The New South Wales Parliament
6.1 Description
What is the purpose of a state constitution? State constitution provides a mechanism, which outlines the powers of a state. It outlines that there will be two houses, that there will be some accountability etc…
Constitution Act 1902 (NSW)
Ss3 Definitions
In this Act, unless the context or subject-matter otherwise indicates or requires:
"Periodic Council election" means an election held for the return of 21 Members of the Legislative Council.
"The Legislature" means His Majesty the King with the advice and consent of the Legislative Council and Legislative Assembly.
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.
6.2 Structure
6.2.1 Queen and Governor
Constitution Act 1902 (NSW)
s8A
Assent to Bills
(1) Except as otherwise provided by this Act, every Bill:
(a) shall be presented to the Governor for Her Majesty’s assent after its passage through the Legislative Council and the Legislative Assembly, and
(b) shall become an Act of the Legislature when it is assented to by the Governor in the name and on behalf of Her Majesty.
(2) Nothing in subsection (1) (b) precludes Her Majesty from assenting to a Bill while Her Majesty is personally present in the State.
s9A
Appointment of Governor
(1) There shall continue to be a Governor of the State.
(2) The appointment of a person to the office of Governor shall be during Her Majesty’s pleasure by Commission under Her Majesty’s Sign Manual and the Public Seal of the State.
(3) Before assuming office, a person appointed to be Governor shall take the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the presence of the Chief Justice or another Judge of the Supreme Court.
Australia Act 1986
ss7
Powers and functions of Her Majesty and Governors in respect of States
(1)Her Majesty's representative in each State shall be the Governor.
(2)Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.
(3)Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.
(4)While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above.
(5)The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.
ss8
State laws not subject to disallowance or suspension of operation
An Act of the Parliament of a State that has been assented to by the Governor of the State shall not, after the commencement of this Act, be subject to disallowance by Her Majesty, nor shall its operation be suspended pending the signification of Her Majesty's pleasure thereon.
ss9
State laws not subject to withholding of assent or reservation
(1)No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State.
(2)No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty's pleasure thereon.
ss10
Termination of responsibility of United Kingdom Government in relation to State matters
After the commencement of this Act Her Majesty's Government in the United Kingdom shall have no responsibility for the government of any State.
6.2.2 Legislative Council
Legislative council – (the upper house) – it is a “house of review” – to keep an eye on the lower house –
Constitution Act 1902 (NSW)
ss7
Power to alter constitution of Legislative Council or Legislative Assembly
The Legislature may, by any Act, alter the laws in force for the time being under this Act or otherwise concerning the Legislative Council or Legislative Assembly.
The prevention of the legislative council from being abolished or altered except by a referendum is stated in ss7A.
Ss7A
Referendum for Bills with respect to Legislative Council and certain other matters
(1) The Legislative Council shall not be abolished or dissolved, nor shall:
(a) its powers be altered,
(b) section 11A, Division 2 of Part 3 (sections 22G, 22H, 22I and 22J excepted), the Sixth Schedule or this section be expressly or impliedly repealed or amended,
(c) any provision with respect to the persons capable of being elected or of sitting and voting as Members of either House of Parliament be enacted, or
(d) any provision with respect to the circumstances in which the seat of a Member of either House of Parliament becomes vacant be enacted,
except in the manner provided by this section.
(2) A Bill for any purpose within subsection (1) shall not be presented to the Governor for His Majesty’s assent until the Bill has been approved by the electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be submitted to the electors qualified to vote for the election of Members of the Legislative Assembly.
Such day shall be appointed by the Legislature.
(4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty’s assent.
(6) The provisions of this section do not apply to:
(a) a Bill for the repeal, the amendment from time to time or the re-enactment from time to time with or without modifications of:
(i) any of the provisions of section 15 or 38A, or
(ii) any provision for the time being in force so far as it relates to the subject-matter dealt with in any of the provisions referred to in subparagraph (i),
(b) a provision of a Bill, being a provision which would, upon its coming into operation, be a law referred to in section 22A (5),
(c) a provision of a Bill, being a provision with respect to the capacity of a person who holds or accepts an office of profit under the Crown specified in the Bill to be elected or to sit and vote as a Member of either House of Parliament,
(d) a provision with respect to the persons capable of being elected or of sitting and voting as Members of either House of Parliament which applies in the same way to the persons capable of being elected or of sitting and voting as Members of the other House of Parliament, or
(e) a provision with respect to the circumstances in which the seat of a Member of either House of Parliament becomes vacant which applies in the same way to the circumstances in which the seat of a Member of the other House of Parliament becomes vacant.
(8) In this section a reference to the Legislative Council shall be construed as a reference to the Legislative Council as reconstituted from time to time in accordance with this Act.
Ss17
Reconstitution of the Legislative Council
(1) On the commencement of the 1991 reconstitution Act, the Legislative Council is reconstituted.
(2) On and from that commencement, the Legislative Council shall (subject to this Division) consist of 42 Members elected at periodic Council elections.
(3) The following Members of the Legislative Council cease to be Members on the commencement of the 1991 reconstitution Act:
(a) the last 3 members of the Legislative Council elected at the third-last periodic Council election held before that commencement,
(b) if the seat of such a Member has become vacant since that periodic Council election—a Member of the Legislative Council who is the successor (whether immediate, intermediate or ultimate) of that Member.
S22B(2)
Term of service of Members of Legislative Council
(1) A Member of the Legislative Council shall cease to be a Member of the Legislative Council:
(a) on the day of his death,
(b) on the day on which his seat as such a Member becomes vacant, otherwise than by reason of paragraph (c), or
(c) on the day on which his term of service as a Member expires under subsection (2), (3) or (4),
whichever first occurs.
(2) Subject to subsection (4), the term of service of a Member of the Legislative Council (other than a long-term continuing Member) shall expire on the day of the termination, either by dissolution or expiry, of the Legislative Assembly next preceding the second general election of Members of the Legislative Assembly to be held after his or her election as a Member of the Legislative Council.
(3) Subject to subsection (4), the term of service of a long-term continuing Member shall expire on the day of the termination, either by dissolution or expiry, of the Legislative Assembly next preceding the third general election of Members of the Legislative Assembly to be held after his or her election as a Member of the Legislative Council.
(4) The term of service of a Member of the Legislative Council elected to fill the seat of another Member which has become vacant otherwise than by reason of subsection (1) (c) shall expire on the day on which that other Member’s seat would have become vacant by reason of subsection (1) (c).
(5) In this section, "long-term continuing Member" means:
(a) a member of the Legislative Council who was one of the first 12 Members elected at the third-last periodic Council election held before the commencement of the 1991 reconstitution Act, or
(b) a Member of the Legislative Council who was one of the first 6 Members elected at the second-last periodic Council election held before that commencement, or
(c) if the seat of a Member referred to in paragraph (a) or (b) has become vacant since the periodic Council election concerned—a Member of the Legislative Council who is the successor (whether immediate, intermediate or ultimate) of that Member.
Continued on page 2
Continued
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.