commonwealth (1975) 8 A.LR. 1, 15) and Murphy J. (Bistricic v. Rokov (1976) 11 A.L.R. 129, 139) suggesting that the State Constitutions receive this authority from s. 106. See also O'Connell, op. cit. 38.

⁵⁶ See the view of Bailey mentioned in the Working Paper on Legislative Powers New South Wales Law Reform Commission (1972) 157. Dixon, , “The Statute of Westminster, 1931” (1936) 10 A.L.J. Supp. 96, 100Google Scholar.

⁵⁷ See Marshall, Constitutional Theory (1974) 58 ff. for different criteria of “autochthony”.

⁵⁸ Perhaps the federalist principle would be more fully implemented if an alternative initiation procedure were provided: a request by a majority of State Parliaments.