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 Constitution | |
|---|---|
 | |
| Overview | |
| Jurisdiction | New South Wales |
| Ratified | 18 August 1902 |
| Date effective | 18 August 1902 |
| System | State Government |
| Government structure | |
| Branches | |
| Chambers | |
| Executive | See New South Wales Government |
| Judiciary | See Judiciary of Australia |
| History | |
| Amendments | 95 (87 Parliamentary Amendments and 8 Constitutional Referendums) |
| Last amended | Constitution Amendment (Sydney Water and Hunter Water) Act 2023 |
| Citation | Constitution Act 1902 (NSW) |
| Signatories | Governor Harry Rawson |
| Supersedes | Constitution 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
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which included a modified bill as schedule.[4] It was this modified bill to which the Queen assented.[5] The 1902 Act repealed all or part of eight previous acts.[6]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
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
By parliament
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
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]
| 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
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
Notes
References
External links
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
