New South Wales: 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 any person being a Member of such Council or Assembly enters into any such contract or agreement, or, having entered into it, continues to hold it, his seat shall be declared by the said Legislative Council or Legislative Assembly, as the case may require, to be vacant, and thereupon the same shall become and be vacant accordingly. (3) Provided that nothing in subsection (1) or (2) contained shall extend to any contract or agreement made, entered into, or accepted by any incorporated company, or any trading company consisting of more than twenty persons, where such contract or agreement is made, entered into, or accepted, for the general benefit of such incorporated or trading company. (4) It is hereby declared that nothing in subsection (1) or (2) extends to— (a) a contract or agreement for or in respect of a loan to the Treasurer or to a body authorised to borrow by Act of Parliament, (b) a contract or agreement the benefit or burden of which or any interest in which devolves upon a person— (i) as beneficiary under a will or as a person entitled to share in the estate of an intestate—until he has been in possession of the benefit, burden or interest, as the case may be, for one year from the date of commencement of the Constitution (Amendment) Act 1962 or from the date of the devolution, whichever is the later date, (ii) as executor, administrator or trustee—until he has been in possession of the benefit, burden or interest, as the case may be, for three years from the date of commencement of the Constitution (Amendment) Act 1962 or from the date of the devolution, whichever is the later date, (c) a compromise or settlement in respect of compensation or other money payable by Her Majesty or a statutory body representing Her Majesty, (d) a lease, licence for occupation, sale, purchase or exchange of land, or a contract or agreement for such a lease, sale, purchase or exchange or for the occupation of land or for an easement; or a gift or an agreement for a gift by any person of land to or for Her Majesty or a statutory body representing Her Majesty, (e) a contract or agreement for the supply or provision by or to or for Her Majesty or a statutory body representing Her Majesty of goods, wares or merchandise or services (including the provision of insurance or indemnity) where the goods, wares or merchandise or services (including the provision of insurance or indemnity) are supplied or provided on the like terms as those on which they are ordinarily supplied or provided to members of the public, (f) a loan by Her Majesty or a statutory body representing Her Majesty to any person upon the security of a mortgage, bill of sale, lien or other security upon and subject to the like terms as those ordinarily imposed by Her Majesty or the statutory body on loans made to members of the public. Notice of any such compromise or settlement as is referred to in paragraph (c) that takes place after the commencement of the Constitution (Amendment) Act 1962 shall be published in the Gazette within two months from the date of the compromise or settlement, as the case may be. (4A) Nothing in— (a) subsection (1) applies so as to prevent a person who holds an office of profit under the Crown or has a pension from the Crown during pleasure or for a term of years from being elected or of sitting or voting as a Member of either House of Parliament, or (b) subsection (2) requires or permits the seat of a Member of either House of Parliament who accepts such an office or such a pension to be declared to be, or to become or be, vacant, by reason only of his holding or accepting that office of profit or his having or accepting that pension. (4B) In subsection (4A), office of profit under the Crown includes any office or place of profit under the Crown which, by any Act, is declared or deemed not to be an office or place of profit under the Crown for the purposes of any Act or of this Act, whether in those terms or in terms to the like effect. (4C) Nothing in— (a) subsection (1) applies so as to prevent a person from being elected or from sitting or voting as a Member of either House of Parliament, or (b) subsection (2) requires or permits the seat of a Member of either House of Parliament to be declared to be, or to become or be, vacant, on the ground that he or she elects or agrees to be provided with, or receives, employment benefits (including salary sacrifice contributions for superannuation) under the Parliamentary Remuneration Act 1989 or any other Act. (5) In this section, statutory body representing Her Majesty includes any statutory body that is part of, or that exercises any function that is a function of, the Public Service of New South Wales. 13A Further disqualifications (1) If a Member of either House of Parliament— (a) fails for one whole Session of the Legislative Council and Assembly to give his attendance in the House of which he is a Member, unless excused in that behalf by the permission of that House entered upon its journals, (b) takes any oath or makes any declaration or acknowledgment of allegiance, obedience or adherence to any foreign prince or power or does or concurs in or adopts any act whereby he may become a subject or citizen of any foreign state or power or become entitled to the rights, privileges or immunities of a subject of any foreign state or power, (c) becomes bankrupt or takes the benefit of any law for the relief of bankrupt or insolvent debtors, (d) becomes a public defaulter, or (e) is convicted of an infamous crime, or of an offence punishable by imprisonment for life or for a term of 5 years or more, and is the subject of the operation of subsection (2), his seat as a Member of that House shall thereby become vacant. (2) For the purposes of subsection (1) (e), a Member is the subject of the operation of this subsection if— (a) the Member has not lodged an appeal against the conviction within the prescribed period, or (b) the conviction has not been quashed on the determination of an appeal or appeals lodged within the prescribed period, or (c) such an appeal has been lodged within the prescribed period but has been withdrawn, or has lapsed, without being determined, and no other appeal lodged within the prescribed period is pending. (3) Nothing in this section affects any power that a House has to expel a Member of the House. (4) An appeal is taken to have lapsed when a court makes a declaration to that effect or relevant rules of court treat the appeal as having lapsed. (5) In this section— appeal includes a notice of appeal and an application for leave to appeal, and any appeal lodged pursuant to such a notice or pursuant to leave granted on such an application. prescribed period, in relation to an appeal, means the period within which the appeal may be lodged, but does not include any extension of a period which a court may grant. quash a conviction means quash or otherwise set aside the conviction. 13B Office of profit or pension from Crown (1) A person— (a) holding an office of profit under the Crown, or (b) having a pension from the Crown during pleasure or for a term of years, shall not, if he is elected as a Member of either House of Parliament, be capable of sitting and voting as a Member of the House to which he is elected, and his seat as a Member shall become vacant, after the expiration of the period commencing with his election and ending on the expiration of 7 sitting days of that House after notice of his holding that office or having that pension has been given to that House in accordance with its Standing Rules and Orders, unless that House has previously passed a resolution indicating that it is satisfied that that person has ceased to hold that office or, as the case may be, that the right of that person to that pension has ceased or is suspended while he is a Member of that House. (2) If a Member of either House of Parliament accepts any office of profit under the Crown or pension from the Crown during pleasure or for a term of years, his seat as a Member of that House shall become vacant upon the expiration of the period commencing with his acceptance of the office or the pension and ending on the expiration of 7 sitting days of that House after notice of his accepting that office or pension has been given to that House in accordance with its Standing Rules and Orders, unless that House has previously passed a resolution indicating that it is satisfied that that Member has ceased to hold that office or, as the case may be, that the right of that Member to that pension has ceased or is suspended while he is a Member of that House. (3) Notwithstanding subsection (1) or (2)— (a) a person— (i) who holds or accepts the office of Minister of the Crown or any office of profit under the Crown created by an Act as an office of the Executive Government, (ii) who holds or accepts an office of profit under the Crown in respect of which he is not entitled to any remuneration, except either fees payable to him, as a member of a body, in respect of his attendance at meetings of that body or an allowance for reasonable expenses incurred or to be incurred in carrying out the duties of the office, or both those fees and such an allowance, (iii) who holds or accepts an office of profit under the Crown, other than the Crown in right of the State of New South Wales, but not being an office as a member of any legislature of a country other than New South Wales, or (iv) who has or accepts a pension, referred to in subsection (1) (b) or (2), from the Crown, other than the Crown in right of the State of New South Wales, shall be capable of being elected and of sitting and voting as a Member of either House of Parliament, (b) a person who holds or accepts the office of Vice-President of the Executive Council shall be capable of being elected and of sitting and voting as a Member of either House of Parliament, and (c) a person who holds or accepts the office of Parliamentary Secretary shall be capable of being elected and of sitting and voting as a Member of either House of Parliament. (4) For the purposes of subsections (1) and (2), sitting days shall be counted, whether or not they occur during the same session of Parliament. 13C Member of one House ineligible for other A Member of either House of Parliament shall not be capable of being elected or of sitting or voting as a Member of the other House. 13D Abatement of salary of Members receiving pension or superannuation as public servants A Member of either House of Parliament in receipt of any allowance or pension granted under any Act authorising the grant of superannuation allowances or pensions to officers in the Public Service shall be entitled to the salary authorised by the Parliamentary Remuneration Tribunal Act 1975, subject to its abatement by the amount he receives or is entitled to as that allowance or pension. 14 Summons or election of disqualified persons (1) If any person by this Act, except section 13B, disabled or declared to be incapable to sit or vote in the Legislative Council or Legislative Assembly is, nevertheless, elected and returned as a Member to serve in the said Council or the said Assembly, such election and return shall be declared by the said Council and Assembly, as the case may require, to be void, and thereupon the same shall become and be void to all intents and purposes whatsoever. (2) If any person under any of the disqualifications mentioned in section 13 presumes, whilst so disqualified, to sit or vote as a Member of the said Council or Assembly, such person shall forfeit the sum of one thousand dollars to be recovered by any person who sues for the same in the Supreme Court of New South Wales. 14A Disclosure of pecuniary interests and other matters by Members (1) The Governor may, subject to subsections (4) and (5), make regulations for or with respect to— (a) the disclosure by Members of either House of Parliament of all or any of the following pecuniary interests or other matters— (i) real or personal property, (ii) income, (iii) gifts, (iv) financial or other contributions to any travel, (v) shareholdings or other beneficial interests in corporations, (vi) partnerships, (vii) details of Members' interests in trusts, including discretionary trusts and self-managed superannuation funds, (viia) details of real property held by discretionary trusts, if a Member is a potential beneficiary of the discretionary trust, (viib) other matters relating to trusts, (viic) water entitlements and other interests in water, (viii) positions (whether remunerated or not) held in, or membership of, corporations, trade unions, professional associations or other organisations or associations, (ix) occupations, trades, professions or vocations, (x) debts, (xi) payments of money or transfers of property to relatives or other persons by, or under arrangements made by, Members, (xii) any other direct or indirect benefits, advantages or liabilities or other matters, whether pecuniary or not, of a kind specified in the regulations, (b) prescribing the manner in which, and the times at which, pecuniary interests or other matters shall be disclosed and providing for the verification by statutory declaration or otherwise of any such disclosure, and (c) the compilation and maintenance of registers of pecuniary interests or other matters disclosed by Members of either House of Parliament and the inspection and publication of any such register. (1A) If a regulation is made under subsection (1)(c) requiring the compilation and maintenance of registers, the regulation must include the following requirements— (a) that the registers be kept in an electronic format, that is searchable, within 12 months after the making of the regulation, (b) that the registers be accessible by members of the public, subject to any limitations prescribed in the regulations to protect— (i) the privacy of persons other than Members of either House of Parliament, or (ii) the safety of a person or class of persons. (2) If a Member of either House of Parliament wilfully contravenes any regulation made under subsection (1), that House may, in accordance with subsection (3), declare his seat vacant and the seat of the Member shall thereupon become vacant. (3) A declaration under subsection (2) shall— (a) specify the circumstances that constitute the contravention, (b) declare that the House is of the opinion that the contravention is of such a nature as to warrant the seat of the Member being declared vacant, and (c) be made in accordance with such Standing Rules and Orders of the House as may regulate the making of the declaration. (4) A regulation shall not be made under subsection (1) for or with respect to the disclosure by Members of either House of Parliament of pecuniary interests or other matters unless it applies in the same way to the disclosure by Members of the other House of Parliament of pecuniary interests or other matters. (4A) Without limiting subsection (1), regulations made under that subsection may relate to the disclosure of the pecuniary interests, or other matters, of members of the immediate family of Members of either House of Parliament. (5) The Governor shall, before making a regulation under subsection (1)— (a) afford any committee of either House of Parliament established for the purpose an opportunity of considering and making representations with respect to the proposed regulation, and (b) take into account any such representations. (6) Notwithstanding anything to the contrary in the Interpretation Act 1987 or any other Act, a regulation made under subsection (1), or any part thereof, shall not cease to have effect upon its disallowance by either House of Parliament unless it has previously been disallowed by the other House of Parliament. (7) The publication, pursuant to any regulation made under subsection (1), of a register of pecuniary interests or other matters disclosed by Members of either House of Parliament shall, for the purposes of the Parliamentary Papers (Supplementary Provisions) Act 1975, be deemed to have been authorised by that House. 15 Standing Rules and Orders to be laid before Governor (1) The Legislative Council and Legislative Assembly shall, as there may be occasion, prepare and adopt respectively Standing Rules and Orders regulating— (a) the orderly conduct of such Council and Assembly respectively, and (b) the manner in which such Council and Assembly shall be presided over in case of the absence of the President or the Speaker, and (c) the mode in which such Council and Assembly shall confer, correspond, and communicate with each other relative to Votes or Bills passed by, or pending in, such Council and Assembly respectively, and (d) the manner in which Notices of Bills, Resolutions and other business intended to be submitted to such Council and Assembly respectively at any Session thereof may be published for general information, and (e) the proper passing, entitling, and numbering of the Bills to be introduced into and passed by the said Council and Assembly, and (f) the proper presentation of the same to the Governor for His Majesty's Assent, and (g) any other matter that, by or under this Act, is required or permitted to be regulated by Standing Rules and Orders. (2) Such Rules and Orders shall by such Council and Assembly respectively be laid before the Governor, and being by him approved shall become binding and of force. Division 2 Special provisions relating to the Legislative Council 16 Definitions In this Division— periodic Council election includes an election for the return of 15 Members of the Legislative Council held after the commencement of the Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978 and before the commencement of the 1991 reconstitution Act. the 1991 reconstitution Act means the Constitution (Legislative Council) Amendment Act 1991. 17 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. 17A–21 (Repealed) 22 Eligibility to vote at periodic Council elections The persons who would, if a periodic Council election were a general election of Members of the Legislative Assembly, be entitled to vote at that general election, and only those persons, shall be entitled to vote at that periodic Council election. 22A Conduct of periodic Council elections (1) Periodic Council elections shall be conducted in accordance with the provisions of the Sixth Schedule. (2) (Repealed) (3) A writ for a periodic Council election shall not be issued until after the issue of the writs for the general election of Members of the Legislative Assembly held next after the immediately preceding periodic Council election and, when issued, shall name as the day for the taking of the poll the same day as the day for the taking of the poll at that general election. (4) A reference in subsection (3) to a writ does not include a reference to a writ issued by reason of the failure of an election, including a failure of an election by reason of its being declared void in accordance with law. (5) Subsection (1) does not limit the power of the Legislature to make laws (being laws that do not expressly or impliedly repeal or amend any of the provisions of the Sixth Schedule and are not inconsistent with any of those provisions) for or with respect to the conduct of periodic Council elections. 22B 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. 22C (Repealed) 22D Filling of casual vacancies in seats of Members of Legislative Council by joint sitting of both Houses (1) Whenever— (a) a vacancy occurs in the seat of a Member of the Legislative Council otherwise than by reason of section 22B (1) (c), or (b) a vacancy occurs in the seat of a Member of the Legislative Council by reason of section 22B (1) (c) and that vacancy is not filled by reason that insufficient Members of the Legislative Council are elected at the periodic Council election next following the occurrence of the vacancy, the Governor, by message to both Houses of Parliament, shall convene a joint sitting of the Members of the Legislative Assembly and the Members of the Legislative Council to be held at a place and time specified in the message for the purpose of the election of a person to fill the vacant seat. (2) A person may not be nominated at any such joint sitting for election to fill a vacant seat of an elected Member of the Legislative Council if he is not eligible to be so nominated under subsection (3) or, if applicable, subsection (4). (3) A person is not eligible to be so nominated if, were he a Member of the Legislative Council, he would be disqualified from sitting or voting as such a Member. (4) Where— (a) a Member of the Legislative Council was elected at a periodic Council election and was, at the time of his election, publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, and (b) the vacancy (not being a vacancy referred to in subsection (1) (b)) to be filled is in the seat of that Member or of the successor (whether immediate, intermediate or ultimate) of that Member, a person is not eligible to be so nominated unless he is a member of that party, except where there is no member of that party available to be so nominated. (5) This section does not apply to or in respect of a vacancy that occurs by reason that a periodic Council election is declared void in accordance with law. 22E Members elected at joint sittings of both Houses of Parliament (1) The oath or affirmation required to be taken and subscribed or made by a Member of the Legislative Council under section 12 shall not be taken or made by a person elected at a joint sitting to fill a vacancy referred to in section 22D (1) (a) until the expiration of 2 days after his election. (2) If, before a person elected at a joint sitting to fill a vacancy referred to in section 22D (1) (a) takes and subscribes the oath or makes the affirmation required to be taken and subscribed or made under section 12, he ceases to be a member of the political party membership of which was necessary under section 22D (4) for him to be eligible to be nominated for that election, he shall be deemed not to have been elected at that joint sitting and the vacant seat of the Member which he was elected to fill shall, when he so ceases to be a member of that party, again be vacant. (3) More than one vacancy may be filled at the one joint sitting. 22F Suspension of Legislative Council business for general election of the Legislative Assembly The Legislative Council shall not be competent to dispatch any business during the period commencing on the day of the termination, either by dissolution or expiry, of any Legislative Assembly and ending on the day fixed for the return of the writ for the periodic Council election held next after that termination. 22G President (1) There shall be a President of the Legislative Council, who is the Presiding Officer of the Legislative Council and is recognised as its independent and impartial representative. (2) A person shall be chosen to be President of the Legislative Council— (a) before the Legislative Council proceeds to the dispatch of any other business at its first meeting following a periodic Council election, and (b) at any other time when the office of President of the Legislative Council becomes vacant. (3) The person so chosen shall cease to hold office as President of the Legislative Council immediately before the Legislative Council assembles for the dispatch of business at its first meeting following a periodic Council election, and shall also cease to hold that office— (a) if he ceases to be a Member of the Legislative Council (unless continued in office under subsection (6A)), (b) if he is removed from that office by a vote of the Legislative Council, or (c) if he resigns his office by writing under his hand addressed to the Governor. (4) The Standing Rules and Orders of the Legislative Council may make provision, not inconsistent with this section, for or with respect to the manner of election of the President and associated matters. (5) The President shall preside at all meetings of the Legislative Council except as may be provided by the Standing Rules and Orders of the Legislative Council. (6) The President or other Member presiding may take part in any debate or discussion which may arise in the Legislative Council. (6A) When the business of the Legislative Council is suspended under section 22F— (a) the person who was the President of the Legislative Council immediately before the suspension of business continues to be the President, and (b) the person who was the Deputy President and Chair of Committees of the Legislative Council immediately before the suspension of business continues to be the Deputy President and Chair of Committees, until the Legislative Council assembles for the dispatch of business at its first meeting following the periodic Council election. (7) Subject to subsection (5), the Deputy President and Chair of Committees of the Legislative Council— (a) acts as the President of the Legislative Council when the President is unavailable, and (b) when so acting, has and may exercise and perform all the powers, authorities, duties and functions of the President. (7A) For the purposes of subsection (7), the President is unavailable if there is a vacancy in the office of the President or if the President is absent from the State or otherwise unavailable to exercise and perform the powers, authorities, duties and functions of the President. (8) Whenever a vacancy occurs in the seat of a Member of the Legislative Council otherwise than by reason of section 22B (1) (c), the President may notify the Governor of the vacancy. 22H Quorum The presence of at least 8 Members of the Legislative Council (in addition to the President or other Member presiding) shall be necessary to constitute a meeting of the Legislative Council for the dispatch of business. 22I Determination of questions All questions arising in the Legislative Council shall be decided by a majority of the votes of the Members present other than the President or other Member presiding and when the votes are equal the President or other Member presiding shall have a casting vote. 22J Resignation of seats in the Legislative Council Any Member of the Legislative Council may, by writing under his hand, addressed to the Governor, resign his seat therein, and upon the receipt of the resignation by the Governor, the seat of that Member shall become vacant. Division 3 Special provisions relating to the Legislative Assembly 23 Convocation of Assembly The Governor may, as occasion requires, by proclamation or otherwise, summon and call together a Legislative Assembly. 24 Duration of Assembly (1) A Legislative Assembly shall, unless sooner dissolved under section 24B, expire on the Friday before the first Saturday in March in the fourth calendar year after the calendar year in which the return of the writs for choosing that Assembly occurred. (2) In this section, a reference to a writ does not include a reference to a writ issued because of the failure of an election, including a failure of an election because of its being declared void in accordance with law. 24A Date of general election for Legislative Assembly The writs for a general election of Members of the Legislative Assembly must name as the day for the taking of the poll at that general election— (a) if the previous Legislative Assembly expired—the fourth Saturday in March next following the expiry, or (b) if the previous Legislative Assembly was disso