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Constitution Act 1902

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The Constitution of New South Wales is composed of both unwritten and written elements that set out the structure of Government in the State of New South Wales. While the most important parts are codified in the Constitution Act 1902, major parts of the broader constitution can also be found in:

New South Wales Constitution
Overview
JurisdictionNew South Wales
Ratified18 August 1902 (1902-08-18)
Date effective18 August 1902 (1902-08-18)
SystemState Government
Government structure
Branches
Chambers
ExecutiveSee New South Wales Government
JudiciarySee Judiciary of Australia
History
Amendments97 (89 Parliamentary Amendments and 8 Constitutional Referendums)
Last amendedGovernment Sector Employment and Other Legislation Amendment Act 2024
CitationConstitution Act 1902 (NSW)
SignatoriesGovernor Harry Rawson
SupersedesConstitution Act 1855 (NSW)

The Constitution Act 1902 sets out many of the basic principles of the Government of New South Wales, and provides for an executive, legislative and judicial branch. However, unlike the Federal Constitution, the courts have found this does not mean there is a formal separation of powers at the state level.[2] It can also be amended through ordinary Acts of Parliament, however some sections can only be amended through a referendum of NSW voters.[3]

History

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In 1853 the New South Wales Legislative Council, then a unicameral body, with a hybrid of appointed and elected members, passed the New South Wales Constitution Bill in 1853, also referred to as 17 Vic. No 41, which was reserved for the Queen's assent, which the Queen did not give. Instead the Imperial Parliament at Westminster passed what is referred to as the Constitution Statute 1855 (Imp) which included a modified bill as schedule.[4] It was this modified bill to which the Queen assented.[5] The 1902 Act repealed all or part of eight previous acts.[6]

Act Reference Extent Ref
New Constitution Act 1853 No 41a 17 Vic. No. 41.[a] unrepealed portion [7]
Civil List Increase Act 1857 No 14a 20 Vic. No. 18 The whole [8]
Triennial Parliaments Act 1874 No 2a 37 Vic. No. 7 The whole [9]
Executive Councillors (Functions Substitution) Act No 27a 44 Vic. No. 6 The whole [10]
Constitution Act Amendment Act of 1884 No 3a 47 Vic. No. 5 The whole [11]
Constitution Act Amendment Act of 1890 No 1a 53 Vic. No. 12 The whole [12]
Constitution Act Amendment Act of 1890 No 1a 54 Vic. No. 1 The whole [13]
Governor's Salary Act 1901 No 40 Act No 40, 1901 Section 2, subsection (4) [14]

Document structure and text

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The act as made consisted of six parts,[6] to which an additional five parts have since been added.[15]

  • Part 1 Preliminary.
  • Part 2 Powers of the Legislature.
  • Part 2A The Governor, added in 1987.
  • Part 3 The Legislative Council and Legislative Assembly.
  • Part 4 The Executive.
  • Part 4A Parliamentary Secretaries, added in 1975.
  • Part 5 The Consolidated Fund.
  • Part 6 Officers and staff.
  • Part 7 Administrative arrangements, added in 1984.
  • Part 8 Local government, added in 1986.
  • Part 9 The judiciary, added in 1992.
  • Part 10 Public ownership of Sydney Water Corporation and Hunter Water Corporation, added in 2023.

Alterations to the Constitution

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By parliament

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The Act as made in 1902 was an act of the New South Wales Parliament. In contrast to the Constitution of Australia it was not approved by a referendum and did not contain any provision requiring a referendum to alter it. In 1929 the parliament passed an amendment to the Constitution Act which inserted section 7A, requiring a referendum before the Legislative Council could be abolished.[16] In 1930 Labor MLCs put forward two bills, one to repeal section 7A, the other to abolish the Council. Believing that a referendum was necessary before the bills could become law, the Legislative Council permitted the bills to pass without a division on 10 December. The validity of section 7A and the inability to repeal the section without a referendum were upheld by the Supreme Court on 23 December 1930,[17] a majority of the High Court on 16 March 1931,[18] and the Judicial Committee of the Privy Council on 31 May 1932.[19]

Referendums

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There have been 18 referendums in New South Wales, 8 of which concerned proposals to amend the New South Wales Constitution, half of which concerned the Legislative Council. The list does not include referendums that did not involve changes to the NSW constitution, such as the 1898 and 1899 referendums on the proposed constitution of Australia, the 1903 referendum on the number of Members of the Legislative Assembly and the 5 referendums on the sale of alcohol.[20]

Results of referendums
Year # Name Yes No Ref
1933 4 Reform the Legislative Council 51.47 48.53 [21]
1961 7 Abolish the Legislative Council 42.42 57.58 [22]
1978 11 Election of Legislative Council 84.81 15.19 [23]
1981 12 4 year terms 69.04 30.96 [24]
13 Disclosure of pecuniary interests 86.01 13.99 [24]
1991 14 Reduce size of Legislative Council 57.73 42.27 [25]
1995 15 Fixed terms of parliament 75.48 24.52 [26]
16 Judicial independence 65.90 34.10 [26]

Effect of the Constitution of Australia

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The Constitution of Australia sets up the Commonwealth of Australia as a federation, with limited specific powers conferred on the Federal Parliament. The relationship between the states and the Commonwealth are dealt with in chapter V, including section 109 which provides that state laws are invalid to the extent of any inconsistency with federal laws. For the first two decades, the High Court preserved much of the financial and political independence of the states by adopting the reserved state powers and the implied inter-governmental immunities doctrine. These doctrines protected both the Commonwealth and the states from legislative or executive actions which "would fetter, control, or interfere with, the free exercise" of the legislative or executive power of the other.[27][28][29] These doctrines were subsequently rejected by the court in the 1920 Engineers' Case[30] after the composition of the court changed.

The High Court has held that the structure and text of the Constitution of Australia is such that the it protects the independence of the State Supreme Courts and a state parliament cannot assign powers that are incompatible with that independence,[31] nor prevent State Supreme Courts from issuing prerogative relief for jurisdictional error.[32]

See also

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Notes

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  1. ^ Refers to the 17th year of Queen Victoria's reign, commencing on 20 June 1837, and the 41st Act passed after 20 June 1853.

References

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  1. ^ Twomey, Anne (2006). The Constitution of New South Wales. the Federation Press. p. 25. ISBN 9781862875166.
  2. ^ R v Lydon; Ex Party Cessnock Collieries Ltd [1960] HCA 19, [1], High Court.
  3. ^ "The Constitution of New South Wales". Parliament.nsw.gov.au. Retrieved 15 January 2019.
  4. ^ New South Wales Constitution Act 1855 (18 & 19 Vict. c. 54 (Imp)), sch 1.
  5. ^ Twomey, Anne (2004). The Constitution of New South Wales. Federation Press. pp. 18. ISBN 9781862875166. Retrieved 11 October 2021.
  6. ^ a b Constitution Act 1902 No 32 as made. NSW Legislation. NSW Parliamentary Counsel's Office.
  7. ^ "New Constitution Act 1853 No 41a". NSW Legislation. NSW Parliamentary Counsel's Office.
  8. ^ "Civil List Increase Act 1857 No 14a (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  9. ^ "Triennial Parliaments Act 1874 No 2a (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  10. ^ "Executive Councillors (Functions Substitution) Act No 27a (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  11. ^ "Constitution Act Amendment Act of 1884 No 3a (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  12. ^ "Constitution Act Amendment Act of 1890 No 1a (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  13. ^ "Constitution Act Amendment Act of 1890 No 1a (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  14. ^ "Governor's Salary Act 1901 No 40 (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  15. ^ Constitution Act 1902 No 32 in force. NSW Legislation. NSW Parliamentary Counsel's Office. Retrieved 11 October 2021.
  16. ^ "Constitution (Legislative Council) Amendment Act 1929 No 28 (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  17. ^ Trethowan v Peden [1930] NSWStRp 90, (1930) 31 SR (NSW) 183 (23 December 1930), Supreme Court (Full Court).
  18. ^ Attorney-General (New South Wales) v Trethowan [1931] HCA 3, (1931) 44 CLR 394, High Court.
  19. ^ Attorney-General (New South Wales) v Trethowan [1932] UKPC 1, [1932] AC 526; [1932] UKPCHCA 1, (1932) 47 CLR 97, Privy Council (on appeal from Australia)
  20. ^ "Referendums in New South Wales". Parliament.nsw.gov.au. Retrieved 11 October 2021.
  21. ^ "Referendum 13 May 1933". NSW Electoral Commission. Archived from the original on 18 February 2011.
  22. ^ "Referendum 29 April 1961". NSW Electoral Commission. Archived from the original on 18 February 2011.
  23. ^ "Referendum 17 June 1978". NSW Electoral Commission. Archived from the original on 18 February 2011.
  24. ^ a b "Referendum 19 September 1981". NSW Electoral Commission. Archived from the original on 18 February 2011.
  25. ^ "Referendum 25 May 1991". NSW Electoral Commission. Archived from the original on 18 February 2011.
  26. ^ a b "Referendum 25 March 1995". NSW Electoral Commission. Archived from the original on 18 February 2011.
  27. ^ Zines, Leslie (1986). "The Federal Balance and the Position of the States". In Craven, Gregory (ed.). The Convention Debates 1891–1898: commentaries, indices and guide. Sydney: Legal Books. p. 81. ISBN 9780949553171..
  28. ^ D'Emden v Pedder [1904] HCA 1, (1904) 1 CLR 91.
  29. ^ Railway servants case [1906] HCA 94, (1906) 1 CLR 488 at p. 534 & 537-8.
  30. ^ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case) [1920] HCA 54, (1920) 28 CLR 129.
  31. ^ Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, (1996) 189 CLR 51, High Court (Australia).
  32. ^ Kirk v Industrial Court of NSW [2010] HCA 1, (2010) 239 CLR 531, High Court (Australia).
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