LAW

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KembaraXtra-Case Law-Attorney General for New South Wales v Trethowan (1932)
This case hinges on the interplay between two Acts and the validity of legislation passed without adhering to a mandated procedure.
I. Key Players & Legislation:
  • New South Wales (NSW) Legislature: The body attempting to abolish the Legislative Council (upper house).
  • Colonial Laws Validity Act 1865 (CLVA): A Westminster Parliament Act granting NSW the power to amend its constitution, but stipulating that such amendments must follow any procedure prescribed by NSW law or future Acts of Parliament. (Crucially, this Act gives power and limits how that power is used).
  • NSW Constitution Act, Section 7A: This NSW law mandated that any Bill abolishing the Legislative Council must be approved via referendum before receiving Royal Assent (Governor's approval). Crucially, Section 7A itself was protected from repeal through an equivalent provision, making it an entrenched clause.
II. The Core Issue:
The NSW government tried to pass two Bills:
  1. Abolishing the Legislative Council: This directly challenged Section 7A.
  2. Repealing Section 7A: This aimed to bypass the referendum requirement.
Neither Bill had been put to a referendum. The plaintiffs (Legislative Council members) challenged the legality of presenting these Bills to the Governor for Royal Assent.
III. The Privy Council's Decision:
The Privy Council ruled in favour of the plaintiffs, determining:
  • Section 7A's Validity: Section 7A of the NSW Constitution Act was a valid "colonial law" as defined by Section 5 of the CLVA. This means its procedural requirements were legally binding.
  • Referendum Requirement as Binding: The referendum requirement in Section 7A was a legally binding procedural condition on the NSW Legislature's power to amend its constitution.
  • Invalidity without Referendum: Presenting the Bills to the Governor without referendum approval would be unlawful. Even if the Governor gave Royal Assent, the Bills would be void and not valid Acts of the NSW legislature because they failed to comply with the established procedure.
IV. Key Concepts & Implications:
  • Entrenchment: Section 7A's protection against repeal exemplifies the concept of entrenchment. Certain constitutional provisions can be made harder to change than others.
  • Procedural vs. Substantive Requirements: This case emphasizes the importance of procedural requirements. Failing to follow the correct process, even if the proposed law's substance might be acceptable, renders it invalid.
  • Parliamentary Sovereignty (Limited): While Parliament holds significant power, this case demonstrates that this power can be limited by prior legislation, particularly when it concerns the established procedure for constitutional amendment. The power to amend is itself subject to rules about how that amending power should be used.
V. Study Questions:
  1. Explain the significance of Section 5 of the CLVA. How did it both grant and limit power to the NSW legislature?
  2. Define "entrenchment" in the context of this case. Why was the entrenchment of Section 7A crucial?
  3. What is the difference between a substantive and a procedural requirement in legislation? Why did the Privy Council focus on the procedural aspect in this case?
  4. How did this case impact the understanding of parliamentary sovereignty in colonial contexts?
  5. What would have happened if the Bills had received Royal Assent without referendum approval?
This study guide provides a framework for understanding the complexities of Attorney General for New South Wales v Trethowan. Thoroughly reviewing the key players, legislation, the decision, and the implications will enhance your comprehension of this landmark constitutional case.







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