THE QUEENSLAND LAW REPORTER, AUGUST, 1917. be raised for the opinion of the Court in such manner as the Court may deem expedient, or for such further or other order as the Court may direct. The motions in each case were referred by Cooper C.J. to a Full Court specially summoned to hear the same. 66 Feez K.C., Stumm K.C., Fowles, and Douglas, for the plaintiffs. The holding of the proposed poll under The Parliamentary Bills Referendum Act of 1916 for the purpose of obtaining a vote on a referendum of A Bill to Amend the Constitution of Queensland by abolishing the Legislative Council" is unconstitutional and illegal. The Council is a fundamental part of the Constitution, and the Constitution can only be altered by the creator thereof— viz., the Imperial Parliament. The following statutes are those conferring and creating a Constitution on Queensland :-9 Geo. IV., c. 83 (1828); 5 and 6 Vic., c. 76 (1842), an Act for the Government of New South Wales and Van Dieman's Land, ss. 31, 32, 33, which bestowed a form of government on New South Wales, in which there was one house called the Legislative Council; and by ss. 51 and 52 power was given to constitute new colonies from the territories of New South Wales with as nearly as possible the same form of government. In 13 and 14 Vic., c. 59 (1850), an Act for the better government of Her Majesty's Australian Colonies, power was given to institute the bicameral system of government, and in 18 and 19 Vic., c. 54 (1855), that system was introduced-vide ss. 3, 4, 5, 6, 7, and the Schedule, which was the Act 17 Vic., No. 41, of New South Wales. In 1859, Queensland was separated from New South Wales, and a constitutional government was given, and it was stated that there shall be within the Colony of Queensland a Legislative Council and Legislative Assembly. Order-in-Council, 6th June, 1859, Pars. I., II., VIII., XIV., XX., XXII. The last paragraph states the power of alteration of the Constitution, 'and the limitation. of that power. It is confined to rendering the whole or a portion of the Council elective. No power to abolish either House is given. It cannot be found in Par. XX., nor in Par. XIV. Where a power to abolish is intended, the word "abolish" is usedvide Par. XX, dealing with Courts. The State Parliament has no jurisdiction to alter the Constitution in any fundamental part by abolishing either of the Houses of Parliament. The only manner in which either House may be abolished is by F.C. TAYLOR AND OTHERS V. ATTORNEY GENERAL AND OTHERS. F.C. TAYLOR AND AND OTHERS. Imperial legislation. Sir Pope Cooper v. Commissioner of Income Tax (1). The Constitution Act of 1867 (31 Vic., No. 58) is only a consolidation-vide Preamble. The Order-in-Council of 6th June is still the basis of our Constitution; s. 9 stated the only power to make alteration of the Constitution-vide Par. XX. of Order-in-Council. The Constitution Act of 1867, ss. 20, 21. If it be possible to abolish the Council by State legislation, the abolition must be effected by the determination of the Legislature that is, of both Houses of Parliament; and the Legislature cannot delegate that power to the electors and voters on a referendum or to the Legislative Assembly and a referendum. Further, any alteration of the Constitution must be passed by the Legislature by a two-thirds' majority-The Constitution Act of 1876, s. 9, provisoes-and be reserved for the assent of His Majesty-The Australian States Constitution Act of 1907 (7 Edw. VII., c. 7), 5 and 6 Vic., c. 76, s. 53. The Constitution Act Amendment Act of 1908 (8 Edw. VII. No. 2), which purported to repeal the two provisos of s. 9 of The Constitution Act of 1867 was unconstitutional. It is an amendment of the constitution, and was not passed by a two-thirds' majority, as required by s. 9, nor did it receive the assent of the Sovereign. only to ordinary The Parliamentary Bills Referendum Act of 1908 has no application to the Bill, which attempts to abolish the Council or to alter a fundamental law of the Constitution, for that Act postulates the continued existence of both Houses of Parliament. The basis of the Act is a dispute between the two existing Houses; it applies laws for internal government, and on its plain meaning does not extend to a proposal for altering the Constitution or warrant the proposed referendum. If the Act is a proposal to alter the Constitution, it should have been direct, and should have been passed by a two-thirds' majority. By the very fact of abolition of the Council, the Act would become inoperative; and an examination of the clauses shows the strongest internal evidence that the Act does not apply to constitutional questions. If the Parliament has power to alter the Constitution to the extent of giving itself power to abolish either House, it is necessary, first, that the constitution should be altered by bestowing an express power to abolish, in addition to the present power to (1) 1907, 4 C.L.R. 1304. alter; and, second, it would be necessary to pass a statute abolishing it. Hence, if there is power, it has not been properly exercised; but we rely on the broader ground that there is no power other than the sovereign legislative power of the Imperial Parliament which created the Constitution. The many validating Acts assume this. Queensland Statutes, Vol. V., p. 4527; Keith on Responsible Government in the Dominions, Vol. I., p. 9-10, p. 404; Attorney-General for New South Wales v. Rennie (1). The Orderin-Council and all relevant enactments necessarily involve the continuance of the existence of both Houses of Parliament. Order-in-Council of 6th June, 1859; Constitution Act of 1867, Preamble, s. 9; The Commonwealth Constitution Act, ss. 15, 40. The proposed referendum involves an unauthorised expenditure of public money. The plaintiffs' rights are threatened, and will be interfered with. The Constitution Act of 1867, ss. 20, 21; Aslatt v. Corporation of Southampton (2), Richardson v. The Methley School Board (3). An injunction should be granted. Australian Alliance Assurance Co. Ltd. v. Attorney-General of Queensland and Goodwyn (4), Australian Alliance Assurance Co. Ltd. v. Goodwyn (5); 0. LXVII., r. 2. In Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd. (6), a declaration of right was made, instead of an injunction. Eastern Trust Co. v. McKenzie, Mann & Co. Ltd. (7). Ryan A.G. and Blair, for the defendants: The matter is not within the jurisdiction of the Court, as it involves consideration of the operation of The Commonwealth (War Time) Elections Act of 1917, and the limits inter se of the Commonwealth and this State. The Judiciary Acts, 1905 to 1915, ss. 38A and 40A. The High Court only has jurisdiction. An injunction should not be granted. There is no evidence of aggression or of interference by the Crown with any private right. Colonial Sugar Refining Co. Ltd. v. Attorney-General and Howe (8), Guaranty Trust Company of New York v. Hannay & Co. (9). No private right has been infringed, and no damage suffered by the plaintiffs. The obtaining of the opinion of the voters on any question cannot be an interference with the plaintiffs' rights, and there is no ground for injunction The balance of consideration of what is just (1) [1896] A.C. 376. (2) 1880, 16 Ch.D. 143. (3) [1893] 3 Ch. 510. (4) 1916 St. R. Qd. 135. (5) 1916 St. R. Qd. 225. (6) 1912, 15 C.L.R. 182; 1914, A.C. 247. (7) [1915] A.C. 750, at p. 759. (8) 1917 St. R. Qd. 83. (9) [1915] 2 K.B. 536. F.C. TAYLOR AND OTHERS V. ATTORNEY GENERAL AND OTHERS. F.C. TAYLOR AND OTHERS V. ATTORNEYGENERAL AND OTHERS. and convenient is against the plaintiffs. An injunction may be granted to prevent the holding of an election. Encyclopædia of American and English Law, Vol. 22, p. 758. It is not a sufficient ground for an injunction that injury might possibly result from the taking of a poll; the plaintiffs are premature ; an injunction will operate to deprive the Executive Government of the power of fixing a day for taking a poll. The action is not instituted by proper parties; all members of the Legislative Council should be joined as plaintiffs. The Queensland Legislature, under the authority granted by Order-in-Council of 6th June, 1859, par. XIV. and XXII., and The Colonial Laws Validity Act of 1865, s. 5, has power to abolish the Legislative Council. Paragraph XVI. clearly recognises that a different legislative body or bodies may be substituted for the named Council and Assembly. The power to make substitution was given to and has been exercisable by the Legislature of the Colony of Queensland from the time of its first creation, under "the full power and authority to make laws altering Every or repealing all or any of the provisions of this Order-in-Council," (1) [1896] A.C. 600. Cf. except clauses XIV. and XXII., and except as in the said Order- [LUKIN J. referred to Cooper v. Commissioner of Income Tax for the State of Queensland (3), where Griffith C.J. referred to The Constitution Act of 1867 as a consolidating statute.] The Constitution Act Amendment Act of 1908 was not an amendment of the Constitution, and did not require to be reserved for His Majesty's assent, and if it did, instruction was given to His Excellency to assent. That Act only abolished a restriction which was not contained in any Imperial Act or Order-in-Council, and was not а fundamental part of the Constitution. Keith on Responsible Government, Vol. II., p. 998. And further, the want of reservation, if necessary, is validated by The Australian States Constitution Act, 1907, s. 2. The Parliamentary Bills Referendum Act of 1908 was a duly authorised alteration of the Constitution. If in order to abolish the Legislative Council it is necessary to take the two steps of altering the Constitution so as to bestow the power of abolition and of the actual exercise of the power, both these steps may be performed simultaneously by one statute, and are both embodied in The Parliamentary Bills Referendum Act of 1908; it is not essential that the first-mentioned action should be effected by an antecedent statute. There is no delegation of the power to legislate; by s. 10 the referendum must receive the assent of His Majesty; that section must be read with s. 31 of 5 and 6 Vic., c. 76. So long as any Act passed does not infringe The Colonial Laws Validity Act, 1865, little or no objection can be taken to it. Dicey on The Law of the Constitution, 1st Ed., pp. 96, 102. The Parliamentary Bills Referendum Act did, pro tanto, abolish the Council, for it (1) 1908, 7 C.L.R. 372. (2) 1906, 4 C.L.R 356 (3) 1907, 4 C.L.R. 1304, at p. 1313. F.C. TAYLOR AND GENERAL |