Western Australia v Wilsmore [1982] HCA 19

High Court of Australia Gibbs C.J. Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. Western Australia v Wilsmore [1982] HCA 19

ORDER Appeal allowed. Order that the appellants, in accordance with their undertaking, pay the respondent's costs. Order that the judgment of the Full Court of the Supreme Court of Western Australia be set aside, and that in lieu thereof it be ordered that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1982, April 29 Gibbs C.J.

I have had the advantage of reading the reasons for judgment prepared by my brother Wilson and agree with them. I would add only a few observations.

The critical question in the case is whether s. 7 of the Electoral Act Amendment Act (No. 2) 1979 W.A. ("the Act of 1979"), which in form amended the provisions of the Electoral Act 1907 W.A., as amended, was a law "by which any change in the constitution of the Legislative Council or of the Legislative Assembly [was] effected", within the meaning of the first proviso of s. 73 of the Constitution Act 1889 W.A.. It is clear that the Act of 1979 did not repeal or alter any provision of the Constitution Act 1889. If one makes the assumption that a law which changes the qualifications of electors or members of the Legislative Council or of the Legislative Assembly is a law that effects a change in the constitution of the Legislative Council or of the Legislative Assembly, the question then is whether a law which effects such a change falls within the first proviso of s. 73, notwithstanding that it does not repeal or alter any provisions of the Constitution Act 1889. In other words, the respondent must fail unless the first proviso operates, not merely to limit the preceding words of the section, but as a general limitation, i.e. as an independent enactment.