Constitutional Conundrums and unintended Consequences

It is necessary to examine the phrase ‘subject to’ in considering the substantive effect of s 46 of the Constitution Act Amendment Act on s 2 of the Constitution Act. The phrase ‘subject to’ indicates which of two or more statutory provisions prevail if there is any inconsistency between those provisions. As Miller JA explained in S v Marwane:

The purpose of the phrase ‘subject to’ in such a context is to establish what is dominant and what subordinate or subservient; that to which a provision is ‘subject’, is dominant - in case of conflict it prevails over that which is subject to it.

The Constitution Act Amendment Act 1921 and s 73 of the Constitution Act

In McCawley v The King, the Privy Council held that for the most part, state constitutions are ‘uncontrolled’. Subject to applicable manner and form requirements, Western Australia’s Parliament may amend or repeal the Constitution Act’s provisions in the same manner that it alters the ‘Dog Act or any other Act’. If s 46 of the CAAA is inconsistent with s 2 of the Constitution Act, the question arises whether the 1921 Act fell within the ambit of manner and form requirements under what was then s 73 and now s 73(1) of the Constitution Act. If not, s 46 of the CAAA may have impliedly amended s 2 of the Constitution Act. However, if the amendments were required to comply with s 73, there is some doubt whether the 1921 Act was passed in accordance with that provision.