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Constitution Act 1902

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
Amendments95 (87 Parliamentary Amendments and 8 Constitutional Referendums)
Last amendedConstitution Amendment (Sydney Water and Hunter Water) Act 2023
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 edit

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which included a modified bill as schedule.[4] It was this modified bill to which the Queen assented.[5] The 1902 Act repealed all or part of eight previous acts.[6]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 edit

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 ?

Alterations to the Constitution edit

By parliament edit

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 edit

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 edit

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 edit

Notes edit

  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 edit

  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. ^ . NSW Electoral Commission. Archived from the original on 18 February 2011.
  22. ^ . NSW Electoral Commission. Archived from the original on 18 February 2011.
  23. ^ . NSW Electoral Commission. Archived from the original on 18 February 2011.
  24. ^ a b . NSW Electoral Commission. Archived from the original on 18 February 2011.
  25. ^ . NSW Electoral Commission. Archived from the original on 18 February 2011.
  26. ^ a b . 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).

External links edit

  •   The full text of Constitution Act 1902 (New South Wales) at Wikisource, original version
  • The full text of Constitution Act 1902 No 32 at NSW legislation, actual version

constitution, 1902, constitution, south, wales, composed, both, unwritten, written, elements, that, structure, government, state, south, wales, while, most, important, parts, codified, major, parts, broader, constitution, also, found, important, constitutional. 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 important constitutional statutes such as the Parliamentary Electorates and Elections Act 1912 or the Supreme Court Act 1970 the common law constitutional conventions the Australian Constitution the Australia Acts any remaining applicable British legislation such as the Bill of Rights 1689 1 New South Wales ConstitutionOverviewJurisdictionNew South WalesRatified18 August 1902 1902 08 18 Date effective18 August 1902 1902 08 18 SystemState GovernmentGovernment structureBranchesExecutive Legislative JudicialChambersLegislative Assembly Legislative CouncilExecutiveSee New South Wales GovernmentJudiciarySee Judiciary of AustraliaHistoryAmendments95 87 Parliamentary Amendments and 8 Constitutional Referendums Last amendedConstitution Amendment Sydney Water and Hunter Water Act 2023CitationConstitution Act 1902 NSW SignatoriesGovernor Harry RawsonSupersedesConstitution 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 Contents 1 History 2 Document structure and text 3 Alterations to the Constitution 3 1 By parliament 3 2 Referendums 4 Effect of the Constitution of Australia 5 See also 6 Notes 7 References 8 External linksHistory editIn 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 editThe 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 Alterations to the Constitution editBy parliament edit 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 edit 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 editThe 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 editState constitutions in AustraliaNotes edit 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 edit Twomey Anne 2006 The Constitution of New South Wales the Federation Press p 25 ISBN 9781862875166 R v Lydon Ex Party Cessnock Collieries Ltd 1960 HCA 19 1 High Court The Constitution of New South Wales Parliament nsw gov au Retrieved 15 January 2019 New South Wales Constitution Act 1855 18 amp 19 Vict c 54 Imp sch 1 Twomey Anne 2004 The Constitution of New South Wales Federation Press pp 18 ISBN 9781862875166 Retrieved 11 October 2021 a b Constitution Act 1902 No 32 as made NSW Legislation NSW Parliamentary Counsel s Office New Constitution Act 1853 No 41a NSW Legislation NSW Parliamentary Counsel s Office Civil List Increase Act 1857 No 14a NSW NSW Legislation NSW Parliamentary Counsel s Office Triennial Parliaments Act 1874 No 2a NSW NSW Legislation NSW Parliamentary Counsel s Office Executive Councillors Functions Substitution Act No 27a NSW NSW Legislation NSW Parliamentary Counsel s Office Constitution Act Amendment Act of 1884 No 3a NSW NSW Legislation NSW Parliamentary Counsel s Office Constitution Act Amendment Act of 1890 No 1a NSW NSW Legislation NSW Parliamentary Counsel s Office Constitution Act Amendment Act of 1890 No 1a NSW NSW Legislation NSW Parliamentary Counsel s Office Governor s Salary Act 1901 No 40 NSW NSW Legislation NSW Parliamentary Counsel s Office Constitution Act 1902 No 32 in force NSW Legislation NSW Parliamentary Counsel s Office Retrieved 11 October 2021 Constitution Legislative Council Amendment Act 1929 No 28 NSW NSW Legislation NSW Parliamentary Counsel s Office Trethowan v Peden 1930 NSWStRp 90 1930 31 SR NSW 183 23 December 1930 Supreme Court Full Court Attorney General New South Wales v Trethowan 1931 HCA 3 1931 44 CLR 394 High Court 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 Referendums in New South Wales Parliament nsw gov au Retrieved 11 October 2021 Referendum 13 May 1933 NSW Electoral Commission Archived from the original on 18 February 2011 Referendum 29 April 1961 NSW Electoral Commission Archived from the original on 18 February 2011 Referendum 17 June 1978 NSW Electoral Commission Archived from the original on 18 February 2011 a b Referendum 19 September 1981 NSW Electoral Commission Archived from the original on 18 February 2011 Referendum 25 May 1991 NSW Electoral Commission Archived from the original on 18 February 2011 a b Referendum 25 March 1995 NSW Electoral Commission Archived from the original on 18 February 2011 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 D Emden v Pedder 1904 HCA 1 1904 1 CLR 91 Railway servants case 1906 HCA 94 1906 1 CLR 488 at p 534 amp 537 8 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd Engineers Case 1920 HCA 54 1920 28 CLR 129 Kable v Director of Public Prosecutions NSW 1996 HCA 24 1996 189 CLR 51 High Court Australia Kirk v Industrial Court of NSW 2010 HCA 1 2010 239 CLR 531 High Court Australia External links edit nbsp The full text of Constitution Act 1902 New South Wales at Wikisource original version The full text of Constitution Act 1902 No 32 at NSW legislation actual version Retrieved from https en wikipedia org w index php title Constitution Act 1902 amp oldid 1218525678, wikipedia, wiki, book, books, library,

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