Constitution Act 1902 (NSW)

Constitution Act 1902 No 32 An Act to consolidate the Acts relating to the Constitution. Part 1 Preliminary 1 Name of Act This Act may be cited as the Constitution Act 1902. 2 Recognition of Aboriginal people (1) Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State's first people and nations. (2) Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales— (a) have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and (b) have made and continue to make a unique and lasting contribution to the identity of the State. (3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales. 3 Interpretation (1) 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. (2) For sections 22H, 22I and 32, in relation to ascertaining a quorum for, or determining a question in, a House of Parliament, a Member of Parliament is taken to be present at a meeting of the House if the Member attends the meeting remotely using an audio visual link in accordance with— (a) the Standing Rules and Orders of the House, or (b) a resolution or sessional order of the House. (3) Subsection (2) has effect for a House of Parliament only if the Presiding Officer of the House has declared that— (a) it will be impracticable for Members of the House to meet in person during a specified period due to a public emergency, including a public health crisis, natural disaster, major accident, civil disturbance or act of terrorism, and (b) a majority of the Members of the House have requested remote attendance of the House be permitted under this section during the specified period. (4) A Member is taken to have made a request under subsection (3)(b) if the following person has made the request on the Member's behalf— (a) if the Member belongs to a party—the Member's party leader, (b) a Member of Parliament nominated by the Member to the Presiding Officer. 4 Application of Act For the purposes of this Act, the boundaries of New South Wales shall comprise all that portion of Australia lying between the one hundred and twenty-ninth and one hundred and fifty-fourth degrees of east longitude, reckoning from the meridian of Greenwich and northward of the fortieth degree of south latitude, including all the islands adjacent in the Pacific Ocean within the latitude aforesaid, and also including Lord Howe Island, save and except the territories comprised within the boundaries of South Australia, Victoria, and Queensland, as at present established. Editorial note— For the boundary between NSW and Victoria see the proclamation published in Gazette No 22 of 15.2.2006, p 825. Part 2 Powers of the Legislature 5 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. 5A Disagreement between the two Houses—appropriation for annual services (1) If the Legislative Assembly passes any Bill appropriating revenue or moneys for the ordinary annual services of the Government and the Legislative Council rejects or fails to pass it or returns the Bill to the Legislative Assembly with a message suggesting any amendment to which the Legislative Assembly does not agree, the Legislative Assembly may direct that the Bill with or without any amendment suggested by the Legislative Council, be presented to the Governor for the signification of His Majesty's pleasure thereon, and shall become an Act of the Legislature upon the Royal Assent being signified thereto, notwithstanding that the Legislative Council has not consented to the Bill. (2) The Legislative Council shall be taken to have failed to pass any such Bill, if the Bill is not returned to the Legislative Assembly within one month after its transmission to the Legislative Council and the Session continues during such period. (3) If a Bill which appropriates revenue or moneys for the ordinary annual services of the Government becomes an Act under the provisions of this section, any provision in such Act dealing with any matter other than such appropriation shall be of no effect. 5B Disagreements—referendum (1) If the Legislative Assembly passes any Bill other than a Bill to which section 5A applies, and the Legislative Council rejects or fails to pass it or passes it with any amendment to which the Legislative Assembly does not agree, and if after an interval of three months the Legislative Assembly in the same Session or in the next Session again passes the Bill with or without any amendment which has been made or agreed to by the Legislative Council, and the Legislative Council rejects or fails to pass it or passes it with any amendment to which the Legislative Assembly does not agree, and if after a free conference between managers there is not agreement between the Legislative Council and the Legislative Assembly, the Governor may convene a joint sitting of the Members of the Legislative Council and the Members of the Legislative Assembly. The Members present at the joint sitting may deliberate upon the Bill as last proposed by the Legislative Assembly and upon any amendments made by the Legislative Council with which the Legislative Assembly does not agree. No vote shall be taken at the joint sitting. (2) After the joint sitting and either after any further communication with the Legislative Council in order to bring about agreement, if possible, between the Legislative Council and the Legislative Assembly, or without any such communication the Legislative Assembly may by resolution direct that the Bill as last proposed by the Legislative Assembly and either with or without any amendment subsequently agreed to by the Legislative Council and the Legislative Assembly, shall, at any time during the life of the Parliament or at the next general election of Members of the Legislative Assembly, be submitted by way of referendum to the electors qualified to vote for the election of Members of the Legislative Assembly. The referendum shall be held and conducted, if the Constitution Further Amendment (Referendum) Act 1930 or any other Act relating to the manner in which the referendum shall be held and conducted is in force, in accordance with that Act or with any other such Act, but if that Act is not in force and no such other Act is in force the law for the time being in force relating to the holding and conduct of a general election of Members of the Legislative Assembly shall, mutatis mutandis, apply to and in respect of the holding and conduct of the referendum, with such modifications, omissions, and additions as the Governor may by notification published in the Gazette declare to be necessary or convenient for the purposes of such application. (3) If at the referendum a majority of the electors voting approve the Bill it shall be presented to the Governor for the signification of His Majesty's pleasure thereon and become an Act of the Legislature upon the Royal Assent being signified thereto, notwithstanding that the Legislative Council has not consented to the Bill. (4) For the purposes of this section the Legislative Council shall be taken to have failed to pass a Bill if the Bill is not returned to the Legislative Assembly within two months after its transmission to the Legislative Council and the Session continues during such period. (5) This section shall extend to any Bill whether it is a Bill to which section 7A applies or not. And in the application of this section to a Bill to which section 7A applies— (a) the submission of the Bill to the electors by way of referendum in accordance with this section shall be a sufficient compliance with the provisions of section 7A which require the Bill to be submitted to the electors, (b) the referendum under this section shall, notwithstanding anything contained in section 7A, be held upon a day which shall be appointed by the Governor, and (c) the day so appointed shall, notwithstanding anything contained in subsection (2), be a day during the life of the Parliament and not sooner than two months after the Legislative Assembly has passed a resolution in accordance with that subsection for the purposes of such referendum. (6) A joint sitting of the Members of the Legislative Council and the Members of the Legislative Assembly for the purposes of this section may be convened by the Governor by message to both Houses of the Parliament. At such joint sitting the President of the Legislative Council or in his absence the Speaker of the Legislative Assembly shall preside, and until standing rules and orders governing the procedure at joint sittings have been passed by both Houses and approved by the Governor, the Standing Rules and Orders of the Legislative Council shall so far as practicable apply. 5C Words of enactment (1) Where a Bill is presented to the Governor for the signification of His Majesty's pleasure in accordance with section 5A, the words of enactment shall be as follows— BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of New South Wales in Parliament assembled, in accordance with the provisions of section 5A of the Constitution Act 1902, as amended by subsequent Acts, and by the authority of the same, as follows— Any alteration of a Bill necessary to give effect to this subsection shall not be deemed to be an amendment of the Bill. (2) Where a Bill is presented to the Governor for the signification of His Majesty's pleasure in accordance with section 5B, the words of enactment shall be as follows— BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of New South Wales in Parliament assembled, with the approval of the electors, in accordance with the provisions of section 5B of the Constitution Act 1902, as amended by subsequent Acts, and by the authority of the same, as follows— Any alteration of a Bill necessary to give effect to this subsection shall not be deemed to be an amendment of the Bill. 6 (Repealed) 7 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. 7A 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. (7) (Repealed) (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. 7B Referendum for Bills with respect to Legislative Assembly and certain other matters (1) A Bill that— (a) expressly or impliedly repeals or amends section 11B, 26, 27, 28 or 29, Part 9, the Seventh Schedule or this section, or (b) contains any provision to reduce or extend, or to authorise the reduction or extension of, the duration of any Legislative Assembly or to alter the date required to be named for the taking of the poll in the writs for a general election, shall not be presented to the Governor for Her Majesty's assent until the Bill has been approved by the electors in accordance with this section. (2) 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 entitled to vote at a general election of Members of the Legislative Assembly. (3) The day referred to in subsection (2) shall be appointed by the Governor under and in accordance with the Constitution Further Amendment (Referendum) Act 1930 and any Act amending or replacing that Act. (4) When the Bill is submitted to the electors the vote shall be taken under and in accordance with the Constitution Further Amendment (Referendum) Act 1930 and any Act amending or replacing that Act. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for Her Majesty's assent. (6) Nothing contained in this section affects the operation of section 5B and a Bill to which this section would otherwise apply which has been submitted to the electors under and in accordance with section 5B and has been approved by a majority of the electors voting may be presented to the Governor for Her Majesty's assent as if this section had not been enacted. (7) The provisions of this section do not apply to a provision of a Bill, being a provision which would, upon its coming into operation, be a law referred to in section 29 (2). (8) The provisions of this section do not apply to a provision of a Bill, being a provision that would, upon its coming into operation, be a law that amends section 52 for the purpose of extending the application of Part 9 to additional judicial offices or classes of judicial offices. 8 (Repealed) 8A 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. (3) Every Bill shall, on becoming an Act, be transmitted to and enrolled in a public repository of State documents. Part 2A The Governor 9 Meaning of "unavailable" For the purposes of this Part, the Governor or any other officer is unavailable if the Governor or other officer— (a) has assumed the administration of the government of the Commonwealth, or (b) is absent from the State, or (c) is physically or mentally incapacitated, or (d) is otherwise unavailable to exercise and perform his or her powers and functions. 9A 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. 9B Appointment of Lieutenant-Governor and Administrator (1) There shall continue to be— (a) a Lieutenant-Governor of the State, and (b) an Administrator of the State. (2) The appointment of a person to the office of Lieutenant-Governor shall be during the Governor's pleasure by Commission under the Public Seal of the State. (3) The Administrator shall be— (a) the Chief Justice of the Supreme Court, or (b) if the Chief Justice is the Lieutenant-Governor or if there is a vacancy in the office of Chief Justice or the Chief Justice is unavailable—the next most senior Judge of the Supreme Court who is for the time being available, and shall be deemed to have been appointed as Administrator during the Governor's pleasure. (4) A person may be appointed as Administrator during the Governor's pleasure by Commission under the Public Seal of the State and, where such an Administrator has been appointed and is available, subsection (3) does not apply. (5) The Lieutenant-Governor or Administrator shall not assume the administration of the government of the State or act as deputy to the Governor unless the Lieutenant-Governor or Administrator, as the case may be, has taken on that occasion, or has previously taken, 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. (6) Any act, matter or thing done or omitted by the Chief Justice of the Supreme Court (before or after the commencement of this subsection) in the capacity of Lieutenant-Governor is taken to have been done or omitted, and always to have been done or omitted, in the capacity of Administrator if for any reason the Chief Justice was not holding office as Lieutenant-Governor at the relevant time. This subsection extends to any act, matter or thing done or omitted as the Governor's deputy under section 9D. 9C Administration of government by Lieutenant-Governor or Administrator (1) The Lieutenant-Governor or Administrator shall, subject to this section, assume the administration of the government of the State if— (a) there is a vacancy in the office of Governor, or (b) the Governor is unavailable. (2) The Governor shall not, for the purposes of this section, be regarded as being unavailable at any time when there is a subsisting appointment of a deputy under section 9D and the deputy is available. (3) The Administrator shall not assume the administration of the government of the State unless there is a vacancy in the office of Lieutenant-Governor or the Lieutenant-Governor is unavailable. (4) The Lieutenant-Governor or Administrator shall, upon assuming the administration of the government of the State, notify— (a) the Premier, or (b) in the event that the Premier is not able to be contacted to give the notification—the next most senior Minister of the Crown (if any) who is able to be contacted. Notification is not required if concurrence is required under subsection (4A) for the assumption of administration. (4A) The Lieutenant-Governor or Administrator shall not assume the administration of the government of the State because of any unavailability referred to in section 9 (d) unless— (a) the Premier has concurred in the assumption of administration, or (b) in the event that the Premier is not able to be contacted to obtain concurrence—the next most senior Minister of the Crown (if any) who is able to be contacted has concurred in the assumption of administration, or (c) neither the Premier nor any other Minister of the Crown is able to be contacted to obtain concurrence, and the Lieutenant-Governor or Administrator is of the opinion that the assumption of administration is authorised by subsection (4B). The Premier or other Minister is not to give concurrence unless of the opinion that the assumption of administration is authorised by subsection (4B). (4B) An assumption of administration because of any unavailability referred to in section 9 (d) is authorised if— (a) the powers or functions of the Governor are required to be exercised or performed during that unavailability, or (b) the duration of that unavailability cannot be determined, and exceptional circumstances require the assumption of administration. (5) The powers and functions of the Governor vest in the Lieutenant-Governor or Administrator during the administration of the government of the State by the Lieutenant-Governor or Administrator, as the case may be. (6) The Lieutenant-Governor shall cease to administer the government of the State when— (a) a person is appointed to fill the vacancy in the office of Governor and has taken the required oaths or affirmations, or (b) the Governor ceases to be unavailable, (c) (Repealed) as the case requires, and the Lieutenant-Governor has been notified accordingly. (7) The Administrator shall cease to administer the government of the State when— (a) a person is appointed to fill the vacancy in the office of Governor or Lieutenant-Governor and has taken the required oaths or affirmations, or (b) the Governor or Lieutenant-Governor ceases to be unavailable, (c) (Repealed) as the case requires, and the Administrator has been notified accordingly. 9D Deputy for Governor during short illness or absence (1) In the event that— (a) the Governor is to be absent from the State or absent from Sydney but not the State or is suffering from illness, and (b) the Governor has reason to believe that the duration of the absence or illness will not exceed 4 weeks, the Governor may, by instrument in writing, appoint the Lieutenant-Governor or Administrator to be the Governor's deputy during that absence or illness and in that capacity to exercise and perform on behalf of the Governor such of the powers and functions of the Governor as are specified or described in the instrument during the period specified or described in the instrument. (2) The Administrator shall not be appointed as deputy under this section unless there is a vacancy in the office of Lieutenant-Governor or the Lieutenant-Governor is unavailable. (3) The Governor shall not appoint a deputy under this section unless— (a) the Premier has concurred in the appointment of the deputy, or (b) in the event that the Premier is not able to be contacted to obtain concurrence—the next most senior Minister of the Crown (if any) who is able to be contacted has concurred in the appointment of the deputy, or (c) neither the Premier nor any other Minister of the Crown is able to be contacted to obtain concurrence. (4) The appointment of a person as deputy under this section may be revoked by the Governor at any time. (5) The powers and functions of the Governor shall not be abridged, altered or in any way affected by the appointment of a person as deputy under this section. 9E Oaths or Affirmations of Allegiance and of Office For the purposes of this Part— (a) a reference to the Oath or Affirmation of Allegiance is a reference to an Oath or Affirmation swearing or affirming to be faithful and bear true allegiance to Her Majesty and Her Majesty's heirs and successors according to law, and (b) a reference to the Oath or Affirmation of Office is a reference to an Oath or Affirmation swearing or affirming well and truly to serve Her Majesty and Her Majesty's heirs and successors in the particular office and to do right to all manner of people after the laws and usages of the State, without fear or favour, affection or ill-will. 9F Letters Patent and Instructions cease to have effect The Letters Patent dated 29 October 1900, as amended, relating to the office of Governor of the State and all Instructions to the Governor cease to have effect on the commencement of the Constitution (Amendment) Act 1987. 9G Continuation of existing Commissions, appointments etc (1) Any existing Commission or appointment given or made pursuant to Letters Patent or pursuant to Instructions referred to in section 9F shall continue in force until revoked or terminated. (2) A person who holds office under any such Commission or appointment as— (a) the Governor, (b) the Lieutenant-Governor, (c) a Minister of the Crown, (d) a member of the Executive Council, or (e) the Vice-President of the Executive Council, shall, on the commencement of the Constitution (Amendment) Act 1987, be deemed to have been appointed to that office under this Act. (3) The Constitution (Amendment) Act 1987 does not affect anything done in pursuance of any such Commission or appointment. (4) Any oath or affirmation taken before the commencement of the Constitution (Amendment) Act 1987 for the purposes of any such Commission or appointment shall be deemed to have been taken pursuant to this Act. (5) Subsection (1) does not continue in force— (a) a provision of any such Commission or appointment that is inconsistent with any law, or (b) the dormant Commission appointing an Administrator of the government of the State dated 16 October 1933. 9H Public Seal of the State (1) The Governor shall provide, keep and use the Public Seal of the State. (2) The seal which, immediately before the commencement of the Constitution (Amendment) Act 1987, was used as the Public Seal of the State shall continue to be so used until a new seal is provided by the Governor. 9I Governor's salary (1) The Governor is entitled to be paid such remuneration as the Statutory and Other Offices Remuneration Tribunal may from time to time determine, under the Statutory and Other Offices Remuneration Act 1975, in respect of the office of Governor. (2) Remuneration is not payable under this section to a Governor for any period for which he or she is entitled to remuneration from the Commonwealth in respect of his or her administration of the Government of the Commonwealth. Part 3 The Legislative Council and Legislative Assembly Division 1 General provisions 10 Time and place for holding sessions of Parliament The Governor may fix the time and place for holding every Session of the Legislative Council and Assembly, and may change or vary such time or place as he may judge advisable and most consistent with general convenience and the public welfare, giving sufficient notice thereof. 10A Prorogation of Parliament (1) The Governor may, by proclamation, prorogue the Legislative Council and Assembly whenever the Governor considers it expedient to do so (subject to this section and section 24B). (2) The Premier or Executive Council may not advise the Governor to prorogue the Legislative Council and Assembly on a date that is before 26 January in the calendar year in which the Legislative Assembly is due to expire and that is after the fourth Saturday in the preceding September. 11 One session of Parliament to be held in each year There shall be a Session of the Legislative Council and Assembly once at least in every year, so that a period of twelve months shall not intervene between the last sitting of the Legislative Council and Assembly in one Session and the first sitting of the Legislative Council and Assembly in the next Session. 11A Elections to be held pursuant to writs Every general election of Members of the Legislative Assembly and every periodic Council election shall be held pursuant to writs issued by the Governor. 11B Compulsory voting A person who is entitled to vote at a periodic Council election or the election of a Member of the Legislative Assembly shall vote at the election and if he does not do so shall be liable to such penalty as may be provided by law. 12 No Member to sit or vote until pledge of loyalty or oath of allegiance taken (1) A Member of the Legislative Council or the Legislative Assembly is not permitted to sit or vote in the House to which the Member has been elected until the Member has taken the pledge of loyalty or oath of allegiance before the Governor or other person authorised by the Governor for that purpose. (2) The pledge of loyalty is to be in the following form— Under God, I pledge my loyalty to Australia and to the people of New South Wales. (3) A Member may omit the words "Under God" when taking the pledge of loyalty. (4) The oath of allegiance is to be in the following form (with the name of the reigning Sovereign substituted, where appropriate)— I swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her heirs and successors according to law. So help me God. (4A) A Member may, instead of taking an oath of allegiance, make an affirmation to the same effect. (4B) It is not necessary for a Member who has taken or made an oath or affirmation of allegiance to take or make that oath or affirmation again after any demise of the Crown, including by or on abdication. (5) This section applies only to Members elected after the commencement of the Constitution Amendment (Pledge of Loyalty) Act 2006. 13 Disqualifications (1) Any person who directly, or indirectly, himself, or by any person whatsoever in trust for him or for his use or benefit or on his account, undertakes, executes, holds, or enjoys in the whole or in part any contract or agreement for or on account of the Public Service of New South Wales shall be incapable of being elected or of sitting or voting as a Member of the Legislative Council or Legislative Assembly during the time he executes, holds or enjoys any such contract or any part or share thereof or any benefit or emolument arising from the same. (2) If an