Can the Commonwealth Parliament Enact “Manner and Form” Legislation?
| DOI | 10.1177/0067205X8001100202 |
| Published date | 01 June 1980 |
| Date | 01 June 1980 |
| Author | George Winterton |
| Subject Matter | Article |
CAN
THE
COMM'ONWEALTH PARLIAMENT ENACT
"MANNER AND FORM" LEGISLATION?
By
GEORGE
WINTERTON*
The author considers whether the Commonwealth can enact
umanner 'and form" legislation, especially provisions enabling the
House
of
Representatives to enact laws which are the subject
of
a
deadlock between the Houses, and legislation entrenching civil
liberties. He argues that the legislative power
of
the Commonwealth
has the same properties
as
that
of
the United Kingdom Parliament,
which can impose umanner and form" limitations on itself; parlia-
mentary supremacy is procedurally self-embracing. Hence, the
Commonwealth Parliament can do likewise, except in so
far
as the
Commonwealth Constitution provides to the contrary. The Consti-
tution does prevent Parliament requiring legislation to be enacted
by specified majorities in Parliament, or substituting anew legis-
lature for the present Parliament.
But
the Commonwealth Parliament
can enact provisions requiring legislation to be enacted in aspecified
form, and can establish an additional legislature for the enactment
of
legislation, including appropriation laws. Such legislation may be
enacted pursuant to the procedure in section
57
of
the Constitution,
and could provide amethod
of
avoiding aSupply crisis like that
of
1975.
1.
INTRODUCTION
Two of the principal issues of contemporary Australian constitutional
law are the protection of civil liberties and the reconciliation of traditional
notions of responsible government (whereby the government is respon-
sible only to the House of Representatives) with the Senate's ability and
apparent willingness to deprive agovernment of Supply. Both questions
have arisen in other jurisdictions and solutions adopted there warrant
consideration for possible adaptation to the Commonwealth.
In
respect
of both issues, other common law jurisdictions have resorted to "manner
and form" legislation1with some success, and this article examines
whether such legislation might assist in solving these problems in the
Commonwealth also.
The Commonwealth Constitution pays very scant attention to civil
liberties,2 and the international trend towards the constitutional protection
of human rights has largely been ignored in Australia. This can probably
*LL.B. (Hons), LL.M. (W.A.); Senior Lecturer, Faculty of Law, University
of
New South Wales. The author wishes to thank
Mr
Keven Booker
of
the Faculty
of
Law, University of New South Wales, for his comments on an earlier draft
of
this
article.
1This term, derived from the proviso to
s.
S
of
the Colonial Laws Validity Act
1865
(U
.K.), refers
to
legislation stipulating the manner
or
form in which future
legislation dealing with the stipulated subject must be enacted.
2.See
Commonwealth Constitution
SSe
80, 92, 99, 116, 117.
ct.
s. 127 (repealed
in 1967).
167
168 Federal
Law
Review
[VOLUME
11
be
attributed to the belief that the common law afforded adequate
protection to civil liberties, recognition of the disadvantages of arigid,
practically unamendable and judicially-interpreted constitutional Bill of
Rights, and the sheer difficulty of amending the Constitution in view of
the referendum majorities required by section 128 of the Constitution.
However, there has been increasing recognition of the inadequacy of the
common law as aprotector of civil liberties,3 especially in the light of
international declarations and conventions to which Australia has felt
obliged to become aparty.4 Accordingly, recent Australian governments
have begun to resort to statute for the protection of civil rights,S
but
so
far the only majorCommonwealthenactment of general application is the
Racial Discrimination Act 1975,6 which affords minimal protection to
human rights in Australia.7
Commonwealth legislation, such as the Racial Discrimination Act
1975, has only limited utility, however. While inconsistent State legis-
lation is rendered inoperative pursuant to section 109 of the Constitution,
there is no diminution of the power of future Commonwealth Parlia-
ments to impinge on the protected rights. Until the Commonwealth
Parliament's freedom of action is restrained, the protection of civil
liberty is feeble indeed. Of course, only aconstitutional amendment
could completely immunise civil rights from the operation of inconsistent
federallegislation,8 but a"manner and form" provision, if the Common-
3E.g. Evans, "New Directions
in
Australian Race Relations Law" (1974) 48
A.L.J. 479, 479-481; Castles,
"Human
Rights, the
Common
Law
and
Australia's
International Obligations" (1978) Justice
No.7,
52; Scarman, English
Law-
The
New
Dimension (1974) 14-21;
Lord
Scarman, "Fundamental Rights:
The
British Scene" (1978) 78 Columbia Law Review 1575, 1585-1586;
Lord
Scarman,
396 H.L. Deb. 1346, 1347
(1978);
Lord
Wilberforce, "The Need for aConstitution
in
the United Kingdom" (1979) 14 Israel Law Review 269.
ct.
Lord
Hailsham,
The Dilemma
of
Democracy (1978) 132,
140,172,
174,228-229.
4Especially the United Nations' Universal Declaration
of
Human
Rights (10
December
1948);
the International Convention
on
the Elimination
of
All Forms
of
Racial Discrimination 1966, which Australia has ratified (effective
1969):
Aust.
T.S. 1975
No.
40; the International Covenant
on
Economic, Cultural
and
Social
Rights 1966, which Australia has ratified (effective
1976):
Aust. T.S. 1976
No.5;
the International Covenant
on
Civil and Political Rights 1966 (effective 1976),
which Australia ratified
in
1980. See Castles, supra n. 3; Castles,
"The
Ratification
of
International Conventions and Covenants" (1969) Justice
No.2,
1.
SE.g. the Racial Discrimination
Act
1975
(Cth);
the Aboriginal
and
Torres
Strait Islanders (Queensland Discriminatory Laws) Act 1975
(Cth);
the Racial
Discrimination
Act
1976 (S.A.); the Sex Discrimination Act 1975
(S.A.);
the
Anti-Discrimination
Act
1977 (N.S.W.); the Equal Opportunity
Act
1977 (Vic.).
6Implementing the International Convention on the Elimination
of
All
Forms
of
Racial Discrimination 1966: Aust. T.S. 1975 No. 40.
7
Greater
protection would have been afforded by the
Human
Rights Bill 1973
(Cth)
which sought
to
implement the International Covenant
on
Civil
and
Political
Rights and which lapsed when Parliament was prorogued on 14
February
1974
and
was not subsequently reintroduced. See Crommelin
and
Evans, "Explorations
and
Adventures with Commonwealth Powers" in Evans
(ed.),
Labor and the
Constitution 1972-1975 (1977) 24, 47. See also the
Human
Rights Commission
Bill 1980
(Cth).
8
It
is widely acknowledged
that
aParliament cannot deprive future Parliaments
of
the power
to
legislate
on
certain subjects. This has been held to be so regarding
1980] Can Commonwealth Parliament Enact Legislation?
169
wealth could validly enact one, would offer statutorily-protected rights
some protection against offending federal legislation by requiring special
majorities in Parliament, or the intervention of areferendum, for the
enactment of contravening legislation, or by requiring abreach of the
Bill of Rights to be express. Indeed, it has been suggested that, because
Parliament would retain greater flexibility under astatutory Bill of
Rights entrenched by a"manner" or "form" provision than under a
constitutional Bill of Rights, the former
is
preferable, especially if
Parliament might need to contravene the Bill of Rights in times of
crisis.9'
The ill-fated Commonwealth Human Rights Bill 1973 sought to
employ a"form" provision to entrench the protected rights against future
federal legislation. Clause 5
(2)
and
(3),
modelled on section 2of the
Canadian Bill of Rights 1960, provided, inter alia, that inconsistent
Commonwealth legislation enacted after,
as
well
as
before, the Human
Rights Bill was to have no effect, to the extent of the inconsistency,
unless it expressly declared that it should operate notwithstanding the
Human Rights Bill.1G Whether such legislation would be valid and
effectual
is
considered below.
Since the events of October-November 1975, when the Senate refused
to pass the Appropriation Bills unless the Government called ageneral
election, leading to the eventual dismissal of the Government and a
double dissolution of Parliament, politicians, political scientists and
constitutional lawyers have debated how the Constitution might be
amended to prevent arepetition of those events, with their potential for
chaos and civil strife.
At
the Hobart Constitutional Convention of 1976
the former (Labor) Prime Minister, Mr Whitlam, proposed aconsti-
tutional amendment to remove the Senate's power to block Supply.ll
the Commonwealth: Wenn
v.
Attorney-General for Victoria (1948) 77 C.L.R. 84,
107 per Latham C.I.; the United Kingdom: Vauxhall Estates
Ltd
v.
Liverpool
Corporation [1932] 1K.B. 733, 743, 746; the States: South Australia
v.
The
Commonwealth (1942) 65 C.L.R. 373, 416 per Latham C.I.; McCawley
v.
R.
[1920] A.C. 691; Commonwealth
Aluminium
Corporation
Ltd
v.
Attorney-General
(Qld) [1976] Qd.R. 231, 236, 239;
ex
parte Pennington (1875)
13
S.C.R. (L.) 305,
316; Friedmann, "Trethowan's Case, Parliamentary Sovereignty, and the Limits
of
Legal Change" (1950) 24 A.L.I. 103, 104. See also Winterton, "The British
Grundnorm: Parliamentary Supremacy Re-examined" (1976) 92 L.Q.R. 591,
611-613.
9Campbell, "Pros and Cons of Bills of Rights in Australia" (1970) Justice
No.3,
1, 7, 10.
10
Cl. 5of the Human Rights Bill 1973 (Cth) provides:
"(2)
Subject to sub-section
(3),
any provision of alaw
of
Australia
or of
a
Territory, whether passed or made before, on
or
after the commencing day,
that is inconsistent with aprovision of this Act does not, to the extent of the
inconsistency, have any force
or
effect.
(3)
Sub-section
(2)
does not apply in relation to aprovision
of
alaw if
an
Act expressly declares that the provision shall operate notwithstanding this
Act."
11 Official Record
of
Debates
of
the Australian Constitutional Convention
(Hobart. 1976) 98.
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