NSW Parliament

1855 Constitution: clause 1“….within the said Colony of New South Wales Her Majesty shall have Power, by and with the Advice and Consent of the said Council and Assembly, to make Laws for the Peace, Welfare and good Government of the said Colony in all Cases whatsoever: Provided, that all Bills for appropriating any Part of the Public Revenue, for imposing any new Rate, Tax, or Impost, subject always to the Limitation contained in Clause Sixty-two of this Act, shall originate in the Legislative Assembly of the said Colony.”

1902 Constitution: s5“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.”

‘Legislature’: s3“His Majesty the King with the

advice and consent of the Legislative Council and Legislative Assembly.”

Same 3 elements

Separation of powersNSW Constitution structured

differentlyKable v Director of Public

Prosecutions (NSW) (1996)189 CLR 51

Dawson J at [24]:“The Constitution Act 1902 may be contrasted with the provisions of the Commonwealth Constitution…the failure of the New South Wales Constitution to vest judicial power exclusively in the judicature must be fatal to any contention that the separation of that power from the other powers of government is a constitutional requirement. Even if it could be said that it was required, it might, in contrast to the requirement imposed by the Commonwealth Constitution, be disregarded by an Act of Parliament, for in that respect the New South Wales Constitution is ‘uncontrolled’. It remains true, therefore, as was said by the New South Wales Court of Appeal in Clyne v East (1967) 68 SR(NSW) 385, that the structure and provisions of the Constitution Act 1902 provide no ground for importing into it a principle of separation of powers.”

Queen/GovernorConstitutional monarchys9A: appointment of Governor by

QueenAustralia Acts 1986

s7 of the Australia Acts:“(1) Her Majesty’s representative in each State shall be the Governor.(2) …all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.(3)…(4) While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above(5) The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State”

Legislative CouncilUpper Houses22B: continuing institution42 membersHouse of ReviewElected by the whole State voting

as one electorate8 year term (twice Legislative

Assembly)

Legislative AssemblyLower HouseFixed four year terms24“(1) A Legislative Assembly

shall… 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.”

ss7A and 7B: entrenched provisions

NSW Constitution – flexibles7“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.”

How to protect Legislative Council (and Assembly’s fixed terms)?

Manner and form provisionsReferendum required to alter provisions

affecting Legislative Council (s7A) or Legislative Assembly (s7B)

Attorney-General (New South Wales) v Trethowan (1931) 44 CLR 394

‘Manner and form provisions’ lawful‘ all the conditions which the [State

Parliament] may see fit to prescribe as essential to the enactment of a valid law’.(Dixon J at 419).

Relations between the HousesConflict between Houses implicit in

any bi-cameral systemDeadlock procedures exist to deal

with intractable conflictss5A and 5B ensure in NSW that

Legislative Assembly is dominant.s57 Commonwealth Constitution

provides for different Federal procedures

s5A: Deadlock re money (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.

(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.

s5BOTHER

DEADLOCKS

(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….

Legislative power?ss5A and 5B effectively change the

definition of ‘Legislature’ in Constitution

Taylor v Attorney –General (Queensland) (1917) 23 CLR 457

Clayton v Heffron (1960) 105 CLR 214

Clayton v HeffronDistinguished between ‘directory’

and ‘imperative’ provisionsss5A and 5B directory - not

‘manner and form’ provisions“although they are legal

requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective” (247)

s5B valid?2 sources of power:

– s5 Colonial Laws Validity Act (Imp)– s5 Constitution Act 1902 (NSW)

s5 Constitution:“ a sufficient power not only to change the

bicameral system into a unicameral system but also to enable the resolution of disagreements between the two houses by submitting an Act passed by the Assembly for the approval of the electors in substitution for the assent of the Council and moreover to include in the application of that legislative process Bills for the abolition of the Legislative Council” (250)

s5 NSW Constitution:

“confers a complete and unrestricted power to make laws with reference to New South Wales…The laws may be constitutional or at the other extreme they may deal with subjects of limited significance. Clearly the power extends to laws altering the Constitution Act itself…” (250)

Steps In The s57 procedure1.The House of Representatives

passes a proposed law.

2. The Senate (a) rejects or (b) fails to pass the proposed law or (c) passes it with amendments to which the Representatives will not agree.

PMA Case per Barwick CJ at 109:

“at the date of the simultaneous dissolution of the House of Representatives and the Senate, the Bill did not satisfy the requirements of the first paragraph of s57, and thus could not itself have afforded a reason for that dissolution or be the subject of debate and affirmation at a joint sitting.”

Stephen J: PMA Case

“No conclusive test can be devised which, by its application, in all circumstances will provide a ready answer to the question whether in any particular instance parliamentary conduct involves a failure to pass for the purposes of s57…it may not be the character of the particular parliamentary conduct but rather its excessive employment that may identify it as a failure to pass”.

3. There is an interval of three months.

PMA Case: Barwick CJ at 116 “The plaintiffs submit that upon the true

construction of s57, the interval of three months referred to in the first paragraph of the section is a period which begins at the time at which the Senate rejects, or fails to pass, or passes with amendments which ultimately proved unacceptable to the House of Representatives; that the Senate had not rejected the Bill, failed to pass it or passed it with unacceptable amendments before 2nd April 1974; and that, unless the interval of three months had elapsed thereafter before the House again passed the Bill, it would not qualify as a proposed law for the purposes of the third paragraph of s57.”

Barwick CJ at 119

“…there is no room, in my opinion, for the view the terms of s57 are merely directory so that failure to conform to its requirements will not affect the validity of what is done. What is laid down in s57 is a process of law making, and s57 is a provision of the Constitution. It is quite inappropriate, in my opinion, to apply to such a section the distinctions between a directory and mandatory statutory provision.”

4. The House of Representatives, in the same or the next session, again passes the proposed law, with or without any Senate amendments.

5. The Senate again rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree

First Territorial Senator’s Case per Gibbs J at 236 “If…the House of Representatives has twice

passed a proposed law and the Senate has twice rejected it, it is apparent that the two Houses are in disagreement on the question whether that proposed law should be passed, and it is not correct to say that they have ceased to disagree simply because some time elapses during which no action is taken to resolve the disagreement.”

6. The Governor-General simultaneously dissolves the Senate and the House of Representatives.

7. A general election for both houses takes place.

8. The newly-elected House of Representatives passes the proposed law, with or without any Senate amendments.

9. The newly-elected Senate rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree.

10. The Governor-General convenes a joint sitting of the two houses.

11. The members of the Senate and the House of Representatives at the joint sitting deliberate and vote together on the proposed law as last proposed by the Representatives, and any amendments; if the proposed law with amendments is affirmed by an absolute majority of the total membership, it is taken to have been duly passed by both houses.

12. The proposed law is then presented to the Governor-General for assent.

Legislative powerS5 NSW Constitution: general grant

of legislative powerClayton v HeffronNot limited, like Federal grant of

legislative power in s51 Commonwealth Constitution

Clayton v Heffron at 245:“Under the federal system we have grown so accustomed to attacks upon the validity of Acts of Parliament that it is easy for us to overlook the principles which apply to a unitary system when legislation is attacked because it is not an authentic expression of the legislative will. Although New South Wales no longer enjoys a unitary constitution, it is by those considerations that the problem is governed.”

Union Steamship Co of Aust PL v King (1988) 82 ALR 43

“the words ‘for the peace, order and good government’ are not words of limitation…[they demonstrate] a power to make laws for the peace, order and good government of a territory …as ample and plenary as the Imperial Parliament itself.”

Limits to Legislative powers5: subject to Commonwealth

Constitutionterritorial limitations2(1) Australia Act