r .; ,-^°'^! ^^ l^ V ADELAIDE AND VICINITY xvii Constitution of bouth Australia " • •• It is difficult to give any clear and succinct definition of what is meant by the word "constitution" as applied to a legislative body, but it could never have been intended to prohibit any alteration being made in what had not been fixed and determined. The evident meaning and intention of the Act is that no alteration of the constitution of either House as fixed by the Constitution Act should be made unless concurred in by absolute majorities of both Houses. This is not only evident from a common-sense point of view, but also from the fact that the prohibition is contained in a proviso. Power is first given to "repeal, alter, or vary all or any of the provisions of this Act," and it is then "provided that" Bills which alter the constitution of either House shall be passed in the specified manner. The proviso is a limitation to the power given, and indicates the class of alterations to the Act, which must be passed in the specified manner. The late Mr. R. I. Stow (afterwards Judge Stow), in an opinion given in i86i (P.P. No. 23 of 1861), puts the point very clearly: "This prohibition is not a direct enactment extending to all legislation on the particular subjects indicated, but is a limitation of the powers assumed to be given in the first part of the section. The section gives powers to repeal, alter, or vary any of the provisions of the Constitution Act, but prohibits the Legislature from exercising that power in such a manner as to alter the constitution of the Legislative Council or House of Assembly, unless with the concurrence of an absolute majority of members of both Houses on the second and third readings of the Hill by which the alteration may be effected ; therefore no enactment comes within the prohibition contained in Section XXXIV^, unless it alters the Constitution Act and also the constitution of the Legislative Council or House of Assembly." Imperial legislation since the passing of the Constitution Act Since 1856 various important alterations have been made: some by the Imperial Parliament ; some by the colonial Legislature. Amongst the most important made by the Imperial Parliament may be mentioned : — In 1855 an Imperial Act authorised the bi-cameral Legislature, which it was then anticipated would be established under the provisions of Clause XXXII. of the Enabling Act (so soon as such bi-cameral Legislature was established), to sell and dispose of and to legislate concerning the waste lands of the Crown. In 1865 the prohibition contained in the common law of England before referred to prohibiting Colonial Legislatures passing any law repugnant to the law of England, was by an Act known as the Validating Act to a great extent abrogated, and the meaning of the word " repugnant " was defined. The Validating Act also provided that no colonial law should be invalid on account of the Governor having consented to same, contrary to instructions given to him " by any instrument other than his letters patent or instrument authorising such Governor to concur in passing laws." In 1873 the prohibition against passing any law providing for the imposition of preferential Customs duties was abolished so far as other Australian colonies were concerned, and this limitation on the powers of colonial Legislatures has been since then further relaxed. From time to time the Imperial Parliament, at our earnest request, has validated certain Bills of the local Legislature which have been passed, contrary to the provisions of Imperial Acts forming part of our Constitution, or of our Constitution Act itself.
