Disagreements between the NSW legislative Houses:
Clayton v Heffron (1960) 105 CLR 214:

Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ

The purpose of the suit was to prevent by the remedy of an injunction the holding of a referendum under ss5B and 7A of the Constiution Act, 1902-1956 (NSW) on the question whether a bill for the abolition of the legislative council should be adopted.

Six members of the New South Wales Legislative Council, a member of its Legislative Assembly and a member of the Commonwealth House of Representatives
sought, from the New South Wales Supreme Court, declarations and injunctions preventing the holding of a referendum as part of the legislative process provided for by s 5B of the Constitution Act 1902 (NSW), upon the ground that the Bills to be submitted to the referendum had not been passed in the manner prescribed by s 5B. It was argued that there was no joint sitting as required by s 5B.

The Constitution Act 1902 (NSW) s. 5B, providing for a free conference of managers, then a joint sitting of both Houses, followed by a referendum when the two Houses disagree regarding a Bill (except one appropriating revenue for the ordinary annual services of government), was held to be valid.

For the purposes of the proceedings the defendants, who were Ministers of the Crown and Members of the Executive Council, conceded that an injunction would lie against them, restraining them from taking any steps towards the holding of a referendum if, in the events which had happened, it would be unconstitutional for the Bill to proceed to a referendum. The Supreme Court of New South Wales upheld the validity of s5B, and of the steps taken by the Legislative Assembly there under, and dismissed the suit.

Menzies J, stated that “for the simple reason that the legislative council refused the request of the legislative assembly for such a conference in respect of the Bill and it was argued that as it did not take place, the manner and form prescribed by the section had not been followed, with consequent invalidity. Reliance in the ultimate conclusion was based upon the decision of the Privy Council in Trethowan’s case.

Also, his honour was in the opinion that s 5B is valid and has been complied with and because I agree with the members of the full court of the Supreme Court in thinking that there is nothing in any of the other points upon which the applicants relied there and raised again in this court, I think the applicants must fail.

I would myself have been disposed to grant the application for special leave to appeal and dismiss the appeal, but I am prepared to concur in refusing the application.

6.3 Legislative powers
6.3.1 General grant

Constitution Act 1902 (NSW)
ss5
General legislative powers
The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever:
Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.
Australia Act 1986
S2(1)
Legislative powers of Parliaments of States

(1)It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

(2)It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

6.3.2 Manner and Form Provisions

“Manner and form” refers to specific procedural requirements that have to be adhered to in order to change or make the laws.

Refer back to Constitution Act 1902 (NSW) ss5, 5A 5B, 7A, and 7B ABOVE.

A measure of control may be added in respect of certain parts of the state constitution by way of special manner and form provisions, which may stipulate a requirement for the approval by the electorate (referendum) and/or the legislature for the passage of amendments. For example, changes to the state constitution requiring a referendum in NSW to abolish the upper house.

Colonial Laws Validity Act 1865 (Imp)
The legislative powers of the colonies/states were limited by the Colonial Laws Validity Act 1865, a limitation that continued well after the establishment of the Australian Federation. The basic effect of this legislation was that if a law of a colony covered the same subject as a law of the United Kingdom Parliament, the United Kingdom law prevailed; this was known as the repugnancy principle.

Colonial Laws Validity Act 1865 (Imp)
S5
“Every colonial representative legislature shall have power to make laws respecting the constitution, powers and procedure of its own body provided that such laws are passed in such manner and from as may from time to time be required by Act, letters patent, order in council or colonial laws for the time being in force in the colony.”

For example, there might be a requirement for a referendum before a law could be changed, as in A-G v Trethowan’s case, which is extracted below. As Blackshield and Williams observe,

“The greatest challenge to Dicey’s conception of parliamentary sovereignty presented by the Australian states constitutions lies not in any possible restriction of legislative power by phases like “peace, order and good government”, but in judicial acceptance of the idea that, by introducing suitably worded “manner and form” requirements, a state parliament can effectively limit the power of future parliaments. That is, at least in the Australian States, that a Parliament can bind it successors”

Attempted abolition of the NSW Legislative Council
This was tested in NSW, after Queensland Labor party successfully abolished its upper house. The NSW Labor government of Jack Lang tried to do follow suit in 1930 but in 1929 an amendment of the NSW Constitution had been made inserting a manner and form requirement, s7A, which prevented the Legislative Council from being abolished or altered except by a referendum. Lang announced he was going to abolish the legislative council by passing a bill which repealed s7A, which was passed by the lower house. The legislative council sorted an injunction and was granted it by the Supreme Court which was appealed to the High Court, as seen in:

Attorney General(A-G) (NSW) v Trethowan (1931) 44 CLR 395

The legislative council cannot be abolished without a referendum unless and until s7A is repealed. S7A cannot be repealed except by a Bill, which is approved at a referendum before it is presented for the royal assent.

The law proposed by the Bill to repeal s7A of the Constitution Act 1902 to 1929 answers the description ‘a law respecting the powers of the legislature” just as the provisions of s7A itself constitute a law with respect to those powers.

BUT the proposal cannot be put into effect save by a law which “shall have been passed in such manner and form as may be required by any” prior law of the NSW legislature.

It is no less a law of that legislature because it requires the approval of the electors as a condition of its repeal. But it is not void unless this requirement is repugnant to s5 of the Colonial Validity Act 1865. No requirement is repugnant to that section if it is within the contemplation of its proviso, which concedes the efficacy of enactments requiring a manner and form in which laws shall be passed.

If, therefore, a provision that a particular law respecting the powers of the legislature may not be made unless it is approved by the electors, requires a manner and form in which such a law shall be passed, the s7A is a valid law and cannot be repealed without the approval of the electorates.

Dixon J Said at 426, his honour considered that it would be unlawful to present a Bill to repeal an Act containing a provision restraining its repeal, unless first approved by the electors. The Act would have the force of law until the sovereign did assent to a Bill for its repeal. Consequently, it would be unlawful to present such a Bill for the Royal assent before it had been so approved and, as his Honour said, at 426:

"If, before the Bill received the assent of the Crown, it was found possible, as appears to have been done in this appeal, to raise for judicial decision the question whether it was lawful to present the Bill for that assent, the Courts would be bound to
pronounce it unlawful to do so.

The Constitution Act 1902 (NSW) s. 7A, requiring a Bill abolishing the Legislative Council to be approved at referendum, was held to bind the NSW Parliament.

Australia Act 1986(Imp)
As to the states legislature, the Statute of Westminster 1939 did not apply and they were not freed from the constraints of the Colonial Laws Validity Act 1865 until the passage of the Australia Act 1986.

The Australia Act 1986 had a number of important implications for the states, including:

-    The termination of the power of the English Parliament to legislate on their behalf
-    The cession of power to the states to legislate contrary to enactments of the United Kingdom (Whose legislation would formerly have been paramount)
-    The cession of power to the states to legislate extraterritorially
-    The suspension of appeals from the state courts to the English Privy Council and
-    Expansion of executive powers in the State Governors.

Australia Act 1986(Imp)
S6-Manner and form of making certain State laws
A law made after the commencement of this Act by the Parliament of a State “respecting the constitution, powers or procedure of the Parliament” of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.