The Constitution of Western Australia: An Exploration 9819931800, 9789819931804

Table of contents :
Acknowledgements
Contents
Chapter 1: Introduction: Discovering the WA Constitution
References
Chapter 2: The What, Why and How of Constitutions
2.1 Nature and Form
2.1.1 Constitution as Higher Law
2.1.2 The American Archetype
2.1.3 Uncodified Constitutions
2.1.4 Ambiguities
2.2 What Should a Constitution Do?
2.2.1 Providing the Framework of Government
2.2.2 Ensuring Majority Rule
2.2.3 Avoiding Majority Mis-Rule
2.2.4 Ensuring Its Own Rule
2.2.5 Expressive Role of a Constitution
2.2.6 Broader Ambit?
2.3 Constitutional Amendment
2.3.1 Amending Procedures
2.3.2 Entrenchment Mechanisms
2.3.3 Constituent Acts
2.4 State-Level Constitutionalism
2.4.1 Degrees of State Constitutionalism
2.4.2 Entrenchment of State Constitutions
2.5 In Summary
References
Chapter 3: The WA Constitution in the Federal System
3.1 Federation Ambivalence
3.2 The Australian Federal System
3.2.1 The Basic Design
3.2.2 State Constitutions in the Commonwealth Constitution
3.2.3 Adjudication: Parts of a Whole
3.3 The Triangular Relationship
3.3.1 The Colonial Laws Validity Act 1865
3.3.2 The Statute of Westminster: Independence, or Not?
3.3.3 The Australia Act(s) and Australian Independence
3.4 Secession?
3.4.1 The Referendum
3.4.2 What Next?
3.5 In Summary
References
Chapter 4: Origins of the WA Constitution: Framers, History and Documents
4.1 ‘So Western Australia for Me’: Dreams of Self-Government
4.1.1 Colonial Administration
4.1.2 Towards Representative Government
4.2 The Coming of Responsible Government
4.3 Implementing Self-Government
4.3.1 Constitutional Elaboration
4.4 Conclusion: A Colony of Disquiet—“The Little Colony of Western Australia”
References
Chapter 5: First Peoples and the WA Constitution
5.1 Section 70’s Constitutional Imposition
5.1.1 A Constitutional Shame
5.1.2 Constitutional Erasure
5.1.3 Imperial Reluctance and Procedural Inadequacies
5.1.4 The Yougarla Challenge
5.1.5 Constitutional Memories of s 70
5.2 In Summary
References
Chapter 6: The Constitution and System of Government
6.1 Context and Themes
6.1.1 A Parliamentary System
6.1.2 Conflicting Constitutionalism
6.1.3 Key Issues
6.2 The Legislative Branch in the Constitution
6.2.1 Structure of the Legislative Branch
At the Outset
The Situation Today
6.2.2 Terms and Composition of the Legislative Branch
At the Outset
The Situation Today
6.2.3 Powers of Parliament
At the Outset
The Situation Today
6.2.4 Respective Powers of the Two Chambers
At the Outset
The Situation Today
6.2.5 Operation of Parliament
At the Outset
The Situation Today
6.3 The Executive Branch
6.3.1 At the Outset
6.3.2 The Situation Today
6.4 The Judicial Branch
6.4.1 At the Outset
6.4.2 The Situation Today
6.5 In Summary
References
Chapter 7: Voting Rights and Electoral System
7.1 Electoral System and 4-Year Terms
7.2 The Franchise and Parliamentary Qualifications
7.2.1 The Franchise and Standing for Office
7.2.2 Parliamentary Disqualifications
7.3 Malapportionment
7.3.1 1996: A Constitutional Right to Equal Representation?
7.3.2 2001: A Constitutional Odyssey
7.3.3 2005: Partial Success
7.3.4 2021: Reforming the Council
7.4 Voting Implications and the Implied Freedom of Political Communication
7.4.1 Political Communication
7.4.2 Voting Guarantees?
7.5 In Summary
References
Chapter 8: Amending the State Constitution: Fundamental or Ordinary Law?
8.1 Neither Fish Nor Fowl: The Colonial Constitutions
8.1.1 A Dog (Act) of a Constitution?
8.1.2 The Race to Entrench
8.2 The Jurisprudence of Entrenchment: “Manner and Form”
8.2.1 Trethowan’s Case
8.2.2 The Colonial Laws Validity Act
8.2.3 Passing the Baton: The Australia Act(s) 1986
8.3 Amending the WA Constitution
8.3.1 Modest Beginnings
8.3.2 Self-Embracing Entrenchment
8.4 Testing the Boundaries
8.4.1 Wilsmore: Narrow or Broad Application?
8.4.2 Marquet: Amendment by Another Name?
8.4.3 Escalation: Tying Parliament’s Hands
8.5 Reflections on Manner and Form
8.6 Limits to Manner and Form?
8.6.1 Sky’s the Limit?
8.6.2 Breadth of Application
8.7 In Summary
References
Chapter 9: What Should Be Done? Consolidation and Beyond
9.1 Consolations of Consolidation
9.1.1 Clarity
9.1.2 Visibility
9.1.3 Feasibility
9.2 Second Thoughts on Consolidation
9.2.1 The Entrenchment Obstacle
9.2.2 The Boundary Problem
9.2.3 The Status Problem
9.2.4 The Inherent Deficiencies Problem
9.3 The Select Committee’s Draft Consolidated WA Constitution
9.3.1 What Was to Stay?
9.3.2 What Was to Go?
9.3.3 What Was to Be Changed?
9.3.4 What Was Ignored?
9.3.5 From Form to Substance
9.4 The Legislature
9.4.1 Who Makes the Laws?
9.4.2 Regulating Bicameralism
9.5 The Executive
9.5.1 Aligning Constitutional Language with Constitutional Reality
9.5.2 A Republican Head of State
9.6 The Judiciary
9.7 Optional Extras
9.7.1 A Human Rights Act?
9.7.2 A Preamble?
9.8 In Summary
References
Chapter 10: Conclusion
10.1 The Shape of the Constitution
10.2 The Status of the Constitution
10.2.1 Constitutional Text Versus Constitutional Reality
10.2.2 What Foundation?
10.2.3 Fundamental Law?
10.2.4 Imperial Legacies
10.3 The Amendment Conundrum
10.3.1 Exploiting the Partisan Potential of Manner and Form
10.4 Federalism
10.5 Looking Forward
Appendices
Appendix A: Abbreviated Western Australian Constitutional Chronology
Appendix B: Western Australia Constitution Act, 1890
Part I. Parliamentary
Part II. Electoral
Part III. Elective Council
Part IV. Judicial
Part V. Legal
Appendix C: Constitution Act 1889
Part IA—Preliminary
Part I—Parliamentary
Part II—Electoral
Part III—Elective Council
Part IIIA—The Governor
Part IIIB—Local Government
Part IV—Judicial
Part V—Legal
Part VI—Financial
Part VII—Miscellaneous
Schedule E—Oath and Affirmation of Office
Appendix D: Constitution Acts Amendment Act 1899
Part IA—Preliminary
Part I—Legislature
Division 1—Legislative Council
Division 2—Legislative Assembly
Division 3—General
Part II—Executive
Part III—Miscellaneous
Index

Citation preview

Alan Fenna Sarah Murray

The Constitution of Western Australia An Exploration

The Constitution of Western Australia

Alan Fenna • Sarah Murray

The Constitution of Western Australia An Exploration

Alan Fenna Curtin University Perth, WA, Australia

Sarah Murray Law School University of Western Australia Perth, WA, Australia

ISBN 978-981-99-3180-4    ISBN 978-981-99-3181-1 (eBook) https://doi.org/10.1007/978-981-99-3181-1 © Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Gratefully dedicated to Professor Peter Walter Johnston

Acknowledgements

This book has its origins in a project supported by the Constitutional Centre of Western Australia and the Centre’s enthusiastic then-director, Betty O’Rourke, and initiated under the auspices of The John Curtin Institute of Public Policy and the Institute’s irrepressible then-director Professor Greg Craven. Both are to be sincerely thanked, and to both are owed deep apologies for what can only be described as a rather protracted gestation. Potiusque sero quam numquam. We dedicate this book to Professor Peter Johnston, or ‘PJ’ (1942–2015). It is impossible to reflect on WA’s constitutional story without being struck by PJ’s tremendous contribution as a scholar, advocate and teacher. As a consequence, works by PJ appear frequently in our footnotes and his influence lies behind many of the cases to which the book refers. We acknowledge his towering and generous contribution to our understanding of constitutional law and his personal support and mentorship over many years. We would also like to thank Josée Bergeron, Jacinta Dharmananda, Peter Handford, Ambelin Kwaymullina, John Phillimore, Tristan Taylor, Tamara Tulich and, in particular, an anonymous reviewer for their invaluable feedback and thoughts at various points in the drafting of the book and willingness to do this amongst their competing demands. All errors remain, of course, our own. We note that Alan was the lead author for chapters 1, 2, 3, 6, 8, 9 and 10 and Sarah for chapters 4, 5 and 7.

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Contents

1

 Introduction: Discovering the WA Constitution ����������������������������������    1 References��������������������������������������������������������������������������������������������������    4

2

 The What, Why and How of Constitutions��������������������������������������������    5 2.1 Nature and Form ������������������������������������������������������������������������������    5 2.1.1 Constitution as Higher Law��������������������������������������������������    6 2.1.2 The American Archetype������������������������������������������������������    6 2.1.3 Uncodified Constitutions������������������������������������������������������    7 2.1.4 Ambiguities��������������������������������������������������������������������������   10 2.2 What Should a Constitution Do?������������������������������������������������������   11 2.2.1 Providing the Framework of Government����������������������������   11 2.2.2 Ensuring Majority Rule��������������������������������������������������������   12 2.2.3 Avoiding Majority Mis-Rule������������������������������������������������   13 2.2.4 Ensuring Its Own Rule����������������������������������������������������������   13 2.2.5 Expressive Role of a Constitution����������������������������������������   14 2.2.6 Broader Ambit?��������������������������������������������������������������������   15 2.3 Constitutional Amendment ��������������������������������������������������������������   15 2.3.1 Amending Procedures����������������������������������������������������������   16 2.3.2 Entrenchment Mechanisms��������������������������������������������������   18 2.3.3 Constituent Acts��������������������������������������������������������������������   19 2.4 State-Level Constitutionalism����������������������������������������������������������   19 2.4.1 Degrees of State Constitutionalism��������������������������������������   20 2.4.2 Entrenchment of State Constitutions������������������������������������   22 2.5 In Summary��������������������������������������������������������������������������������������   22 References��������������������������������������������������������������������������������������������������   23

3

 The WA Constitution in the Federal System ����������������������������������������   29 3.1 Federation Ambivalence�������������������������������������������������������������������   30 3.2 The Australian Federal System ��������������������������������������������������������   32 3.2.1 The Basic Design������������������������������������������������������������������   32 3.2.2 State Constitutions in the Commonwealth Constitution������   33 3.2.3 Adjudication: Parts of a Whole��������������������������������������������   33 ix

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3.3 The Triangular Relationship ������������������������������������������������������������   35 3.3.1 The Colonial Laws Validity Act 1865������������������������������������   35 3.3.2 The Statute of Westminster: Independence, or Not? ������������   36 3.3.3 The Australia Act(s) and Australian Independence��������������   38 3.4 Secession? ����������������������������������������������������������������������������������������   41 3.4.1 The Referendum�������������������������������������������������������������������   42 3.4.2 What Next? ��������������������������������������������������������������������������   42 3.5 In Summary��������������������������������������������������������������������������������������   44 References��������������������������������������������������������������������������������������������������   45 4

Origins of the WA Constitution: Framers, History and Documents ����������������������������������������������������������������������������������������   47 4.1 ‘So Western Australia for Me’: Dreams of Self-Government����������   48 4.1.1 Colonial Administration��������������������������������������������������������   49 4.1.2 Towards Representative Government ����������������������������������   50 4.2 The Coming of Responsible Government����������������������������������������   51 4.3 Implementing Self-Government ������������������������������������������������������   53 4.3.1 Constitutional Elaboration����������������������������������������������������   54 4.4 Conclusion: A Colony of Disquiet—“The Little Colony of Western Australia”������������������������������������������������������������������������������������������   54 References��������������������������������������������������������������������������������������������������   55

5

 First Peoples and the WA Constitution��������������������������������������������������   57 5.1 Section 70’s Constitutional Imposition��������������������������������������������   59 5.1.1 A Constitutional Shame��������������������������������������������������������   60 5.1.2 Constitutional Erasure����������������������������������������������������������   61 5.1.3 Imperial Reluctance and Procedural Inadequacies ��������������   62 5.1.4 The Yougarla Challenge�������������������������������������������������������   65 5.1.5 Constitutional Memories of s 70������������������������������������������   65 5.2 In Summary��������������������������������������������������������������������������������������   67 References��������������������������������������������������������������������������������������������������   68

6

 The Constitution and System of Government ��������������������������������������   71 6.1 Context and Themes��������������������������������������������������������������������������   72 6.1.1 A Parliamentary System ������������������������������������������������������   72 6.1.2 Conflicting Constitutionalism ����������������������������������������������   74 6.1.3 Key Issues ����������������������������������������������������������������������������   74 6.2 The Legislative Branch in the Constitution��������������������������������������   76 6.2.1 Structure of the Legislative Branch��������������������������������������   76 6.2.2 Terms and Composition of the Legislative Branch��������������   77 6.2.3 Powers of Parliament������������������������������������������������������������   78 6.2.4 Respective Powers of the Two Chambers ����������������������������   81 6.2.5 Operation of Parliament��������������������������������������������������������   82 6.3 The Executive Branch ����������������������������������������������������������������������   83 6.3.1 At the Outset ������������������������������������������������������������������������   83 6.3.2 The Situation Today��������������������������������������������������������������   84

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6.4 The Judicial Branch��������������������������������������������������������������������������   85 6.4.1 At the Outset ������������������������������������������������������������������������   86 6.4.2 The Situation Today��������������������������������������������������������������   86 6.5 In Summary��������������������������������������������������������������������������������������   87 References��������������������������������������������������������������������������������������������������   88 7

 Voting Rights and Electoral System ������������������������������������������������������   91 7.1 Electoral System and 4-Year Terms��������������������������������������������������   92 7.2 The Franchise and Parliamentary Qualifications������������������������������   93 7.2.1 The Franchise and Standing for Office ��������������������������������   93 7.2.2 Parliamentary Disqualifications��������������������������������������������   94 7.3 Malapportionment����������������������������������������������������������������������������   95 7.3.1 1996: A Constitutional Right to Equal Representation? ������   96 7.3.2 2001: A Constitutional Odyssey ������������������������������������������   97 7.3.3 2005: Partial Success������������������������������������������������������������   97 7.3.4 2021: Reforming the Council�����������������������������������������������   98 7.4 Voting Implications and the Implied Freedom of Political Communication��������������������������������������������������������������������������������   98 7.4.1 Political Communication������������������������������������������������������   99 7.4.2 Voting Guarantees? ��������������������������������������������������������������  101 7.5 In Summary��������������������������������������������������������������������������������������  104 References��������������������������������������������������������������������������������������������������  104

8

Amending the State Constitution: Fundamental or Ordinary Law?������������������������������������������������������������������������������������  105 8.1 Neither Fish Nor Fowl: The Colonial Constitutions ������������������������  106 8.1.1 A Dog (Act) of a Constitution?��������������������������������������������  107 8.1.2 The Race to Entrench������������������������������������������������������������  109 8.2 The Jurisprudence of Entrenchment: “Manner and Form”��������������  110 8.2.1 Trethowan’s Case������������������������������������������������������������������  111 8.2.2 The Colonial Laws Validity Act��������������������������������������������  112 8.2.3 Passing the Baton: The Australia Act(s) 1986����������������������  113 8.3 Amending the WA Constitution��������������������������������������������������������  114 8.3.1 Modest Beginnings ��������������������������������������������������������������  114 8.3.2 Self-Embracing Entrenchment����������������������������������������������  115 8.4 Testing the Boundaries����������������������������������������������������������������������  116 8.4.1 Wilsmore: Narrow or Broad Application?����������������������������  116 8.4.2 Marquet: Amendment by Another Name?����������������������������  117 8.4.3 Escalation: Tying Parliament’s Hands����������������������������������  118 8.5 Reflections on Manner and Form������������������������������������������������������  120 8.6 Limits to Manner and Form?������������������������������������������������������������  122 8.6.1 Sky’s the Limit?��������������������������������������������������������������������  122 8.6.2 Breadth of Application����������������������������������������������������������  123 8.7 In Summary��������������������������������������������������������������������������������������  124 References��������������������������������������������������������������������������������������������������  125

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 What Should Be Done? Consolidation and Beyond������������������������������  127 9.1 Consolations of Consolidation����������������������������������������������������������  128 9.1.1 Clarity ����������������������������������������������������������������������������������  129 9.1.2 Visibility��������������������������������������������������������������������������������  130 9.1.3 Feasibility������������������������������������������������������������������������������  130 9.2 Second Thoughts on Consolidation��������������������������������������������������  131 9.2.1 The Entrenchment Obstacle��������������������������������������������������  131 9.2.2 The Boundary Problem ��������������������������������������������������������  132 9.2.3 The Status Problem ��������������������������������������������������������������  132 9.2.4 The Inherent Deficiencies Problem��������������������������������������  134 9.3 The Select Committee’s Draft Consolidated WA Constitution��������  134 9.3.1 What Was to Stay?����������������������������������������������������������������  135 9.3.2 What Was to Go?������������������������������������������������������������������  135 9.3.3 What Was to Be Changed?����������������������������������������������������  135 9.3.4 What Was Ignored? ��������������������������������������������������������������  136 9.3.5 From Form to Substance������������������������������������������������������  136 9.4 The Legislature ��������������������������������������������������������������������������������  137 9.4.1 Who Makes the Laws?����������������������������������������������������������  137 9.4.2 Regulating Bicameralism������������������������������������������������������  139 9.5 The Executive������������������������������������������������������������������������������������  140 9.5.1 Aligning Constitutional Language with Constitutional Reality ����������������������������������������������������������������������������������  141 9.5.2 A Republican Head of State��������������������������������������������������  143 9.6 The Judiciary������������������������������������������������������������������������������������  144 9.7 Optional Extras ��������������������������������������������������������������������������������  146 9.7.1 A Human Rights Act? ����������������������������������������������������������  147 9.7.2 A Preamble?��������������������������������������������������������������������������  148 9.8 In Summary��������������������������������������������������������������������������������������  150 References��������������������������������������������������������������������������������������������������  151

10 Conclusion������������������������������������������������������������������������������������������������  155 10.1 The Shape of the Constitution��������������������������������������������������������  156 10.2 The Status of the Constitution��������������������������������������������������������  156 10.2.1 Constitutional Text Versus Constitutional Reality��������������  157 10.2.2 What Foundation?��������������������������������������������������������������  157 10.2.3 Fundamental Law?��������������������������������������������������������������  157 10.2.4 Imperial Legacies����������������������������������������������������������������  158 10.3 The Amendment Conundrum����������������������������������������������������������  158 10.3.1 Exploiting the Partisan Potential of Manner and Form������  159 10.4 Federalism��������������������������������������������������������������������������������������  159 10.5 Looking Forward����������������������������������������������������������������������������  160 Appendices��������������������������������������������������������������������������������������������������������  163 Index������������������������������������������������������������������������������������������������������������������  211

Chapter 1

Introduction: Discovering the WA Constitution

While the Commonwealth Constitution is relatively well known, the Western Australian (WA) one is much less so. Indeed, many—perhaps most—would be blithely unaware that there is even such a thing as the ‘WA Constitution’. Even fewer would be able to identify what form it takes and where it is to be found. That is not surprising, for as this book shows, it exists in different forms and different places and its boundaries cannot be ascertained authoritatively. “Diffuseness” prevails.1 Little wonder, given such elusiveness, that its existence is something of a mystery to many. However, Western Australia could not have achieved self-­ government without some sort of Constitution, nor could any liberal democratic political community, such as Western Australia, function without one. That, however, is not the end of it. Even fewer would realise quite how fascinating the WA Constitution is—not just because of its elusiveness nature, but also because of its uncertain nature. Constitutions are supposed to rule over governments, providing the institutional framework and controlling the exercise of power. As it turns out, the WA Constitution does the former somewhat haphazardly, and it does the latter in a way that has fostered political-constitutional opportunism and generated conundrums of constitutional interpretation. These uncertainties give State constitutionalism a contested character. In addition to providing an introduction to, and explication of, the WA Constitution, then, this book tells that story. It is a story that is common in important ways to all of Australia’s State constitutions, but with its own WA twist. To tell that story, this book begins not with the WA Constitution itself, but with constitutionalism in general. The great peculiarity of Australia’s State constitutions from the earliest days was in what sense should they be thought of, and treated as, ‘constitutions’ at all. To help untangle that problem, we begin by establishing some benchmarks in that regard, asking what defines a constitution; what different forms constitutions take; in what regard they are distinct

1  James A. Thomson, “State Constitutional Law: gathering the fragments,” University of Western Australia Law Review 16, no. 1–2 (1985): 90.

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from other governmental instruments; and what we expect them to do. Constitutions range from the highly codified, of which the US Constitution is the iconic example, to the entirely uncodified, epitomised by the United Kingdom (UK). Somewhere in between lie the Australian State constitutions. The explanation for that uncertain status lies in the colonial origins of the State constitutions, which we explore in Chaps. 3 and 4. The WA Constitution goes back to the nineteenth century when, under Imperial legislation (i.e., British parliamentary enactments concerning colonial matters2), the Australia colonies were at various times granted rights of self-government with parliamentary systems similar to Britain’s. The Swan River Colony was first established in 1829 on Whadjuk country, began to take British convicts in the 1850s, ruthlessly displacing the Aboriginal population along with their laws and customs as it expanded out, and was granted self-government in 1890. WA was the last of the Australian colonies to achieve self-­ government, and, after only a decade of independent existence under the British Empire, federated with the five other colonies to become an “original State” of the Commonwealth of Australia. The charter document establishing Western Australia’s system of parliamentary government was the Constitution Act 1889.3 It remains in force today, albeit extensively altered. Although an integral part of the WA Constitution, it is not the only part. A companion Act, rather unhelpfully titled the Constitution Acts Amendment Act 1899—also still in force today—is likewise an important component of the WA Constitution. As we discuss in subsequent chapters, there are further textual and non-textual components as well. One of the conditions of self-government imposed on WA by the Colonial Office was the inclusion of a provision in the Constitution Act guaranteeing an allocation of funds for the State’s Aboriginal population. The underhanded removal of this provision swiftly after together with the associated and rather byzantine litigation is the subject of Chap. 5. In Chap. 6, we detail what these two main constitutional instruments in their current form say. On one level neither are ‘constitutions’; rather they are statutes. Nor, as we discuss at various points in this book, do they, individually nor collectively, make up the ‘WA Constitution’. Although resting on those two statutes, the WA Constitution comprises other, further, instruments, both written and unwritten, its boundaries uncertain. Between them, they provide the basic architecture of Western Australia’s system of government—schematics of the three branches of

 When legislation enacted by the UK Parliament was to extend to the Dominions it is common practice for such legislation, enacted prior to 1 January 1963. to be cited as enacted by the Imperial (Imp) Parliament rather than the UK Parliament (UK). We have adopted this practice in the citation of legislation in this book. We presume that this practice relates to the enactment of the Acts of Parliament Numbering and Citation Act 1962 (UK) which sort to move above away from the use of regnal years in enactments of the British Parliament. 3  Having been given effect by an enabling Act in the UK, the Western Australia Constitution Act 1890 (Imp). All legislation mentioned throughout this book is WA legislation unless otherwise indicated. 2

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government. As we will see, are not necessarily the most comprehensive, encompassing or even accurate set of schematics, though. The prime reason for the relative obscurity in which the WA Constitution languishes is federalism, as explored in Chap. 3. Rather than ease organically into sovereign self-government as Britain’s New Zealand colony did, WA elected (albeit somewhat reluctantly) to join with the other Australian colonies in forming the federal union that came into effect on 1 January 1901. Being the charter document of a “a nation for a continent and a continent for a nation”, as the rallying cry went, the Commonwealth Constitution naturally came to eclipse the State constitutions. Moreover, as a consequence of the way it was drafted, the Commonwealth Constitution also assumed a superintending role, with the High Court of Australia being thus granted authority over matters of State constitutional law. Federalism as well as colonialism is, then, a key element in the story of the WA Constitution—as we discuss in Chap. 3 and elsewhere. One of the strangest elements of that story is the overlapping relationship between the two. The colonies did not simply shake off their “colonial shackles” and replace them with federal ones; rather they continued to wear both for some time.4 The jurisprudence of State constitutional law relied upon a notion it constructed of continuing colonial authority well into the twentieth century, as we discuss in Chaps. 3 and 8. This jurisprudence was central to the complex issue of what status these quasi-constitutions would have, particularly in regard to the degree to which they can be amended so as to impose obstacles to subsequent amendment. The result has not been an entirely happy one and the constitutional conundrums involved have never been entirely resolved. The key moment for the WA Constitution in that respect was 1978, when the parliament of the day amended the Constitution Act to deprive subsequent parliaments of the power to exercise the same power of amendment in relation to some primary governmental elements. The significance of this cannot be overstated, as it meant that some constitutional provisions went from being uncontrolled to controlled and therefore potentially not easily repealed by a later WA law. Without this constitutional entrenchment State Constitutions operate like an ordinary piece of legislation and subject to later parliamentary override. The story of the WA Constitution is in essentials similar to that of the other States and bound up, through a common jurisprudence, with those States. The WA Constitution remains distinctive, though, in the degree to which its fragmented nature has persisted. Other jurisdictions have attempted to rationalise their constitutions through processes of consolidation and that would be a natural step for Western Australia to take. The WA Constitution’s “disparate fragments must be gathered”, as one State constitutionalist has put it.5 Consolidation, as we discuss in Chap. 9, has some evident attractions, but also some significant limitations and drawbacks. Notable among those are the challenges created by the jurisprudence of  The term is from Peter Johnston, “Freeing the Colonial Shackles: the first century of Western Australia’s Constitution,” in The House on the Hill: a history of the Parliament of Western Australia 1832–1990, ed. David Black (Perth: Parliament of Western Australia, 1991). 5  Thomson, “State Constitutional Law: gathering the fragments,” 91. 4

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amendment; by the varied components of State constitutionalism; and by concerns that the Constitution needs more than just a refresh. Nonetheless, it remains the default next step for constitutionalism in this State and thus a natural culmination of our discussion.

References Johnston, Peter. 1991. Chap. 10: Freeing the Colonial Shackles: The First Century of Western Australia’s Constitution. In The House on the Hill: A History of the Parliament of Western Australia 1832–1990, ed. David Black, 313–342. Perth: Parliament of Western Australia. Thomson, James A. 1985. State Constitutional Law: Gathering the Fragments. University of Western Australia Law Review 16 (1–2): 90–104.

Chapter 2

The What, Why and How of Constitutions

The elusive and contested character of Western Australia’s Constitution—and, indeed, Australia’s State constitutions in general—means a first task is to establish a reasonably clear reference point, beginning with some simple questions. What, exactly, are constitutions? What forms do they take? What do we expect of them? What legal status do they have? Answering such questions not only helps in identifying and characterising the WA Constitution; it also provides the context in which to think, as we do in Chap. 8, about possible reforms to current arrangements. Then, in addition to these questions about constitutionalism in general, there is the further question about the nature of sub-national constitutionalism: how do State constitutions work within federal systems such as Australia’s? In addressing these questions, this chapter canvasses the range of constitutional forms, from the codified, of which the US Constitution is famously emblematic, and the uncodified, of which the UK is the venerable example.1

2.1 Nature and Form While defining ‘constitution’ in terms of its function is relatively straightforward, differences in form are considerable.

 “…it is no exaggeration to say that the distinction between written and unwritten constitutions has become so closely associated with the United States and United Kingdom that their governments have come to epitomize the distinction and to represent the ideal types in what is often taken as an ideal typology.” Michael Foley, The Silence of Constitutions: gaps, ‘abeyances’ and political temperament in the maintenance of government (London: Routledge, 1989), 3. 1

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2.1.1 Constitution as Higher Law Metaphorically, a constitution is typically described as the ‘rules of the game’.2 Seeking and exercising political power is regulated by a set of rules within which the different actors are expected to operate. In other words, constitutions represent a higher level of law—fundamental law—that provides the rules by which ordinary law, the law that legislatures produce on a regular basis, is made and which give those laws their validity. In doing this, constitutions have both an enabling and a constraining function: the rules are “constitutive” in making the game possible, and “regulative” in controlling actions of the players.3 In other words, Constitutions are first of all, charter instruments providing for a system of government through which power can be exercised on behalf of the community (“positive constitutionalism”). At the same time, constitutions also have an essential role in controlling and limiting the exercise of that power (“negative constitutionalism”).4 This, though, is all very abstract; establishing the boundaries of any given constitution is not quite so straightforward.

2.1.2 The American Archetype How are the rules expressed? The Americans invented modern constitutionalism when, at the time of the Declaration of Independence in 1776, Britain’s 13 rebelling colonies set about formalising sets of governing rules for themselves as independent polities.5 This gave birth to one of the most important innovations of modern government, the ‘written’ or codified constitution.6 The model was developed further in

 Confusingly, there is another related but different definition where ‘constitution’ means the actual system itself, as in the reference to an individual as having a ‘strong constitution’. This use appears in WA constitutional documents when section 73(1) of the Constitution Act 1889 refers to “any Bill by which any change to the Constitution of the Legislative Council or of the Legislative Assembly shall be effected”. There ‘the Constitution’ in the rules sense is using the term in the substantive sense. This substantive meaning dates back to Bolingbroke, A Dissertation on Parties, 7th ed. (London: R. Franklin, 1749). 3  Stephen Holmes, Passions and Constraint: on the theory of liberal democracy (Chicago IL: University of Chicago Press, 1995), 163. 4  N. W. Barber, The Principles of Constitutionalism (Oxford: Oxford University Press, 2018). 5  H.  Lowell Brown, The American Constitutional Tradition: colonial charters, covenants, and revolutionary State constitutions, 1578–1780 (Madison NJ: Fairleigh Dickinson University Press, 2017). 6  While the origins of this efflorescence of constitutionalism can be traced as far back in the American experience as the original ‘Mayflower Compact’ of 1620, this was the moment of realisation. Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge LA: Louisiana State University Press, 1988). See also: Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill NC: University of North Carolina Press, 1969). 2

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the first and second United States (US) Constitutions7 and then, following the French Revolution (1789–93) only a short time later, began its spread across the world. The Constitution of the Commonwealth of Australia follows this model, albeit rather imperfectly as noted below. The US Constitution is a concise document, the core of which outlines the powers of the three branches of government, legislative, executive and judicial. Impetus for such an instrument came in considerable part out of the need to divide powers between the central government and the States that produced modern federalism. It also derived from a desire to create a system where powers would be separated between the three branches such that they can ‘check’ each other. In this powerful tradition, the term ‘constitution’ only applies to a codified constitution because only a codified constitution sits properly apart from and above government, superior to ordinary law, and has “canonical” status.8 A corollary of the status of such a codified constitution as higher law is the principle that ordinary laws incompatible with the Constitution are invalid. Although this was controversial at first, it soon came to be accepted in the US that courts could and should assume responsibility for invalidating laws inconsistent with the Constitution.9 Like the practice of codified constitutionalism itself, this principle of judicial review has spread much more broadly. It is sanctioned, albeit somewhat obliquely, in the Commonwealth Constitution and is embedded in Australian practice in ways we will touch on later in this book.10

2.1.3 Uncodified Constitutions Not all liberal democracies have such an artifact, though—most notably the United Kingdom (UK), which has famously operated under an ‘unwritten’ constitution for centuries. The UK Constitution has evolved since the ‘Glorious Revolution’ of 1688, facilitating and regulating the Westminster system of government without being set down in an overarching document. That way, it accommodated first the shift from constitutional monarchy to parliamentary government over the eighteenth  First the Articles of Confederation and Perpetual Union (1781–89) and, subsequently, the Constitution of the United States. 8  Such canonical status being a criterion of “thick constitutionalism” (or real constitutionalism), in the argument of Joseph Raz, “On the Authority and Interpretation of Constitutions: some preliminaries,” in Constitutionalism: philosophical foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 153. 9  William E. Nelson, Marbury v. Madison: the origins and legacy of judicial review (Lawrence KS: University Press of Kansas, 2000). Steven Gow Calabresi, “The Origins and Growth of Judicial Enforcement,” in Comparative Judicial Review, ed. Erin F.  Delaney and Rosalind Dixon (Cheltenham: Edward Elgar, 2018). 10  James A. Thomson, “Constitutional Authority for Judicial Review: a contribution from the framers of the Australian Constitution,” in The Convention Debates 1891–1898: commentaries, indices and guide, ed. Gregory Craven (Sydney: Legal Books, 1986). 7

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century and then from there to parliamentary democracy over the nineteenth and early twentieth centuries.11 It has been possible to function in an uncodified form because, by contrast with the US, the UK is a unitary rather than a federal state and because it is organised on the basis of a parliamentary “fusion” of powers rather than a presidential separation of powers.12 The UK Constitution comprises several elements, the most important of which is convention, or the prevailing understandings and practices of those engaged in the operation of the political system.13 The most central of these understandings and practices is the convention of responsible government which reflects the reality that Britain is not a ‘constitutional monarchy’, despite the formal trappings—or what Bagehot, writing in the nineteenth century, called “the theatrical elements”.14 Rather, the UK is a parliamentary democracy: the executive government is responsible to the people via the people’s elected representatives in parliament, not to the Crown. The Head of State is a constitutional monarch, but that does not make the system a monarchy since the monarch does not rule. The UK Constitution also has ‘written’ elements in the form of constitutional statutes. These are laws enacted by Parliament, going at least as far back as the Bill of Rights of 1689, that govern aspects of the operation of the political system.15 Prominent among them are: the Act of Settlement of 1701, the Act of Union of 1707, the Parliament Acts of 1911 and 1949 that relegated the House of Lords to subordinate status.16 More recent inclusions have been the Government of Wales Act 1998 and the Scotland Act 1998 devolving rights of self-government to the Welsh and Scottish parliaments respectively. Quite what counts as a constitutional statute is, though, not always clear. The American “ConstituteProject” website, a repository of “All of the world’s currently in force constitutions”, identifies the UK Constitution as existing in a series of these constitutional documents, beginning with the Magna Carta of 1297 and ending with the Fixed Terms Parliament Act 2011 (UK).17 The challenges of creating such a catalogue of UK constitutional texts are immediately  Christopher Edward Taucar, The British System of Government and Its Historical Development (Montreal & Kingston: McGill–Queen’s Press, 2014). 12  Walter Bagehot, The English Constitution (London: Oxford University Press, 1961), 9. Originally published 1867. 13  Geoffrey Marshall, Constitutional Conventions: the rules and forms of political accountability (Oxford: Oxford University Press, 1984). 14  Bagehot, The English Constitution, 5. Emphasis in original. 15  “A constitutional statute is a statute at least a part of which (1) creates or regulates a state institution and (2) is among the most important elements of our government arrangements, in terms of (a) the influence it has on what state institutions can and may do, given our other governing norms, and (b) the influence it has on what state institutions can and may do through the difference it makes to our other norms.” Farrah Ahmed and Adam Perry, “Constitutional Statutes,” Oxford Journal of Legal Studies 37, no. 2 (2017): 471. 16  Peter Leyland, The Constitution of the United Kingdom: a contextual analysis, 4th ed. (Oxford: Hart, 2021). 17  “Constitute: the world’s constitutions to read, search, and compare,” accessed 9 November, 2022, https://www.constituteproject.org/?lang=en. 11

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evident. In what way should Magna Carta, iconic as it is, be regarded as a part of the British Constitution since it says nothing about the system of government? Meanwhile, the Fixed Terms Parliament Act 2011 (UK) turned out to be entirely ephemeral, having been repealed by Parliament a decade after it was passed. The bigger problem, though, is that these statutes don’t add up to much: “we do not remotely regard them, singly or conjointly, as being law from which other law in the legal system ‘derives its force’.”18 Such constitutional statutes are defined merely by their subject matter. They do not, on the face of it, enjoy any special procedural status—or do they? The essence of the British Constitution is precisely that the Constitution does not control Parliament in the way that an American-style codified constitution does. At the core of the Westminster system is the supremacy of parliament, or ‘parliamentary sovereignty’, rather than the supremacy of the Constitution.19 As a matter of law, nothing limits what the UK Parliament can do, including any action by a previous parliament—and certainly not the rules of the Constitution, since many of those rules are simply Acts of Parliament, enacted like any other Act the Parliament.20 As elaborated upon in Chap. 7, the question of a State Parliament’s ability to bind itself, has been a difficult and contentious aspect of constitutionalism in Australia. More technically, this extends not just to the ability of parliament to repeal or replace any existing law, but also to the ability of parliament to pass laws that are at odds with the requirements of previous laws and thereby to engage in ‘implied repeal’. As we shall see below, however, there has been a natural tendency to question this non-­ differentiated treatment of constitutional statutes. While the US-style codified constitution is now by far and away the prevalent mode, Britain is not the only liberal democracy to have the more diffuse, less concrete, constitution. New Zealand and Israel are other prominent examples, with the New Zealand Constitution based around a small number of constitutional statutes

 Frank I. Michelman, “What Do Constitutions Do That Statutes Don’t (Legally Speaking)?,” in The Least Examined Branch: the role of legislatures in the constitutional state, ed. Richard W. Bauman and Tsvi Kahana (Cambridge: Cambridge University Press, 2006), 274. 19  See, for example, R (on the application of Miller) v the Prime Minister [2020] AC 373, [41] [Miller No 2]. Also: Robert Blackburn, “Constitutional Amendment in the United Kingdom,” in Engineering Constitutional Change: a comparative perspective on Europe, Canada and the USA, ed. Xenophon Contiades (Abingdon: Routledge, 2013). 20  Jeffrey Goldsworthy, The Sovereignty of Parliament: history and philosophy (Oxford: Oxford University Press, 1999). Jeffrey Goldsworthy, Parliamentary Sovereignty: contemporary debates (Cambridge: Cambridge University Press, 2010). For this reason the British have been accused of being “clueless about constitutionalism in the American sense”: Holmes, Passions and Constraint: on the theory of liberal democracy, 167. See also: F. F. Ridley, “There is no British Constitution: a dangerous case of the emperor’s clothes,” Parliamentary Affairs 41, no. 3 (1988). And enactments like the Human Rights Act 1998 (UK) inevitably raised questions about the extent to which these leave parliamentary sovereignty unscathed: see Julie Debeljak, “The Human Rights Act 1998 (UK): the preservation of parliamentary supremacy in the context of rights protection,” Australian Journal of Human Rights 9, no. 1 (2003): 183. 18

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and the Treaty of Waitangi together with key conventions.21 Israel is a particularly interesting case because of its reliance on an array of constitutional statutes whose status has been enhanced over time. The Israeli constitution has been “built chapter by chapter in a series of Basic Laws”, now 13 in number.22 The latter are identified as constitutional statutes by virtue of being titled “Basic Law”; not including a year in their title; and being treated differently by the courts.

2.1.4 Ambiguities It is clear, then, that in some well-known cases, reference to ‘the constitution’ encompasses sundry written and unwritten rules and understandings. In the UK, it is the unwritten rules or constitutional convention that really make up the constitution. Because conventions are not judicially enforceable—or ‘justiciable’—such a reliance relegates the courts to a less powerful role in the British system. The main constitutional statutes, meanwhile—until recently, at least—concern matters rarely if ever the subject of ongoing dispute or contention. Less clear is what the term ‘the constitution’ encompasses in systems with codified constitutions. In everyday parlance it is almost invariably a reference specifically to the document that calls itself by that name. However, in many if not all cases, that document cannot be taken as read or on its own. This is clearly evident in the Australian case, where the Commonwealth Constitution outlines a system of executive government almost entirely at odds with constitutional reality.23 In that case, ‘the Constitution’ must be taken as comprising not just the constitutional text, but the crucial conventions that reflect and regulate the actual structure, function and exercise of executive power.24 Australian constitutionalism straddles the two s­ ystems  Constitutional Advisory Panel, New Zealand’s Constitution: a report on a conversation, Government of New Zealand (Wellington, 2013). Grant Duncan, “New Zealand,” in Constitutional Conventions in Westminster Systems: controversies, changes and challenges, ed. Brian Galligan and Scott Brenton (Cambridge: Cambridge University Press, 2015). Matthew S. R. Palmer, “What is New Zealand’s Constitution and Who Interprets It? Constitutional realism and the importance of public office-holders,” Public Law Review 17 (2006). 22  Janet McLean, “Constitution Making: the case of “unwritten” constitutions,” in Comparative Constitution Making, ed. David Landau and Hanna Lerner (Cheltenham: Edward Elgar, 2019), 329. Iddo Porat, “The Platonic Conception of the Israeli Constitution,” in The Invisible Constitution in Comparative Perspective, ed. Rosalind Dixon and Adrienne Stone (Cambridge: Cambridge University Press, 2018). 23  Sections 61 through 64 vests executive power in the Queen and the Governor-General, and in lieu of any reference to elected ministers responsible to parliament or indeed to the prime minister, refers only to “officers … [who] hold office during the pleasure of the Governor-General”. 24  On which, see Ian Killey, Constitutional Conventions in Australia: an introduction to the unwritten rules of Australia’s constitiutions (Kew, Vic.: Australian Scholarly Publishing, 2009). Brian Galligan, “Executive Conventions,” in Constitutional Conventions in Westminster Systems: controversies, changes and challenges, ed. Brian Galligan and Scott Brenton (Cambridge: Cambridge University Press, 2015). 21

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in that respect, an awkward bridging that gave rise to the epithet “Washminster mutation”.25

2.2 What Should a Constitution Do? Analyses commonly identify four necessary roles for a constitution: establishing the main institutions of government; ensuring majority rule; protecting minority rights; and ensuring its own integrity. However, constitutions are not infrequently expected to do more.

2.2.1 Providing the Framework of Government Pre-eminently, a constitution outlines the structure of government—the institutions through which political representation is structured, decision-making occurs, and responsibility for administration assigned. That is, a constitution specifies the way each of the three ‘branches of government’—legislative, executive and judicial—is constituted and what powers and responsibilities each is assigned. “First”, in other words, “there is the practical convenience of having standing collective decision-­ making routines”.26 Constitutions, most importantly, are enabling devices that play an essential “constitutive” role in establishing the mechanisms for the people to govern themselves.27 How much of that institutional framework is constitutionally defined and in what detail varies. While it is obvious, for instance, that the structure and powers of the legislative branch must be given constitutional definition, what about the way in which that branch is to be elected—should that be a constitutional or a sub-­ constitutional matter? Whether citizens are ensured equal representation; what controls are in place to limit partisan manipulation, and the type of electoral system used all have considerable significance for the operation of that core institution of representative democracy. The Electoral Act 1993 (NZ), for instance, is regarded as one of the central instruments of the New Zealand Constitution.28 On the other hand,

 Elaine Thompson, “The ‘Washminster’ Mutation,” in Responsible Government in Australia, ed. Patrick Weller and Dean Jaensch (Carlton: Drummond, 1980). 26  Bjørn Erik Rasch and Roger D.  Congleton, “Amendment Procedures and Constitutional Stability,” in Democratic Constitutional Design and Public Policy: analysis and evidence, ed. Roger D. Congleton and Birgitta Swedenborg (Cambridge MA: MIT Press, 2006), 322. 27  Holmes, Passions and Constraint: on the theory of liberal democracy, 163. 28  James Allan, “Why New Zealand Doesn’t Need a Written Constitution,” Agenda 5, no. 4 (1998); Panel, New Zealand’s Constitution: a report on a conversation. 25

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in only a minority of constitutions is the electoral system specified “in any detail”.29 Neither the US Constitution nor the Commonwealth Constitution say much about these matters at all. Voting and electoral rules are treated as sub-constitutional and left to the legislature itself to regulate by a series of constitutional provisions, subject to the requirement that representatives are “directly chosen by the people” in sections 7 and 24. The Commonwealth Constitution has a handful of clauses concerning eligibility, but has been interpreted by the High Court as not requiring precise equality of representation and in general assigns responsibility for the design of electoral systems to Parliament. Even section 41, headed “rights of electors of States”, has been found by the High Court to have no role, it having been “spent” when the Commonwealth Franchise Act 1902 (Cth) was enacted.30 A notable exception is section 44, which rose from obscurity when 18 Commonwealth parliamentarians found to their surprise that they were disqualified for holding overseas citizenship of which they may not have even been aware.31 Although often treated as sub-constitutional in nature, the “fundamental importance” of electoral laws is a strong argument for them being regarded otherwise.32

2.2.2 Ensuring Majority Rule Democratic constitutions also include mechanisms that “attempt to ensure majority rule rather than minority rule.”33 This means, most fundamentally, that elected representatives reflect the will of the people. “Representative democracy requires delegation, and there is always the risk that the agents employed will fail to act on the electorate’s behalf. An important task of a constitutional arrangement is to prevent delegation of authority from turning into abdication” and avoid representatives exceeding their authority.34 Consequently, a constitution should also outline terms of office, indicate relationships of accountability, and provide for enforcement mechanisms.

 Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009), 51. 30  R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 280 (Brennan, Deane and Dawson JJ). 31  Joint Standing Committee on Electoral Matters, Excluded: the impact of section 44 on Australian democracy, Parliament of the Commonwealth of Australia (Canberra, 2018). 32  Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Review 45, no. 2 (1995): 367. 33  Rasch and Congleton, “Amendment Procedures and Constitutional Stability,” 322. 34  Rasch and Congleton, “Amendment Procedures and Constitutional Stability,” 322. 29

2.2  What Should a Constitution Do?

13

2.2.3 Avoiding Majority Mis-Rule The other side of the majority rule coin is the risk of majority mis-rule. A constitution should ensure majority rule but not unfettered: “democratic constitutions address the classical ‘constitutionalist’ concern of protecting individual and minority rights”.35 Such rights may be protected in different ways. An influential school of thought holds that “there are good structural and expressive reasons to give Bills of Rights constitutional status.”36 However, this is a conviction based in the American tradition and not necessarily shared by those operating within the Westminster parliamentary tradition.37 A more recent development in this regard is the movement to insert specific protections or empowering provisions into constitutions. The universal rights of liberal democracy remain essential, but “rather than relying on universal rights guarantees to bind a polity, constitutional amenders are singling out particular groups as deserving higher degrees of constitutional recognition.”38 In Australia, that is particularly the case in respect of Aboriginal and Torres Strait Islander peoples, an aspect of which we discuss in Chap. 5.

2.2.4 Ensuring Its Own Rule Fourthly, constitutions are expected to include rules regulating their own operation—amendment procedures that enable alterations to be made from time to time yet also prevent opportunistic change. They must “address dynamic problems involving the stability and flexibility of the constitutional regime itself.”39 Various devices may be used to confirm that the appropriate level of support exists and in those various ways, and to varying degrees, such rules entrench a constitution against unilateral change. Entrenchment makes the constitution superior to government and confirms its status as fundamental law. As discussed at greater length below, the special status of constitutions as fundamental law also typically derives from the process by which the constitution first  Rasch and Congleton, “Amendment Procedures and Constitutional Stability,” 322.  Ruth Gavison, “What Belongs in a Constitution?,” Constitutional Political Economy 13, no. 1 (2002): 96. 37  Bruce Stone and Nicholas Barry, “Constitutional Design and Australian Exceptionalism in the Adoption of National Bills of Rights,” Canadian Journal of Political Science 47, no. 04 (2014). Jeffrey Goldsworthy, “Against a Constitutional Bill of Rights in Australia,” in The Legal Protection of Rights in Australia, ed. Matthew Groves, Janina Boughey, and Dan Meagher (Oxford: Hart, 2019). Cf. George Williams and Daniel Reynolds, A Charter of Rights for Australia (Sydney: UNSW Press, 2017). 38  Beau Breslin, From Words to Worlds: exploring constitutional functionality (Baltimore MD: Johns Hopkins University Press, 2009), 115, 18. 39  Rasch and Congleton, “Amendment Procedures and Constitutional Stability.” 35 36

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came into existence. Ordinary law comes into existence through ordinary processes; fundamental law comes into being through extra-ordinary processes. In principle, it is a constitution-making process involving a high level of consensus that legitimates the superior status given to constitutional rules by entrenchment.

2.2.5 Expressive Role of a Constitution Some look to a constitution for something more than system mechanics, essential as that is. Indeed, there is now an expectation that they should also express the principles, values and purposes the system is based on and serves. It is almost always done via declaratory preambles.40 This presupposes a codified constitution. Preambles, more than any other parts of constitutions, make vivid the complex relationship between the presumptive ends underlying a given constitution and the particular means that it authorizes to achieve those ends.41

Preambles are propagandising instruments, in the pursuit of which “they sing, educate, seduce with poetic language, raise their voice, play at emotions”.42 They are thus often “sermonious”; however, they may also have constitutional force and can play an important role in judicial interpretation.43 Expressive preambles beg two main questions, though. First, how realistic is it to think that a meaningful common vision can be arrived at given the diversity of interests and views in society?44 Second, how realistic is it to think that such an expression of constitutional ends will amount to much more than empty symbolism? As we shall discuss in Chaps. 5 and 9, the issue of constitutional preambles is a continuing one at State and Commonwealth levels in Australia.

 Wim Voermans, Maarten Stremler, and Paul Cliteur, Constitutional Preambles: a comparative analysis (Cheltenham: Edward Elgar, 2017), 1. 41  Sanford Levinson, “Do Constitutions Have a Point? Reflections on ‘parchment barriers’ and preambles,” in What Should Constitutions Do?, ed. Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul (Cambridge: Cambridge University Press, 2011), 158–59. 42  Voermans, Stremler, and Cliteur, Constitutional Preambles: a comparative analysis, 151. 43  Justin O.  Frosini, “The Making of Constitutional Preambles,” in Comparative Constitution Making, ed. David Landau and Hanna Lerner (Cheltenham: Edward Elgar, 2019), 342. 44  Levinson, “Do Constitutions Have a Point? Reflections on ‘parchment barriers’ and preambles,” 177. Sanford Levinson, Framed: America’s 51 constitutions and the crisis of governance (New York: Oxford University Press, 2012), Chap 3. 40

2.3  Constitutional Amendment

15

2.2.6 Broader Ambit? Constitutions are sometimes employed for purposes beyond what is generally regarded as their right and proper purpose. In particular, if constitutions have the status of higher law, dictating the processes and limits of ordinary law making, then there is a temptation to embed policy rules in constitutional documents to make those policy preferences more binding on subsequent governments. This is particularly common at the State level in the US, but of course it notoriously occurred at the federal level there with the Eighteenth Amendment in 1919 imposing “prohibition”.45 This hijacking of constitutions for policy ends is far less common elsewhere and very rare, though not entirely unknown, in Australia—in part because of the relatively uncontrolled nature of Australia’s State constitutions.46

2.3 Constitutional Amendment The implicit principle underlying entrenchment is that since constitutions provide the fundamental rules of the game, no one set of players should be free to change those rules unilaterally.47 Constitutions embody a particular compromise about what represents a just and appropriate institutional arrangement. However, there is also a cautionary perspective in this regard. Interests will seek to entrench in the constitution a set of arrangements that suits them, and having done that will seek to make alteration as difficult as possible. While constitutions are intrinsic to democracy, they can serve anti-democratic ends by helping secure the status quo against expansion of democratic rights and majority rule.48 Adaptability may also be important. From this perspective, “pathological entrenchment” should be avoided; “there are rapidly declining returns to rigidity”.49

 And leading to another ‘first’ with its repeal 13 years later by the Twenty-First Amendment.  Part VII of Victoria’s main constitutional instrument, the Constitution Act 1975 (Vic), requires that provision of water services stays in public hands while Part VIII prohibits “hydraulic fracturing and coal seam gas exploration and mining”. These provisions are themselves subject to entrenchment requirements. 47  The one anomaly here is the possibility of having a constitution that declares parts of itself unalterable. The German Constitution does that with certain core principles in the Grundgesetz’s “eternity clauses”, but since those are principles rather than specific rules, possible problems with this are much less likely to surface. Alan Fenna, “Modell Deutschland? Comparative reflections on the German federal system,” in Reformbaustelle Bundesstaat, ed. Felix Knüpling et al. (Wiesbaden: Springer, 2020), 220–21. 48  Richard Bellamy and Dario Castiglione, “Constitutionalism and Democracy: political theory and the American Constitution,” British Journal of Political Science 27, no. 4 (1997). 49  Elkins, Ginsburg, and Melton, The Endurance of National Constitutions, 209. Also: Melissa Schwartzberg, Counting the Many: the origins and limits of supermajority rule (Cambridge: Cambridge University Press, 2013). 45 46

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2  The What, Why and How of Constitutions

2.3.1 Amending Procedures Along with the codified constitution itself, the Americans established the practice of an amending procedure that ensures the elevated status of the constitution as fundamental law. Article V of the US Constitution lays down procedural requirements for constitutional changes. This approach was replicated, with local variations, a century later in the Australian Constitution. Inspired by the Swiss practice, the main innovation was to require proposed amendments to be approved by the people in a referendum. The Commonwealth Constitution’s last clause, section 128, prohibits alteration that does not meet strict procedural requirements—in this case a Bill passed by an absolute majority in the House of Representatives and Senate, with provision for where the two houses cannot agree, followed by a national referendum where the proposed amendment must achieve an overall majority and a majority in a majority of States. While the referendum procedure includes a federalism component in requiring a majority in a majority of states, it leaves exclusive control over the initiation of amendments in the hands of the Commonwealth alone and gives neither State parliaments nor State executive governments any role in the process.50 Whether as a consequence of their stringent amendment procedures, or for other reasons, neither the American nor the Australian federal Constitutions has undergone much formal constitutional amendment.51 By contrast, the British Constitution can be changed virtually at will. Statutory components can be amended, repealed or added by ordinary Act of Parliament.52 Meanwhile, the constitutional conventions that are central to the system cannot regulate alteration by means of a formal amendment procedure. However, conventions themselves have a strong ballast.53 But what about the ‘constitutional statutes’ mentioned above, do they not enjoy some special procedural status? The UK’s core constitutional principle of parliamentary sovereignty would say no: whatever

 Sarah Murray, “State Initiation of Section 128 Referenda,” in Tomorrow’s Federation: reforming Australian government, ed. Paul Kildea, Andrew Lynch, and George Williams (Leichhardt NSW: Federation Press, 2012). 51  There have been only 17 amendments to the US Constitution over the more than two centuries since the first 10 amendments were adopted as part of the original politics of ratification—though not all actually changed the Constitution. Sanford Levinson, “How Many Times Has the United States Constitution Been Amended? (A)  27: accounting for constitutional change,” in Responding to Imperfection: the theory and practice of constitutional amendment, ed. Sanford Levinson (Princeton NJ: Princeton University Press, 1995). In Australia, the Commonwealth Constitution has been amended eight times (from a total of 44 proposals put to referendum to date). For a perspective on the paucity of changes, see Brian Galligan, “The Republican Referendum: a defence of popular sense,” Quadrant XLIII, no. 10 (October 1999). 52  As happened, for instance, when Parliament Act 1911, and 1949, were passed reducing the power of the House of Lords—a substantial constitutional change that made the British system considerably more democratic. 53   Nick Barry, Narelle Miragliotta, and Zim Nwokora, “The Dynamics of Constitutional Conventions in Westminster Democracies,” Parliamentary Affairs 72, no. 3 (2019). 50

2.3  Constitutional Amendment

17

parliament can do 1 day it can undo the next.54 To some minds, though, the sovereignty of parliament should not extend to the point of allowing implied repeal of constitutional statutes; they must be seen as having at least a modicum of special status. In 2012, for instance, the UK Supreme Court (itself a recent constitutional innovation in the Westminster context), ruled on exactly those grounds that the Scotland Act 1998 (UK) could not be impliedly repealed.55 Such constitutional texts have then the character of “super-statutes”.56 In a very similar way, judicial review of the collection of “Basic Laws” that regulate the Israeli system of government in lieu of a codified constitution, has come to accord them superior status in that they cannot be impliedly amended and prevail over ordinary laws.57 As we shall see in Chap. , the procedural status of constitutional statutes has long been a thorny issue in Australian State politics and jurisprudence. Meanwhile, by far the most substantial experience with constitutions and constitutional amendment is to be found in the individual American States, which between them have held 239 constitutional conventions, made innumerable amendments, and created 146 different constitutions since 1776.58 In the later nineteenth century the American State constitutions were increasingly encumbered with tight amending procedures to entrench the constraints on government action with which they had also been encumbered.59

 Goldsworthy, The Sovereignty of Parliament: history and philosophy.  Though quite how that can legitimately be done given the supremacy of Parliament is not clear. Farrah Ahmed and Adam Perry, “The Quasi-Entrenchment of Constitutional Statutes,” Cambridge Law Journal 73, no. 3 (2014). This built upon earlier recognition of the notion; Leyland, The Constitution of the United Kingdom: a contextual analysis, 29. 56  William N. Eskridge and John Ferejohn, “Super-Statutes,” Duke Law Journal 50, no. 5 (2001). Ahmed and Perry, “Constitutional Statutes.” Scott Stephenson, “The Rise and Recognition of Constitutional Statutes,” in Quasi-Constitutionality and Constitutional Statutes: forms, functions, applications, ed. Richard Albert and Joel I. Colón-Ríos (Abingdon: Routledge, 2019). 57  Ruth Gavison, “Legislatures and the Quest for a Constitution: the case of Israel,” Review of Constitutional Studies 11, no. 2 (2005). 58  Kermit L. Hall, “Mostly Anchor and Little Sail: the evolution of American State constitutions,” in Toward a Usable Past: liberty under State constitutions, ed. Paul Finkelman and Stephen E. Gottlieb (Athens GA: University of Georgia Press, 1991), 394. 59  This may have had the unintended and counterproductive effect of creating a policy vacuum into which the federal government was drawn—to the detriment of the States’ role and status in the Union. Hall, “Mostly Anchor and Little Sail: the evolution of American State constitutions,” 401–02. Also: John Dinan, State Constitutional Politics: governing by amendment in the American States (Chicago IL: University of Chicago Press, 2018). 54 55

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2.3.2 Entrenchment Mechanisms It is evident from these examples that codified constitutions employ standard types of entrenchment rules, singly or in combination. The first is to specify that amendments must pass higher legislative majority thresholds. At a minimum this might be an absolute majority requirement—50% +1 of all those eligible to vote. This protects against opportunistic alteration without violating the basic democratic principle that a simple majority should be sufficient. A significant step up is the requirement for some degree of super majority—“two thirds of both houses” of the US Congress just to propose an amendment of the US Constitution, for instance. This is justified on the basis that a change to the rules should only occur if a demonstrably broad consensus exists. Another is to require rolling majorities: certain types of enactment are only valid if they are passed by a legislature twice: before and then after an intervening election, thus giving the voters a say. The third is to require some form of external ratification: by the voters directly, or by the constituent units if the system is a federal one. Requirement for approval in a popular referendum represents a qualitatively deeper form of entrenchment, albeit one consistent with the underlying principle that the rules of the game should be grounded in the sovereignty of the people. While reference to the voters for constitutional adoption or alteration is not new, it has been “becoming increasingly common especially after 1990”.60 On the one hand, there are good reasons to regard constitutional referendums as “a most legitimate and appropriate means of constitutional change in a democracy”.61 On the other hand, they risk being a very blunt tool in dealing with questions that often require considerable deliberative nuance.62

  Zachary Elkins and Alexander Hudson, “The Constitutional Referendum in Historical Perspective,” in Comparative Constitution Making, ed. David Landau and Hanna Lerner (Cheltenham: Edward Elgar, 2019), 142. It was first used for ratification of the Massachusetts Constitution in 1780. Jeffrey A. Lenowitz, ““A Trust That Cannot Be Delegated”: the invention of ratification referenda,” American Political Science Review 109, no. 4 (2015). 61  Brian Galligan, “Amending Constitutions Through the Referendum Device,” in Referendum Democracy: citizens, elites and deliberation in referendum campaigns, ed. Matthew Mendelsohn and Andrew Parkin (Basingstoke: Macmillan, 2001), 110. 62  Stephen Tierney, Constitutional Referendums: the theory and practice of republication deliberation (Oxford: Oxford University Press, 2012). Simone Chambers, “Constitutional Referendums and Democratic Deliberation,” in Referendum Democracy: citizens, elites and deliberation in referendum campaigns, ed. Matthew Mendelsohn and Andrew Parkin (Basingstoke: Palgrave, 2001). Lenowitz, ““A Trust That Cannot Be Delegated”: the invention of ratification referenda.” 60

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2.3.3 Constituent Acts63 The special status of constitutions as the higher law from which ordinary law derives its authority and government its legitimacy creates the problem of logical regress: what higher authority authorised that higher law? It cannot be the mechanical fact of entrenchment that gives constitutions their exalted status, there must be something more intrinsic that does so. Typically, that superior status emanates from the genesis itself of the constitution. What the Americans also pioneered was the idea of a “constituent act”: an extraordinary process through which society designed and adopted for itself an overarching set of political rules.64 Similarly, the Commonwealth Constitution was designed by a process of extraordinary constitutional conventions and only adopted once the product of those conventions had been endorsed by voters. While Australia’s colonial status meant that a further step—Imperial enactment—was required, it was that two-stage constitutive process of design and adoption that gave the Commonwealth Constitution its democratic legitimacy and autochthonous, or home-grown,  character.65 In turn, the foundation provided by such a constituent act legitimised the rigorous amendment procedures stipulated in section 128—procedures that not accidentally reflected the procedures of initial adoption.

2.4 State-Level Constitutionalism To this point, we have been either explicitly or implicitly focused on constitutions of nation-states, but many nation-states are federations, whose constituent units have their own governmental systems requiring constitutional regulation. Indeed, constituent unit constitutions have an historically notable place in modern constitutionalism. The constitutions that Britain’s 13 American colonies gave themselves once the war of independence broke out established the basis and form of modern constitutions and laid groundwork for the current US Constitution.66 The last of those to be adopted, that of the Commonwealth of Massachusetts, marked its 200th

 An unfortunate term in the context, since it refers to ‘actions’, not Acts in the legislative sense.  The term used by Holmes J in Missouri v. Holland 252 U.S. 416, 433 (1920). 65  Its technical legitimacy, or legal validity, may be said to have rested on its formal enactment by the then-higher authority of Australia law, the UK parliament. However, the significance of that endorsement was much greater at the moment than it could be at any time subsequent given Australia’s transition to sovereign independence. For some discussion of these issues see G. J. Lindell, “Why is Australia’s Constitution Binding? The reasons in 1900 and now, and the effect of independence,” Federal Law Review 16, no. 1 (1986). 66  Lutz, The Origins of American Constitutionalism. Willi Paul Adams, The First American Constitutions: republican ideology and the making of the State constitutions in the revolutionary era, expanded ed. (Lanham MD: Rowman & Littlefield, 2001). 63 64

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anniversary in 1980 and “is the world’s oldest working written frame of government”.67

2.4.1 Degrees of State Constitutionalism Of course, not all federations were established in quite the same way as the US, and constitutional practices within federations differ considerably. They range from highly developed and autonomous constitutions to those where the constituent units are entirely regulated from the centre. In the first instance, this is a question of “constitutional space”: how much scope does the overarching constitution allow?68 In principle, a broad scope for constituent unit constitutionalism “is part of the “self-­ rule” that is fundamental to a federation”.69 Federalism is premised on the idea that the various territorially-defined communities should enjoy as much self-government as is consistent with the overall common interest. Secondly, it is also a question of how energetically constituent units take advantage of the constitutional space available to them. The US is a prime example of a federation where the States not only enjoy a high degree of constitutional autonomy, but seize the opportunities that autonomy provides. State Constitutions in the US are politically prominent and central to ongoing politics of both policy making and institutional reform.70 Presenting a strong contrast is Canada, which has a very undeveloped and derivative form of constituent unit constitutionalism.71 This is despite that fact that Canada is one of the most robustly federal of all federations, one that has substantially bucked the trend towards centralisation.72 In Canada it is the federal constitution that provides the constitutional framework for the provinces. Section V of the British North America Act 1867 (Imp)—since “patriation” in 1982 the Constitution Act, 1867 (Can)—was  Hall, “Mostly Anchor and Little Sail: the evolution of American State constitutions,” 389. Paul C. Reardon, “The Massachusetts Constitution Marks a Milestone,” Publius 12, no. 1 (1982). 68  Michael Burgess and G.  Alan Tarr, eds., Constitutional Dynamics in Federal Systems: subnational perspectives (Montreal & Kingston: McGill–Queen’s University Press, 2012), 3. John Dinan, “Subnational Constitutions: a research agenda,” in A Research Agenda for Federalism Studies, ed. John Kincaid (Cheltenham: Edward Elgar, 2019). 69  Burgess and Tarr, Constitutional Dynamics in Federal Systems: sub-national perspectives, 4. 70  John J. Dinan, The American State Constitutional Tradition (Lawrence KS: University Press of Kansas, 2006), 3 and passim. This has been driven in large part, however, by distrust of government—“persistent antigovernmentalism”—and desire to impose constraints on legislators. Hall, “Mostly Anchor and Little Sail: the evolution of American State constitutions,” 402. 71  Gerald Baier, “Canada: federal and sub-national constitutional practices,” in Constitutional Dynamics in Federal Systems: sub-national perspectives, ed. Michael Burgess and G. Alan Tarr (Montreal & Kingston: McGill–Queen’s University Press, 2012). 72  Paolo Dardanelli et al., “Dynamic De/Centralization in Federations: comparative conclusions,” Publius 49, no. 1 (2019), https://doi.org/10.1093/publius/pjy037. André Lecours, “Dynamic De/ Centralization in Canada, 1867–2010,” Publius 49, no. 1 (2019). 67

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21

titled “Provincial Constitutions” and mandated in Westminster style the executive and legislative branches.73 Operating under that broad framework, each province has passed various pieces of legislation regulating the operation of its system of government, although only one province has something called a Constitution Act.74 They have not sought to give themselves more distinct constitutional identities. “Canadian provinces have powers to adopt their own constitutions. What is truly distinctive about Canadian federalism is that they continue to refrain from doing so.”75 In the US, because the State constitutions are not encompassed by the federal Constitution, the final legal authority in respect of State law, when federal law does not intersect, is the highest court of the State in question.76 Given their basis in the federal Constitution, the Canadian provinces do not enjoy that sort of adjudicative autonomy—but then neither do the Australian States, albeit for rather different reasons. As we shall discuss in the following chapter, in other respects the Australian States enjoy “a very high degree of constitutional autonomy”.77 However, their character and status are rather more complicated than that of either their American or Canadian counterparts.

 While these are enfolded within the Canadian Constitution, the multipronged amending procedure grants each province unilateral licence to alter its particular constitutional provisions therein. It reflects that fact that Canada was not a classic aggregative or ‘coming together’ federation, but one where the two core provinces were created in the process of federating. 74  “While British Columbia is the only province to label some of this legislation its ‘Constitution Act,’ all the provinces have laws that help to clarify constitutional roles in the province. Under titles such as the Legislative Assembly Act or the Executive Council Act, the basic structure and operation of provincial legislatures and cabinets are specified.” Baier, “Canada: federal and subnational constitutional practices,” 181. 75  Benjamen Franklen Gussen, “Subnational Constitutionalism in Canada: a hysteretic approach to distinctive constitutional identities,” in The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne (Abingdon: Routledge, 2021), 114. 76  John J.  Dinan, “State Constitutions and American Political Development,” in Constitutional Dynamics in Federal Systems: sub-national perspectives, ed. Michael Burgess and G. Alan Tarr (Montreal & Kingston: McGill–Queen’s University Press, 2012). James A. Gardner, “Subnational Constitutionalism in the United States: powerful states in a powerful federation,” in The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne (2021), 307. 77  Nicholas Aroney, “Subnational Constitutionalism in Australia: state autonomy in a uninational federation,” in The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne (Abingdon: Routledge, 2021). 73

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2.4.2 Entrenchment of State Constitutions Just as State Constitutions around the world vary in their degree of development and autonomy, so they vary as well in how clearly they are established as fundamental law via entrenchment. As might be expected given their undeveloped state, the Canadian provincial Constitutions have the same status as ordinary legislation; none are protected by special amending requirements. That is not the case for the State Constitutions in the US—although they have certainly proven to be far more flexible than the US federal Constitution. “In general … subnational constitutions are usually less rigid than their national counterpart.”78

2.5 In Summary This chapter has identified a number of issues and themes that arise in an analysis of the WA Constitution and Australia’s State constitutions generally. How are constitutions to be defined? What should they do? How should their special character as higher law be demonstrated? What is the scope for constituent unit constitutionalism in federal states? Constitutions are a form of higher law that provides the framework and rules for the operation of liberal democracy. In doing so they are expected to play both an enabling and a constraining role: enabling a society to govern itself, while at the same time constraining the exercise of power in the interests of majority rule and minority rights. Constitutions may take quite different forms, but the American model of a codified constitution existing in a single clearly identifiable and superior document is the prevalent one. At the other extreme is the British, ‘Westminster’, constitution characterised by a reliance on unwritten rules embodied in constitutional practices and conventions with the supremacy of parliament at its centre. Somewhere along the continuum between these extremes may be found constitutions that are partially or semi-codified in constitutional statutes, statutes that intuition, logic, and some jurisprudence suggest should enjoy some sort of special status. Even the most codified constitutions comprise more than simply the document itself. Ones such as the Australian Commonwealth Constitution, relying in Westminster style on essential elements of constitutional convention, clearly extend beyond the legal text. And those much less codified constitutions may well comprise a collection of different written instruments, typically constitutional statutes, as well as unwritten rules.

 Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne, “Subnational Constitutionalism: defining subnational constitutions and self-constituent capacity,” in The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne (Abingdon: Routledge, 2021), 8. 78

References

23

Where codification prevails, the special character of constitutions is usually reflected in the provisions that put their alteration beyond the reach of ordinary legislative processes: requirements for more stringent processes or special majorities, sometimes within the legislature but now often in the form of referendums. These entrench the constitution, putting the rules of the game beyond simple majority change. Archetypally, those rules echo the process by which the constitution was adopted, a correspondence that gives them greater legitimacy. Uncodified constitutions raise more difficult questions about their self-regulation—acutely so in the case of the Australian States, as we shall discuss later in this book. The core business of a constitution is to outline the structure of government: providing the framework for a system of representative democracy and its three branches, legislative, executive and judicial. Optional extras include an expressive preamble articulating principles the Constitution is meant to embody or a catalogue of individual rights. Even within its core business, though, questions arise about how much of the elements of representative democracy should be regarded as constitutional, notably electoral rules and the electoral system. All of these considerations apply as much to the governments of constituent units in federal systems as they do to the constitutions of sovereign countries. What differs, though, is the degree of sovereignty. In all federal systems, the constituent units are ultimately subordinate to the overarching constitution and their character will be moulded and limited by the amount of constitutional space allowed them within that framework. As we shall see in the next chapter, that relationship has been greatly complicated in Australia by the legacies of colonial establishment.

References Adams, Willi Paul. 2001. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era. Expanded edition. Lanham: Rowman & Littlefield. Ahmed, Farrah, and Adam Perry. 2014. The Quasi-Entrenchment of Constitutional Statutes. Cambridge Law Journal 73 (3): 514–535. ———. 2017. Constitutional Statutes. Oxford Journal of Legal Studies 37 (2): 461–481. Allan, James. 1998. Why New Zealand Doesn’t Need a Written Constitution. Agenda 5 (4): 487–494. Aroney, Nicholas. 2021. Chap. 3. Subnational Constitutionalism in Australia: State Autonomy in a Uninational Federation. In The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne, 36–50. Abingdon: Routledge. Bagehot, Walter. 1961. The English Constitution. London: Oxford University Press. 1867. Baier, Gerald. 2012. Chap. 8. Canada: Federal and Sub-national Constitutional Practices. In Constitutional Dynamics in Federal Systems: Sub-national Perspectives, ed. Michael Burgess and G. Alan Tarr, 174–192. Montreal & Kingston: McGill–Queen's University Press. Barber, N.W. 2018. The Principles of Constitutionalism. Oxford: Oxford University Press. Barry, Nick, Narelle Miragliotta, and Zim Nwokora. 2019. The Dynamics of Constitutional Conventions in Westminster Democracies. Parliamentary Affairs 72 (3): 664–683.

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Bellamy, Richard, and Dario Castiglione. 1997. Constitutionalism and Democracy: Political Theory and the American Constitution. British Journal of Political Science 27 (4): 595–618. Blackburn, Robert. 2013. Chap. 18. Constitutional Amendment in the United Kingdom. In Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, ed. Xenophon Contiades, 359–388. Abingdon: Routledge. Bolingbroke. 1749. A dissertation on parties. 7th ed. London: R. Franklin. Breslin, Beau. 2009. From Words to Worlds: Exploring Constitutional Functionality. Baltimore: Johns Hopkins University Press. Brown, H. Lowell. 2017. The American Constitutional Tradition: Colonial Charters, Covenants, and Revolutionary State Constitutions, 1578–1780. Madison: Fairleigh Dickinson University Press. Burgess, Michael, and G. Alan Tarr, eds. 2012. Constitutional Dynamics in Federal Systems: Sub-­ national Perspectives. Montreal & Kingston: McGill–Queen’s University Press. Calabresi, Steven Gow. 2018. Chap. 5. The Origins and Growth of Judicial Enforcement. In Comparative Judicial Review, ed. Erin F. Delaney and Rosalind Dixon, 83–97. Cheltenham: Edward Elgar. Chambers, Simone. 2001. Chap. 11. Constitutional Referendums and Democratic Deliberation. In Referendum Democracy: Citizens, Elites and Deliberation in Referendum Campaigns, ed. Matthew Mendelsohn and Andrew Parkin, 231–255. Basingstoke: Palgrave. “Constitute: The World’s Constitutions to Read, Search, and Compare” https://www.constituteproject.org/?lang=en. Accessed 9 Nov 2022. Constitutional Advisory Panel. 2013. New Zealand’s Constitution: A Report on a Conversation. Wellington: Government of New Zealand. Dardanelli, Paolo, John Kincaid, Alan Fenna, André Kaiser, André Lecours, Ajay Kumar Singh, Sean Mueller, and Stephan Vogel. 2019. Dynamic De/Centralization in Federations: Comparative Conclusions. Publius 49 (1): 194–219. https://doi.org/10.1093/publius/pjy037. Debeljak, Julie. 2003. The Human Rights Act 1998 (UK): The Preservation of Parliamentary Supremacy in the Context of Rights Protection. Australian Journal of Human Rights 9 (1): 183–235. Dinan, John J. 2006. The American State Constitutional Tradition. Lawrence: University Press of Kansas. Dinan, John. 2012. Chap. 2. State Constitutions and American Political Development. In Constitutional Dynamics in Federal Systems: Sub-national Perspectives, ed. Michael Burgess and G. Alan Tarr, 43–60. Montreal & Kingston: McGill–Queen's University Press. ———. 2018. State Constitutional Politics: Governing by Amendment in the American States. Chicago: University of Chicago Press. ———. 2019. Chap. 4. Subnational Constitutions: A Research Agenda. In A Research Agenda for Federalism Studies, ed. John Kincaid, 50–60. Cheltenham: Edward Elgar. Duncan, Grant. 2015. Chap. 12. New Zealand. In Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges, ed. Brian Galligan and Scott Brenton, 217–232. Cambridge: Cambridge University Press. Elkins, Zachary, and Alexander Hudson. 2019. Chap. 7. The Constitutional Referendum in Historical Perspective. In Comparative Constitution Making, ed. David Landau and Hanna Lerner, 142–164. Cheltenham: Edward Elgar. Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press. Elster, Jon. 1995. Forces and Mechanisms in the Constitution-Making Process. Duke Law Review 45 (2): 364–396. Eskridge, William N., and John Ferejohn. 2001. Super-Statutes. Duke Law Journal 50 (5): 1215–1276. Fenna, Alan. 2020. Chap. 13. Modell Deutschland? Comparative Reflections on the German Federal System. In Reformbaustelle Bundesstaat, ed. Felix Knüpling, Mario Kölling, Sabine Kropp, and Henrik Scheller, 209–228. Wiesbaden: Springer.

References

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Foley, Michael. 1989. The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government. London: Routledge. Frosini, Justin O. 2019. Chap. 16. The Making of Constitutional Preambles. In Comparative Constitution Making, ed. David Landau and Hanna Lerner, 341–361. Cheltenham: Edward Elgar. Galligan, Brian. October 1999. The Republican Referendum: A Defence of Popular Sense. Quadrant XLIII (10): 46–52. ———. 2001. Chap. 5. Amending Constitutions Through the Referendum Device. In Referendum Democracy: Citizens, Elites and Deliberation in Referendum Campaigns, ed. Matthew Mendelsohn and Andrew Parkin, 109–124. Basingstoke: Macmillan. ———. 2015. Chap. 3. Executive Conventions. In Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges, ed. Brian Galligan and Scott Brenton, 51–71. Cambridge: Cambridge University Press. Gardner, James A. 2021. Chap. 19. Subnational Constitutionalism in the United States: Powerful States in a Powerful Federation. In The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne, 294–309. London: Routledge. Gavison, Ruth. 2002. What Belongs in a Constitution? Constitutional Political Economy 13 (1): 89–105. ———. 2005. Legislatures and the Quest for a Constitution: The Case of Israel. Review of Constitutional Studies 11 (2): 345–400. Goldsworthy, Jeffrey. 1999. The Sovereignty of Parliament: History and Philosophy. Oxford: Oxford University Press. ———. 2010. Parliamentary Sovereignty: Contemporary Debates. Cambridge: Cambridge University Press. ———. 2019. Chap. 20. Against a Constitutional Bill of Rights in Australia. In The Legal Protection of Rights in Australia, ed. Matthew Groves, Janina Boughey, and Dan Meagher, 393–410. Oxford: Hart. Gussen, Benjamen Franklen. 2021. Chap. 8. Subnational Constitutionalism in Canada: A Hysteretic Approach to Distinctive Constitutional Identities. In The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne, 113–128. Abingdon: Routledge. Hall, Kermit L. 1991. Mostly Anchor and Little Sail: The Evolution of American State Constitutions. In Toward a Usable Past: Liberty Under State Constitutions, ed. Paul Finkelman and Stephen E. Gottlieb, 388–415. Athens: University of Georgia Press. Holmes, Stephen. 1995. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press. Joint Standing Committee on Electoral Matters. 2018. Excluded: The Impact of Section 44 on Australian Democracy. Canberra: Parliament of the Commonwealth of Australia. Killey, Ian. 2009. Constitutional Conventions in Australia: An Introduction to the Unwritten Rules of Australia’s Constitiutions. Kew: Australian Scholarly Publishing. Lecours, André. 2019. Dynamic De/Centralization in Canada, 1867–2010. Publius 49 (1): 57–83. Lenowitz, Jeffrey A. 2015. “A Trust That Cannot Be Delegated”: The Invention of Ratification Referenda. American Political Science Review 109 (4): 803–816. Levinson, Sanford. 1995. Chap. 2. How Many Times Has the United States Constitution Been Amended? (a) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change. In Responding to Imperfection: The Theory and Practice of Constitutional Amendment, ed. Sanford Levinson, 18–39. Princeton: Princeton University Press. ———. 2011. Do Constitutions Have a Point? Reflections on ‘Parchment Barriers’ and Preambles. In What Should Constitutions Do? ed. Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul, 150–178. Cambridge: Cambridge University Press. ———. 2012. Framed: America’s 51 Constitutions and the Crisis of Governance. New  York: Oxford University Press.

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Leyland, Peter. 2021. The Constitution of the United Kingdom: A Contextual Analysis. 4th ed. Oxford: Hart. Lindell, G.J. 1986. Why Is Australia’s Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence. Federal Law Review 16 (1): 29–49. Lutz, Donald S. 1988. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press. Marshall, Geoffrey. 1984. Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press. McLean, Janet. 2019. Chap. 15. Constitution Making: The Case of “Unwritten” Constitutions. In Comparative Constitution Making, ed. David Landau and Hanna Lerner, 324–340. Cheltenham: Edward Elgar. Michelman, Frank I. 2006. Chap. 13. What Do Constitutions Do That Statutes Don’t (Legally Speaking)? In The Least Examined Branch: The Role of Legislatures in the Constitutional State, ed. Richard W. Bauman and Tsvi Kahana, 273–293. Cambridge: Cambridge University Press. Murray, Sarah. 2012. Chap. 18. State Initiation of Section 128 Referenda. In Tomorrow’s Federation: Reforming Australian Government, ed. Paul Kildea, Andrew Lynch, and George Williams, 332–349. Leichhardt: Federation Press. Nelson, William E., and Marbury V. Madison. 2000. The Origins and Legacy of Judicial Review. Lawrence: University Press of Kansas. Palmer, Matthew S.R. 2006. What Is New Zealand’s Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-Holders. Public Law Review 17: 133–162. Popelier, Patricia, Nicholas Aroney, and Giacomo Delledonne. 2021. Chap. 1. Subnational Constitutionalism: Defining Subnational Constitutions and Self-Constituent Capacity. In The Routledge Handbook of Subnational Constitutions and Constitutionalism, ed. Patricia Popelier, Nicholas Aroney, and Giacomo Delledonne, 1–19. Abingdon: Routledge. Porat, Iddo. 2018. Chap. 9. The Platonic Conception of the Israeli Constitution. In The Invisible Constitution in Comparative Perspective, ed. Rosalind Dixon and Adrienne Stone, 268–297. Cambridge: Cambridge University Press. Rasch, Bjørn Erik, and Roger D.  Congleton. 2006. Chap. 12. Amendment Procedures and Constitutional Stability. In Democratic Constitutional Design and Public Policy: Analysis and Evidence, ed. Roger D. Congleton and Birgitta Swedenborg, 319–342. Cambridge, MA: MIT Press. Raz, Joseph. 1998. Chap. 4. On the Authority and Interpretation of Constitutions: Some Preliminaries. In Constitutionalism: Philosophical Foundations, ed. Larry Alexander, 152–193. Cambridge: Cambridge University Press. Reardon, Paul C. 1982. The Massachusetts Constitution Marks a Milestone. Publius 12 (1): 45–55. Ridley, F.F. 1988. There Is No British Constitution: A Dangerous Case of the Emperor’s Clothes. Parliamentary Affairs 41 (3): 340–361. Schwartzberg, Melissa. 2013. Counting the Many: The Origins and Limits of Supermajority Rule. Cambridge: Cambridge University Press. Stephenson, Scott. 2019. Chap. 1. The Rise and Recognition of Constitutional Statutes. In Quasi-­ Constitutionality and Constitutional Statutes: Forms, Functions, Applications, ed. Richard Albert and Joel I. Colón-Ríos, 27–44. Abingdon: Routledge. Stone, Bruce, and Nicholas Barry. 2014. Constitutional Design and Australian Exceptionalism in the Adoption of National Bills of Rights. Canadian Journal of Political Science 47 (4): 767–785. Taucar, Christopher Edward. 2014. The British System of Government and Its Historical Development. Montreal & Kingston: McGill–Queen’s Press. Thompson, Elaine. 1980. Chap. 4. The ‘Washminster’ Mutation. In Responsible Government in Australia, ed. Patrick Weller and Dean Jaensch, 32–40. Carlton: Drummond.

References

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Thomson, James A. 1986. Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution. In The Convention Debates 1891–1898: Commentaries, Indices and Guide, ed. Gregory Craven, 173–202. Sydney: Legal Books. Tierney, Stephen. 2012. Constitutional Referendums: The Theory and Practice of Republication Deliberation. Oxford: Oxford University Press. Voermans, Wim, Maarten Stremler, and Paul Cliteur. 2017. Constitutional Preambles: A Comparative Analysis. Cheltenham: Edward Elgar. Williams, George, and Daniel Reynolds. 2017. A Charter of Rights for Australia. Sydney: UNSW Press. Wood, Gordon S. 1969. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press.

Chapter 3

The WA Constitution in the Federal System

As the previous chapter has discussed, constitutional practices in general and constitutionalism within federal systems, vary considerably. What is inevitable, though, is that constitutionalism within a federal system is affected by the higher law within which it operates and the precise nature of the union. That relationship is further complicated in Australia by the fact that there have been not two, but three, parties involved: the States, the Commonwealth, and the United Kingdom (UK). This chapter provides the key context for understanding the WA Constitution by going back to the decision in 1900 to join the federation in the first place; reviewing the nature of the resulting federal system; examining the complexities of the triangular relationship; and considering secessionism. The six original States developed as distinct political communities in the second half of the nineteenth century, each achieving self-government under the British Empire. That constitutional process began with the Australian Colonies Government Act 1850 (Imp) and culminated in Western Australia being granted a Constitution and achieving self-government in 1890, the last of the Australian colonies to do so.1 Thus, the States entered the federation with their own established political, administrative, judicial and constitutional systems. These they retained, if ultimately subordinate to the overarching Commonwealth Constitution. They also came with important constitutional baggage; Federation did not represent a fresh start. That baggage, most importantly, concerned the legal foundations of their respective constitutions, which had been established in colonial times and under Imperial auspices. That had enormous implications for the rules governing alteration of those constitutions. It was not until the passage of the Australia Act(s) by the Australian and British parliaments in 1986 that the colonial foundation of the State constitutions was finally replaced. However, both the lingering role of the UK and the action taken to bring the State constitutional systems home raise difficult questions.

1  W.  G. McMinn, A Constitutional History of Australia (Melbourne: Oxford University Press, 1979), 47 and passim.

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3.1 Federation Ambivalence Between 1890 and 1900, Britain’s Australian colonies went about the process of combining into a federal union and thereby transitioning from colonial to “Dominion” status and achieving a recognised national identity. Underpinning this was the presumption and ambition that, as Edmund Barton put it, “For the first time in the world’s history, there will be a nation for a continent, and a continent for a nation”.2 While WA made up a rather large part of that continent; the colony’s leaders were hesitant to join the Federation. This is scarcely surprising: the newly self-­ governing entity would be giving up a degree of what it had gained only a decade before; it was physically remote from the other Australian colonies; and there would in all likelihood be an economic and financial price to pay. It was a “miracle” that WA joined at all.3 Accession was a big step—not least of all because it was, at least on paper, irreversible. As the Preamble of the Commonwealth of Australia Constitution Act 1900 (Imp) put it, the colonies were agreeing “to unite in one indissoluble Federal Commonwealth”. It is generally accepted that aggregative or ‘coming-together’ federations form for some combination of two reasons: security and economic gain.4 WA faced little or no security threat and had more to lose than gain economically by casting its lot in with the other colonies. When New South Wales Premier Henry Parkes delivered his “Tenterfield Oration” launching the Federation process on 24 October 1889, Western Australia had not even achieved self-government.5 That did not come until almost exactly a year later—21 October 1890. Parkes’ home colony, by contrast, had by then enjoyed semi-sovereign self-governing status for a generation. Things moved quickly: the Constitutional Conference convened in 1890 and the first Constitutional Convention in 1891. “When the first National Australasian Convention met in Sydney in March 1891 to frame what became in essentials the present Australian Constitution … Western Australia had enjoyed responsible government for only 2 months.”6 Under those circumstances, Federation would mean that the colony’s autonomous existence would have lasted for a mere decade; ambivalence was thus only “natural”.7 To compound matters as far as Western Australia was concerned, it was clear there would be rather significant material losses as well. Revenues would collapse with the Commonwealth’s assumption of an exclusive right to impose customs duties on  John Hirst, The Sentimental Nation: the making of the Australian Commonwealth (Melbourne: Oxford University Press, 2000), 201. 3  Geoffrey Bolton, “The Greatest Miracle of All: Western Australia joins the Federation,” Early Days: journal of the Royal Western Australian Historical Society 11, no. 6 (2000). 4  Thomas O.  Hueglin and Alan Fenna, Comparative Federalism: a systematic inquiry, 2nd ed. (Toronto ON: University of Toronto Press, 2015), 98–134. 5  “The great question which we have to consider is, whether the time has not now arisen for the creation on this Australian continent of an Australian government and an Australian parliament.” 6  Bolton, “The Greatest Miracle of All: Western Australia joins the Federation,” 713. 7  Brian de Garis, “Western Australia,” in The Centenary Companion to Australian Federation, ed. Helen Irving (Cambridge: Cambridge University Press, 1999), 286. 2

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imports. Moreover, any domestic industry such tariffs protected would almost certainly be concentrated in Melbourne and Sydney, with WA consumers thereby subsidising. Not surprisingly, then, Western Australia’s delegates to the Constitutional Conference and Conventions pushed for safeguards to be written into the Constitution. Some success was achieved there in protecting WA’s financial interests, but these were only transitional measures, expiring after 5 years (s 95) and 10 years (s 87, s 96).8 Otherwise, the focus for Western Australia’s representatives was on ensuring that the Senate, where the States were to be represented equally, would have maximal powers. As it had been in the United States (US), this became a point of contention between the ‘large’ and the ‘small’ colonies.9 It was, however, a misguided effort since from early on it was decided that the Senate would be directly elected and thus very unlikely to operate as a house of the States.10 Even so, WA did not follow the other colonies in holding referendums on federation in 1898 and 1899 and was not part of the request to Britain for enactment of the Commonwealth Constitution. At virtually the eleventh hour, however, the matter was put to WA voters, and in the referendum of 31 July 1900, support for federation proved overwhelming.11 Demographic changes brought about by the goldrush of the 1890s changed the political orientation of the colony significantly. In allowing the voters to decide, Western Australia was in step with the other colonies. It was out of step, however, with the other colonies in delaying its referendum until so late in the process that it is the only State not acknowledged in the Preamble of the Commonwealth of Australia Constitution Act 1900 (Imp) that was passed by the British Parliament on 9 July 1900.12

 Although expressed as transitional, s 96 provided for financial assistance to the States “thereafter until the Parliament otherwise provides”. Over time, the import of section 96 became exactly the opposite: the main instrument for an increase in the Commonwealth’s role thanks to the licence it provided for “financial assistance” to be granted “on such terms and conditions as the Parliament thinks fit”. Alan Fenna, “Commonwealth Fiscal Power and Australian Federalism,” University of New South Wales Law Journal 31, no. 2 (2008). 9  Brian Galligan and James Warden, “The Design of the Senate,” in The Convention Debates 1891–1898: commentaries, indices and guide, ed. Gregory Craven (Sydney: Legal Books, 1986). 10  The 1891 draft followed the then-US example by having senators elected by their respective State parliaments, but that was abandoned (and not long afterwards abandoned in the US as well). This point was explicitly acknowledged a few decades later when the State prepared its official case for secession: “In substance and in fact this Senate is, and it is inevitable that it should be, a Party House and not a States’ House....” Parliament of Western Australia, The Case of the People of Western Australia in support of their desire to withdraw from the Commonwealth of Australia established under the Commonwealth of Australia Constitution Act (Imperial), and that Western Australia be restored to its former status as a separate self-governing colony in the British Empire. (Perth: Government of Western Australia, 1934), 40. 11  This high level of support is generally attributed to 1890s gold rush that inundated Western Australia with settlers from the eastern colonies. 12  Allowance was explicitly made in covering clause 3 for WA’s inclusion “if Her Majesty is satisfied that the people of Western Australia have agreed thereto”. The result of the referendum ensured that was the case and once the Act was proclaimed on 17 September 1900, Western Australia was officially part of the new Commonwealth that came into being on 1 January 1901. 8

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3.2 The Australian Federal System The constitutional arrangements thrashed out by the colonial delegates to the constitutional conventions in the 1890s and embodied in the new Commonwealth Constitution provided for a federal system in which the States would continue very much as they were—in terms of responsibilities and constitutional foundations.

3.2.1 The Basic Design Following the model established in the US, the Commonwealth Constitution established the framework for a system of ‘dual’ federalism in Australia—one where the two orders of government make, implement and administer their own laws in their respective areas of jurisdiction.13 They were to function “as independent entities, each carrying out its governmental functions within its own territory.”14 Moreover, and also following the US example, the States were to have a broad or plenary jurisdiction while the Commonwealth was to be restricted to specified fields as per the enumerated powers of Parliament in section 51.15 “The Commonwealth is built upon the States substantially intact.”16 The broad continuing authority of the State parliaments is expressed in section 107: Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliament of the States, continue as at the establishment of the Commonwealth….

The decision was taken not to enumerate those powers “because to define means to limit”.17 Nor was provision made for these to remain exclusively the province of the States even though that was the implication. Over time a substantial drift of authority to the Commonwealth has occurred.18

 On the two different ways of dividing powers in federal systems, see Sean Mueller and Alan Fenna, “Dual versus Administrative Federalism: origins and evolution of two models,” Publius 52, no. 4 (2022). 14  Leslie Zines, “The Federal Balance and the Position of the States,” in The Convention Debates 1891–1898: commentaries, indices and guide, ed. Gregory Craven (Sydney: Legal Books, 1986), 81. 15  Nicholas Aroney, The Constitution of a Federal Commonwealth: the making and meaning of the Australian Constitution (New York: Cambridge University Press, 2009), 276. 16  M. J. Detmold, The Australian Commonwealth: a fundamental analysis of its constitution (North Ryde NSW: The Law Book Company, 1985), 27. 17  Cockburn quoted in Michael Crommelin, “The Federal Model,” in Australian Federation: towards the second century, ed. Gregory Craven (Carlton: Melbourne University Press, 1992), 40. 18  Alan Fenna, “The Centralization of Australian Federalism 1901–2010: measurement and interpretation,” Publius 49, no. 1 (2019), https://doi.org/10.1093/publius/pjy042. 13

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3.2.2 State Constitutions in the Commonwealth Constitution In a departure from the US model, it was also decided to give explicit recognition to the State Constitutions. Section 106 states: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth … until altered in accordance with the Constitution of the State.

The key words in section 106 are not the empowering ones, but the dis-empowering ones: “subject to this constitution”. The question for the framers was whether the States would have full control over their constitutions given residual links to the UK.19 “Subject to this Constitution”, like all constitutional clauses, is open to interpretation. At one extreme, it might only mean that State Constitutions cannot be in flagrant contradiction to the Commonwealth Constitution; at the other extreme, it could be read as meaning that the State Constitutions are controlled by the Commonwealth Constitution.

3.2.3 Adjudication: Parts of a Whole Thanks in the main to section 106, there is important respect in which the States are not masters of their own constitutional destiny: the High Court of Australia has jurisdiction over State constitutional issues. Much of the crucial jurisprudence of State constitutional law discussed in this book—including the key WA cases— comes from High Court judgments. As we noted in Chap. 2, this makes Australian State constitutional law different from that in the US. Other aspects of state judicial practice have also been limited to some degree by the Commonwealth Constitution. In the landmark 1996 Kable case, for instance, the High Court determined that the integrated judicial structure imposed by Chapter III in the Commonwealth Constitution requires a form of the separation of judicial power in the States.20 Subsequent cases have developed the Kable doctrine further to limit the ability of State parliaments to impair the “institutional integrity” of State courts so these can continue to fulfil the federal role contemplated for them by Chapter III. The issue was tested, for instance, in Garlett v Western Australia.21 Mr. Garlett argued that Western Australia’s High Risk Serious Offenders Act 2020 infringed the Kable principle in keeping him in custody after the completion of his sentence for robbery through the application of a continuing detention order based  Aroney, The Constitution of a Federal Commonwealth: the making and meaning of the Australian Constitution, 255–66. 20  Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51. Gabrielle Appleby et al., Judicial Federalism in Australia: history, theory, doctrine and practice (Leichhardt NSW: Federation Press, 2021). 21  (2022) 96 ALJR 888. 19

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on the risk of reoffending. A majority of the High Court (with Gageler J and Gordon J dissenting) rejected the argument, with Kiefel CJ, Keane and Steward JJ finding that it was “protective” in nature and retained a sufficient judicial role for the Supreme Court in the circumstances that it was not “incompatible with the role of the Court as a repository of the judicial power of the Commonwealth”.22 This can be contrasted with South Australia v Totani23 where a High Court majority invalidated section 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA). There, they found that the South Australia Magistrates Court’s institutional integrity was compromised by the control that the State executive had in the making of the relevant control order by that Court. Another limitation is that imposed by the superiority of Commonwealth legislation. Under section 109 of the Commonwealth Constitution, State legislation can be rendered inoperative if it is inconsistent with Commonwealth legislation.24 This was applied in Bell Group NV (in Liq) v Western Australia,25 in relation to WA’s attempt to end the decades-long Dickensian Jarndyce v Jarndyce-like battle over the Bell Group empire’s demise. The High Court held that Western Australia’s Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 was inconsistent with federal tax legislation. Justice Gageler observed that: The Commissioner concludes his written submissions with the observation that the basic problem here is that the drafter of the Bell Act either has forgotten the existence of the Tax Acts or has decided to proceed blithely in disregard of their existence. That, indeed, is the basic problem.26

One way in which the Commonwealth Constitution has been interpreted by the High Court as guarding the independence of the States, is by insisting that the States not have their ability to function as governments impaired.27 Western Australia, however, failed in its attempt to apply this in the context of the Commonwealth’s Native Title legislation. The State argued unsuccessfully that the extent of Crown land in WA meant that the Native Title Act 1993 (Cth) affected its ability to function as a government. The High Court disagreed, finding instead that the Commonwealth Act “touch[ed] upon the scope of State power and the difficulty of its exercise, not upon the machinery of the government of the State”.28 This federalist implication also applies reciprocally to prevent States legislating to compromise the function of the Commonwealth government.29

 (2022) 96 ALJR 888, [55], [107] (Gleeson J agreeing).  (2010) 242 CLR 1. 24  “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” 25  (2016) 260 CLR 500. 26  (2016) 260 CLR 500, [98]. 27  Melbourne Corporation v Commonwealth (1947) 74 CLR 31; Austin v Commonwealth (2003) 215 CLR 185. 28  Western Australia v Commonwealth (1995) 183 CLR 373, 480 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). 29  Spence v Queensland (2019) 268 CLR 355. 22 23

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35

3.3 The Triangular Relationship Federation, and the coming into existence of the Commonwealth of Australia on 1 January 1901, was not a complete rupture with the past. By taking an evolutionary rather than revolutionary path, Britains’s “well-behaved Dominions”30 did not “assert … a principle of constitutional autochthony, of being constitutionally rooted in their own native soil.”31 The question of when Australia achieved ‘independence’ is an important and difficult one. Conventional wisdom holds that Australian independence occurred via an incremental process that can be seen as beginning in 1855 when New South Wales and Victoria were granted self-government and only reaching its culmination in 1986 with the coming into operation of the Australia Act(s) (Cth & UK).32 If that is the case, and Australia lacked full legal independence for more than eight decades after Federation, then a triangular constitutional relationship existed between the States, the Commonwealth and the UK. That is how the High Court has interpreted the situation, the result being that the States have “endured a somewhat schizophrenic constitutional identity”.33

3.3.1  The Colonial Laws Validity Act 1865 That the UK saw itself as exercising a continuing sovereignty in Australian affairs was evident soon after Federation when the British Parliament passed The Australian States Constitution Act 1907 (Imp). This required any Bill that “alters the constitution of the Legislature of the State” or the Governor’s salary “be reserved, for the signification of His Majesty’s pleasure”. The key piece of Imperial legislation as far as the functioning of the State constitutions in the twentieth century are concerned, though, was one passed in colonial times, more than three decades before Federation. To rectify a problem arising from eccentric judicial decisions in colonial South Australia invalidating local laws, the UK Parliament passed the Colonial Laws Validity Act 1865 (‘CLVA’) affirming the legislative authority of these self-­governing colonies.34 In addition to strengthening the authority of colonial legislatures to pass  Peter C. Oliver, The Constitution of Independence: the development of constitutional theory in Australia, Canada, and New Zealand (Oxford: Oxford University Press, 2005), 1. 31  K. C. Wheare, The Constitutional Structure of the Commonwealth (Oxford: Oxford University Press, 1960), 89. 32  The latter have even been described as “Australia’s statutes of independence”; Anne Twomey, The Australia Acts 1986: Australia’s statutes of independence (Leichhardt NSW: Federation Press, 2010). 33  Peter Johnston, “Freeing the Colonial Shackles: the first century of Western Australia’s Constitution,” in The House on the Hill: a history of the Parliament of Western Australia 1832–1990, ed. David Black (Perth: Parliament of Western Australia, 1991), 313. 34  Decisions by the “pig-headed jurist” Benjamin Boothby. See John M.  Williams, “Justice Boothby: a disaster that happened,” in State Constitutional Landmarks, ed. George Winterton (Leichhardt NSW: Federation Press, 2006), 50. 30

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laws inconsistent with those in force in “England”, with repugnancy only extending to laws that “extended to the colonies”, the Act’s section 5 confirmed that: Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts ... and to alter the Constitution thereof...; and every Representative legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all times to have had, full Power to make laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by an Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony.

However, the twist was in its concluding proviso: legislative alterations “respecting the Constitution, Powers and Procedure” of parliament had to be made in the Manner and Form required by any procedural rules existing or imposed. As we shall discuss in Chap. 8, this section created a legal conundrum that remains unresolved to this day and has shaped State constitutionalism for much of its history. Most importantly, it appeared to authorise State parliaments—an authority now continued by section 6 of the Australia Act 1986 (Cth & UK)—to impose binding “manner ­and ­form” requirements potentially via ordinary enactment that prevent subsequent State parliaments from altering the controlled matters through ordinary enactment. As we noted in the previous chapter, entrenchment is a natural element of constitutionalism, but not necessarily entrenchment achieved in this way. The CLVA’s section 5 raises two specific interpretive questions. First, are there any limits to what those “Manner and Form” requirements might be? Second, what is the scope of the provision’s reference to “laws respecting the Constitution, Powers, and Procedure” of the legislature? The ongoing significance of these questions is explored in further detail in Chap. 8. While the CLVA had an indubitable significance for as long as the colonies were colonies, the need for affirmation of their legislative authority naturally diminished once they became States of the Commonwealth. So too, one might think, would the Act’s significance as a regulator of the State constitutions (s. 5). This, however, has not been the case. As we shall explore in Chap. 8, the CLVA remained the basis on which issues of constituent power were resolved through most of the twentieth century. Similarly, while the High Court exercised jurisdiction over State constitutional issues, it was not the final court of appeal. State constitutional issues could be—and, indeed, were—appealed via section 74 of the Commonwealth Constitution, to the highest court of the British Empire, the Judicial Committee of the Privy Council (JCPC) in London.

3.3.2 The Statute of Westminster: Independence, or Not? In the aftermath of the First World War, when the British Dominions had asserted much stronger international personalities, the British government issued the “Balfour Declaration” of 1926 acknowledging the autonomy of the Dominions,

3.3  The Triangular Relationship

37

defined to include “the Commonwealth of Australia”.35 This was given legislative recognition with the enactment of the Statute of Westminster 1931 (Imp).36 That Act terminated the UK’s claim to legislate for the Dominions unless expressly requested and consented to, acknowledging their sovereign authority.37 More specifically, it declared that “The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.” There was resistance in Australia to independence, however, and only once the Labor Party came to power in 1941 did the Commonwealth Parliament give formal effect to this with passage of the Statute of Westminster Adoption Act in 1942.38 “The fact is, though, that Australia became an independent state on 11 December 1931. Dependence after that was all in the Australian mind.”39 In two quite obvious respects there was an incoherence to the Statute of Westminster. First of all, the fact that the UK Parliament cannot bind itself gives such a self-denying ordinance an unusual character. To some extent it is rescued from that awkward position by virtue of being a “constitutional statute” or “super statute” as per discussion in Chap. 2. Secondly, any decision about the application of British laws to Australia is much more a matter for Australia to decide than Britain—though, because of Australia’s constitutional founding, it was perceived as requiring action by the UK. In the Australian case (though not the Canadian), the Statute of Westminster involved a third and rather more significant “absurdity”,40 one directly relevant to the foundation of the State Constitutions: the States were explicitly exempted from its effect. In suggesting that the CLVA would continue to apply to the States while no longer applying to Australia as whole, the Statute of Westminster “attempted to perpetuate the nonsense ... that Australia was independent as a federal  It declared that Britain and its Dominions were “autonomous Communities within the British Empire equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth”. 36  An Act to Give Effect to Certain Resolutions Passed by Imperial Conferences Held in the Years 1926 and 1930. 37  Section 4 read: “No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion ... unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.” 38  An Act to remove Doubts as to the Validity of certain Commonwealth Legislation, to obviate Delays occurring in the Passage and to effect certain related purposes, by adopting certain Sections of the Statute of Westminster, 1931, as from the Commencement of the War between His Majesty the King and Germany. 39  W. J. Hudson and M. P. Sharp, Australian Independence: colony to reluctant kingdom (Carlton: Melbourne University Press, 1988), 7. Similarly: “legal sovereignty was acquired no later than 1931 and, perhaps, before this. ...while the Australian people acquiesced in a compact which formally entrusted a residue of powers to the imperial authorities, this constituted an expression of their exercise of authority to constitute their form of government in a particular way....” Paul Finn, “A Sovereign People, A Public Trust,” in Essays on Law and Government. Volume 1: principles and values, ed. P. D. Finn (North Ryde NSW: Law Book Co., 1995), 3. 40  Detmold, The Australian Commonwealth: a fundamental analysis of its constitution, 100–03. 35

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Commonwealth, but its States are not.”41 It meant treating “the State and Federal legislatures as if they operated in different countries.”42 This “bizarre situation”43 was created at the behest of the States, for whom continuing subservience to Westminster was preferable to a greater subservience to Canberra.44 Thus, sovereign Imperial authority over the States was seen as continuing right up until the passage of the Australia Act 1986 (Cth & UK), as per below. In The Constitution of Victoria, for example, Greg Taylor has even declared that: It is beyond question that the Imperial Parliament could, at any stage before the enactment of the Australia Act 1986 (Imp & Cth), have stepped into the Victorian scene and set aside, either by express enactment, repeal or the enactment of an inconsistent statute, any rule enacted by the Parliament of Victoria, including a rule restricting Parliament's power that Parliament had attempted to impose on itself.45

As Twomey notes, much of the States’ reluctance to sever their imperial ties derived from the protection those ties might provide against their “subordination to the Commonwealth Government”, and from (at least) a desire to avoid “the monarch … be[ing] advised in relation to State matters by Australian Ministers rather than British Ministers”.46

3.3.3 The Australia Act(s) and Australian Independence A century after it was passed, and over 80 years after the colonies united to form the Commonwealth of Australia, action was taken to address the rather anachronistic nature of the CLVA. Issues concerning the relationship between the State Governors, the Commonwealth and the UK were a stumbling block, but eventually resolved.47 Working in cooperation with the States, who passed “request” Acts directed at both

 Detmold, The Australian Commonwealth: a fundamental analysis of its constitution, 15.  Owen Dixon, “The Statute of Westminster 1931,” Australian Law Journal 10, no. Supplement (1936): 100. 43  Hudson and Sharp, Australian Independence: colony to reluctant kingdom, 5. Instead, the Statute of Westminster had the effect of “preserving the status quo” in relation to the CLVA and its application to the States: Anne Twomey, The Constitution of New South Wales (Leichhardt NSW: Federation Press, 2004), 60. But as Twomey notes, provisions such as ss 9 and 11 still had potential legal implications for the States. 44  Anne Twomey, “The Making of the Australia Acts 1986,” in State Constitutional Landmarks, ed. George Winterton (Leichhardt NSW: Federation Press, 2006), 268. 45  Greg Taylor, The Constitution of Victoria (Leichhardt NSW: Federation Press, 2006), 469. This does rather stretch credulity. 46  Twomey, The Constitution of New South Wales, 61. 47  Twomey, “The Making of the Australia Acts 1986.” 41 42

3.3  The Triangular Relationship

39

the Commonwealth and UK Parliaments,48 the Commonwealth Parliament passed the Australia Act 1986.49 The British Parliament enacted the Australia Act 1986 (UK), in verbatim form, which was proclaimed during Queen Elizabeth II’s visit to Australia in March 1986. It is because of this dual enactment that they have taken on the “compendious name” Australia Acts.50 The Australia Act came into effect at 0500 GMT on 3 March 1986. The Australia Act(s), provided that “[n]o Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory”. By section 3, the Act provided that the CLVA would no longer apply to any law made after the commencement of the Australia Act(s) by a State Parliament. This meant that prospective State laws could be repugnant to UK laws—although section 5 expressly excluded from this the Commonwealth of Australia Constitution Act 1900 (Imp) and the Statute of Westminster 1931 (Imp). Section 14 expressly amended the WA’s Constitution Act 1889 by deletions to parts of sections 50 and 51. Section 10 makes clear that UK Ministers are not to be responsible for State matters while section 11, subject to the operation of section 11(4) had the effect of terminating appeals from the State and Territory courts to the Privy Council. As one High Court Justice expressed it, in severing those residual ties, the Australia Acts “brought legal and constitutional theory into line with reality”.51 In doing so, however, it had to resolve the problem that section 5 of the CLVA’s was the anchor of State constitutionalism; without that, the State constitutions would be seriously adrift. The expedient adopted was to import the proviso of clause 5 into the Australia Act, where it was re-born as section 6. Just as with the Colonial Laws Validity Act before it, there are some significant anomalies with the Australia Act(s). The first of these relates to the residue of that triangular relationship: then enactment of a twin statute in the UK (at the request and with the consent of Australia, to use the language of the Statute of Westminster). At the extreme, this deferential respect for residual British authority has been defended on the basis that Australian politics and jurisprudence have operated on the assumption of a continuing Imperial role, and to suppose otherwise “simply  Western Australia’s legislation, the Australia Acts (Request) Act 1985, saw the WA Parliament “request the enactment by the Parliament of the Commonwealth” of a scheduled Act (s 3) and the WA Parliament and Government “request and consent to the enactment by the Parliament of the United Kingdom” of a further scheduled Act (s 4). 49  “An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation.” 50  Tony Blackshield, “Australia Acts,” in The Oxford Companion to the High Court of Australia, ed. Tony Blackshield, Michael Coper, and George Williams (South Melbourne: Oxford University Press, 2001), 43. 51  Sir Anthony Mason, “Future Directions in Australian Law,” Monash University Law Review 13, no. 3 (1987): 149. 48

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leads to constitutional chaos”.52 Others, rather less sensationally, have seen this nod to Imperial authority as reflecting merely “abundant caution”.53 Yet others have gone further, characterising it as “an excess of caution”—one that “casts light on the Australian constitutional psyche” in a telling way.54 Finally, there is the view that arranging to have the UK Parliament legislate for Australia in 1986 was an entirely misplaced caution. Giving his dissenting opinion in the High Court’s Marquet decision of 2003 we examine in Chap. 8, Kirby J characterised the notion as “absurd”:55 I deny the right of that Parliament in 1986 (even at the request and by the consent of the constituent Parliaments of Australia) to enact any law affecting in the slightest way the constitutional arrangements of this independent nation. The notion that, in 1986, Australia was dependent in the slightest upon, or subject to, the legislative power of the United Kingdom Parliament for its constitutional destiny is one that I regard as fundamentally erroneous both as a matter of constitutional law and of political fact. Indeed, I regard it as absurd.

The second question concerns the authority of the Commonwealth legislation itself. How does ordinary legislation of the Commonwealth exercise control over the State constitutions? The answer as far as the Act itself is concerned lies in “paragraph 51(xxxviii) of the Constitution”.56 In the words of that section, “Parliament shall, subject to this Constitution, have the power to make laws … with respect to:” The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.

If, for Kirby J the UK enactment was manifestly insupportable, the Australian enactment was clearly insufficient: this “obscure and inscrutable” clause simply cannot carry the burden being place on it.57 However desirable particular provisions of the Australia Act 1986 (Cth) may seem to be, it is a statute of one constituent part of the Commonwealth purporting to alter the Constitutions of other constituent parts of the Commonwealth made without the one essential and undoubted “entrenched” requirement for such alterations, namely the participation of the

 Twomey, The Australia Acts 1986: Australia’s statutes of independence, 380 and passim.  Blackshield, “Australia Acts,” 44. 54  Cheryl Saunders, “The Constitutional Credentials of State Constitutions,” Rutgers Law Journal 42, no. 4 (2011): 866. 55  Attorney-General (WA) v Marquet (2003) 217 CLR 545, at 203. The resolutely orthodox response is that Kirby J’s “claim might seem to be obviously refuted by the fact that, in 1986, every Australian government and Parliament, and most judges, thought otherwise”. Jeffrey Goldsworthy, “Manner and Form Revisited: reflections on Marquet’s case,” in Law and Government in Australia, ed. Matthew Groves (Leichhardt NSW: Federation Press, 2005), 42. 56  Australia Act 1986 (Cth). 57  Kirby J quoting Gregory Craven, Secession: the ultimate States right (Carlton: Melbourne University Press, 1986), 176. Attorney-General (WA) v Marquet (2003) 217 CLR 545, fn 216. 52 53

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electors of the Commonwealth in an amendment approved by them in accordance with s 128.58

However, the rest of the Court was untroubled by such concerns. In Carney’s view, this is justified by the fact that “any change to a State Constitution made by a Commonwealth law under s 51 (xxxviii) only occurs at the request or with the concurrence of that State Parliament”.59

3.4 Secession? Western Australia’s initial reluctance to join the federation reflected an ambivalence that has been an undercurrent ever since. At one point, though, it erupted quite dramatically. In 1933, Western Australians voted by a convincing two-to-one majority to secede from the Commonwealth—accompanied by secessionist anthems such as “This Bit of the World Belongs to Us” which sang: We’re following the flag of West Australia, Western Australia The same old songs the same old speech Dear Old Groper Land is Good Enough for Each We’ll all stand together boys if the east wants a flutter or a fuss And we’re Hanging Out the sign from the Leeuwin to the line “This Bit of the World Belongs to us!”60

It culminated in a petition to the British Parliament. On 17 December 1934, a crisp London breeze unfurled the flag of the Dominion League of Western Australia, which had been hoisted atop Savoy House, the offices of the State's Agent-General in London. The League, spearhead of the Western Australian secession movement, intended the flag to become the national symbol of the self-governing Dominion of Western Australia upon the favourable reception of the State’s Petition to secede from the Commonwealth of Australia. It was a moment of triumph.61

Secession has always been a very troubling issue for federations, with the democratic principle of self-determination clashing with the federal principle that members commit themselves to staying until death do them part.62 The Western Australian experience had economic, political and constitutional dimensions. The “moment of triumph” was, though, very short-lived.  Attorney-General (WA) v Marquet, at 207. Kirby J’s independent-mindedness here, choosing to “reason from first principles” rather than “follow well-trodden paths”, has been rejected by one expert as “surely mistaken”. Goldsworthy, “Manner and Form Revisited: reflections on Marquet’s case,” 41. 59  Gerard Carney, The Constitutional Systems of the Australian States and Territories (Cambridge: Cambridge University Press, 2006), 70. 60  https://webarchive.slwa.wa.gov.au/federation/sec/052_son1.htm (accessed 5 April 2023). 61  Christopher W.  Besant, “Two Nations, Two Destinies: a reflection on the significance of the Western Australian secession movement to Australia, Canada and the British Empire,” University of Western Australia Law Review 20, no. 1 (1990): 212. 62  Hueglin and Fenna, Comparative Federalism: a systematic inquiry, 33–34 and passim. 58

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3.4.1 The Referendum Economic concerns about the loss of the local tariff and the cost burden of the national tariff underlying Western Australia’s original hesitancy became endemic grievances in the early decades of federation.63 Meanwhile, the decisive centralising turn in High Court jurisprudence in the 1920s with the Engineers and Roads decisions added a further layer of concern.64 It was the Great Depression, however, that proved decisive—greatly exacerbating the State’s economic problems and turning public opinion towards radical alternatives in the early 1930s. The WA Parliament passed the Secession Referendum Act in 1932 and in April 1933, two-thirds of voters answered “yes” to the question “Are you in favour of the State of Western Australia withdrawing from the federal Commonwealth established under the Commonwealth of Australia Constitution Act (Imperial)?”

3.4.2 What Next? Convincing the State’s citizens to choose secession turned out to be the easy part; turning expressed preferences into action was a lot more difficult. Here the State was in a real quandary. A unilateral declaration of independence was too radical to contemplate. A second scenario—secession via an amendment of the Commonwealth Constitution—was, for at least two reasons, a non-starter. First, that would require the support of the Commonwealth parliament, a majority of voters across the country,65 and a majority of voters in a majority of States. Second, the relevant constitutional clauses are not in the Commonwealth Constitution itself but covering clauses of the Commonwealth of Australia Constitution Act 1900 (Imp) and thus not, from section 128’s express terminology, within the scope of its amending procedure.66  G. S. Reid, “Western Australia and the Federation,” in Essays on Western Australian Politics, ed. Ralph Pervan and Campbell Sharman (Nedlands WA: University of Western Australia Press, 1979). These grievances were spelled out in the WA parliament’s official case for secession. Western Australia, The Case of the People of Western Australia in support of their desire to withdraw from the Commonwealth of Australia established under the Commonwealth of Australia Constitution Act (Imperial), and that Western Australia be restored to its former status as a separate self-governing colony in the British Empire. 64  Thomas Musgrave, “The Western Australian Secessionist Movement,” Macquarie Law Journal 3 (2003): 102–03. 65  Excluding those living in the Territories, who did not have the right to vote in s 128 referendums until 1977. 66  Craven, Secession: the ultimate States right. Musgrave, “The Western Australian Secessionist Movement,” 108. James A. Thomson, “Altering the Constitution: some aspects of section 128,” Federal Law Review 13, no. 3–4 (1983): 331–34. However, others take the view that these clauses could also be brought within section 128’s remit; see George Williams and David Hume, People Power: the history and future of the referendum in Australia (Sydney: UNSW Press, 2010), 14. 63

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Even attempts to recommend greater flexibility be inserted into the Statute of Westminster failed.67 In the House of Representatives, the Federal Member for Perth, The Hon Walter Nairn MP proposed an addition to what became section 4 in the Statute of Westminster: Provided that this section shall not prevent the Parliament of the United Kingdom from enacting, upon the request of the Parliament and of the Government of any of the States of the Commonwealth of Australia, an act to enable the separation of any of the States from the Commonwealth of Australia, or the establishment of new States within the said Commonwealth.68

Nairn explained that rather than deriving from a desire for secession: It only continues to dissenting people in different parts of the Commonwealth the existing power to obtain relief from the British Parliament which they may not be able to get from the Commonwealth Parliament…. if there is on the part of any section of the people a unanimous desire to retire from the federation, I do not think that the other sections of the Commonwealth should attempt to compel them to remain in it…. I do not believe in having a Commonwealth which is kept together by compulsion. Success is never obtained by compulsion.69

That left as the only recourse a petition to the UK Parliament, which was submitted after Western Australia passed the Secession Act in 1934. That this avenue was as equally a dead end as the other two is easy to see—although apparently not for the petitioners. The notion of the UK Parliament legislating to break up Australia 3 years after the Statute of Westminster had been passed was a preposterous one. A UK Joint Committee considered whether the petition should even be received.70 Unsurprisingly, the committee’s response was that Britain was not in a position to interfere in the internal affairs of an independent Dominion: It is clearly only at the request of the Government and Legislature primarily concerned that the Parliament of the United Kingdom can be entitled to legislate…. The State of Western Australia, as such, has no locus standi…it would be constitutionally incompetent for the Parliament of the United Kingdom to take, except upon the definite request of the Commonwealth of Australia conveying the clearly expressed wish of the Australian people as a whole.71

The COVID-19 pandemic, and the WA government’s decision to close the State border from early 2020 through to early 2022, prompted a revival in secessionist

 Twomey, The Constitution of New South Wales, 58.  House of Representatives, Parliamentary Debates, 28 July 1931, 4488. 69  House of Representatives, Parliamentary Debates, 28 July 1931, 4488–9. 70  British Parliamentary Papers, Report by the Joint Committee of the House of Lords and the House of Commons appointed to consider the Petition of the State of Western Australia (London, 1935): https://nla.gov.au/nla.obj-851418164/view?partId=nla.obj-851418540#page/n2/mode/1up. 71  British Parliamentary Papers, Report by the Joint Committee of the House of Lords and the House of Commons appointed to consider the Petition of the State of Western Australia (London, 1935): https://nla.gov.au/nla.obj-851418164/view?partId=nla.obj-851418540#page/n2/ mode/1up 5–6. 67 68

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sentiment.72 Quite aside from the substantial constitutional difficulties, secession raises not-insignificant practical issues, such as the need for an independent military, currency and all the trappings which go with a nation-state. It is for this reason that while secessionist rumblings in the State come and go, it is often more a reflection of sub-national disquiet at being overlooked or passed over than a genuinely conceived plan to break away from the rest of Australia.

3.5 In Summary Britain’s Australian colonies voluntarily entered a federal union on 1 January 1901 after a decade of discussion, constitutional drafting and popular ratification. All were self-governing political systems with their own constitutional frameworks and under the terms of the new Commonwealth Constitution and some imperial enactments, the great bulk of those powers as well as their respective constitutions were retained. Western Australia joined at the 11th hour, with some hesitancy, as a natural consequence of having gained self-government so very recently and perceiving a number of economic risks. Those risks proved quite real, and underpinned the extraordinary action in 1933 of holding a secession referendum and the perhaps even more extraordinary result. That secession was supported by two-thirds of voters did little, however, to reduce the insurmountable political and legal obstacles. Constitutionally, the outcome of federation was a messy one for the States. The colonies became the constituent parts of the Commonwealth of Australia, subject to the Commonwealth Constitution, but at the same time they retained a residual but important constitutional foundation in Imperial legislation passed during colonial times. The result has been a number of “absurdities” concerning the timing and nature of Australian independence and the capacity of either the Commonwealth or the British parliament to establish new foundations for the State constitutions. These particularly concern the legal grounds on which State parliaments can entrench their constitutional statutes by enacting “manner and form” requirements. That story is the focus of Chap. 8.

 Jenna Clarke, “1-in-3 say it’s time for WAxit”, The West Australian, 1 August 2020, 10. The border closure was challenged as a violation of s 92 of the Commonwealth Constitution’s stipulation that “trade, commerce and intercourse among the States … shall be absolutely free”. However, the closure was eventually upheld by the High Court as a valid exception to s 92 in Palmer v. The State of Western Australia HCA 5 (2020). On federalism in the pandemic, see Alan Fenna, “Australian Federalism and the COVID-19 Crisis,” in Federalism and the Response to COVID-19: a comparative analysis, ed. Rupak Chattopadhyay et al. (Abingdon: Routledge, 2021). 72

References

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References Appleby, Gabrielle, Anna Olijnyk, James Stellios, and John Williams. 2021. Judicial Federalism in Australia: History, Theory, Doctrine and Practice. Leichhardt: Federation Press. Aroney, Nicholas. 2009. The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution. New York: Cambridge University Press. Besant, Christopher W. 1990. Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire. University of Western Australia Law Review 20 (1): 209–310. Blackshield, Tony. 2001. Australia Acts. In The Oxford Companion to the High Court of Australia, ed. Tony Blackshield, Michael Coper, and George Williams. South Melbourne: Oxford University Press. Bolton, Geoffrey. 2000. The Greatest Miracle of All: Western Australia Joins the Federation. Early Days: Journal of the Royal Western Australian Historical Society 11 (6): 713–726. Carney, Gerard. 2006. The Constitutional Systems of the Australian States and Territories. Cambridge: Cambridge University Press. Craven, Gregory. 1986. Secession: The Ultimate States Right. Carlton: Melbourne University Press. Crommelin, Michael. 1992. Chap. 3: The Federal Model. In Australian Federation: Towards the Second Century, ed. Gregory Craven, 33–48. Carlton: Melbourne University Press. de Garis, Brian. 1999. Chap. 6: Western Australia. In The Centenary Companion to Australian Federation, ed. Helen Irving, 285–325. Cambridge: Cambridge University Press. Detmold, M.J. 1985. The Australian Commonwealth: A Fundamental Analysis of Its Constitution. North Ryde: The Law Book Company. Dixon, Owen. 1936. The Statute of Westminster 1931. Australian Law Journal 10 (Supplement): 96–100. Fenna, Alan. 2008. Commonwealth Fiscal Power and Australian Federalism. University of New South Wales Law Journal 31 (2): 509–529. ———. 2019. The Centralization of Australian Federalism 1901–2010: Measurement and Interpretation. Publius 49 (1): 30–56. https://doi.org/10.1093/publius/pjy042. ———. 2021. Chap. 3: Australian Federalism and the Covid-19 Crisis. In Federalism and the Response to Covid-19: A Comparative Analysis, ed. Rupak Chattopadhyay, Felix Knüpling, Diana Chebenova, Liam Whittington, and Phillip Gonzalez, 17–29. Abingdon: Routledge. Finn, Paul. 1995. A Sovereign People, a Public Trust. In Essays on Law and Government. Volume 1: Principles and Values, ed. P.D. Finn. North Ryde: Law Book Co. Galligan, Brian, and James Warden. 1986. The Design of the Senate. In The Convention Debates 1891–1898: Commentaries, Indices and Guide, ed. Gregory Craven, 89–111. Sydney: Legal Books. Goldsworthy, Jeffrey. 2005. Manner and Form Revisited: Reflections on Marquet’s Case. In Law and Government in Australia, ed. Matthew Groves, 18–43. Leichhardt: Federation Press. Hirst, John. 2000. The Sentimental Nation: The Making of the Australian Commonwealth. Melbourne: Oxford University Press. Hudson, W.J., and M.P.  Sharp. 1988. Australian Independence: Colony to Reluctant Kingdom. Carlton: Melbourne University Press. Hueglin, Thomas O., and Alan Fenna. 2015. Comparative Federalism: A Systematic Inquiry. 2nd ed. Toronto: University of Toronto Press. Johnston, Peter. 1991. Chap. 10: Freeing the Colonial Shackles: The First Century of Western Australia’s Constitution. In The House on the Hill: A History of the Parliament of Western Australia 1832–1990, ed. David Black, 313–342. Perth: Parliament of Western Australia. Mason, Sir Anthony. 1987. Future Directions in Australian Law. Monash University Law Review 13 (3): 149–163. McMinn, W.G. 1979. A Constitutional History of Australia. Melbourne: Oxford University Press. Mueller, Sean, and Alan Fenna. 2022. Dual Versus Administrative Federalism: Origins and Evolution of Two Models. Publius 52 (4): 525–552.

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Musgrave, Thomas. 2003. The Western Australian Secessionist Movement. Macquarie Law Journal 3: 95–129. Oliver, Peter C. 2005. The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand. Oxford: Oxford University Press. Parliament of Western Australia. 1934. The Case of the People of Western Australia in Support of Their Desire to Withdraw from the Commonwealth of Australia Established Under the Commonwealth of Australia Constitution Act (Imperial), and That Western Australia Be Restored to Its Former Status as a Separate Self-Governing Colony in the British Empire. Perth: Government of Western Australia. Reid, G.S. 1979. Chap. 1: Western Australia and the Federation. In Essays on Western Australian Politics, ed. Ralph Pervan and Campbell Sharman, 3–18. Nedlands: University of Western Australia Press. Saunders, Cheryl. 2011. The Constitutional Credentials of State Constitutions. Rutgers Law Journal 42 (4): 853–880. Taylor, Greg. 2006. The Constitution of Victoria. Leichhardt: Federation Press. Thomson, James A. 1983. Altering the Constitution: Some Aspects of Section 128. Federal Law Review 13 (3–4): 323–345. Twomey, Anne. 2004. The Constitution of New South Wales. Leichhardt: Federation Press. ———. 2006. Chap. 10: The Making of the Australia Acts 1986. In State Constitutional Landmarks, ed. George Winterton, 267–297. Leichhardt: Federation Press. ———. 2010. The Australia Acts 1986: Australia’s Statutes of Independence. Leichhardt: Federation Press. Wheare, K.C. 1960. The Constitutional Structure of the Commonwealth. Oxford: Oxford University Press. Williams, John M. 2006. Chap. 1: Justice Boothby: A Disaster That Happened. In State Constitutional Landmarks, ed. George Winterton, 21–51. Leichhardt: Federation Press. Williams, George, and David Hume. 2010. People Power: The History and Future of the Referendum in Australia. Sydney: UNSW Press. Zines, Leslie. 1986. The Federal Balance and the Position of the States. In The Convention Debates 1891–1898: Commentaries, Indices and Guide, ed. Gregory Craven, 75–87. Sydney: Legal Books.

Chapter 4

Origins of the WA Constitution: Framers, History and Documents

The history of what is now Western Australia (WA) did not begin with extensive exploration.1 Nor with the British military decampment in Albany in 1826 or the Swan River Colony established 3 years after.2 As Lesley Morrison (Bindjareb) writes: For thousands of years you walked this land Warriors great and filled with pride Secure in the knowledge that you belong You fought to keep your culture strong…3

 J. S. Battye, Western Australia: a history from its discovery to the inauguration of the Commonwealth (Oxford: Clarendon Press, 1924), Chapters 1–3; F. K. Crowley, Australia’s Western Third: a history of Western Australia from the first settlements to modern times (London: Macmillan, 1960), 1; Reginald T. Appleyard and Toby Manford, The Beginning: European discovery and early settlement of Swan River Western Australia (Nedlands WA: University of Western Australia Press, 1979), 9–36; Patrick L. Dodson, Regional Report of Inquiry into Underlying Issues in Western Australia, Royal Commission into Aboriginal Deaths in Custody (Canberra, 1991), 12–13. 2  Western Australia Act 1829 (Imp), 10 Geo IV, c 22 (14 May 1829), with Captain James Stirling issuing a formal proclamation of the founding of a “Settlement … within the Territory of Western Australia” on 18 June 1829 (Enid Russell, A History of the Law in Western Australia from its Development from 1829 to 1979 (Nedlands WA: University of Western Australia Press, 1980) Appendix III, 334). While there were general instructions for Stirling from the Colonial Secretary Sir George Murray dated 30 December 1828 ‘to assume the Title of Lieutenant Governor’ and regulating requirements in relation to land and resolving disputes noting that ‘difficulties may easily be anticipated in the course of your proceedings, from the absence of all civil institutions, legislative, judicial or financial’ and that ‘ample instructions will at a future period be prepared’ (Russell, above n X, Appendix II, 331), Thomson notes that the relevant Letters Patent appointing Stirling as Governor and Commander-in-Chief were only provided in March 1831: James A. Thomson, “Western Australia,” Public Law Review 3, no. 1 (1992); extracted in Russell, above, Appendix IV 336ff. Crowley (above n 2, 9) notes that it was some 8 months before Stirling received the official missive. 3  Lesley Morrison, ‘Death of the Innocent’ in Natalie Contos, Theo A. Kearing and the Murray Districts Aboriginal Association and Len Collard and Dave Palmer, Pinjarra Massacre Site Research and Development Project: Report for Stage 1 (Murray Districts Aboriginal Association, 1998) iv. 1

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As Chap. 5 discusses, Western Australia was inhabited only by Aboriginal peoples for thousands of years prior to these relatively recent events. In this chapter, we trace the early history of the WA colony and its fight for self-government and its own Constitution—which it finally achieved in 1890, well after the other colonies. Its struggle for recognition as a colony able to regulate its own affairs then fed into its reluctance to join the federation and its later frustrations in being part of this union. The chapter also sheds light on the complexity in Western Australia’s constitutional documents which developed within a decade of achieving self-government, complexity which affects the State’s Constitution to this day.

4.1 ‘So Western Australia for Me’:4 Dreams of Self-Government For Western Australian settlers, the achievement of self-government proved an arduous task. When it finally came, in October 1890, WA was more than 30 years behind Queensland, the last of the other colonies to be granted self-governance (1859).5 WA was also the last colony to cease receiving convicts from the United Kingdom, with transportation ending in 1868, some 28  years after the other Australian colonies and, as a result, the subject of derision.6

 From a  ballad written by lawyer George Fletcher Moore extracted in  Pamela Statham-Drew, James Stirling: admiral and  founding governor of  Western Australia (Crawley WA: University of Western Australia Press, 2003) 197, which he performed in 1831 at a ball in Government House: 4

…Then let every one earnestly strive, Sirs, Do his best, be alert and alive, Sirs, We’ll soon see our colony thrive, Sirs, So Western Australia for me…. See also C. T. Stannage, The People of Perth: a social history of Western Australia’s capital city (Perth: Perth City Council, 1979), 28 where he said that around 180 guests attended and that festivities went on until 5 am. 5  For a detailed discussion see: Sarah Murray and James A.  Thomson, “A Western Australian Constitution? Documents, difficulties and dramatis personae,” University of Western Australia Law Review 36, no. 2 (2013). 6  Battye, Western Australia: a history from its discovery to the inauguration of the Commonwealth 246 (Battye estimates that by this date the number of convicts in Western Australia numbered just over 9700). Crowley, Australia’s Western Third: a history of Western Australia from the first settlements to modern times, 18.

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4.1.1 Colonial Administration Between 1829 and 1890, the colony went through iterative shifts towards constitutional independence hampered by British misgivings and local apprehensions. British support for the colony, both administratively and financially, was limited and patchy partly due to other colonial priorities and doubts about the colony’s likely success. In addition, the colony was perceived by the Colonial Office as more entrepreneurial than governmental venture and hence as not requiring the same financial backing as other Australian colonies.7 Early administration of the colony was exercised by the concentration of power in the hands of Governor Stirling.8 An Executive Council that functioned “like a cabinet”9 was controlled by the Governor (in terms of its agenda and decision making power) and included the Senior Officer of Land Forces, the Colonial-Secretary of Western Australia, the Surveyor General and the Advocate General.10 The membership of the Executive Council overlapped with the appointees of the unicameral law-making body, the Legislative Council, and the Council’s legislative agenda was entirely within the Governor’s control (on Executive Council advice). Certain matters were, however, outside of his authority such as divorce, establishing title or naturalisation of aliens or very limited such as in relation to laws affecting British trade, prerogatives or subjects’ property, with these being controlled by Britain.11 It was also the case that the Colonial Office had the power of veto over colonial legislation and this power was employed on several occasions.12 The governance structure meant that no local settlers formed part of either Council, other than those with colonial commissions. It was not until March 1839 that concessions resulted in four settlers being appointed to the Legislative Council as “representatives of the interests of your fellow Colonists”.13

 Pamela Statham, “Swan River Colony 1829–1850”, in A New History of Western Australia, ed. C. T. Stannage (Nedlands WA: University of Western Australia Press, 1981), 181, 83; Stannage, The People of Perth: a social history of Western Australia’s capital city, 7. 8  Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 193. 9  Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 36. 10  Crowley, Australia’s Western Third: a history of Western Australia from the first settlements to modern times, 10; Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, Appendix IV, Instructions to as the Office of the Governor 342–50. 11  Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 40, 36, Appendix IV, Instructions to as the Office of the Governor, 345. 12  Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 44–45. 13  Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 37. 7

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4.1.2 Towards Representative Government In 1850 the British Parliament passed the Australian Colonies Government Act 1850 (Imp),14 which in addition to hiving off the Port Phillip district from New South Wales to create the colony of Victoria, granted the colonies the right to propose their own schemes of representative self-government and extended the application of earlier Australian Constitution Act iterations to the colonies.15 This enactment replaced the existing governmental arrangements including those provided in the Western Australia Act 1829 (Imp) and provided for Western Australia to petition for a two-thirds elected, one-third appointed, Legislative Council.16 Subsequently, various attempts either failed or brought limited representation for another 20 years. It must be remembered that convict transportation to Western Australia only ceased in 1868, and as late as 1884, the colony’s settler population was a mere 33,000.17 Finally, in 1870, a Legislative Council of 12 elected and 6 appointed members was instituted, with its size increased at various intervals in the following years.18 With this change, the colony was expected to fund its own governmental expenses.19 However, the dominant position of the Governor meant that the colony operated far from anything resembling responsible government. The Governor still controlled the legislative and executive agenda and retained the power of veto,20 making the Council “little more than an exclusive debating society”.21

 Also known as the Australian Constitutions Act 1850 (Imp).  An Act for the Better Government of Her Majesty’s Australian Colonies. W.  G. McMinn, A Constitutional History of Australia (Melbourne: Oxford University Press, 1979): 47. For example, the Australian Constitutions Act 1842 (Imp)—also known as New South Wales Constitution Act 1842 (Imp)—which was “An Act for the Government of New South Wales and Van Diemen’s Land”, sought to provide for limited forms of representative government with significant gubernatorial limitations. 16  Section IX. 17  Brian de Garis, ‘Constitutional and Political Development, 1870–1890’, in David Black, ed., The House on the Hill: a history of the Parliament of Western Australia 1832–1990 (Perth: Parliament of Western Australia, 1991): 42. 18  Legislative Council Ordinance 1870 (WA); Murray and Thomson, “A Western Australian Constitution? Documents, difficulties and dramatis personae,” 11; R. D. Lumb, The Constitutions of the Australian States, 5th ed. (St Lucia: University of Queensland Press, 1991), 36–37. 19  Section IX ‘Provision be made for charging upon the Revenues of such Colony all such Part of the Expenses of the Civil Establishment thereof as may have been previously defrayed by Parliamentary Grants’. 20  Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 193–94; B.  K. de Garis, “Self-Government and the Emergence of the Political Party System 1891–1911,” in A New History of Western Australia, ed. C. T. Stannage (Nedland WA: University of Western Australia Press, 1981), 326, 28. 21  de Garis, “Self-Government and the Emergence of the Political Party System 1891–1911,” 326. 14 15

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4.2 The Coming of Responsible Government After a failed 1874 attempt by James Lee-Steere to get the Legislative Council to accept a Western Australian Constitution Bill introducing responsible government and popular sovereignty, it was the charismatic lawyer turned reformist parliamentarian Stephen Parker22 who took up the baton. Parker’s efforts were supported by Governor Weld and Parker kept his sights on constitutional independence even in the face of repeated opposition. In 1878, and again in 1882, he pushed for a WA Constitution Bill but was consistently thwarted, including by concerns of what a reduction in British colonial involvement might mean for the colony’s finances. His efforts resulted in a political shift in 1883 with a more pragmatic and ultimately successful Council motion to determine “the terms and conditions upon which Responsible Government will be granted to Western Australia”.23 The Colonial Office’s response to the motion was lukewarm. The prime concern of introducing responsible government was not only unresolved fiscal matters but also the geographically large size of the colony which would likely require the northern tract of WA to be separated off in the vicinity of Shark Bay.24 Parker was undeterred. He managed to pass Council motions in 1887 to proceed with constitutional reform with a responsible and accountable executive while retaining the colony’s territory intact.25 The concerns of the Colonial Office were numerous. It was not only the expanse of the territory that troubled Lord Knutsford but also the small population of the colony and whether a bicameral parliament would even be workable. There were also considerable reservations over the colony’s treatment of Aboriginal communities and the need for adequate financing of an Aborigines Protections Board.26 These concerns prompted the enactment of the Aborigines Act 1889 to regulate the appointment of members to the Board, supervise contracts of service and the establishment of Aboriginal reserves.27

 Wendy Birman and G.  C. Bolton, “Parker, Sir Stephen Henry (1846–1927),” in Australian Dictionary of Biography (Canberra: National Centre of Biography, Australian National University, 1988). https://adb.anu.edu.au/biography/parker-sir-stephen-henry-7957/text13853, published first in hardcopy 1988, accessed online 31 May 2022. 23  Western Australia, Parliamentary Debates, Legislative Council, 18 April 1883, 33; House of Commons Parliamentary Papers, Correspondence Respecting the Proposed Introduction of Responsible Government into Western Australia (June 1889), 1–2. 24  House of Commons Parliamentary Papers, Correspondence Respecting the Proposed Introduction of Responsible Government into Western Australia (June 1889), 3. 25  House of Commons Parliamentary Papers, Correspondence Respecting the Proposed Introduction of Responsible Government into Western Australia (June 1889), 12–18. 26  House of Commons Parliamentary Papers, Correspondence Respecting the Proposed Introduction of Responsible Government into Western Australia (June 1889), 31 August 1888, Lord Knutsford to Sir Napier Broome, 56–58. 27  As is the case in all other chapters, statutes are Western Australian unless otherwise indicated. 22

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A draft Constitution Bill28 was proposed and following an election at the beginning of 1889 was passed by the new Legislative Council and, like the example of New South Wales and Victoria, sent to the Colonial Office. Varied and legally complex explanations for UK enabling legislation persist, but essentially concern the potential legal inadequacies of a solely autochthonous Constitution.29 A slightly amended version of the resulting Western Australia Constitution Act 1889 (altering the Attorney-General’s pension) was appended as a Schedule to the Western Australia Constitution Bill 1890 (Imp).30 While the approval of the House of Lords was obtained by 16 July 1889 for the Bill, the British press were scathing. The Pall Mall Gazette referred to the “naughtiness” of granting territory “to a miserable handful of ex-convicts and others on the Swan River”31 while the Home News saw the “handing over of many thousands of valuable acres to a few thousand colonists [as] unwise and unnecessary”.32 The Times proclaimed that while: Western Australia [should] enjoy the privileges of self-government if such is the desire of the Colonists … that is not reason by the youngest and smallest Colony of the Australian Continent should be endowed with the greater part of what still remains of the Imperial patrimony of Great Britain.33

The Bill’s frosty reception in the House of Commons resulted in a decision to send a delegation from the colony comprising Stephen Parker, Governor Frederick Broome and Thomas Cockburn-Campbell.34 This delegation, encouraged by the other colonies,35 pushed their case successfully resulting in amendments by the House to the UK Enabling Bill granting control of the entire undivided colony (when it was evident that splitting the colony was unrealistic when a new northern colony would not be financially viable36) along with the “waste lands” of the Crown  As contemplated by s 32 Australian Colonies Government Act 1850 (Imp): Lumb, The Constitutions of the Australian States, 37. 29  See generally, Murray and Thomson, “A Western Australian Constitution? Documents, difficulties and dramatis personae,” 29–45. 30  An Act to Enable Her Majesty to assent to a Bill for conferring a Constitution on Western Australia. The enabling Act comprised a brief Preamble, eight clauses, and a Schedule being the Constitution Act 1889. 31  The Constitution Bill for Western Australia from the Debates in The Times with Articles from the English Journals (Charles Potter Government Printer, 1889), Pall Mall Gazette, 18 July 1889, 32. 32  The Constitution Bill for Western Australia from the Debates in The Times with Articles from the English Journals, The ‘Home News’, 19 July 1889, 32. 33  The Constitution Bill for Western Australia from the Debates in The Times with Articles from the English Journals, The ‘Times’, 12 July 1889, 27. 34  House of Commons Parliamentary Papers, Further Correspondence Respecting the Proposed Establishment of Responsible Government in Western Australia (February 1890), 12 November 1889, No 36, 28. 35  Brian de Garis, “Constitutional and Political Development, 1870–1890,” in The House on the Hill: a history of the Parliament of Western Australia 1832–1990, ed. David Black (Perth: Parliament of Western Australia, 1991), 55. 36  de Garis, “Constitutional and Political Development, 1870–1890,”, 55. 28

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to the bicameral legislature. The Enabling Act did, however, contemplate that the colony could be divided in the future.37 These amendments were agreed to by the House of Lords and the Enabling Act received royal assent on 25 July 1890, with royal assent to the scheduled WA Constitution Bill occurring on 15 August 1890.38

4.3 Implementing Self-Government The celebrations in the colony, with a population boosted by the goldrush at the time,39 were extensive on the arrival of the “popular”40 Governor William Robinson for his third gubernatorial term of office. The West Australian newspaper recounts that to loud cheers on 21 October 1890 he pronounced that: He felt great pride that such an important duty had been entrusted to him as the inauguration of the new Constitution, and it was his earnest wish that they should all work heartly together, in order to prove that Western Australia was in every way fit for the great change which had been conceded to her.41

Representative and responsible government was finally achieved. A Legislative Assembly with 30 elected property-holding members was established alongside an appointed 15-member Legislative Council (with one of the latter required to be a Minister).42 Section 2 bestowed on the WA Parliament the ability “to make laws for the peace, order, and good government of the colony” and, by virtue of the Enabling Act,43 had the power to amend or repeal the WA Constitution, subject to its manner and form provisions. The Constitution envisioned that the Council would transform to an elected body after 6 years or once the population hit 60,000 people “exclusive of Aboriginal natives”.44 To support the activities of the Aborigines Protection Board, section 70 required 1% of governmental revenue to be set aside for this purpose, as will be discussed in Chap. 5. As de Garis notes, “[t]his provision was galling to the colonists but was a just reflection on their callous treatment of the Aborigines”.45  Constitution Act 1890 (Imp), s 6.  Government Gazette of Western Australia, No 49, 30 October 1890, 806–808. Section 1 of the 1890 Enabling Bill authorised this act of assent stating ‘[i]t shall be lawful for her Majesty by Order in Council to assent to the scheduled Bill’. 39  Crowley, above n 2, 82. 40  John Nairn, Western Australia’s Tempestuous History – Vol 1 (North Stirling Press, 1975) 62. 41  ‘Our New Governor—The Journey from Albany to Perth’ West Australian 21 October 1890, 4. 42  See Constitution Act 1889 (WA), ss 6 and 11. 43  Constitution Act 1890 (Imp), s 5. 44  Constitution Act 1889 (WA), s 42. 45  de Garis, “Constitutional and Political Development, 1870–1890,” 57. Imperial instructions to “prevent and restrain all violence and injustice … against them” were markedly clear: Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, Appendix IV, Instructions to as the Office of the Governor, 34th, 350. 37 38

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4.3.1 Constitutional Elaboration As the colony developed and population increased (reaching the required 60,000 threshold in 189346), constitutional amendments proliferated: • The Constitution Act Amendment Act 1893 transformed the Legislative Council into a fully elective chamber; • The Constitution Act 1889 Amendment Act 1894 increased the size of the Legislative Assembly; and, • the Constitution Act Amendment Act 1896 made changes to parliamentary eligibility and voting districts. Constitutional reforms also resulted in the eligibility to stand being altered. All this amendment activity very soon left a complicated and confusing cluster of constitutional statutes. In a handful of years, WA had gone from having a single identifiable ‘constitution’ to having a fragmented one. The obvious solution was to consolidate the various alterations within the original 1889 Act. However, this was not the option chosen. Rather, the amending provisions were compiled into a new and separate Act, the Constitution Acts Amendment Act 1899, with Premier Forrest declaring that it would be: not wise nor in accord with precedent to altogether consolidate the Constitution Acts, because that would remove from the statute books the landmarks of the original constitution.47

And thus WA ended up with not one, but two, main constitutional statutes—a situation that has endured to this day. That there may well have been other motives for the creation of a tandem Constitution Act, however, than simply a commendable desire to retain “the landmarks of the original constitution” we discuss in Chap. 8.

4.4 Conclusion: A Colony of Disquiet—“The Little Colony of Western Australia”48 What is evident in this outline of Western Australia’s colonial parliamentary history is the degree to which the colony often took on an underdog status. Governor Stirling felt that the colony was neglected by the Colonial Office from the outset of the settlement’s establishment and that its interests and pecuniary and political needs were relegated to insignificance. “I believe” wrote Stirling “I am the first

 Russell, A History of the Law in Western Australia from its Development from 1829 to 1979, 196.  Western Australia, Parliamentary Debates, Legislative Assembly, 29 August 1899, 1033. 48  Sir George Grey statistical report 30 September 1838 referring to it “as often being stigmatised as a failure”, cited in Statham-Drew, James Stirling: admiral and founding governor of Western Australia, 362. 46 47

References

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Governor who ever formed a settlement without Commission, Laws, Instructions and Salary”.49 Resentment grew and led to continued protestations for more support from the Colonial Office which reinforced the sense that WA was a low colonial priority.50 Financial woes and recurrent periods of recession51 meant that the colony had been forced to rely on convicts for decades longer than other Australian colonies although it was never established with penal aspirations.52 The financial benefits this brought as well as the gold boom of the late 1800s meant that the colony considered its successes were very much due to its own efforts. It also became less isolated through technological advances including quicker methods of transportation and telegraphic communication.53 The colony’s exasperation was only heightened by the need for the 1889 London delegation of Parker, Cockburn Campbell and Broome as well as the unequal terms on which responsible government was contemplated as compared with the other Australian colonies when it was granted many years before.54 It is likely that without the persuasive efforts of this delegation, the colony would not have been able to convince the UK Parliament that the colony deserved responsible government. The pejorative reaction that the efforts of the delegation received, especially by the UK newspapers, made this reality only more palpable. It also meant that the celebrations that accompanied this new-found constitutional independence were all the more jubilant. The strained colonial relationship with the UK is further detailed in Chap. 5, which explores the haste with which WA sought to unravel one of the constitutional bargains that had been struck as a condition of self-government.

References Appleyard, Reginald T., and Toby Manford. 1979. The Beginning: European Discovery and Early Settlement of Swan River Western Australia. Nedlands: University of Western Australia Press. Battye, J.S. 1924. Western Australia: A History from Its Discovery to the Inauguration of the Commonwealth. Oxford: Clarendon Press. Birman, Wendy, and G.C. Bolton. 1988. Parker, Sir Stephen Henry (1846–1927). In Australian Dictionary of Biography. Canberra: National Centre of Biography, Australian National University.

 de Garis, “The First Legislative Council, 1832–1870,” 21, 23.  B.  K. de Garis, “Political Tutelage 1829–1890,” in A New History of Western Australia, ed. C. T. Stannage (Nedland WA: University of Western Australia Press, 1981), 297, 301. 51  Stannage, The People of Perth: a social history of Western Australia’s capital city, 124. 52  Statham, “Swan River Colony 1829–1850,” 181. 53  Stannage, The People of Perth: a social history of Western Australia’s capital city, 85. 54  See, e.g., Minutes of Evidence, 25 April 1890 (Stephen Parker’s evidence) in Report from the Select Committee on the Western Australian Constitution Bill together with the Proceedings of the Committee, Minutes of Evidence and Appendix (6 May 1890) 137. 49 50

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Crowley, F.K. 1960. Australia’s Western Third: A History of Western Australia from the First Settlements to Modern Times. London: Macmillan. de Garis, B.K. 1981a. Chap. 9: Political Tutelage 1829–1890. In A New History of Western Australia, ed. C.T. Stannage, 297–325. Nedlands: University of Western Australia Press. ———. 1981b. Chap. 10: Self-Government and the Emergence of the Political Party System 1891–1911. In A New History of Western Australia, ed. C.T. Stannage, 326–351. Nedlands: University of Western Australia Press. de Garis, Brian. 1991a. Chap. 3: Constitutional and Political Development, 1870–1890. In The House on the Hill: A History of the Parliament of Western Australia 1832–1990, ed. David Black, 41–62. Perth: Parliament of Western Australia. ———. 1991b. Chap. 2: The First Legislative Council, 1832–1870. In The House on the Hill: A History of the Parliament of Western Australia 1832–1990, ed. David Black, 21–40. Perth: Parliament of Western Australia. Dodson, Patrick L. 1991. Regional Report of Inquiry into Underlying Issues in Western Australia. Canberra: Royal Commission into Aboriginal Deaths in Custody. Lumb, R.D. 1991. The Constitutions of the Australian States. 5th ed. St Lucia: University of Queensland Press. Murray, Sarah, and James A.  Thomson. 2013. A Western Australian Constitution? Documents, Difficulties and Dramatis Personae. University of Western Australia Law Review 36 (2): 1–48. Russell, Enid. 1980. A History of the Law in Western Australia from Its Development from 1829 to 1979. Nedlands: University of Western Australia Press. Stannage, C.T. 1979. The People of Perth: A Social History of Western Australia’s Capital City. Perth: Perth City Council. Statham, Pamela. 1981. Chap. 5: Swan River Colony 1829–1850. In A New History of Western Australia, ed. C.T. Stannage, 181–210. Nedlands: University of Western Australia Press. Statham-Drew, Pamela. 2003. James Stirling: Admiral and Founding Governor of Western Australia. Crawley: University of Western Australia Press. Thomson, James A. Western Australia. Public Law Review 3, 1 (1992): 66–72.

Chapter 5

First Peoples and the WA Constitution

In exploring the history of Western Australia (WA), it is easy to conceive of time in accordance with only Western linear notions and structures. As Ambelin Kwaymullina (Palyku) has emphasised linear conceptions of time can fail to capture the ongoing damage from the present and past harms of colonisation, when “the degree to which humans have moved ‘away’ from traumatic events is not measured by the linear years that have passed since those events but rather, the extent to which affected relationships have been healed”.1 Some quoted historical passages in this chapter use out of date and pejorative terms used in the past. While noting the offensive nature of these terms today, quoting historical records, such as section 70, allow for an observation of the relationship between First Nations peoples and the colonisers in Western Australia and how First Nations peoples have been portrayed by the settler colonial record.2 This book cannot do justice to the immensity and diversity of the pre- or post-­ settlement history of Western Australia.3 The history of First Nations people,  Kwaymullina, “Respect, Relationships, Renewal: Aboriginal Perspectives on the Worlds of Tomorrow,” Westerly, 1 (2019): 134–35. 2  For recommended contemporary terminology refer to Reconciliation Australia, https://www.reconciliation.org.au/wp-content/uploads/2021/10/inclusive-and-respectful-language.pdf (accessed March 2023). 3  See First Nations works including: David Mowaljarlai and Jutta Malnic, Yorro: Everything Standing Up Alive (Perth: Magabala Books, 1993); Ambelin Kwaymullina, “The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution,” Studies in Western Australian History 30, (2016) 131. Clint Bracknell, “Kooral Dwonk-katitjiny (listening to the past): Aboriginal language, songs and history in south-western Australia,” Aboriginal History 38, (2014), 1; Len Collard and Clint Bracknell, “Beeliar Boodjar: An introduction to aboriginal history in the city of Cockburn, Western Australia,” Australian Aboriginal Studies 1 (2012), 86; Elder Doolann Leisha Eatts, “Doolann Leisha Eatts interview for South West Aboriginal Land and Sea Council”, 17 January 2007, https://www.noongarculture.org. au/doolann-leisha-eatts-talks-about-her-grandmothers-story-of-contact-with-the-europeans/; Sally Morgan, Tjalaminu Mia and Blaze Kwaymullina (eds), Heartsick for Country: Stories of Love, Spirit and Creation (Fremantle, Fremantle Press, 2008). 1

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including that which now forms part of WA history has been repeatedly silenced to the benefit of generations of white settlers.4 As Kwaymullina writes: The pervasive privileging of settler voices over those of Indigenous peoples is no accident; it is a necessary part of creating and sustaining settler-colonialism. If Indigenous law and life ways—and the knowledges that arise therefrom—had been accepted as equal to those of Western Europe, the very basis for claiming the land vanishes.5

For these reasons the settler notions of “terra nullius” and “destroy[ing] to replace”,6 sought to eclipse Aboriginal knowledge, cultures, lands and legal systems through British enactments, flags and force.7 Confronting resistance and the defiance of the First Nations peoples in Western Australia,8 colonial reactions were marked by violence to the land’s original inhabitants. This was in many acute forms, including dispossession, massacres, imprisonment and epidemics.9 It represented and represents a continuing denial and marginalisation of the realities of First Nations languages, knowledge and legal frameworks, and what Irene Watson (Tanganekald, Meintangk Boandik) has termed, “an ancient constitution through … ancient connections to law and country”.10 As Kwaymullina writes “the story of settler-­ colonisation” is “the story of many apocalypses”.11 It is this narrative which must be emphasised and re-told in chronicling Western Australia’s constitutional history. The WA constitutional provision of section 70 forms a key thread of this story. Section 70 was a mandatory stipulation that monies be set aside for the Aboriginal  Ambelin Kwaymullina, Living on Stolen Land (Perth: Magabala Books, 2020) 31–2; Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research, 8 no 4 (2006), 387, 390. 5  Kwaymullina, “Respect, Relationships, Renewal: Aboriginal Perspectives on the Worlds of Tomorrow”, 122. 6  Wolfe, “Settler Colonialism and the Elimination of the Native”, 388. 7  10 Geo IV, c 22 (1829) (Imp) with the Preamble referring to the legal fiction of “effect[ing of] a Settlement upon certain wild and unoccupied Lands on the Western Coast of New Holland and the Islands adjacent, which Settlements have received and are known by the Name of Western Australia”. See Patrick Dodson, Regional Report of Inquiry into Underlying Issues in Western Australia. Royal Commission into Aboriginal Deaths in Custody (Canberra: 1991), 12–13; Dylan Lino, “Indigenous Recognition.” In Australian Constitutional Values edited by Rosalind Dixon, 243, 244–49. Oxford: Hart, 2018. 8  Kwaymullina, Living on Stolen Land, ‘Stolen Land’, 3–6. 9  See, e.g., Natalie Contos in conjunction with Theo A. Kearing and the Murray Districts Aboriginal Association and Len Collard and Dave Palmer, Pinjarra Massacre Site Research and Development Project: Report for Stage 1 (Murray Districts Aboriginal Association, 1998); Ann Curthoys and Shino Konishi, “The Pinjarra Massacre in the Age of the Statue Wars,” Journal of Genocide Research 24, no. 4 (2022); See also Swan River Guardian 15 June 1837, extracted in Pamela Statham-Drew, James Stirling- Admiral and Founding Governor of Western Australia (Perth: UWA Press, 2003) 319 “the destruction of the Aborigines has been in the ratio 10 to 1”. See Dodson, Regional Report of Inquiry into Underlying Issues in Western Australia, Chapter 2. 10  Irene Watson, “Aboriginal Recognition: treaties and colonial constitutions, ‘we have been here forever…’,” Bond Law Review 30, no. 1 (2018), 12. 11  Ambelin Kwaymullina, Living on Stolen Land 5; Irene Watson “Aboriginal Recognition: Treaties and Colonial Constitutions ‘We have been here forever...’”, 8. 4

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population, required by the Colonial Office as a condition of self-government. Its subsequent deletion led to complex High Court litigation in Yougarla v Western Australia12 over a century later. The provision was resisted by the colonists as a stain on their reputation, but the real stain was its speedy removal from WA’s Constitution. Recent constitutional amendments have sought to recognise the State’s First Peoples, but have not acknowledged this constitutional history or the stories that surround it.

5.1 Section 70’s Constitutional Imposition Inclusion of section 70 was pivotal to granting self-government in Western Australia. Pressed for by the Colonial Office as a condition of responsible government, it stated: There shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund the sum of five thousand pounds mentioned in Schedule C. To this Act to be appropriated to the welfare of the aboriginal natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of aboriginal children (including half-castes), and in assisting generally to promote the preservation and well-being of the aborigines. The said annual sum shall be issued to the Aborigines Protection Board by the treasurer on warrants under the hand of the Governor, and may be expended by the said Board at their discretion, under the sole control of the Governor, anything in the Aborigines Protection Act, 1886, to the contrary notwithstanding. Provided always, that if and when the gross revenue of the colony shall exceed five hundred thousand pounds in any financial year, an amount equal to one per centum on such gross revenue shall, for the purposes of this section, be substituted for the said sum of five thousand pounds in and for the financial year next ensuing. If in any year the whole of the said annual sum shall not be expended, the unexpended balance thereof shall be retained by the said Board, and expended in the manner and for the purposes aforesaid in any subsequent year.

Importantly, section 70 stipulated three requirements: that £5000, or, once the gross colonial revenue exceeded £500,000 annually, 1% of the colony’s revenue, to be set aside for “welfare of the aboriginal natives”; that amount to be appropriated for the Aborigines Protection Board; and that any amendment would require reservation for her Majesty’s pleasure.13 As Kwaymullina explains: limited though it was and ultimately doomed though it proved to be, [section 70] was an attempt at achieving some kind of balance between those peoples who were here before and those who came after.14

 (2001) 207 CLR 344.  Constitution Act 1889, s 73. As is the case with the other chapters, all statutes are Western Australian unless otherwise indicated. 14  Kwaymullina, “The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution,” 136. 12 13

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5.1.1 A Constitutional Shame For the colonists, insertion of section 70, while ultimately accepted as a non-­ negotiable UK condition, represented an embarrassing affront. This was made clear in the testimony before the House of Commons Select Committee of Stephen Parker MLC, a member of the Western Australian delegation (discussed in Chap. 4), in response to questioning by Committee Member Mr. Wodehouse: Stephen Parker: I do not think that there would be any desire to alter the Aborigines’ Protection Board…. I look upon the Aborigines’ Protection Board as a very good idea; because, in the first place, it relieves the local ministry of all responsibility as regards the natives, and secondly, it places the control of the natives under a Board that cannot be actuated by any political motive. Mr Wodehouse: I thought that Sir Frederick Broome told us that the elected members of the Legislative Council were opposed to the Board? Stephen Parker: I believe that the majority were; but they were opposed to the Board more from sentiment than from any other idea. They looked upon the fact that the Aborigines’ Protection Board should be insisted upon the colony as implying that the colonists had not treated the natives well in the past. Mr Wodehouse: Do you think there would be any irritation felt in consequence of the retention of that arrangement? Stephen Parker: No, I do not.15

For Western Australia, section 70 was a clear source of shame when no other Australian colony had had such a condition imposed upon it.16 As Kirby J explained in Yougarla initiated to contest the constitutional validity of section 70’s repeal, section 70 arose from “energetic, and not always, harmonious, negotiations between the Imperial authorities and the Governor of Western Australia”.17 In 1897 the Premier, the Hon John Forrest MLA opined that:

 Report from the Select Committee on the Western Australian Constitution Bill together with the Proceedings of the Committee, Minutes of Evidence and Appendix, 25 April 1890, [2310]–[2312] (Mr Stephen Parker responding to Mr Wodehouse). See also The Constitution Bill for Western Australia from the Debates in The Times with Articles from the English Journals (Charles Potter Government Printer, 1889), House of Lords, 11 July 1889, 9 (Lord Knutsford). 16  Yougarla v Western Australia (2001) 207 CLR 344, [103] (Kirby J); Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia (Eyre and Spottiswoode, 1897), Legislative Council Message No 57, 23 October 1896, 161 (Hon S.H. Parker). 17  Yougarla v Western Australia (2001) 207 CLR 344, [104] (Kirby J). 15

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The Government were considered able to make laws and control the white inhabitants of the colony, and do everything necessary for the protection of life and property; but yet were not considered sufficiently worthy to make laws for the control of the poor aborigines.18

For the settlers, the sense that it slighted Western Australia did not go away. In 1892, Premier Forrest referred to section 70 in correspondence to the Governor as “unnecessary” and as an “unjust stigma” and a “grave reflection on the honour and integrity of the people of the Colony … have not deserved to be branded as an unjust and inhumane people”.19 However, the treatment of Aboriginal people had been overwhelming characterised by harm, denigration and violence and 1890 parliamentary debates are also laden with comments expressing ill regard, indifference or callousness to Aboriginal peoples and their concerns.20 Indeed, the Aborigines Protection Board described the prior treatment as “the subject of mere chance” and that it at times became “gross, cruel and notorious”.21

5.1.2 Constitutional Erasure It was not long before the WA Parliament, having achieved the long-sought self-­ government, attempted to expunge section 70 from the Constitution Act 1889. This was in spite of assurances that had been made at the time of enactment. The reasons for this were tied up in not only colonist discomfort at the provision, but also frustrations with the operations of the Aborigines Protection Board and its lack of financial accountability.22 Premier Forrest contended that: [the Board was] not in a position which enabled them to properly carry out the grave duties entrusted to them. They were dispensers of charity, looking after the sick, and giving here a

 Western Australia, Parliamentary Debates, Legislative Assembly, 11 November 1897, 394 (John Forrest, Premier). 19  Western Australia. Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia, London, 1897, Letter from John Forrest to his Excellency, the Governor, (22 November 1892), Enclosure 1 in No 12, 18. 20  Western Australia, Parliamentary Debates, Legislative Assembly, 19 October 1896, 1135 (John Forrest, Premier: ‘A native is exposed to the weather, for he does not wear clothing, and his skin gets hard, and in consequence the cat-o’-nine-tails has not much effect upon him); Western Australian, Parliamentary Debates, Legislative Assembly, 11 November 1897, 397 (Francis Connor); Western Australian, Parliamentary Debates, Legislative Assembly, 11 November 1897, 398 (Mr Illingworth). 21  Western Australia, Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia London, 1897, Letter from Secretary of Aborigines Protection Board to his Excellency, the Administrator, (17 May 1892) (Enclosure 2 in No 3). See also: Walter Roth, Royal Commission on the Condition of the Natives Report, (Perth, 1905), 32; Paul Seaman, The Aboriginal Land Inquiry Report (1984) 91. 22  Western Australia, Parliamentary Debates, Legislative Assembly, 11 November 1897, 394 (John Forrest, Premier). 18

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5  First Peoples and the WA Constitution little clothing and there a few blankets, which latter I regret to say very frequently arrived late, when the winter was over, and sometimes were not of good quality.23

This attempt was, however, not without a clear sense that it was breaking a promise made.24 Premier Forrest sought to explain that “there was a contract, but … it was a contract made under pressure, and that the system had utterly failed and must continue to fail…”.25 He was keen for the WA government to subsume the Board’s functions “with some different machinery”26 and which another member, Henry Kenny MLA, pleaded, would ensure the treatment of the “natives of this colony” receive more “comfortable” and “humane” treatment.27 The tragedy is that the harm did not cease.28

5.1.3 Imperial Reluctance and Procedural Inadequacies The Imperial government was very reluctant to depart from the agreed-upon constitutional text agreed. Premier Forrest, however, was adamant: The question asked by everyone is: what is the use of this Board…Can it be contended that the aborigines are better looked after by this irresponsible body of five gentlemen, who meet once a fortnight in Perth…. Should the Secretary of State be disposed to take a contrary view of the question, the dissatisfaction now existing must increase, and it will be found that a Bill to repeal this section will be passed every year, and will either have to receive the Royal Assent or be vetoed…In no other part of Australia was it considered necessary to place the Governor in a similar position … and the people of this country naturally resent being treated differently to all other of the Australian colonies, and they very justly, I think, consider it a grave reflection upon their honour and integrity of purpose.29

Although, by 1897 colonial revenue had almost reached £3,000,000 resulting in nearly £30,000 payments to the Board—this was the last year the 1% instalment

 Parliamentary Debates, Legislative Assembly, 11 November 1897, 396 (John Forrest, Premier). Cf Mr. Leake at 397, who observed the “thankless task” conferred on the Board “knowing full well … that the feeling of the whole of the colony was against their method of administration” (and see Mr Illingworth, at 398). 24  Parliamentary Debates, Legislative Assembly, 11 November 1897, 396; Peter Johnston, “The Repeals of Section 70 of the Western Australian Constitution Act 1889: Aborigines and the Governmental Breach of Trust,” University of Western Australia Law Review 19, no. 2 (1989), 318, 347. 25  Western Australia, Parliamentary Debates, Legislative Assembly, 11 November 1897, 394 (John Forrest, Premier). 26  Parliamentary Debates, Legislative Assembly, 11 November 1897, 396 (John Forrest, Premier). 27  Parliamentary Debates, Legislative Assembly, 11 November 1897, 399 (John Forrest, Premier). 28  Kwaymullina, “The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution”, 137–38. 29  Western Australia. Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia London, 1897, Memorandum for his Excellency, the Administrator (20 April 1892) (Enclosure 1 in No 3) 5. 23

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was made.30 The Premier’s attempts to repeal section 70 were initially stalled by the Colonial Office and irregularities with an eventual enactment in 1897.31 This was followed by another statute in 190532 after procedural concerns with the 1897 Act had been doggedly pursued by barrister Frederick Lyon Weiss.33 Bills failed to receive royal assent in the time required or were shrouded in legal doubt, particularly over whether there had been compliance with the reservation, timing and tabling procedural restrictions in early imperial enactments applicable to the colonies. Such examples included the Australian Constitutions Act 1842 (Imp) as well as section 32 of the Australian Colonies Government Act 1850 (Imp).34 After the enactment of the Western Australia Constitution Act 1890 (Imp)—the ‘1890 Act’—to which the WA Constitution was scheduled, the question was: did the 1842 and 1850 UK Acts retain force by covering clause 2 in the 1890 Act which provided:35 From the day of the proclamation of this Act in the colony of Western Australia so much and such parts of the several Acts mentioned in the Second Schedule to this Act as relate to the colony of Western Australia and are repugnant to the scheduled Bill shall be repealed. Provided as follows: (a) The provisions … which relate to the giving or withholding of Her Majesty’s assent to Bills, and the reservation of Bills for the signification of Her Majesty’s pleasure thereon, and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid, and the disallowance of Bills for the signification of Her Majesty, shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and by any other legislative body or bodies which may at any time hereafter be substituted for the said Legislative Council and Assembly:…

Additionally, covering clause 5 in the 1890 Act contemplated the WA Parliament being able to amend the Constitution Act 1889 subject to conditions contained therein. These included section 73 in the Constitution Act 1889, which also recognised section 70’s significance providing that: …every Bill which shall interfere with the operation of sections sixty-nine, seventy, seventy-­one, or seventy-two of this Act, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon.

 Steven Churches, “Put Not Your Faith in Princes (or Courts)—Agreements Made From Asymmetrical Power Bases: the story of a promise to Western Australia’s Aboriginal people,” in What Good Condition? Reflections on an Australian Aboriginal Treaty 1986–2006, ed. Peter Read, Gary Meyers, and Bob Reece (Canberra: ANU Press, 1986), 7. 31  Aborigines Act 1897 (WA). 32  Aborigines Act 1905 (WA). 33  See further, Johnston, ‘The Repeals of Section 70 of the Western Australian Constitution Act 1889: Aborigines and the Governmental Breach of Trust’. 34  Churches, “Put Not Your Faith in Princes”, 5. By the terms of s 12 of the 1850 Act, s 33 of the 1842 Act (as well as the Australian Constitutions Act 1844 (Imp)) also applied to WA: Yougarla v Western Australia (2001) 207 CLR 344, 354 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). 35  Churches, “Put Not Your Faith in Princes”, 5. 30

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The Aborigines Act 1905, which stipulated that it was “[a]n Act to make provision for the better protection and care of the Aboriginal inhabitants of Western Australia”, sought to address these legal issues by deeming valid and “confirm[ing] for all purposes whatsoever” the 1897 removal of section 70 despite potential manner and form irregularities.36 Subsequently, section 66 of the Aborigines Act 1905 then sought to repeal the 1897 Act.37 This 1905 Act did contemplate ongoing funding for the Aborigines Department but these legislative guarantees from Treasury ultimately fell away in later years.38 As Kirby J indicated in Yougarla, this case reflected the 19th and early twentieth century WA colonial experience where during these procedural imbroglios, and in spite of ongoing resistance and opposition, “the voices of the local ‘aboriginal natives’ were often not heard”.39 The legal questions presented by these parliamentary endeavours to repeal section 70 resulted in Don McLeod (a non-indigenous campaigner in the Pilbara40) and Western Australian Aboriginal Elders contesting the constitutional validity of these endeavours in long-running court challenges.41 These came to an end with the High Court case of Yougarla.42

 Aborigines Act 1905 (WA), s 65 and see Schedule 1.  Johnston, “The Repeals of Section 70 of the Western Australian Constitution Act 1889: Aborigines and the Governmental Breach of Trust”, 340. 38  Johnston, “The Repeals of Section 70 of the Western Australian Constitution Act 1889”, 340. 39  Yougarla v Western Australia (2001) 207 CLR 344, [104]. 40  See D.W. McLeod, How the West was Lost: the native question in the development of Western Australia (no publisher, 1984). 41  Judamia v State of Western Australia (unreported BC9503541, Supreme Court of Western Australia, Owen J, 23 January 1995); Judamia v State of Western Australia (unreported BC9601047, Supreme Court of Western Australia, Malcolm CJ, Rowland and Franklyn JJ, 1 March 1996); Snowy Judamia v State of Western Australia [1996] 17 Leg Rep 2. 42  Yougarla v Western Australia (1998) 146 FLR 128; Yougarla v Western Australia (1999) 21 WAR 488; Yougarla v Western Australia (2001) 207 CLR 344 (and prior to these: Judamia v State of Western Australia (unreported BC9503541, Supreme Court of Western Australia, Owen J, 23 January 1995); Judamia v State of Western Australia (unreported BC9601047, Supreme Court of Western Australia, Malcolm CJ, Rowland and Franklyn JJ, 1 March 1996); Snowy Judamia v State of Western Australia [1996] 17 Leg Rep 2). See also Joshua Thomson, “The One Per Cent Case (Yougarla v Western Australia)” Oxford University Commonwealth Law Journal Winter (2001) 269; Peter Johnston, “Waiting for the Other Shoe to Fall: The Unresolved Issues in Yougarla v Western Australia”, Gilbert & Tobin Constitutional Law Conference, 15 February 2002; Kwaymullina, “The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution,”; Sarah Murray, “‘Confusion in the Labyrinth’: Section 70, the Constitution and Societal Change” Studies in Western Australian History 30 (2016) 121. 36 37

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5.1.4 The Yougarla Challenge This litigation threatened significant financial implications for WA based on a potentially “century”-long constitutional “breach”.43 Kirby J insisted, though, that “inconvenience is no barrier in constitutional adjudication”.44 The legal doubts over the validity of section 70’s repeal in Yougarla focused on a procedural question: had the tabling requirements of section 32 of the Australian Constitutions Act 1850 (Imp) been met by the 1905 Act? The High Court concluded that the 1905 Act was valid and had been validly reserved. As a result section 70 had been validly repealed. This was because the Court held that the 1905 Act was not subject to the tabling specifications of the 1850 Act. The tabling periods no longer applied due to repugnancy between section 73 of the Constitution Act 1889 and which meant they ceased to apply by virtue of covering clause 2 of the 1890 Act. As Kirby J recognised, this avoidance of tabling meant that the possibility of greater British scrutiny of the WA Parliament’s section 70 ambitions was lost.45 However, as Kirby J indicated, the legal answer that “s 70 was duly repealed”46 did not resolve many of the questions that needed to be answered including the application’s “historical merits”.47 In Kwaymullina’s words: What little protection existed for Aboriginal people in the founding document of Western Australia was gone. Our fate was now entirely in the hands of the colonists, those men and women whom John Forrest had asserted were people of “honour and integrity”, capable of being trusted to do what was “just and right” by the Aboriginal inhabitants of the state. But the very legislation which repealed section 70 was to usher in some of the cruellest times for Aboriginal people in Western Australia.48

5.1.5 Constitutional Memories of s 70 In 2015, the Constitution Act 1889 was amended49 to insert two additional paragraphs into the Constitution’s Preamble. The second states: And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia:

 Yougarla v Western Australia (2001) 207 CLR 344, [66].  Yougarla v Western Australia (2001) 207 CLR 344, [68]. 45  Yougarla v Western Australia (2001) 207 CLR 344, [130]. 46  Yougarla v Western Australia (2001) 207 CLR 344, [131]. 47  Yougarla v Western Australia (2001) 207 CLR 344, [130]. See also Ann Genovese, “Narratives of Authority: Translating Yougarla” Journal of Australian Colonial History 15 (2013) 145, 152–3. 48  Kwaymullina, “The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution,” 137. 49  Constitution Amendment (Recognition of Aboriginal People) Act 2015. 43 44

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Josie Farrer, MLA (Kija) stated in the second reading speech introducing the Constitution Amendment (Recognition of Aboriginal People) Bill 2015 into the WA Legislative Assembly: our history, our cultures, will remain separate forever until we recognise who was here first. This is what this bill does. It means that once we have amended the Constitution to recognise the original people who occupied this land—so long ago that we could walk here—our collective history joins at that point and history becomes our history from now on. We can join and walk together—all of us… This bill amends the Western Australian Constitution Act 1889 to officially recognise Western Australia’s Aboriginal people as the first people of this land. Make no mistake, this is important. Recognition, acknowledgement and acceptance are necessary steps to true and lasting reconciliation, and this bill is just one of those steps. In a way it is more than a step, it is a confident stride forward. As I said earlier, when European settlers came to Western Australia, there were people here before them; people with rich, beautiful languages, culture and art, people who had complex laws and protocols, and people who fought wars and negotiated peace. These people—my people—had been here for thousands of years…. I say to my fellow members of Parliament here today that this is the opportunity for us to stride into the future, not to shuffle forward with eyes closed from the truths of the past. This is the chance to come together as a Parliament and as a community in a sincere, mature, heartfelt spirit of reconciliation. Members, I said earlier this year that true reconciliation means bold action, brave people and meaningful dialogue.50

These amendments did not include a reference to section 70’s history. Also, the preambular recognition did not include a ‘no-effect clause’. Such clauses typically seek to state that the recognition is not to be taken as having any legal effects or conferring any rights or duties. The findings of a Joint Select Committee on Aboriginal Constitutional Recognition and legal advice from the Solicitor-General were that the preambular recognition of Aboriginal Peoples as WA’s First Peoples did not require inclusion of such a clause when it would not only “undermine the spirit in which the statement of recognition is made” but also likely be “superfluous or ineffective”.51 This made WA the second last Australian State to include such a statement of recognition52 but the first to do so without a “no-effect clause”.53

 Western Australia, Parliamentary Debates, Legislative Assembly, 17 June 2015, 4543b–4546a.  Parliament of Western Australia, Joint Select Committee on Aboriginal Constitutional Recognition: Towards a True and Lasting Reconciliation Report into the Appropriate Wording to Recognise Aboriginal People in the Constitution of Western Australia, (2015) https://www.parliament.wa.gov.au/Parliament/Bills.nsf/D6DCCA39D2D52CA048257CF4000A5407/$File/Joint%2 BSelect%2BCommittee%2Bon%2BAboriginal%2BConstitutional%2BRecognition%2B%2BReport%2B1.002.pdf, 51. 52  Tasmania was the last, passing a preambular amendment in October 2016. Victoria (2004), Queensland (2010), New South Wales (2010) and South Australia (2013) had already embarked on constitutional recognition. 53  In contrast, as part of the 2021 Noongar Settlement, the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) does include such a clause (in s 6) while also in s 5 ‘acknowledge[ing] and honour[ing] the Noongar people as the traditional owners of the Noongar lands’ ‘living cultural, spiritual, familial and social relationship that the Noongar people have with the Noongar lands’ and ‘the significant and unique contribution that the Noongar people 50 51

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The preambular amendment was also accompanied by the repeal of the spent provisions of section 42 (which provided for Part III of the Constitution Act 1889 to come into effect based on the condition precedent that the headcount of the WA population would exclude Aboriginal Peoples)54 and the definition of “Aborigines Protection Board” in section 75.55 The Joint Standing Committee was of the view that retaining these provisions “would be inappropriate and inconsistent with the spirit of reconciliation inherent in a statement of recognition by the Parliament”.56 These constitutional alterations can only be fully understood with an appreciation of WA’s colonialist record, and another constitutional provision repealed more than 100 years before: section 70 of the Constitution Act 1889. As Kwaymullina recounts: The story behind it—of massive imbalances of power and unacknowledged debts—is not unique at all. The colonial project is replete with such tales, and for the most part, they end in the same way.57

5.2 In Summary The tragedy of section 70 was that the constitutional guarantee of the need to do more for the colony’s First Peoples was of such short duration. A few years before the provision was introduced, Governor Gerard Smith noted in his imperial correspondence that: There can be no doubt in the mind of any reasonable and humane man that we are bound to do all we can for the 15,000 or more natives still left among us, whose country we have taken, whose means of livelihood we have destroyed, whom day by day we are driving back further and further into remote spots…58

However, within 10 years the WA Parliament was doing all it could to remove the constitutional guarantee. Its removal, even with the concerns relating to the ongoing have made, are making, and will continue to make, to the heritage, cultural identity, community and economy of the State’. 54  ‘When 6 years shall have elapsed from the date of the first summoning, under section 6, of persons to the Legislative Council, or when the Registrar General of the Colony shall have certified, by writing under his hand to be published in the Government Gazette, that the population of the Colony has, to the best of his knowledge and belief, exclusive of aboriginal natives, attained to 60,000 souls, whichever event shall first happen, this Part shall come into operation, provided that the Governor in Council shall have power, by proclamation in the Government Gazette, to further postpone the operation of this Part for any period not exceeding 6 months’. 55  Constitution Amendment (Recognition of Aboriginal People) Act 2015 (WA), ss 5–6. 56  Ibid 53. 57  Kwaymullina, “The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution,” 132. 58  Western Australia. Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia, London, 1897, Letter from Governor Gerard Smith to Mr. Chamberlain, Secretary of State for the Colonies (19 May 1896), Despatch No. 42, [25].

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operations of the Board, was “a breach of faith”: the very charge which Governor Smith had warned Premier Forrest about being a serious contention that was “properly open” by section 70’s removal.59 The Aboriginal interest in s.70 was always doomed, as it depended from inception on a bargain between the Imperial and colonial authorities, and when the Imperial Government lost the stomach for the fight, there was only the law left for the Aborigin[al peoples] to turn to.60

The 2015 amendments saw provisions entangled with the memory of section 70 removed and the expression of a desire to effect a reconciliation. However, as was noted on the five-year anniversary of this amendment: This change showed that recognizing Aboriginal and Torres Strait Islanders in a state constitution is an important reform, however, it also shows that real change needs to be delivered through changing the Australian Constitution as outlined in the Uluru Statement from the Heart, to enshrine a Voice to Parliament.61

References Bracknell, Clint. 2014. Kooral Dwonk-katitjiny (Listening to the Past): Aboriginal Language, Songs and History in South-Western Australia. Aboriginal History 38: 1–18. Churches, Steven. 1986. Put Not Your Faith in Princes (or Courts)—Agreements Made from Asymmetrical Power Bases: The Story of a Promise to Western Australia’s Aboriginal People. In What Good Condition? Reflections on an Australian Aboriginal Treaty 1986–2006, ed. Peter Read, Gary Meyers, and Bob Reece, 1–14. Canberra: ANU Press. Collard, Len, and Clint Bracknell. 2012. Beeliar Boodjar: An Introduction to Aboriginal History in the City of Cockburn, Western Australia. Australian Aboriginal Studies 1: 86–91. Contos, Natalie. 1998. Theo A.  Kearing and the Murray Districts Aboriginal Association and Len Collard and Dave Palmer. In Pinjarra Massacre Site Research and Development Project: Report for Stage 1. Pinjarra: Murray Districts Aboriginal Association. Curthoys, Ann, and Shino Konishi. 2022. The Pinjarra Massacre in the Age of the Statue Wars. Journal of Genocide Research 24 (4). https://doi.org/10.1080/14623528.2021.2023986. Dodson, Patrick. 1991. Regional Report of Inquiry into Underlying Issues in Western Australia. Canberra: Royal Commission into Aboriginal Deaths in Custody. Eatts, Doolann Leisha. Doolann Leisha Eatts Interview for South West Aboriginal Land and Sea Council, 17 January 2007. https://www.noongarculture.org.au/ doolann-­leisha-­eatts-­talks-­about-­her-­grandmothers-­story-­of-­contact-­with-­the-­europeans/. From the Heart. Anniversary of the Inclusion of Aboriginal and Torres Strait Islanders in the WA Constitution change, 10 September 2020. https://fromtheheart.com.au/anniversary-­of-­the-­

 Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia, Letter from Governor Gerard Smith to Mr. Chamberlain, above n X, [8]. 60  Churches, “Put Not Your Faith in Princes,” 13. 61  From the Heart, “Anniversary of the inclusion of Aboriginal and Torres Strait Islanders in the WA Constitution change”, 10 September 2020. https://fromtheheart.com.au/anniversary-of-the-­ inclusion-of-aboriginal-and-torres-strait-islanders-in-the-western-australian-constitution/ (accessed December 2022). 59

References

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inclusion-­of-­aboriginal-­and-­torres-­strait-­islanders-­in-­the-­western-­australian-­constitution/. Accessed December 2022. Genovese, Ann. 2013. Narratives of Authority: Translating Yougarla. Journal of Australian Colonial History 15: 145–168. Peter Johnston. 2002. Waiting for the Other Shoe to Fall: The Unresolved Issues in Yougarla v Western Australia. Gilbert & Tobin Constitutional Law Conference, 15 February 2002. Johnston, Peter. 1989. The Repeals of Section 70 of the Western Australian Constitution Act 1889: Aborigines and the Governmental Breach of Trust. University of Western Australia Law Review 19 (2): 318–351. Kwaymullina, Ambelin. 2016. The Stories We Tell: Law, Narratives and an Aboriginal Perspective on Section 70 of the Western Australian Constitution. Studies in Western Australian History 30: 131–140. ———. 2019. Respect, Relationships, Renewal: Aboriginal Perspectives on the Worlds of Tomorrow. Westerly 1: 121–134. ———. 2020. Living on Stolen Land. Perth: Magabala Books. Lino, Dylan. 2018. Indigenous Recognition. In Australian Constitutional Values, ed. Rosalind Dixon, 243–263. Oxford: Hart. McLeod, D.W. 1984. How the West Was Lost: The Native Question in the Development of Western Australia. No Publisher. Morgan, Sally, Tjalaminu Mia, and Blaze Kwaymullina, eds. 2008. Heartsick for Country: Stories of Love, Spirit and Creation. Fremantle: Fremantle Press. Mowaljarlai, David, and Jutta Malnic. 1993. Yorro: Everything Standing Up Alive. Perth: Magabala Books. Murray, Sarah. 2016. Confusion in the Labyrinth: Section 70, the Constitution and Societal Change. Studies in Western Australian History 30: 121–130. Parliament of Western Australia. 2015. Joint Select Committee on Aboriginal Constitutional Recognition: Towards a True and Lasting Reconciliation Report into the Appropriate Wording to Recognise Aboriginal People in the Constitution of Western Australia. https://www.parliament.wa.gov.au/Parliament/Bills.nsf/D6DCCA39D2D52CA048257CF4000A5407/$File/Join t%2BSelect%2BCommittee%2Bon%2BAboriginal%2BConstitutional%2BRecognition%2B-­ %2BReport%2B1.002.pdf. Report from the Select Committee on the Western Australian Constitution Bill Together with the Proceedings of the Committee, Minutes of Evidence and Appendix, 25 April 1890. Roth, Walter. 1905. Royal Commission on the Condition of the Natives Report. Perth: Royal Commission. Seaman, Paul. 1984. The Aboriginal Land Inquiry—Report. Perth: The Inquiry. Statham-Drew, Pamela. 2003. James Stirling: Admiral and Founding Governor of Western Australia. Perth: UWA Press. Thomson, Joshua. 2001. The One Per Cent Case (Yougarla v Western Australia). Oxford University Commonwealth Law Journal 1 (2): 269–278. Watson, Irene. 2018. Aboriginal Recognition: Treaties and Colonial Constitutions, ‘We Have Been Here Forever…’. Bond Law Review 30 (1): 7–18. Western Australia. 1889. The Constitution Bill for Western Australia from the Debates in The Times with Articles from the English Journals. Sydney: Charles Potter Government Printer. ———. 1897. Correspondence Relating to the Proposed Abolition of the Aborigines Protection Board of Western Australia. London: Eyre and Spottiswoode. Western Australia, Parliamentary Debates, Legislative Assembly, 19 October 1896. ———, 11 November 1897. ———, 17 June 2015. Wolfe, Patrick. 2006. Settler Colonialism and the Elimination of the Native. Journal of Genocide Research 8 (4): 387–409.

Chapter 6

The Constitution and System of Government

The dispersed and opaque nature of Western Australia’s Constitution—its rather chaotic character—makes simple explication an essential, but far from simple, task. This chapter distils from the several instruments and sources what the WA Constitution establishes and requires as a system of government. Specifically, it asks how the Constitution construes and empowers each of the three branches of government, legislative, executive and judicial. In doing so it provides the point of departure for discussion of amendment rules and avenues for reform in the following chapters. Although this chapter does not seek to provide a history of the WA Constitution, it does summarise what the founding document, the Constitution Act 1889 (henceforth Constitution Act, or CA), originally specified before providing an account of current constitutional provisions, conventions and practices.1 As it stands today, the Constitution Act is much changed from the original. Moreover, it has been substantially augmented and in some areas superseded by its companion Act, the Constitution Acts Amendment Act 1899 (henceforth Constitution Acts Amendment Act, or CAAA). Various amendments have been made over the past 136 years; however, amendments made to the Constitution Act in 1978 are particularly significant to the account in this chapter and the matters discussed in Chap. 8. Those two companion statutes, as amended over the years, are the main textual instruments of the WA Constitution. They are not, though, the entirety of the WA Constitution. To frame this account, we begin by revisiting some of the core elements and principles of the WA Constitution and system of government and highlighting some of the key issues to which it gives rise. In its now 133 years of operation, little constitutional change has been made to Western Australia’s system of government other

 As is the case for the other chapters, all legislation is Western Australian unless otherwise indicated. 1

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than democratising reforms to the electoral basis of the two chambers of the legislature—particularly those to the Legislative Council in 1963.2

6.1 Context and Themes In this context, there are three main questions: What type of system does the WA Constitution mandate? What type of constitution is it? What are the main issues that have arisen or arise from the structure outlined by the two main Acts?

6.1.1 A Parliamentary System The WA Constitution provides for a parliamentary system of government with strong bicameralism and a dual colonial–monarchical head of state.3 A parliamentary system is a form of representative government where the political executive is formed from, and accountable to, the legislative branch, and through the legislature to the voters.4 The governing ministry is composed of elected members of the legislature and only holds office because, and insofar as, it has the support of the “lower house” or first chamber. As noted in Chap. 2, parliamentary government is thus based on a fusion rather than the separation of powers that defines the presidential system as developed in the United States (US). However, in the Westminster tradition, this fusion is taken a step further to include not just the political executive and the Head of Government, but also the Head of State, as indicated by the antiquated formulation of the “Queen in Parliament”. This is clearly articulated in the very first section of the Commonwealth Constitution, section 1: The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives….

 A point made by de Garis 20 years ago and no less true today. Brian de Garis, “The History of Western Australia’s Constitution and Attempts at its Reform,” University of Western Australia Law Review 31, no. 2 (2003). 3  By ‘strong bicameralism’ is meant a legislature with two chambers of equal or almost equal power. By a ‘dual colonial–monarchical head of state’ is meant the arrangement whereby the British Crown is the formal head of state, but their role is delegated to the relevant Australian vice-­ regal office, viz, the State Governor or Commonwealth Governor-General, as a legacy of colonial rule. 4  See Pasi Ihalainen, Cornelia Ilie, and Kari Palonen, Parliament and Parliamentarism: a comparative history of a European concept (Bergbahn, 2016). The strength of bicameralism in the Australia system has led some scholars to characterise Australia as a somewhat deviant case; see Steffen Ganghof, Sebastian Eppner, and Alexander Pörschke, “Australian Bicameralism as Semi-­ Parliamentarism: patterns of majority formation in 29 democracies,” Australian Journal of Political Science 53, no. 2 (2018). 2

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This is the general rule in Australian State constitutionalism, but there is one exception: in South Australia, Parliament is constitutionally defined simply as the Legislative Council and the House of Assembly.5 In the British colonial tradition, this accountability of the political executive to the legislature has long been referred to as “responsible government”—meaning responsible, or accountable, to parliament rather than the Crown.6 Historically, the executive was the Crown alone. In Britain, this changed as monarchical rule gave way to representative government and in the British Dominions it changed with the granting of self-government. In colonial Western Australia as noted in Chap. 4, this meant the replacement of the part-elective Legislative Council that had advised the Governor (and produced the Constitution Act 1889), with an elective Legislative Assembly in which the government would be formed and which would sit alongside a fully elective Legislative Council. One consequence of the gradual shift from monarchy to parliamentarism was the emergence of an executive branch divided between, on the one hand, a Head of Government and political executive, and, on the other, a Head of State. While the latter might be a residual monarch or alternatively an appointive or elective office, in either case they are reduced to a predominantly formal and symbolic role. The situation is complicated in Australia because much of the Head of State’s powers are exercised by the monarch’s representative, the Governor or Governor-General. It is complicated even further by Federation and the operation of the Australia Act 1986 (Cth and UK) by a further quandary: does Australia have one indivisible Crown or effectively one for each State and the Commonwealth? The issue is a vexed one: The Australia Acts terminated the responsibility of British Ministers to advise the Queen with respect to State matters, and instead provided for State Premiers to advise the Queen on the exercise of any remaining powers she holds with respect to the States. Does this make Her Majesty now Queen of Victoria or Queen of New South Wales? According to the orthodox analysis above, it would do so…. The Australians who negotiated the Australia Acts avoided the issue, preferring the safety of ambiguity to the potential conflict that might arise if the matter were dealt with explicitly. British officials however contemplated the issue. They accepted that orthodox reasoning would lead to the view that the Queen would become Queen of Victoria and the other States. However, in their pragmatic style, they also accepted that the role of the Queen of Australia could be expanded so that there is one Crown but with different advisers—a form of federal Queen. They left it to Australians to determine which course they pursued.7

 Constitution Act 1934 (SA), section 4.  Earl of Durham, Report on the Affairs of British North America (London, 1839; repr., 1902 reprint by Methuen, London). 7  Anne Twomey, “The Queen of Australia,” Upholding the Australian Constitution: proceedings of the Sir Samuel Griffith Society 19 (2007): 86. See also Anne Twomey, The Chameleon Crown: the Queen and Her Australian Governors (Leichhardt NSW: Federation Press, 2006), Chapter 21. 5 6

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6.1.2 Conflicting Constitutionalism We also noted in earlier chapters that Australian constitutionalism is neither “Westminster” nor “Washington”, but rather some combination of the two. It has a degree of codification foreign to Westminster, but a reliance on convention foreign to Washington. This creates a particular difficulty. In the UK, the constitutional conventions of responsible government fill in the blanks where no constitutional text exists; the unwritten rules complement the written ones. In Australia, however, convention is not only essential to understanding how to interpret key parts of the text, but in doing so it tells a very different story from essential parts of those texts. While in the UK where there is no constitutional text with which the conventions of responsible government must compete, conventions prevail in a relatively straightforward way, in Australia it is rather more complicated. The practice was to inscribe in constitutional law the fiction of monarchical rule, adverting only obliquely to the realities of democratic parliamentary government and otherwise assuming that everyone understood that this was not how things really work. Insofar as the Head of State has a substantive role to play in a parliamentary system, that is to resolve situations where it is not clear which individual has the support of the legislature and thus is entitled to be the head of government. In Australia, the precise role of the Head of State is something of a fraught issue, as “the dismissal” crisis of 1975 very clearly demonstrated.8 The difficulty arises out of the fact that Australian constitutionalism has left the realities of parliamentary responsible government almost entirely to the unwritten rules of constitutional convention while suggesting in the written text that it is the monarch and their representative that exercises executive power. The complications of such an approach are magnified by the fact that while the written text is justiciable and carries the force of law, convention is not.

6.1.3 Key Issues There have long been tensions in the WA system of government, some of which have been the focus of constitutional conflict between Left and Right, Labor and the Coalition. The main points of contention relate to bicameralism and the position of Governor.

 Particularly as a consequence of Australia’s strong bicameralism, with a government holding office by virtue of having a majority in the House of Representatives being dismissed because it could not pass its appropriations—‘supply’—legislation in the Senate. George Winterton, “1975: The Dismissal of the Whitlam Government,” in Australian Constitutional Landmarks, ed. H. P. Lee and George Winterton (Port Melbourne: Cambridge University Press, 2003). 8

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Australia is unusual among parliamentary federations in retaining strong bicameralism at the State level. Not only is there an inherent tension between parliamentarism and strong bicameralism because of the executive’s accountability to parliament, but the rationale for a second chamber is widely seen to be much less compelling for constituent units. None of the Canadian provinces, German Länder or Swiss cantons have retained second chambers. While all but one of the US States have, that is in the very different context of a presidential system. More than the fact in itself of bicameralism has been the fact that the second chambers of the Australian States were established quite deliberately to serve as a conservative restraint on democratic government. They were given almost equal powers and constituted conservative fashion, being either elected on a restrictive franchise or entirely appointive.9 This was the reason why, in 1922, a Labor government abolished the Legislative Council in Queensland, an appointive second chamber.10 The fallout from that has been a long-running issue about measures to entrench contested aspects of the system of government in the States against partisan change—which we explore in Chap. 8. Of course, abolition is only the most extreme solution. Reform otherwise has focused on the composition of the second chamber and its powers vis-à-vis the Legislative Assembly. Slowly, State upper houses have been democratised. As detailed in Chap. 7, the WA Legislative Council was elected by full adult suffrage from 1963 and equality of representation (“one vote, one value”) was legislated with the removal of regional malapportionment in 2021. The Legislative Council was an obstacle to Labor governments for over a century, and in 1973 came close to precipitating a ‘supply’ crisis such as brought down the Whitlam government in Canberra the following year. Cogent arguments have been mounted for the value an appropriately configured second chamber can add to parliament’s ability to scrutinise and moderate the exercise of executive power, playing a complementary rather than an obstructionist role.11 While the role of the Governor has not been at the centre of any constitutional crises in WA equivalent to the Dismissal of 1975, the vice-regal office has been controversial since the earliest days. There have been “many attempts to abolish or drastically modify the office of Governor throughout the past 100 years.”12

 The two self-governing Territories have been unicameral from the outset.  Gerard Carney, “Labor’s Aspiration Realised: abolition of the Legislative Council of Queensland, 1915 to 1922,” Queensland History Journal 25, no. 3 (2022). 11  Bruce Stone, “Bicameralism and Democracy: the transformation of Australian State Upper Houses,” Australian Journal of Political Science 37, no. 2 (2002). Scott Prasser, J. R. Nethercote, and Nicholas Aroney, “Upper Houses and the Problem of Elective Dictatorship,” in Restraining Elective Dictatorship: the upper house solution?, ed. Nicholas Aroney, Scott Prasser, and J. R. Nethercote (Crawley WA: University of Western Australia Press, 2008). 12  Peter Boyce, “Governor and Parliament,” in The House on the Hill: a history of the Parliament of Western Australia 1832–1990, ed. David Black (Perth: Parliament of Western Australia, 1991), 267. 9

10

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6.2 The Legislative Branch in the Constitution The core of the governmental system is the legislature, the body through which the electors determine who shall govern and hold those who govern to account, and through which democratic choices are translated into laws. This section outlines the way the WA Constitution frames the legislative branch in respect of its structure; terms and composition; the powers of parliament; the relative powers of the two chambers; and its operation.

6.2.1 Structure of the Legislative Branch Little has changed in the constitutional provisions for a bicameral legislature since 1890. At the Outset The first substantive section of the Constitution Act, section 2, established that there shall be two legislative bodies, the Council and the Assembly, granted authority to pass laws for the “peace, order and good government” of the colony.13 The Situation Today That wording remains unchanged and that passage remains the constitutional cornerstone of parliamentary government in Western Australia. In 1978, two subclauses were added to section 2, declaring that “The Parliament of Western Australia consists of the Queen and the Legislative Council and the Legislative Assembly” and that no Bill passed by the two houses will be valid until and unless receiving royal assent.14 Both were inserted by a Coalition majority in Parliament to forestall any move by the Labor Party to weaken bicameralism or the position of the Governor and were part of a concerted effort to entrench traditional and more conservative elements of the Constitution against change discussed in Chap. 8.

 Although that section was (and is) headed “Parliamentary”, in none of the clauses were the two bodies originally referred to using that term. 14  Acts Amendment (Constitution) Act 1978. 13

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6.2.2 Terms and Composition of the Legislative Branch Significant change in form and content has occurred in respect of the terms and composition of Parliament. In particular, legislation was passed in 2021 to embed the democratic principle of “one vote, one value”. At the Outset Originally, the CA stipulated that the “Assembly shall consist of thirty members, who shall be elected for the several electoral districts hereinafter named and defined.” (ss 11 and 37) and four-year terms for the Assembly (s 14). Electors were required to meet a property requirement (s 39). Considerable attention was devoted to rules regarding such matters as qualifications for office, vacancies and oaths. The Council, meanwhile, was to “consist of fifteen elected members”, equally distributed across five electoral districts (ss 45 and 52). The original CA also imposed a property qualification for voting (ss 39 and 53), more substantial than for the Assembly. The three members of each district were to serve staggered terms of 6 years, with the senior member’s position being vacated every 2 years (s 48). The Situation Today These clauses were subsequently removed from the Constitution Act, and, with one exception, the CA now says nothing about the composition of either chamber. That sole exception, inserted by the 1978 amendment mentioned above, is contained within section 73(2)(c). It requires that any Bill that “expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people” meet the strict amendment rules introduced by the 1978 amendment. Those rules are the subject of Chap. 8. Terms and composition of the two chambers are now contained in the Constitution Acts Amendment Act and the Electoral Act 1907 (as amended). The Legislative Council  In 2021, sweeping reforms (discussed in Chap. 7) were introduced to bring to an end the system of structural malapportionment whereby rural and regional areas enjoyed substantial over-representation.15 The CAAA now stipulates, in section 5(1) and 5(2), that “The Legislative Council is to consist of 37 elected members” and that “Those members are to be returned and sit for the whole of the State”. The CAAA also establishes in section 8(2) a four-year term for Council members, “beginning on 22 May next following the day of his election as a member”. 15

 Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021.

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The Legislative Assembly  The CAAA stipulates in sections 18(1) and 18(2) that “The Legislative Assembly is to consist of 59 elected members” who “are to be returned and sit for electoral districts”. It also sets out term limits, but not fixed terms, for the Assembly (s 21): Every Legislative Assembly shall exist and continue for 4 years from the day of the first meeting thereof and no longer; subject … to being sooner prorogued or dissolved by the Governor.

That these are single-member electorates is clarified by the Electoral Act 1907, which states that “The State must be divided into the same number of electoral districts as the number of members of the Assembly prescribed by the Constitution Acts Amendment Act 1899 section 18(1)”, and that “Each district will return 1 member to serve in the Assembly.” (s 16D). The Electoral Act 1907 as amended contains a large amount of material that is clearly sub-constitutional in nature. However, such democratically important features as the role and nature of the Electoral Commission and the tolerances for variation in the number of electors in districts (s 16G) have a constitutional quality to them.

6.2.3 Powers of Parliament With the exception of one major procedural change, treatment of the powers of Parliament remains as at the beginning of self-government in 1890. At the Outset Section 2 of the Constitution Act granted a plenary power to Parliament: …it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order and good Government of the Colony….

The power to legislate was thus expressed in what was even in 1889 the anachronistic language of Westminster constitutionalism—suggesting that WA laws were made by “Her Majesty”, and that, while the legislature held a veto power, its role was one of providing “advice”. “Peace, order and good Government”, meanwhile, was standard boilerplate language of British colonial constitutionalism, a formula referring in an open-ended and plenary way to the scope of legislative action. The High Court has consistently found that the requirement that laws be made for the “peace, order and good government” of Western Australia does not impose a ‘substantive’ limit on what those laws might be. In other words, it does not mean that the Parliament is limited to passing

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laws that are for the “peace”, “order” or “good government” of the state.16 It does, however, impose an extraterritorial limit in requiring that laws have a sufficient connexion with the state, although such a limit is very generously and loosely applied.17 For instance, in Pearce v Florenca, the Fisheries Act 1905–1975 was applied to a Geraldton fisherman who had caught undersized rock lobsters off-shore and a question was raised in relation to the constitutionality of its application to these waters. Justice Gibbs stated that: The very fact that the waters are the off-shore waters of the State provides the nexus necessary to render valid a law operating within those waters. There is an intimate connexion between the land territory of a State and its off-shore waters. Those waters have been popularly regarded as the waters of the State, and as vital to its trade. The people of the State have traditionally exploited the resources of the off-shore waters and used them for recreation. The enforcement of the laws of the State would be gravely impeded if a person could escape from the reach of the laws and the authority of the State by going below low-water mark. It does not appear that any law of a colony or State has ever been held invalid in its operation within the off-shore waters, only on the ground that it lacked sufficient connexion with the colony or the State.18

So that while there is a need for a WA law to be for the State this allows a considerable leeway in laws that apply beyond the State’s territory if it is linked with the State’s interests broadly applied. Inconsistent Commonwealth legislation is dealt with by section 109 of the Commonwealth Constitution (as discussed in Chap. 3); however, there may also be potential conflicts with interstate enactments that need to be resolved.19 As also outlined in Chap. 3, there are also various doctrines and limitations derived from the Commonwealth Constitution that may act as limitations on the WA Parliament’s legislative power. Little else was said in the Constitution Act about the powers of parliament, except that all revenues are to form a Consolidated Revenue Fund (s 64), and that: all the Consolidated Revenue Fund shall be appropriated to such purposes as any Act of the Legislature shall prescribe. (s 72)

The significance of section 72 is that it provides a basis for legislative supervision of the executive, functioning “in the first instance to ensure that both the raising and

 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 75–6 (Dawson J). In Union Steamship, the High Court did note at 10 that: 16

Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law… is another question which we need not explore.  Pearce v Florenca (1976) 135 CLR 507, 518 (Gibbs J); Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 14. 18  Pearce v Florenca (1976) 135 CLR 507, 519. 19  On conflict between interstate enactments: see Mark Leeming, Resolving Conflicts of Laws (Leichhardt NSW: Federation Press, 2011), Chapters 6–7. 17

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the expenditure of public revenue are subject to parliamentary approval and oversight”.20 Finally, and very significantly, the legislature was granted “full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act.” (s 73).21 Western Australia was by this clause—tucked away in a Part of the Constitution Act titled “Miscellaneous”—essentially made master of its own constitutional destiny, subject to any ongoing powers vested in the Imperial Parliament. The new Parliament was free to make its own rules, albeit not without some caveats.22 Certain Bills were reserved “for Her Majesty’s pleasure”; and “any Bill by which any change in the constitution of the Legislative Council or of the Legislative Assembly” must “have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively.” On the face of it, this confirmed that WA’s primary constitutional text was to be treated as essentially ordinary law rather than as higher law. The Situation Today That wording from sections 2, 64 and 72 of the Constitution Act remains unchanged. Section 73 has, however, been changed radically. Amendments made in 1978 introduced a stringent new requirement for alteration of specified sections of the CA that “entrenched” those clauses by requiring a referendum for their amendment. Parliament is no longer free to change these rules. As we shall discuss in Chap. 8, this raises vexed political and legal questions about the ability of Parliament to bind its successors.

 Peter Johnston, “The Constitution of Western Australia: controversial aspects of money and financial arrangements, parliamentary control of revenue, relations between the Houses and funding disputes,” University of Western Australia Law Review 36, no. 2 (2013): 115. Certain payments were required by section 70, discussed in Chap. 7. 21  Also see section 5 of the Constitution Act 1890 (UK), the Act to which the CA was scheduled: “It shall be lawful for the legislature for the time being of Western Australia to make laws altering or repealing any of the provisions of the scheduled Bill in the same manner as any other laws for the good government of that colony, subject, however, to the conditions imposed by the scheduled Bill on the alteration of the provisions thereof in certain particulars until and unless those conditions are repealed or altered by the authority of that legislature”. 22  This contrasts with section 128 of the Commonwealth Constitution, which provides that the Commonwealth Constitution “shall not be altered except” in accordance with the absolute majority and referendum requirements set down in that provision. 20

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6.2.4 Respective Powers of the Two Chambers As noted above, bicameralism begs important questions about the relative power of the two chambers, particularly in the context of a parliamentary system, where the political executive or government of the day is dependent upon support in the legislature. In the late nineteenth century, when the Constitution Act was drafted, the House of Lords exercised substantial power and strong bicameralism was then part of Westminster constitutionalism.23 While strong bicameralism is no longer part of Westminster constitutionalism, it remains very much part of the system of government in Western Australia. The only substantive change has been to make explicit the power of the Legislative Council vis-à-vis the Assembly. However, certain provisions have been shifted from the CA to the CAAA. At the Outset Strikingly absent from the original Constitution Act was anything but the slimmest reference to the respective powers of the two chambers. Section 66 stipulated that: All Bills for appropriating any part of the Consolidated Revenue Fund or for imposing, altering, or repealing any rate, tax, duty or impost, shall originate in the Legislative Assembly.

Section 67 went onto require such Bills to have “been first recommended to the Assembly by message of the Governor”, delimiting legislative control over spending without executive approval. Thus was created a legislature with chambers of otherwise equal powers. This created the obvious potential for a government to be stymied or even brought down by conflict between the two. Despite this, no provision whatsoever was made for a standoff, or “deadlock”, between the two chambers over legislation, including financial legislation.24 The Situation Today Over a century later, nothing of substance has changed in regard to the relative powers of the two chambers. The only alteration has been to relocate the pertinent sections from the CA to the CAAA. Section 66 of the CA was deleted in 1921 and a replacement section inserted into the CAAA instead. Section 46(1) stipulates that the Legislative Council may neither originate nor amend money bills. Like section 53 of the Commonwealth Constitution, section 46(4) allows the Council to return such bills to the Assembly “requesting by  That was no longer the case after the reforms of 1911 and 1949 downgrading the powers of the House of Lords. 24  For further discussion, see: David Black, “Financial Relations Between the Two Houses, 1890–1990,” in The House on the Hill: a history of the Parliament of Western Australia 1832–1990, ed. David Black (Perth: Parliament of Western Australia, 1991). 23

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message the omission or amendment of any item or provision therein”. Section 46(5) underscores that the Council otherwise enjoys “equal power with the Legislative Assembly in respect of all Bills.” Finally, section 46 is silent on the possibility of Council simply refusing to pass money bills—leaving open the same loophole as that exploited by the Senate in the dismissal crisis of 1975. As for deadlocks, likewise no changes have been made and the WA Constitution continues to leave the matter unregulated—though, as discussed in Chap. 9, reform has been attempted.25

6.2.5 Operation of Parliament There has been little change in the constitutional provisions for the operation of Parliament. At the Outset The CA required each chamber to adopt “standing rules and orders” for their operation (s 34); stipulated a quorum for each chamber; and permitted “the Legislature” to define its own privileges immunities and powers (s 36). The CA provided for a presiding officer of the Council, the President, to be elected by the members of the Council (s 49). The President was explicitly denied a vote in normal proceedings, being assigned a “casting vote” in the event of a tie (s 10). It provided for a presiding officer of the Assembly, to be elected by the members of the Assembly (s 15). The Situation Today Sections 15 on the Speaker, section 34 on standing orders, section 36 on privileges, and section 49 on election of a Legislative Council President remain in the CA. The CA’s provision for election of a Council President is now repeated in the CAAA (s 11). Section 10 has been deleted from the CA, however, and instead, the CAAA lays down a one-third rule for quorum and limits the President to a “casting vote” (s 14). The CAAA similarly establishes a one-third quorum for the Assembly and restricts the Speaker to a “casting vote” (s 24).

 See Royal Commission into Parliamentary Deadlocks, Report, Government of Western Australia (Perth, 1985). 25

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6.3 The Executive Branch As noted above, parliamentary government is not based on a separation of powers, but rather exhibits a fusion of the legislative and executive branches with the political executive part of and directly answerable to the legislature. This fusion is reflected in the WA Constitution, reinforced by the way the office of Head of State is defined in section 2 as part of parliament (as in section 1 of the Commonwealth Constitution). The textual confusion this fusion creates is magnified by the great lengths the constitutional architects went to obfuscate the principle of responsible government the system assumes. Finally, what authority the executive holds is “notoriously elusive” in Australian and other Westminster-derived constitutionalism.26

6.3.1 At the Outset The executive branch was not treated to a section of its own in the original Constitution Act. That the executive centred on the Crown was made clear by reference throughout to the Crown’s role together with reliance on the notion of laws being made by Her Majesty with the advice and consent of the Legislative Council and Legislative Assembly.27 That there might be more to the executive branch than just her Majesty and the Governor was intimated in section 28, wherein it was stated “that there shall be five principal executive offices of the Government liable to be vacated on political grounds”, and sections 72 and 74, which referred to the “Governor in Council” (though without specifying what that meant or involved). The circumlocution “executive offices … liable to be vacated on political grounds” was from the outset seen as adverting to the principle of responsible government. However, by contrast with the Commonwealth Constitution (s 64), it did not require that those executive officers be members of parliament—though hinting at them being so and otherwise leaving the matter to convention.

 Grant Donaldson, “Aspects of State Executive Powers,” University of Western Australia Law Review 36, no. 2 (2013). 27  What Bagehot described as far back as 1867 as the “theatrical” elements of the British Constitution. Walter Bagehot, The English Constitution (London: Oxford University Press, 1961), 5. 26

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6.3.2 The Situation Today The Constitution Act  None of those sections remains in the CA. However, a new “Part IIIA—The Governor” was inserted in 1978 as part of the amendments noted above. While the original CA took the Governor’s position for granted, much more explicit status was given to the vice-regal position as a way of protecting the monarchical parts of the WA system of government against republican change. The position of Governor was then also the subject of amendment by section 14 of the Australia Act 1986 (Cth & UK). Section 50(1) reads: The Queen’s representative in Western Australia is the Governor who shall hold office during Her Majesty’s pleasure.

As discussed in Chap. 8, the position was not only made explicit, but also made immune to change by the WA Parliament itself. In 2017, section 74A was inserted by the Constitution Amendment (Demise of the Crown) Act 2017 to make clear that the end of a monarch’s reign shall result in a seamless transfer to the monarch’s successor without any impact on Parliament, “Officers of the Crown” or legal proceedings brought in the Crown’s name.28 This anticipated the death of Queen Elizabeth II in 2022. The Letters Patent  Further detail concerning the executive government is provided in the Letters Patent, the most recent iteration of which dates from 1986. Letters Patent are a form of subsidiary legislation made by executive prerogative, in this case subsidiary to the Constitution Act.29 The current Letters Patent are couched as a declaration by Queen Elizabeth II: “Now Know Ye that We do hereby declare Our Will and Pleasure, and direct and ordain as follows”. V. The appointment of a person to the office of Governor shall be during Our Pleasure…. VI.  There shall be an Executive Council to advise the Governor in the government of the State. VII. The members of the Executive Council shall be appointed by the Governor … and shall hold office during the Governor’s pleasure.

The Letters Patent also allow for a Lieutenant Governor to be appointed (XV); and they provide for the Chief Justice of Western Australia to deputise for the Governor should the need arise (XVI). The Constitution Acts Amendment Act  Meanwhile the CA’s oblique reference to the principle of responsible government now finds its place as section 43(1) of the CAAA:  See Western Australia, Parliamentary Debates, Constitution Amendment (Demise of the Crown) Bill 2017, 29 June 2017, 2135c–2136a where Premier Mark McGowan also noted that section 54 of the Constitution Act was the only provision previously addressing this consequence, providing that judicial appointments would continue, “notwithstanding the demise of Her Majesty”. 29  Letters Patent Relating to the Office of Governor of the State of Western Australia 1986. https:// www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_1725_homepage.html. 28

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There may be 17 principal executive offices of the Government liable to be vacated on political grounds, and no more.

Section 43(3) stipulates that at least one of those must be from the Legislative Council. This remains the only textual requirement that members of the executive government be members of parliament.30 The Executive Council is mentioned in sections 3, 45 and 45A, but not defined. That one form of the Governor’s authority is as advised by the political executive is indicated by the phrase “Governor in Council” (e.g., s 44A). Section 3 states that “Governor in Council means the Governor acting with the advice of the Executive Council.” The Unwritten Elements of the Constitution  The gulf between the written documents and the realities of constitutional practice is a yawning one when it comes to the executive branch. The Premier does not exist; cabinet is only acknowledged obliquely; and the core principle that the political executive holds office insofar as it has the support of the lower house and the Governor acts of the “advice” of the political executive is only vaguely hinted at. Here the system relies on the unwritten understandings of constitutional convention. These are well known and have been rehearsed repeatedly in secondary sources, but do not find expression in primary constitutional texts.31 The key issue here is the nature and extent of any authority the vice-regal office may exercise in an independent capacity, that is, “reserve powers”.

6.4 The Judicial Branch The judiciary is largely absent from the two main constitutional texts. This was the situation originally, and little has changed over the intervening decades. That silence has had consequences for the role of the judiciary in the constitutional order. It also means that the main legislation concerning the judiciary must be regarded as a component of the WA Constitution.

 Section 37 of the CAAA would seem to imply that executive officers are members of parliament.  Brian Galligan, “Executive Conventions,” in Constitutional Conventions in Westminster Systems: controversies, changes and challenges, ed. Brian Galligan and Scott Brenton (Cambridge: Cambridge University Press, 2015); Ian Killey, Constitutional Conventions in Australia: an introduction to the unwritten rules of Australia’s constitutions (Kew, Vic.: Australian Scholarly Publishing, 2009). 30 31

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6.4.1 At the Outset Originally, the Constitution Act had a “Part IV—Judicial”. However, this was a mere three sections, only one of which was of significance: “It shall be lawful … for Her Majesty to remove any … judge upon the Address of both Houses of the Legislature of the Colony.” (s 55).

6.4.2 The Situation Today Part IV remains in the CA to this day, unchanged other than being reduced from three clauses to two. Section 55 remains entirely intact. It might be thought that this inattention to the third branch of government would have been addressed in some way in the Constitution Acts Amendment Act. Such, however, is not the case. The CAAA contains only limited reference to the judiciary. Instead, the matter was consigned to a separate piece of legislation, the Supreme Court Act 1935. That Act, for example, acknowledged the existence of the Supreme Court (as also achieved for State Supreme Courts by section 73 of the Commonwealth Constitution); provided for its composition and terms of appointment; and established the procedure for removal, salary and pension; and defined the Court’s jurisdiction. Interestingly, section 73(6) provides a form of constitutional ‘standing’ for voters in the context of compliance with the manner and form provisions in section 73 (the subject of detailed discussion in Chap. 8). Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (2) is presented for assent by or in the name of the Queen.

This provision, itself protected by s 73(2)(e), potentially provides some State-based protection for the Supreme Court of Western Australia, at least as is necessary to enable the Court to carry out its role under section 73(6). What none of the existing constitutional instruments does is to ensure that the exercise of State judicial power is carried out only by judicial office-holders—what is sometimes called the “separation of (judicial) powers”. It is the case, however, that the CAAA does at least disqualify an individual from Parliament if they are listed in Part 1, Schedule V, which includes judicial or tribunal members, thus limiting political interference to some degree. An independent judiciary is generally regarded as integral to the rule of law and hence to the functioning of a liberal democracy. At the Commonwealth level, the High Court has ruled that section 71 of the Commonwealth Constitution provides for such judicial independence by

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limiting the exercise of judicial functions to properly constituted judicial bodies.32 Insofar as this rule applies in the State Constitution, it does so via the superintending role of the Commonwealth Constitution as discussed in Chap. 3.

6.5 In Summary If this all sounds a bit chaotic and confusing, that’s because it is. Between them, the two main WA constitutional statutes in concert with other statutes and instruments of constitutional significance and the conventions of responsible government outline a system of government in the following way. They provide for a legislature of two chambers with almost equal powers; mandate a high degree of self-regulation; and specify various aspects of their composition. Included among the latter are that the first chamber is to be based on single-member electorates and the second chamber (at least for elections after 2021) on a single State-wide electorate. They go so far as to specify exactly how many seats there will be in each chamber, a matter that is more typically regarded as sub-constitutional. No provision is made for resolving deadlocks, including those that might deprive the government of ‘supply’ and thus potentially precipitate a constitutional crisis. They also declare that it is “Her Majesty” who makes the laws in Western Australia, with the “advice and consent” of the two chambers, and stipulate that “Royal assent” is required for all legislation. To further complicate matters, whether royal assent amounts to a legislative or executive act remains an unanswered one.33 The main constitutional instruments in WA say very little about the executive branch and what they do say cannot, and was not intended to, be taken at face value. Pre-eminence is given to the Queen’s representative, the Governor, and nothing but the most oblique reference is made to the real executive, that is the premier and the cabinet, their roles, responsibilities, powers and duties. Existence of the political executive is hinted at by the expression “executive offices … liable to be vacated on political grounds”; by references to the authority wielded not by the Governor alone but by the “Governor in Council”; and by passages that acknowledge the existence of an “Executive Council”. Only slight indication is given that these shadowy positions are filled according to the principles of representative democracy. That they are is a function of democratic political realities and remains a matter for the conventions of responsible government. Rather like responsible government, the two main statutes give little attention to the judicial branch, which is regulated by its own statute and provide little guarantee  “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.” 33  Anne Twomey, The Veiled Sceptre: reserve powers of heads of state in Westminster systems (Cambridge: Cambridge University Press, 2019), 618–33. 32

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of independence in State constitutional texts. Those sureties have come through extension of the High Court’s interpretation of requirements explicit or implicit in the Commonwealth Constitution. Two main questions arise out of this messy situation: how is the status of the WA Constitution as higher law provided for; and how might greater coherence and clarity be injected into the State’s constitutional arrangements? The following chapters examine the ambiguous status of the WA Constitution as manifest in the politics and jurisprudence of amendment and the scope and value of statutory consolidation.

References Bagehot, Walter. 1961. The English Constitution. London: Oxford University Press. 1867. Black, David. 1991. Chap. 14: Financial Relations Between the Two Houses, 1890–1990. In The House on the Hill: A History of the Parliament of Western Australia 1832–1990, ed. David Black, 429–460. Perth: Parliament of Western Australia. Boyce, Peter. 1991. Chap. 8: Governor and Parliament. In The House on the Hill: A History of the Parliament of Western Australia 1832–1990, ed. David Black, 265–286. Perth: Parliament of Western Australia. Carney, Gerard. 2022. Labor’s Aspiration Realised: Abolition of the Legislative Council of Queensland, 1915 to 1922. Queensland History Journal 25 (3): 242–259. de Garis, Brian. 2003. The History of Western Australia’s Constitution and Attempts at Its Reform. University of Western Australia Law Review 31 (2): 142–153. Donaldson, Grant. 2013. Aspects of State Executive Powers. University of Western Australia Law Review 36 (2): 145–167. Earl of Durham. 1839. Report on the Affairs of British North America. London. 1902 reprint by Methuen, London. Galligan, Brian. 2015. Chap. 3: Executive Conventions. In Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges, ed. Brian Galligan and Scott Brenton, 51–71. Cambridge: Cambridge University Press. Ganghof, Steffen, Sebastian Eppner, and Alexander Pörschke. 2018. Australian Bicameralism as Semi-Parliamentarism: Patterns of Majority Formation in 29 Democracies. Australian Journal of Political Science 53 (2): 211–233. Ihalainen, Pasi, Cornelia Ilie, and Kari Palonen. 2016. Parliament and Parliamentarism: A Comparative History of a European Concept. New York: Bergbahn. Johnston, Peter. 2013. The Constitution of Western Australia: Controversial Aspects of Money and Financial Arrangements, Parliamentary Control of Revenue, Relations Between the Houses and Funding Disputes. University of Western Australia Law Review 36 (2): 114–144. Killey, Ian. 2009. Constitutional Conventions in Australia: An Introduction to the Unwritten Rules of Australia’s Constitutions. Kew: Australian Scholarly Publishing. Leeming, Mark. 2011. Resolving Conflicts of Laws. Leichhardt: Federation Press. Prasser, Scott, J.R.  Nethercote, and Nicholas Aroney. 2008. Upper Houses and the Problem of Elective Dictatorship. In Restraining Elective Dictatorship: The Upper House Solution? ed. Nicholas Aroney, Scott Prasser, and J.R.  Nethercote, 1–8. Crawley: University of Western Australia Press. Royal Commission into Parliamentary Deadlocks. 1985. Report. Perth: Government of Western Australia. Stone, Bruce. 2002. Bicameralism and Democracy: The Transformation of Australian State Upper Houses. Australian Journal of Political Science 37 (2): 267–281.

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Twomey, Anne. 2006. The Chameleon Crown: The Queen and Her Australian Governors. Leichhardt: Federation Press. ———. 2007. The Queen of Australia. Upholding the Australian Constitution: Proceedings of the Sir Samuel Griffith Society 19: 79–88. ———. 2019. The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems. Cambridge: Cambridge University Press. Winterton, George. 2003. Chap. 10: 1975: The Dismissal of the Whitlam Government. In Australian Constitutional Landmarks, ed. H.P.  Lee and George Winterton, 229–262. Port Melbourne: Cambridge University Press.

Chapter 7

Voting Rights and Electoral System

Electoral systems and electoral rules are an integral part of a system of representative government and crucial to the functioning of a modern democracy. Despite thus having a constitutional character, as observed in Chap. 2, electoral rules are often an almost entirely sub-constitutional matter. In Western Australia (WA), they very much straddle the boundary between the Constitution and the ordinary laws of government, as this chapter indicates. The WA electoral system is regulated by a combination of enactments (and associated regulations) including: • • • •

the Constitution Act 1889; the Constitution Acts Amendment Act 1899; the Electoral Act 1907 (‘Electoral Act’); and, the Referendums Act 1983.1

These constitutional documents, while laying down the essential aspects of the WA Parliament, contemplate much of the electoral detail being filled in by the Electoral Act.2 While other States have enacted more contemporary electoral legislation, WA has instead retained its 1907 version (which replaced the Electoral Act 1904) and periodically amended this to meet contemporary electoral needs. Some aspects of WA’s electoral law have been the subject of very recent reform. Others, affecting the franchise, may be open to constitutional challenge. And in recent controversies, such as the constitutional upheaval wrought by Commonwealth parliamentarians of dual citizenship, WA, like other States, is more flexible than the Commonwealth Parliament is able to be due to federal constitutional strictures. This chapter outlines the nature of the WA electoral system and electoral reforms in relation to malapportionment and eligibility to vote. It discusses the regulation of

 As is the case with the other chapters, any legislation mentioned here is Western Australian unless otherwise indicated. 2  Constitution Act 1889, s 38. 1

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who can stand for office and the grounds for candidate disqualification or ineligibility. It also explores constitutional implications from section 73(2)(c) of the Constitution Act 1889 (which although not in the text, are constitutional consequences that have arisen from the High Court’s interpretation of it and like provisions). Understanding this landscape clarifies the nature of WA’s parliamentary system of government and the difference between aspects that can be readily changed and those that are the subject of constitutional or legislative protection. The latter receive further analysis in Chap. 8.

7.1 Electoral System and 4-Year Terms As we noted in the preceding chapter, strong bicameralism has been a feature of the WA system of government from the outset, with the Legislative Council exercising powers in almost all respects equal to those of the Legislative Assembly in which the government is formed. All legislation must pass in both chambers and thus the Legislative Council can make life very difficult for the government of the day. Consequently, the basis on which each of the two houses is elected is of great political and constitutional significance. The WA Parliament currently comprises a 59-seat Legislative Assembly3 and a 36-seat Legislative Council (becoming 37 seats at the 2025 election4). Since 2011, both chambers have been subject to fixed four-year terms, with the political uncertainty over the polling day pre-empted by the Electoral Act’s requirement that joint elections be held on the second Saturday in March every 4 years.5 While they have undergone some change since the early 1900s, different electoral systems are used for the two houses, allowing the Council to operate as a house of review, with the prospect of a different party composition from the Assembly. Since replacing the single-member plurality (‘first-past-the-post’) system with single-­member majority in 1907,6 the Legislative Assembly has used a full preferential (or ‘alternative vote’) system. Since the 1980s, the Legislative Council has been selected by a method of proportional representation based on a single  Constitution Acts Amendment Act 1899, s 18.  Constitution Acts Amendment Act 1899, s 5. For continued application of previous electoral arrangements until the next election see Electoral Act 1907 s 217. 5  Following amendments introduced by the Electoral and Constitution Amendment Act 2011. See Peter Congdon, “In a Fix: Fixed-Term Parliaments in the Australian States,” Federal Law Review 41, no. 2 (2013): 265 where he concludes that the 2011 WA reforms probably affected an entrenched constitutional provision, s 73(2)(a), in altering the Governor’s role thereby activating the absolute majority and referendum requirements in s 73(2)(f) and (g), for which only the absolute majority requirement was satisfied. However, Congdon ultimately finds that this requirement likely lacked a binding source in s 6 of the Australia Act 1986 (Cth) and, therefore, the 2011 Act is likely to be constitutional regardless of this non-compliance. 6  Harry C. J. Phillips. Electoral Law in the State of Western Australia: an overview, 3rd edn (Perth: Western Australian Electoral Commission, 2013): Ch 4. 3 4

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transferrable vote counting method. For these purposes the State was divided into six multi-member regions, albeit in a way that incorporated a high degree of malapportionment whereby non-metropolitan regions were substantially over-­represented. Following the enactment of reforms introduced by the Labor government in 2021, the Council’s six regions will, from 2025, become one State-wide multi-member electorate of 37 seats.

7.2 The Franchise and Parliamentary Qualifications The constitutional framework regulates not only who may elect members of the two houses, but also who is eligible to stand for office. Western Australia’s requirements in that regard present an interesting counterpoint to the position of dual nationals at the federal level.

7.2.1 The Franchise and Standing for Office Who is able to vote and hence participate in the democratic process is obviously a fundamental characteristic of representative government. In WA, there were a range of franchise restrictions in place, including having resided in Western Australia for 12  months before becoming eligible to vote. And, while not for the Legislative Assembly, property requirements remained in place for the Legislative Council franchise until the sweeping reforms of 1963.7 Franchise requirements also provided for voting in multiple electorates.8 This was the case for the Assembly even after manhood suffrage had been introduced, and in the extreme case, could entitle an individual to vote across the State. “Alexander Forrest, the Premier’s influential brother and Mayor of Perth, was entitled by plural voting to vote in almost all of the 44 electorates for the 1899 Legislative Assembly election”.9 Until the reform of the Legislative Council in 1963, one also had to be at least 30 years of age to be a Member.10 WA was the second Australian jurisdiction to enfranchise women voters, having done so with effect from 1900 (at least for those with property interests until these

 Constitution Acts Amendment Act (No. 2) 1963, s 8. Phillips, Electoral Law in the State of Western Australia, 90. 8  It also enfranchised the otherwise disenfranchised, with section 15 of the CAAA having provided that “No aboriginal native of Australia, Asia, or Africa, or person of the half-blood, shall be entitled to be registered, except in respect of a freehold qualification”. 9  Phillips, Electoral Law in the State of Western Australia, 11. 10  Phillips, Electoral Law in the State of Western Australia, 4. Constitution Acts Amendment Act (no. 2) 1963. 7

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requirements were removed).11 Women were eligible to stand for election from 192012—some 25 years behind South Australia, but before Victoria, Tasmania and the upper house in New South Wales13—and WA was the first State to lower the voting age from 21 to 18.14 Aboriginal voters, though, having been expressly disqualified from voting by the Electoral Act unless they met freehold requirements,15 were only granted the vote and made eligible for election on equal terms in 1962.16

7.2.2 Parliamentary Disqualifications The Constitution Acts Amendment Act 1899 sets out that a person is disqualified from being a parliamentarian by bankruptcy;17 conviction of an indictable offence (where the penalty is imprisonment for more than 5 years or for life);18 holding an incompatible office;19 or being a member of another house or of another Australian Parliament.20 In addition, a WA parliamentarian may have their seat vacated for a number of reasons within s 38 including disqualification under other constitutional provisions; becoming of unsound mind; being absent for “one entire session” without permission; or if the person: takes any oath or makes any declaration or acknowledgment of allegiance, obedience, or adherence, to any foreign Prince or Power, or does, concurs in, or adopts any act whereby he may become a subject or citizen of any foreign State or Power, or whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power.21

This last clause is notable in the context of issues that have arisen in the Commonwealth Parliament. It provides that a WA parliamentarian may have their seat vacated by doing (or concurring in) a positive act, after being elected, whereby they become a citizen or subject of a foreign power (or entitled to the rights,

 Phillips, Electoral Law in the State of Western Australia, 14.  Phillips, Electoral Law in the State of Western Australia, 14. 13  Janet Wilson and Deirdre McKeown, “E-Brief -A Matter of Public Importance: Votes for Women”, https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/Publications_Archive/archive/women,tables. 14  Electoral Act Amendment Act (No. 2) 1970. 15  Electoral Act 1907–1953 (WA), s 18(e); Constitution Act Amendment Act 1893 s 12(a). 16  Electoral Act Amendment Act 1962. 17  Section 32(1)(a). 18  Section 32(1)(b). 19  Sections 33, 34(1)(a). Section 36 requires a number of offices to be vacated before the member takes up their seat. 20  Sections 34(1)(b), 34(2). 21  Section 38(f). 11 12

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privileges or immunities of a citizen or subject). Ineligibility, like in most other States,22 therefore flows from an action being subsequently taken that is inconsistent with allegiance to Australia. This contrasts with the federal parliamentary position whereby section 44(i) of the Commonwealth Constitution renders any person “incapable of being chosen or of sitting” as a member of the House of Representatives or the Senate if they are “under any acknowledgement of allegiance, obedience, or adherence to a foreign power or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”. Section 44(i) resulted in a number of Commonwealth parliamentarians being found to have been incapable of being chosen in 2017 and 2018, including in instances where they were not even aware of their dual nationality, and resulted in recommendations by the Commonwealth Parliament’s Joint Standing Committee on Electoral Matters for the provision to be the subject of constitutional reform.23 A referendum under section 128 would be required to amend this because, unlike some other provisions in the Commonwealth Constitution, section 44 does not contain the phrase “until the Parliament otherwise provides” that allows for Commonwealth legislation to ‘update’ some more administrative aspects such at the Governor-General’s salary or the number of ministers.

7.3 Malapportionment For much of its history the State has been characterised by pronounced electoral inequality complicated by its vast geographical size and varied demographics. A great disparity between city and regional/rural seats meant voters outside metropolitan Perth enjoyed substantially greater representation. While this distortion affected both Houses, it contributed to the Labor Party never being able to win a majority in the Legislative Council for the entire twentieth century and the first two decades of the twenty-first century. Given the strength of bicameralism in Western Australia, this represented a significant constraint on the Labor party’s ability, when in government, to fulfill its electoral mandate. Electoral reform was therefore a priority for the Party, and in particular for Dr. Geoff Gallop, MLA, minister in the Labor government 1990–93; Premier 2001–05; and Premier again from 2005 until his resignation in 2006.24 It was also recommended on fundamental democratic grounds by the

 See, Gerard Carney, “Disqualification of Members of the Australian Parliament: recent developments and the case for reform,” James Cook University Law Review 24 (2018): 89, 94, noting the exception of Victoria. See also Gerard Carney, “Foreign Allegiance: a vexed ground of parliamentary disqualification,” Bond Law Review 11, no 2 (1999): 245. 23  Joint Standing Committee on Electoral Matters, Excluded: the impact of section 44 on Australian democracy (Canberra: Parliament of the Commonwealth of Australia, 2018), [5.16] (and at [2.18]– [2.30] noting earlier calls for similar reform). 24  David Hodgkinson, “Geoff Gallop as Premier of Western Australia 2001–2006: political and constitutional change and the expansion of horizons,” The New Critic, no. 2 (2006). 22

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“WA Inc” Royal Commission—particularly for the Assembly, where government is formed.25 Labor initiated a constitutional challenge to malapportionment from Opposition in 1996; attempted to legislate changes as soon as the Gallop government first took office in 2001; and finally achieved some of their goals following the Party’s re-­ election in 2005. The Legislative Council presented a significant obstacle for both of those legislative initiatives and remained unreformed until 2021.

7.3.1 1996: A Constitutional Right to Equal Representation? The High Court challenge to malapportionment initiated by Labor in 1996 sought to exploit the recently developed potential in the Commonwealth Constitution for “implied rights”. Those rights, particularly to freedom of speech, were seen as flowing from the Commonwealth Constitution’s intent to establish a system of representative democracy. However, the challenge failed: neither the Commonwealth nor the WA constitutions were held to require ‘one vote, one value’ for WA State elections. In that case, McGinty, Toohey J (although ultimately in dissent) recounted that at the turn of the century in the WA Legislative Assembly there was a ratio of 38:1 “between the numbers of electors in the largest and smallest electorates”.26 For the majority in McGinty, section 73(2)(c) in the Constitution Act 1889 did not provide a constitutional requirement of equality of voting power. By 1993, the largest Assembly electorate had nearly three times the number of voters of the smallest electorate.27 In the Legislative Council, elected based on multi-member electorates or regions, the largest metropolitan region had 3.75 times the number of electors voting to elect 7 members compared to the smallest Mining and Pastoral Region that returned 5 members.28 By the 2021 election, this disproportion had expanded to a more than six-fold differential.29

 Royal Commission into Commercial Activities of Government and Other Matters, Report (Perth: Government of Western Australia, 1992), para 5.3.13. 26  McGinty v Western Australia (1996) 186 CLR 140, 201–2. 27  McGinty, 165 (Brennan CJ). 28  McGinty, 165–66. 29  Hon John Quigley. “Media Release: Ministerial Expert Committee to advise Government on electoral reform”, 30 April 2021, https://www.mediastatements.wa.gov.au/Pages/ McGowan/2021/04/Ministerial-Expert-Committee-to-advise-Government-on-electoral-­ reform.aspx. 25

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7.3.2 2001: A Constitutional Odyssey Having won a majority in the Legislative Assembly in 2001 and formed government, Labor set out to accomplish by legislation what it had failed to achieve via the courts. The problem was the persistent inability of the party to win a majority in the Legislative Council given the way malapportionment worked against them. In conjunction with the Greens, Labor had come very close, though. After making compromises with the Greens, Labor was able to get its legislation passed. Knowing that it would not be able to do so with the absolute majority required by the manner and form provision in the Act, though, it had crafted the two Bills in a way calculated to circumvent those requirements.30 However, as discussed in Chap. 8, the High Court ruled in Marquet that these measures were invalid and thus the stratagem failed.31

7.3.3 2005: Partial Success Labor was returned in 2005 in a very similar parliamentary situation: a majority in the Assembly and an ordinary majority in the Council if it had the support of the Greens. This time, though, Labor had the co-operation of a Liberal renegade, and that was sufficient to give them the required absolute majority.32 The Constitution and Electoral Amendment Act 2005 and the Electoral Amendment and Repeal Act 2005 sought to address some of these discrepancies in imposing an entrenched ‘one vote, one value’ requirement in the Electoral Act, requiring any repeal or alteration to be introduced by absolute majorities in both houses.33 The Electoral Act provides for a 10% allowance from the average district enrolment, while seeking to accommodate geographic differences by permitting regional districts of more than 100,000 km2 to have their numbers bolstered by 1.5% of the district’s size (a “large district allowance”) and allow for enrolments to be up to 10% greater or 20% less than the average district enrolment. To ensure compliance with these allowances, the districts are reviewed after every election by the WA Electoral Distribution Commissioners.

 the Electoral Distribution Repeal Bill 2001 and the Electoral Amendment Bill 2001.  (2003) 217 CLR 545. For a detailed discussion of this decision, see C. J. McClure, “Key Judicial Decisions on the Constitution Act 1889 (WA) and the Constitution Acts Amendment Act 1899 (WA),” University of Western Australia Law Review 36, no. 2 (2013): 234, 248–51 32  Mr. Alan Cadby, Member of the Legislative Council for the North Metropolitan Region 2001–05, elected for the Liberal Party but became an Independent in 2004. 33  Electoral Act 1907 (WA), s 16M. 30 31

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7.3.4 2021: Reforming the Council Passage of the 2005 legislation required, however, compromise with the Greens in the Legislative Council, and the result of that compromise was to restrict the reforms to the Assembly. The 2005 reforms did nothing to address the profound inequalities between the three metropolitan and three rural/regional regions of the Legislative Council. In 2021, Labor was re-elected in a landslide victory that included, for the first time in the State’s history, a clear majority in the Legislative Council: 22 of the Upper House’s 36 seats. Following a report into appropriate reform steps, Labor legislated a clean sweep abolition of malapportionment in the Council.34 The multi-­ member “regions” were abolished, replaced with a “whole of state” electorate (as well as ballot paper and candidate/party registration reforms to accommodate for a larger number of candidates on the ballot). The new arrangement is broadly similar to upper house elections in New South Wales and South Australia in lowering the quota of votes required to secure election. However, it differs in that all WA upper house seats are to be vacated every 4 years rather than staggering members’ terms with only half vacated each election as is done in those States. As well as this, the amendments to the Electoral Act by the Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021 moved away from group voting tickets in the Legislative Council. This was designed to avoid preference harvesting and results such as that at the 2021 WA State election where the Daylight Savings candidate was elected to the Council on a preference count-back after obtaining 0.2% of the vote.35 The removal of group voting tickets (which previously had the effect of most voters just numbering one box above-the-line) also allowed voters greater control of their preferences through the introduction of optional preferential voting in the upper house.

7.4 Voting Implications and the Implied Freedom of Political Communication Section 73(2) of the Constitution Act 1889 puts procedural obstacles in place for laws that might make changes to members of the WA Parliament being ‘chosen directly by the people’. As this section discusses, this has significant consequences for the freedom to communicate about political matters as well as laws that affect the WA franchise or electoral system.

 Ministerial Expert Committee on Electoral Reform, Final Report, Government of Western Australia (Perth, June 2021). 35  Western Australia, Parliamentary Debates, Legislative Assembly, 16 September 2021 (John Quigley, Minister for Electoral Affairs), [1]. 34

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7.4.1 Political Communication Inserted in 1978, section 73(2)(c) of the Constitution Act 1889 is an entrenched constitutional provision36 providing that: A Bill that — … (c) expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people;

is required to be passed with an absolute majority in both the Legislative Assembly and the Legislative Council as well as in a referendum of WA electors.37 As explained in Chap. 8, section 73(2)(c) is a protected or entrenched provision meaning it cannot be changed by ordinary legislative procedures.38 This means that a number of aspects of WA’s parliamentary system of government are protected against amendment by a future WA Parliament by these procedural “constitutional impediment[s]”39 or what are termed ‘manner and form’ requirements. As interpreted by the High Court, section 73(2)(c) of the Constitution Act 1889 also has the effect of being a limitation on WA laws impairing or restricting the freedom to communicate about political matters.40 In this regard it is akin to sections 7 and 24  in the Commonwealth Constitution (which require both houses to be “directly chosen by the people”). The High Court has declared that the implied freedom of political communication derives from the importance of voters being able to discuss political matters and make informed electoral choices as required by the constitutional requirements of representative and responsible government and that this can subsume matters relevant to Commonwealth and State governments.41 In Stephens v West Australia Newspapers Ltd, Brennan J contended: Section 73(2)(c), inserted by amendment in 1978 … entrenches in the Constitution Act the requirement that the Legislative Council and the Legislative Assembly be composed of members chosen directly by the people. This requirement is drawn in terms similar to those found in ss.7 and 24 of the Commonwealth Constitution from which the implication that effects a constitutional freedom to discuss government, governmental institutions and political matters is substantially derived. By parity of reasoning, a similar implication can be  Section 73(2)(e).  Section 73(2)(f) and (g). 38  However, as discussed in Chap. 8, it is not the case that such onerous procedural obstacles are always valid and binding on the WA Parliament. 39  Stephens v West Australia Newspapers Ltd (1994) 182 CLR 211, 233 (Mason CJ, Toohey and Gaudron JJ). 40  While sections 7 and 24, while not absolute, operate as a form of limitation on laws that impair the ability to communicate about political matters. Section 73(2)(c), operates more indirectly through the mechanism of preventing incursions upon it unless a Bill complies with stricter requirements at the time of its introduction, namely an absolute majority in both houses and a successful referendum of WA electors. 41  See, e.g., Hogan v Hinch (2011) 243 CLR 506, [48] (French CJ). 36 37

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drawn from the Constitution Act with respect to the system of government of Western Australia therein prescribed.42

Similarly Mason CJ, Toohey and Gaudron J held that this constitutional implication was necessary in WA “to protect the efficacious working of representative democracy and government”.43 Later decisions have seen a shift to ground this implication more closely to the constitutional text; however, the result is very much the same. Importantly, the implied freedom of political communication is not absolute or a constitutional “right”.44 It operates more indirectly such that section 73(2)(c)— which is also entrenched by section 73(2)(e)—ensures that a WA law can be unconstitutional, if it impairs the ability to communicate freely about political matters. It is the entrenchment of section 73(2)(c) that is particularly significant in protecting the implication from express or implied repeal by a later WA law (at least unless the requisite procedural steps have been complied with). The High Court has progressively developed the content of this implied freedom. It operates such that WA, while subject to this requirement in the WA Constitution, is also subject to an implied freedom of political communication sourced in the Commonwealth Constitution due to the integrated nature of political subjects,45 with the Commonwealth Constitution directly limiting state legislative powers to the extent necessary to not contravene the freedom. In McCloy v New South Wales French CJ, Kiefel, Bell and Keane JJ emphasised: The question whether a law exceeds the implied limitation depends upon the answers to the following questions…: 1. Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends. 1. If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as “compatibility testing”. The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government. If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends. 1. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

 (1994) 182 CLR 211, 236.  (1994) 182 CLR 211, 234. 44  McCloy v New South Wales (2015) 257 CLR 178, [2] (French CJ, Kiefel, Bell and Keane JJ). 45  Hogan v Hinch (2011) 243 CLR 506, [48] (French CJ). 42 43

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The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test—these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses…If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.46

While the majority of the High Court have continued to endorse the application of structured proportionality to determine whether the freedom is contravened, Justices Gordon and Gageler have been critical of structured proportionality. They see structured proportionality in the implied freedom context as a diversion from the need for bespoke constitutional assessments in each case.47

7.4.2 Voting Guarantees? The Electoral Act regulates who is entitled to enrol and vote in WA elections and who is disqualified from voting.48 Like other legislation, this Act can be amended by the WA Parliament. However, such amendments may be more difficult to achieve when entrenched by provisions like section 73(2)(c). In this context, such a possibility derives from analogies being drawn with the High Court decision in Roach v Electoral Commissioner.49 In Roach, the Court invalidated 2006 amendments to the Commonwealth Electoral Act 1918 (Cth), which disqualified all prisoners from voting in Commonwealth elections if they were serving a prison sentence for an offence against a Commonwealth, State or Territory law. A majority held that sections 7 and 24 in the Commonwealth Constitution limit the Commonwealth Parliament’s ability to alter the Commonwealth franchise in ways which are inconsistent with a “direct choice by the people”. This constitutional phrase forms an implied, but not absolute, “constitutional protection of the right to vote”.50 Further, the majority concluded that this constitutional imperative requires any exceptions from the Commonwealth franchise to be for a “substantial reason”, being “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”.51 For the majority, the exclusion of all prisoners, regardless of their term of imprisonment or the seriousness of their crime was too arbitrary in nature to comply with the  McCloy v New South Wales (2015) 257 CLR 178, [2].  See, e.g., Clubb v Edwards; Preston v Avery (2019) 267 CLR 171, [390]–[404] (Gordon J); McCloy v New South Wales (2015) 257 CLR 178, [142]–[152] (Gageler J). 48  Part III, Division 1. 49  (2007) 233 CLR 162. 50  Roach (2007) 233 CLR 162, [7] (Gleeson CJ) referring to ss 7 and 24 of the Commonwealth Constitution. 51  Roach (2007) 233 CLR 162, [85] (Gummow, Kirby and Crennan JJ) and see [7] (Gleeson CJ). 46 47

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constitutional imperative.52 And, as a result of the amendment’s judicial invalidation, the disqualification reverted back to the Commonwealth Act’s previous pre-2006 threshold of prisoners serving a sentence of 3 years or more. Western Australia intervened in the High Court Roach challenge at a time when the WA Electoral Act also restricted all prisoners in WA from voting in WA elections, having previously allowed prisoners with terms of less than 12 months to retain the franchise.53 In argument, Kirby J asked why WA was intervening in the case: KIRBY J: Could you just help me. What is the interest of Western Australia to support the federal legislation, except insofar as it might one day in some sort of indirect way impinge on the Western Australian law? I know that in the second part of your submissions you defend the Western Australian position but why would Western Australia want to come here to disenfranchise citizens of the Commonwealth from voting? MR MITCHELL: We certainly make the submission that even if the Court were to conclude that the Commonwealth provisions were invalid it would not necessarily follow that the State were invalid. KIRBY J: Yes, I understand that submission. MR MITCHELL: We do have a provision in the Western Australian Constitution, section 73, which is an entrenched provision that requires absolute majorities in referenda for a law which provides that Parliament be composed of other than members chosen directly by the people. It is not beyond conception that if the Court were to find the Commonwealth provisions infringed the provisions of the Commonwealth Constitution that somebody might wish to argue that the same Western Australian provisions were invalid by reason of the Western Australian Constitution.54

After the decision in Roach the WA Parliament amended the Electoral Act in 2009 with the accompanying Explanatory Memorandum setting out: The Government accepts the High Court’s ruling that a total blanket ban that prevents prisoners from voting is unconstitutional. Therefore, section 18(1)(c) will be amended to allow prisoners serving a sentence of less than one year to vote in a State election.55

The Electoral Act disenfranchises those serving (or yet to serve) terms of 1 year or longer. Therefore, the question becomes whether, based on Roach’s constitutional reasoning: does the Electoral Act suitably and proportionately delineate prisoners to be excluded from voting? Of course, the WA constitutional position is not identical to sections 7 and 24 of the Commonwealth Constitution which operate as a direct limit on Commonwealth legislative power. By contrast, section 73(2) will not directly invalidate WA laws but instead potentially require a law affecting whether the WA Parliament is “chosen directly by the people” to comply with the more onerous legislative procedures required by section 73(2)(e), namely an absolute majority  Roach (2007) 233 CLR 162, [24] (Gleeson CJ), [90] (Gummow, Kirby and Crennan JJ).  Section 18(1)(c). 54  Roach v Electoral Commissioner & Anor [2007] HCATrans 276 (13 June 2007), http://www. austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2007/276.html?context=1;query=roach; mask_path=au/cases/cth/HCATrans. 55   Western Australian Parliament, Explanatory Memorandum, Electoral Amendment (Miscellaneous) Bill 2008, https://www.parliament.wa.gov.au/Parliament/Bills.nsf/C33348AE 0E105170C82574FD001D852B/$File/EM-Bill004.002.pdf. 52 53

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of both houses (section 73(2)(f)) and a referendum of WA voters (section 73(2)(g)). These procedures, as Chap. 8 explains, would, however, only be constitutionally required (or ‘binding’ on the WA Parliament) if the law altering the WA franchise affects the ‘representative nature’ of a future WA Parliament.56 As a WA law affecting the composition of the WA electorate may be such a law,57 it might be that the previous law restricting all prisoners from voting was of no force or effect for failing to comply with these more onerous section 73(2)(e) procedures on its insertion. In Roach, Gleeson CJ commented on the disjunction at the Commonwealth level between being disqualified from voting (at the time of the Roach case, all prisoners) and being disqualified from being a Member of Commonwealth Parliament (being convicted, sentenced or subject to be sentenced for an offence liable to a term of 1 year or more):58 I do not suggest that, by implication, this imposes a lower limit on Parliament’s capacity to disqualify voters. There is, of course, an incongruity in the fact that the current legislation, in the relevant respect, imposes stricter standards upon eligibility to be a voter than the Constitution imposes upon eligibility to be a senator or a member of the House of Representatives. The point, however, is that s 44 recognises that the mere fact of imprisonment, regardless of the nature of the offence or the length of the term, does not necessarily indicate serious criminal conduct. That was so in 1901, and it remains so today.59

Under the Constitution Acts Amendment Act 1899 a person is disqualified from being a parliamentary member in Western Australia if they are “convicted on indictment of an offence for which the indictable penalty was or included … imprisonment for life or imprisonment for more than 5 years”.60 Therefore, the constitutional issue becomes whether a delineator of 1 year or longer for eligibility to vote loses its justifiability when placed alongside the parliamentary disqualification threshold and, importantly, does this voting disqualification provision still affect the degree to which the WA Parliament is “chosen directly by the people”.

 By the application of the primary binding source making manner and form provisions binding; s 6 of the Australia Acts 1986 (Cth) which requires later laws affecting the “constitution, powers or procedure” of Parliament to comply with prior manner and form requirements. In Marquet the joint judgment held that “constitution” “of the Commonwealth Parliament extends to features that go to give it, and its Houses, a representative character” (2003) 217 CLR 545, [76] (Gleeson CJ, Gummow, Hayne and Heydon JJ). 57  See earlier decisions relating to the Constitution Act 1889 pre-1978 such as Clydesdale v Hughes (1934) CLR 518; Western Australia v Wilsmore (1982) 149 CLR 79. 58  Roach (2007) 233 CLR 162, [7] (Gleeson CJ). 59  Roach (2007) 233 CLR 162, [7] (Gleeson CJ). 60  Section 32(1)(b). 56

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7.5 In Summary Parliaments are traditionally thought to have considerable discretion in the regulation of elections and political matters and this does occur in WA through ordinary Acts such as the Electoral Act and the Referendums Act 1983. However, this classic position is challenged to an extent in WA by the existence of protected provisions in the Electoral Act and Constitution Act 1889. These can, as the next chapter explores, make it more difficult for WA Parliaments to change electoral legislation, at least if they only want to enact reforms via a majority of votes in the Legislative Assembly and the Legislative Council. However, as the next chapter outlines, this position is complicated because not all laws must comply with more onerous procedural provisions. Whether such compliance is required depends on the nature of the particular electoral law and the entrenching provisions. In the WA electoral context, one example of such protected provisions that have been the subject of change is in the Electoral Act with a single State-wide electorate replacing the six regions for Legislative Council elections to eliminate steadily increasing malapportionment. The Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021 has introduced a single State-wide electorate that will apply for the upper house for WA elections from 2025.

References Carney, Gerard. 1999. Foreign Allegiance: A Vexed Ground of Parliamentary Disqualification. Bond Law Review 11 (2): 245–260. ———. 2018. Disqualification of Members of the Australian Parliament: Recent Developments and the Case for Reform. James Cook University Law Review 24: 89–113. Congdon, Peter. 2013. In a fix: Fixed-Term Parliaments in the Australian States. Federal Law Review 41 (2): 265–298. Hodgkinson, David. 2006. Geoff Gallop as Premier of Western Australia 2001–2006: Political and Constitutional Change and the Expansion of Horizons. The New Critic 2. Joint Standing Committee on Electoral Matters. 2019. Excluded: The Impact of Section 44 on Australian Democracy. Canberra: Parliament of the Commonwealth of Australia. McClure, C.J. 2013. Key Judicial Decisions on the Constitution Act 1889 (WA) and the Constitution Acts Amendment Act 1899 (WA). University of Western Australia Law Review 36 (2): 234–251. Ministerial Expert Committee on Electoral Reform. June 2021. Final Report. Perth: Government of Western Australia. Phillips, Harry C.J. 2013. Electoral Law in the State of Western Australia: An Overview. 3rd ed. Perth: Western Australian Electoral Commission. Quigley, John. Media Release: Ministerial Expert Committee to Advise Government on Electoral Reform, 30 April 2021. https://www.mediastatements.wa.gov.au/Pages/McGowan/2021/04/ Ministerial-­Expert-­Committee-­to-­advise-­Government-­on-­electoral-­reform.aspx. Royal Commission into Commercial Activities of Government and Other Matters. 1992. Report. Perth: Government of Western Australia. Western Australian Parliament, Explanatory Memorandum, Electoral Amendment (Miscellaneous) Bill 2008. Wilson, Janet, and Deirdre McKeown. E-Brief -A Matter of Public Importance: Votes for Women. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/Publications_Archive/archive/women.

Chapter 8

Amending the State Constitution: Fundamental or Ordinary Law?

Amendment has been the most troublesome aspect of constitutionalism in the Australian States. This is a matter of some concern because, as discussed in Chap. 2, amendment procedures—rules about changing the rules—go to the heart of what a constitution is about. The legitimacy of a constitution derives in considerable part from the perception that it provides a fair and agreed-upon set of rules binding all players equally and cannot easily be altered for partisan advantage. To achieve the latter, constitutions assume the character of a distinctly different type of law—fundamental law—that is superior to the ordinary law made by legislatures in the normal way. They take on a special status. Constitutions must, therefore, be sufficiently resistant to change that they rule over governments and not vice versa; they must be entrenched in some way. Broadly speaking, entrenchment of codified constitutions can take two forms—special majority requirements in the legislature, and ratification by the voters in a referendum and/or the constituent units in the case of federations—though there are other possible mechanisms. At the same time, though, constitutions must not be so immune to change, so rigid, that their legitimacy is compromised in the opposite direction: by acting as the ‘dead hand of the past’ weighing down on current generations. Typically, that special status, and amending procedures that support it, reflect in some way the procedures by which the constitution was originally adopted. In turn, they derive their legitimacy from those origins. Before being enacted by the British Parliament, the Commonwealth Constitution, for instance, was ratified via colonyby-colony referendums and, in turn, can only be amended with the approval of a majority of voters and a majority of voters in a majority of States (s 128).1 The State constitutions were not the product of such a process, but came into being as ordinary legislative enactments. They were mere statutes, and thus not  In addition, s 128 requires that any amendment affecting a specific State must be approved by the voters of that State. Section 51(xxxvi) allows for some provisions to be updated where the Commonwealth Parliament ‘otherwise provides’ but this allows this only where the Constitution always contemplated this could occur. 1

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superior in the way that we have come to expect of the higher law of the constitution. However, they were enacted by a higher authority, the UK Parliament, and from the very outset they often contained procedural requirements entrenching, at least to a certain degree, aspects of the system of government they were establishing. In Western Australia (WA), section 73 of the Constitution Act 1889 required legislation altering “the Constitution of the Legislative Council or of the Legislative Assembly” to pass with the support of an absolute majority in both chambers.2 Partisan conflict eventually led to a situation where steps were taken to put at least some imperilled aspects of the Constitution beyond the reach of statutory change altogether in various States. Key provisions were thereby solidly entrenched by imposing a requirement for approval by voters in a referendum—a requirement the change itself did not have to meet. This occurred much earlier in the twentieth century in Queensland and New South Wales, but not until 1978 in Western Australia. As it stands now, important elements of the WA Constitution are protected by entrenchment provisions that deny Parliament legal authority to change them without an absolute majority in parliament and approval of the voters in a referendum. While such attempts are not always legally effective, the ability of one Parliament to bind its successors in such a way raises difficult questions of constitutional law and political principle. This chapter recounts those developments, details the jurisprudence to which they have given rise, and explores some of the surrounding issues.

8.1 Neither Fish Nor Fowl: The Colonial Constitutions As noted earlier in this book, when Britain granted its Australian colonies self-­ government in the nineteenth century, it was by Imperial enactment of constitutional statutes that had been drafted in the respective colonies or by local enactment as provided for in the Australian Colonies Government Act 1850 (Imp).3 In this regard, the process was not dissimilar to that followed subsequently for the Commonwealth Constitution. Where the process differed was in not having any of the kind of “constituent” character that underpinned the Commonwealth Constitution. Drafting was done predominantly by members of the existing semi-­ representative legislative bodies in correspondence with the Colonial Office rather than by specially formed conventions, and the product of that drafting was not

 Viz., a simple majority of all eligible members, not just of those voting on the day. “Constitution” being used here in the sense of their form and structure. As is the case for other chapters, all legislation is Western Australian unless otherwise indicated. 3  Otherwise known as the Australian Constitutions Act 1850 (Imp). The former was the case for New South Wales, Victoria and Western Australia. Gerard Carney, The Constitutional Systems of the Australian States and Territories (Cambridge: Cambridge University Press, 2006), 40 and passim. Sarah Murray and James A. Thomson, “A Western Australian Constitution? Documents, difficulties and dramatis personae,” University of Western Australia Law Review 36, no. 2 (2013): 29–30. 2

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subjected to any local voter adoption procedure. Nothing changed in this regard between 1855 when New South Wales and Victoria achieved responsible self-­ government, and 1890 when WA became the last to join the club. From the British point of view, the limited nature of the constituent process was not at all a problem because the ‘constitutions’ they were creating were not in any full sense constitutions, but merely legislation that provided for a system of government. They were ordinary statutes doing extraordinary things. The issue ever since then has been the extent to which a parliament may alter the instrument through which it exercises authority; and, as a corollary, alter the instrument to constrain subsequent alterations of that instrument. Parliaments may entrench aspects of the system of government against subsequent change, without themselves being constrained by the requirements they are laying down for future changes. This gives rise to a fundamental conundrum: what is the constitutional morality of such entrenchment provisions legally binding and why and to what extent are they legally binding?

8.1.1 A Dog (Act) of a Constitution? Issues concerning the indeterminate status of State constitutions came to a head in an important court case early in the twentieth century, McCawley v The King (1918). The question was whether the statutes that made up the State constitutions should be regarded as implicitly possessing some special status, or whether they were no different in essence from as banal a piece of ordinary legislation as the Dog Act (the example used4). Clearly, State constitutions were not codified like the Commonwealth, but perhaps they were something more than just another piece of legislation. Could there not be a middle position? One symptom of the ordinariness of ordinary law is the legal principle that when two statutes conflict, the most recent prevails—lex posterior derogat legi priori. In other words, a new statute merely has to be in contradiction to an existing one to override it. No explicit repeal of the earlier law is required. Does this apply to constitutional statutes? The issue came to the fore in Queensland when Parliament passed legislation inconsistent with requirements of the State’s governing instrument, the Constitution Act 1867 (Qld). Like subsequent State constitutional law cases, it was impelled by powerful partisan conflicts between Labor and non-Labor parties.5 The legal proposition put to—and accepted by—first the Queensland  Powers J in the High Court judgment in McCawley v. The King (1918) 26 CLR 9, 83, quoting Higgins J in argument. 5  Nicholas Aroney, “Politics, Law and the Constitution in McCawley’s Case,” Melbourne University Law Review 30, no. 3 (2006). The line of conflict was pronounced in the early twentieth century as a result of the very precocious development of the Australian Labor Party. Linda Courtenay Botterill and Alan Fenna, “Initiative–Resistance and the Australian Party System,” Australian Journal of Politics and History 66, no. 1 (2020). 4

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Supreme Court and then the High Court in the resulting case was that constitutional statutes must be treated differently from ordinary ones, and that there is indeed a middle ground.6 A majority of the High Court held that a State Parliament cannot treat the law under which it is empowered to legislate as ordinary legislation—even if that constitutive law has no explicitly higher status—and thus Parliament had overstepped its authority. State constitutional statutes can be amended by ordinary legislative processes, but they cannot be simply overridden by the mere passage of inconsistent legislation. This made intuitive sense, but was it legally sustainable? Dissenting justices Isaacs, Rich and Higgins rejected this nuanced solution to the logical and juridical conundrum of Australia’s statutory constitutions. They argued that since there was nothing in those laws to grant them special status they must be regarded as being procedurally no different from any other piece of legislation. It was in this context that Isaacs and Rich JJ made the assertion that “the Constitution of a colony … may be looked for wherever any provision is made for the Constitution of any of its great organs of legislation, judicature, or executive power”.7 As a consequence, “there is nothing sacrosanct or magical in the word ‘Constitution’….”.8 This more cut-and-dried interpretation was the one that prevailed when the High Court’s decision was appealed to the Judicial Committee of the Privy Council (JCPC) in London. The JCPC held that if the Australian State Constitutions were not American in nature—which they clearly were not—then they must be British, and hence not endowed with any procedural distinctiveness. “It is of the greatest importance to notice that where the Constitution is uncontrolled the consequences of its freedom admit of no qualification whatever”, declared Lord Birkenhead, the Lord Chancellor.9 He continued: It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people, what was given was given completely, and unequivocally, in the belief, fully justified by the event, that these young communities would successfully work out their own constitutional salvation.10

Accordingly, the High Court’s middle ground was found untenable. As noted in Chap. 2, a middle ground of this nature has been rediscovered by courts in both the UK and Israel in their treatment of constitutional statutes.

 (1918) 26 CLR 9.  (1918) 26 CLR 9, 52. 8  McCawley v the King (1918) 26 CLR 9, 52. 9  McCawley v the King (1920) 28 CLR 106, 115. 10  McCawley v the King (1920) 28 CLR 106, 117. 6 7

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8.1.2 The Race to Entrench That these statutes outlining the system of government in each of the self-governing colonies could be truly regarded as no different from ordinary law was, however, not easily sustained. As Lord Birkenhead declared in McCawley: “The Legislature … is the master of its own household, except in so far as its powers have in special cases been restricted.”11 In particular, the fact that the State Constitutions provided the rules for political struggle between competing interests in society meant that they inevitably assume an extra-ordinary character and become the focus of conflict in themselves. Each side of politics seeks to shape the rules to their advantage—and, if successful, to lock-in those changes. From the outset, controversial aspects of these colonial constitutions were entrenched. In Queensland, for instance, electoral rules protecting the control of Parliament by the big landowners were protected by a two-thirds majority requirement for any change. The Colonial Office tolerated such derogations from British practice because it was clear that no matter how stringent those protective requirements might be, they could be removed by the colonial Parliament through ordinary legislative process at any subsequent point.12 In other words, while there was a clause entrenching the status quo, that clause was not itself entrenched. As soon as democratic interests were in a position to do so, they exploited the opportunity, then, to remove such entrenchment provisions in New South Wales almost immediately after self-government, and Queensland in 1871.13 The bitterest and longest running constitutional struggle was over Australia’s upper houses, institutions that had been designed to provide a conservative brake on governments—and which succeeded impressively in that task. “Long before 1909, when the House of Lords began its ‘sedate sort of general strike against the Constitution’, the Upper Houses of the Australian colonies, particularly those which were elective, had conducted a whole series of ‘strikes’, most of which were anything but sedate.”14 Conservative upper houses regularly played an obstructionist role. Ultimately for the Australian Labor Party, if that was the case, then logic led to abolition of those houses. In 1922 the Queensland branch of the Labor Party led the way by having the State’s appointive Legislative Council vote itself out of existence.15

 McCawley v the King (1920) 28 CLR 106, 125.  W.  G. McMinn, A Constitutional History of Australia (Melbourne: Oxford University Press, 1979), 53–4. The same reasoning has been applied to entrenchment provisions in the New Zealand Electoral Act 1993, with the entrenching section deliberately not being itself entrenched. James Allan, “Why New Zealand Doesn’t Need a Written Constitution,” Agenda 5, no. 4 (1998). 13  Anne Twomey, The Constitution of New South Wales (Leichhardt NSW: Federation Press, 2004), 270. Gerard Carney, “Constitutional Milestones From 1867 to 2009,” in Queensland’s Constitution: past, present and future, ed. Michael White and Aladin Rahemtula (Brisbane: Supreme Court of Queensland Library, 2010), 94. 14  McMinn, A Constitutional History of Australia, 58–9. 15  Gerard Carney, “Labor’s Aspiration Realised: abolition of the Legislative Council of Queensland, 1915 to 1922,” Queensland History Journal 25, no. 3 (2022). 11 12

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In other States, the Labor Party looked to follow suit—notably in New South Wales, where it failed to get the necessary numbers before losing office in 1927.16 Prompted by this threat, the conservative parties moved to put these components of the political system beyond the vandalising reach of a Labor majority in Parliament. The way to do this was to seize the opportunity when they had the numbers in Parliament to pass legislation imposing tough new rules for any further amendment to the relevant statutes. In 1929, they inserted section 7A into the Constitution Act 1902 (NSW) requiring approval in a referendum for particular changes to the Legislative Council.17 This was a turning point, not only because for the first time a State Parliament was denying its future self the power to alter aspects of its constitution, but because that clause was made self-embracing to achieve ‘double entrenchment’. Thus it protected itself against the ignominious fate of New South Wales’s original entrenchment provisions. What the conservatives did not do was to submit their plans for a referendum requirement to the voters in a referendum as constitutional morality might have expected.18 Going a step further, once the conservatives regained a majority in Queensland, they drafted legislation to restore the Legislative Council that had been abolished a decade earlier by the Labor Party—and to safeguard that restoration by following the NSW example of inserting an entrenchment clause requiring a referendum for any subsequent alteration. But this Bill was never enacted. In 1933 an incoming Labor government moved to pre-empt by inserting its own entrenchment clause— one prohibiting the re-establishment of a second chamber without approval from Queensland voters in a referendum.19 That requirement remains in force to this day.

8.2 The Jurisprudence of Entrenchment: “Manner and Form” But was such partisan manipulation of the Constitution valid? Assessments at the time were very mixed.20 The decision in McCawley had done nothing to resolve the paradox of ordinary law’s extra-ordinary role. The issue turned on the way UK legislation defined the sovereign powers of the colonial parliaments and, specifically, the way the UK Parliament had attempted to give the colonial parliaments

16  Jeffrey Goldsworthy, “Trethowan’s Case,” in State Constitutional Landmarks, ed. George Winterton (Leichhardt NSW: Federation Press, 2006), 99–100. 17  The Constitution (Legislative Council) Amendment Act 1929. These developments are also recounted in Twomey, The Constitution of New South Wales, 300 and passim. 18  “In the Council, Labor members pledged to support s 7A if, as logic and consistency demanded, it were itself submitted to a referendum before being enacted; but their proposed amendment along these lines was defeated by a vote of 34–14.” Goldsworthy, “Trethowan’s Case,” 101. 19  Constitution Act Amendment Act 1934 (Qld). 20  Goldsworthy, “Trethowan’s Case,” 102.

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self-binding capacity. These matters returned to the High Court in Trethowan’s case of 1931.

8.2.1  Trethowan’s Case Labor having won a majority in New South Wales shortly after enactment of the double entrenchment, State Parliament legislated to abolish the Legislative Council in defiance of those provisions. Challenged in the NSW Supreme Court, this gave rise to a case of tremendous significance in State constitutional law: Trethowan’s case.21 On the face of it, Labor was in a strong position: the JCPC ruling in McCawley had made it clear that, except for Lord Birkenhead’s caveat (when a parliament’s powers have been “restricted”), State constitutional statutes had no privileged authority. Australia’s State parliaments had inherited to a high degree the British constitutional norm of parliamentary sovereignty, according to which parliament is not bound by decisions of previous parliaments. How could binding entrenchment provisions be reconciled with the principle of parliamentary sovereignty? This reasoning did not persuade the High Court, which held in a 3-to-2 decision that, despite the principle of parliamentary sovereignty, such manner and form measures were binding. As Dixon J put it for the majority: The power to make laws respecting its own constitution enables the legislature to deal with its own nature and composition. The power to make laws respecting its own procedure enables it to prescribe rules which have the force of law for its own conduct. Laws which relate to its own constitution and procedure must govern the legislature in the exercise of its powers, including the exercise of its powers to repeal those laws.22

Rich J went a step further: “[t]here is no reason why a Parliament representing the people should be powerless to determine whether the constitutional salvation of the States is to be reached by cautious and well considered steps rather than by rash and ill considered measures”.23 Whether (or why) the changes prohibited by section 7A constituted “rash and ill considered measures” was not explained. Dissenting justices developed a more nuanced reading of the State Constitution, considered below. An appeal to the JCPC in London, meanwhile, was dismissed, with their Lordships giving such nuances short shrift.24

 Attorney-General (New South Wales) v Trethowan (1931) 44 CLR 394. And, indeed one of “the most important and influential constitutional cases decided in any jurisdiction of the British Commonwealth”. Goldsworthy, “Trethowan’s Case,” 98. 22  New South Wales v Trethowan (1931) 44 CLR 394, 430. 23  New South Wales v Trethowan (1931) 44 CLR 394, 420 (Rich J). 24  Attorney-General (New South Wales) v Trethowan (1932) 47 CLR 97. 21

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8.2.2  The Colonial Laws Validity Act The decision in Trethowan was only possible because of the apparently continuing force of the Colonial Laws Validity Act 1865 (Imp). As explained in Chap. 3, this had been enacted by the UK Parliament to affirm the legal authority of the self-­ governing colonies to exercise full legislative power within their own territory.25 In affirming that authority, the Act included a particular caveat whose impact would seem to have exceeded what was intended or envisaged,26 the second part of section 5. Every Colonial Legislature shall ... have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have passed in such a Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, or Colonial Law.... [emphasis added]

On the one hand, this granted the colonies constitutions that were on a par with ordinary law. On the other hand, though, with that proviso it granted the colonial legislatures authority to constitutionalise those statutes by enacting what came as a consequence of that phraseology to be called “Manner and Form” provisions. Manner and form amendments can then impose procedural limitations on subsequent parliaments: requiring that amendments to legislation within their remit be effected in a particular manner (such as the requirement for an absolute majority in parliament or a referendum) and/or form (requiring explicit rather than implicit repeal or amendment).27 As discussed below, this gives rise to questions about where procedural restraint ends and an abrogation of parliament’s legislative power begins. One dissenting opinion in Trethowan held that section 7A of the New South Wales Constitution Act crossed that line.28 A further curious aspect of the Colonial Laws Validity Act is that while passed as Imperial legislation clarifying the nature of local legislative power in Britain’s Australian colonies, it has been interpreted as applying with equal force after 1901, when the colonies became States of the Commonwealth of Australia. As recently as 1980 it was asserted in a ruling of the Supreme Court of Western Australia that “The Colonial Laws Validity Act 1865, an Imperial enactment, is a component part of the constitution of Western Australia.”29

 See John M.  Williams, “Justice Boothby: a disaster that happened,” in State Constitutional Landmarks, ed. George Winterton (Leichhardt NSW: Federation Press, 2006). 26  See, for example, Carney, The Constitutional Systems of the Australian States and Territories, 181. Twomey, The Constitution of New South Wales, 274. 27  Nicholas Aroney et al., The Constitution of the Commonwealth of Australia: history, principle and interpretation (Cambridge: Cambridge University Press, 2015), 625. 28  Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 per McTiernan J. 29  Wilsmore v Western Australia (1980) WASC 194, C, 5 (Smith J). 25

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8.2.3 Passing the Baton: The Australia Act(s) 1986 As noted in Chap. 3, the Australia Act was passed by the Commonwealth Parliament (and, separately, by the UK Parliament)30 in 1986 to draw a line under the colonial legacies of the Colonial Laws Validity Act and the JCPC.31 In doing so, however, special effort was made to carry over the CLVA’s manner and form provisions.32 Section 6 of the Australia Act declares that: A law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

As then-President of the WA Court of Appeal, the Hon Carmel McClure summarised it: Because the Western Australian Parliament has plenary legislative power, manner and form provisions are not effective in limiting the power of successor governments unless supported by a higher law. Until the commencement of the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) … the higher law was s 5 of the Colonial Laws Validity Act 1865 (Imp).33

Section 6 has been accepted by the High Court as providing ongoing legal support for manner and form procedures in State Constitutions. It has also been accepted as applying to other State legislation where a law facing a prior manner and form obstacle “respect[s] the constitution, powers or procedure of the Parliament of the State”.34 A law of a State failing to conform with such a manner and form requirement would, because of section 6, be of “no force or effect”. As the High Court later declared: It is of particular importance to recognise that the Australia Act stands as a form of law to which the Parliament of Western Australia is relevantly subordinate. To the extent to which s 6 applies, the powers of the Parliament of Western Australia to legislate are confined. What has been seen as the conundrum of whether a body given general power to legislate

 As discussed in Chap. 3, an identical version of the Act was passed by the British Parliament at the request of the Commonwealth Parliament as an insurance against the possibility that the United Kingdom still exercised some legal authority over Australian affairs—which, in the view of some, it did. 31  The latter was addressed via section 11 of the Australia Acts 1986; however, it did not override the operation of section 74 of the Commonwealth Constitution. 32  Tony Blackshield, “Australia Acts,” in The Oxford Companion to the High Court of Australia, ed. Tony Blackshield, Michael Coper, and George Williams (South Melbourne: Oxford University Press, 2001). 33  Hon C.  J. McLure, “Key Judicial Decisions on the Constitution Act 1889 (WA) and the Constitution Acts Amendment Act 1899 WA),” University of Western Australia Law Review 36, no. 2 (2013): 235. 34  Attorney-General (WA) v Marquet (2003) 217 CLR 545, 572 (Gleeson CJ, Gummow, Hayne, Heydon JJ). “Constitution” here meaning not any particular document but things relating to its “representative character”. 30

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For this reason, other potential ‘higher’ sources such as section 106 of the Commonwealth Constitution; potential arguments that the Parliament has been ‘reconstituted’ by the manner and form provision and cannot be recalled; or inherent binding force given to ‘constitutional’ manner and form provisions are unlikely to succeed.

8.3 Amending the WA Constitution Western Australia’s constitutional story follows the above pattern: the same dynamics of opportunistic entrenchment, and the same logics of manner and form requirements. While the issue goes back to the very beginnings of self-government in Western Australia, the turning point only occurred in 1978.

8.3.1 Modest Beginnings Western Australia’s Constitution Act 1889 was typical of colonial constitutions in having no greater juridical status than any other piece of legislation. In keeping with the vision laid down by the CLVA, an amendment clause, section 73, was included and it opened with the standard affirmation of the plenary power of colonial legislatures to modify their constitutional rules. The Legislature of the Colony shall have full power and authority from time to time, by any Act, to repeal or alter any of the provisions of this Act.

It did, however, qualify this power by stipulating that: …it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change of the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority….

Thus, a degree of entrenchment was included in the Constitution Act from its inception. This was confirmed by the wording of the UK Enabling Act, the Western Australia Constitution Act 1890 (Imp) to which the 1889 Act was scheduled. In section 5, the Enabling Act provided that “It shall be lawful for the legislature for the time being of Western Australia to make laws altering or repealing any of the

 Attorney-General (WA) v Marquet (2003) 217 CLR 545, 571, 573 (Gleeson CJ, Gummow, Hayne, Heydon JJ). 35

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provisions of the scheduled Bill in the same manner as any other laws for the good government of that colony, subject, however, to the conditions imposed by the scheduled Bill on the alteration of the provisions thereof in certain particulars until and unless those conditions are repealed or altered by the authority of that legislature” [emphasis added]. However, section 73 was a modest form of entrenchment in two regards. First of all, it did not require any kind of super majority, let alone ratification by voters. An absolute majority is, after all, nothing more than the guarantee of a majority of all members of the legislative chamber as distinct from a majority who happen to be in the chamber and voting.36 Such rules provide an important degree of insurance “against strategic behaviour by minorities and combine supermajoritarian effects with majoritarian symbolism”.37 Second, section 73 was not itself protected against WA parliamentary elimination or alteration, although such a Bill had to be reserved for Her Majesty’s pleasure. In addition, section 73 applied only to clauses in the Constitution Act 1889 and not to other legislation of constitutional import. As noted in earlier chapters, adjustments made to the WA Constitution through the 1890s, were made via “indirect amendment” outside the original Constitution Act. Those changes were then consolidated in the separate Constitution Acts Amendment Act 1899. Whether this was done deliberately for the purpose of quarantining those provisions from section 73’s manner and form provision or not, that would be the effect.38 None of these limitations changed the fact, though, that section 73 was a clause pregnant with possibilities.

8.3.2 Self-Embracing Entrenchment Soon after Federation, a new Act was passed in Western Australia legislating the way in which the State would be divided into electoral districts for the purposes of representation in the Legislative Assembly and Legislative Council. That Act, the Redistribution of Seats Act 1904, included an entrenchment clause of the same type as section 73’s. This represented a significant broadening in the ambit of entrenchment: applying the device to legislation outside the Constitution Act. However, what was most notable about this development was that, by contrast with the Constitution Act’s manner and form provision, this one was self-embracing. With this early instance of self-embracing entrenchment, or ‘double entrenchment’, the politics of constitutional control crossed over the threshold from a regime anchored in the  However, because the President of the Legislative Council cannot exercise a deliberative vote, the absolute majority requirement is higher than an ordinary majority one when the numbers are evenly split. 37  Thus proving something of an optimal mechanism. Adrian Vermeule, “Absolute Majority Rules,” British Journal of Political Science 37 (Oct 2007). 38  Narelle Miragliotta, “Western Australia: a tale of two constitutional acts,” University of Western Australia Law Review 31, no. 2 (2003). 36

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principle of parliamentary sovereignty to the practice of sanctioning one parliament to bind its successors. In 1937, proposed changes by the Labor government to a successor version of the Redistribution of Seats Act 1904 failed in Parliament because although they achieved a majority among those members present and voting, they could not achieve the required absolute majority.39 In 1947, the 1904 Act was replaced with the Electoral Distribution Act. That was repealed by the Gallop Labor government in 2005 after Labor had achieved sufficient support in the Legislative Council to meet the absolute majority requirement and introduce more democratic representation, as discussed in Chap. 7.40

8.4 Testing the Boundaries Interpreting the power, scope and validity of entrenchment clauses remains difficult. WA’s absolute majority manner and form requirement has been the subject of two cases that have gone to the High Court: Wilsmore, concerning the ambit of entrenchment provisions; and Marquet, considering the validity of legislation seeking to circumvent manner and form requirements.41

8.4.1  Wilsmore: Narrow or Broad Application? WA’s section 73 absolute majority entrenchment provisions were not tested in the courts until 1979, when Mr. Wilsmore challenged the legality of franchise disqualification amendments to the Electoral Act. It was argued that since those amendments had a bearing on the make-up of the WA legislature, they amounted to a “change of the Constitution of the Legislative Council or of the Legislative Assembly”, as section 73(1) of the Constitution Act put it, and thus had to be passed with the absolute majority required by that section. The claim, in other words, was that section 73(1)‘s ambit is defined by subject matter rather than being specific to the Act of which it is part. Wilsmore’s argument for a broad interpretation of the scope of that entrenchment provision was accepted by the WA Supreme Court, which disallowed the legislation on that basis.42 The government immediately appealed, and after some question of whether it was a Privy Council or a High Court

 25 ayes, 21 noes in the 50-seat legislature. Legislative Assembly of Western Australia Hansard, 14 December 1937, p. 2612. 40  Electoral Amendment and Repeal Act 2005. 41  See e.g., C.  J. McClure, “Key Judicial Decisions on the Constitution Act 1889 (WA) and the Constitution Acts Amendment Act 1899 (WA),” University of Western Australia Law Review 36, no. 2 (2012). 42  Wilsmore v. The State of Western Australia (1980) WASC 194. 39

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matter, the case went to the High Court.43 In a unanimous verdict, the High Court overturned the decision of the WA Supreme Court on the basis that section 73(1) of the Constitution Act, was qualified by its opening proviso and applied only to matters within that Act and not matters within any separate WA legislation such as the Electoral Act.44

8.4.2  Marquet: Amendment by Another Name? Issues about the power as distinct from the scope of section 73’s entrenchment provisions were confronted much more directly in the other instance where these provisions have been tested in the courts. In 2001, the Gallop Labor government shepherded two Bills through State parliament to reform Western Australia’s electoral system by replacing the controversial system of zonal malapportionment that privileged non-metropolitan electors with an arrangement more closely approximating ‘one vote, one value’. The reason for two Bills as distinct from one was that Labor did not quite have the absolute majority required by section 13 of the Electoral Act to effect an amendment. To get around that restriction, the government sought with the first Bill, the Electoral Distribution Repeal Bill 2001, to repeal the existing Act altogether rather than attempt to amend it, and then with the second Bill, the Electoral Amendment Act 2001, to fill the resulting legislative void with a new Act embodying the government’s desired changes. Following passage of the legislation through the upper house by ordinary rather than absolute majority, the Clerk of the Legislative Council, Laurie Marquet, referred the matter to the WA Supreme Court to determine whether the absolute majority requirement could legally be circumvented in this fashion before presenting the Bills to the Governor for Royal Assent. In a 4–1 decision, the Supreme Court rejected the stratagem, declaring that it was mere semantics and dismissing the idea that substitution of ‘repeal’ for ‘amend’ would somehow obviate the need to abide by existing amendment rules.45 This is consistent with the old principle that what cannot be done directly cannot be done indirectly, Quando Aliquid Prohibitor ex Directo, Prohibitor et per Obliquum. Drawing, meanwhile, on the precedent established by Trethowan, the majority found that manner and form requirements can bind Australian State parliaments. Charitably put, the government’s gambit was unconvincing: little surprise the Court rejected it. But there was more to the issue than mere legalities. None of the judges writing in the majority seem troubled by the contradiction inherent in the ability of one parliament to pass legislation binding its successors. It was this  Western Australia v Wilsmore (1982) 149 CLR 79.  Western Australia v Wilsmore (1982) 149 CLR 79. Brennan J held (at 105) that ‘Both provisos are what they appear to be: qualifications upon the exercise of the power to repeal or alter provisions of the Constitution Act. Neither proviso applies to a Bill which does not purport to repeal or alter that Act’. 45  Marquet v The Attorney-General of Western Australia (2002) WASCA 277. 43 44

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contradiction, though, that informed the dissenting opinion of Wheeler J of the Supreme Court of Western Australia, who sought a way through the logical, legal and linguistic thicket that would curtail the effect of manner and form provisions without altogether denying their validity. Justice Wheeler’s argument was that because the granting of manner and form powers had been an act of Imperial authorities cosseting infant polities, and because such entrenchment provisions “derogat[e] from the general principle that a community should be permitted to work out its own constitutional destiny” and generally impose a standard that they themselves were not required to meet, they “must be construed strictly and narrowly”.46 On that basis, she argued, we should interpret the language pedantically and accept that a prohibition against amendment without absolute majority is not a prohibition against repeal. The WA government appealed to the High Court.47 There, again, the majority dismissed the notion that the manner and form requirement for amendment could be circumvented by using the repeal technique, and the government lost its case on the basis that “[s]ection 13 of the Electoral Distribution Act 1947 is made binding by s 6 of the Australia Act 1986”.48 Again, though, there was a dissenting voice. Kirby J, held that repeal should not be construed as being encompassed by the procedural rules; that the proviso in the Colonial Law Validity Act and, subsequently, the Australia Act referred specifically and only to “laws respecting the constitution, powers, and procedure” of parliament while the Act being repealed concerned none of those but rather the electoral system; and that the section 5 of the CLVA was intended to be “facultative” rather than limiting, let alone something “crippling” the powers of State parliaments with such “undemocratic potential”.49

8.4.3 Escalation: Tying Parliament’s Hands As noted above, absolute majority rules represent only a modest form of entrenchment—they impose neither a super majority, nor a double majority, nor a successive-­ majorities, nor a ratification requirement. Thus a fundamental change was effected in the WA Constitution in 1978 when Premier Charles Court’s Coalition government passed legislation amending section 73 of the Constitution Act to impose a referendum requirement on any future changes to the place of the Queen, the Governor, and the Legislative Council in the system of government and, of course, to that amendment clause itself along with a short list of other constitutional

 Marquet v The Attorney-General of Western Australia (2002) WASCA 277, at 373.  Attorney-General (WA) v Marquet (2003) 217 CLR 545. 48  Attorney-General (WA) v Marquet (2003) 217 CLR 545, 574 (Gleeson CJ, Gummow, Hayne, Heydon JJ). 49  Attorney-General (WA) v Marquet (2003) 217 CLR 545, 609 (Kirby J). 46 47

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provisions (ss 2, 3, 4, 50 and 51).50 The WA Parliament was legislating to change the Constitution Act in a way that could take the power to change the Constitution Act out of the hands of parliament. As amended, s 73 reads: (1)  Subject to the succeeding provisions of this section, the Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III provided, and every Bill which shall interfere with the operation of sections 69, 70, 71, or 72, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon. (2)  A Bill that —   (a)  expressly or impliedly provides for the abolition of or alteration in the office of Governor; or   (b)  expressly or impliedly provides for the abolition of the Legislative Council or of the Legislative Assembly; or   (c)  expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people; or   (d)  expressly or impliedly provides for a reduction in the numbers of the members of the Legislative Council or of the Legislative Assembly; or   (e)  expressly or impliedly in any way affects any of the following sections of this Act, namely —    Sections 2, 3, 4, 50, 51 and 73,     shall not be presented for assent by or in the name of the Queen unless —   (f)  the second and third readings of the Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly, respectively; and   (g)  the Bill has also prior to such presentation been approved by the electors in accordance with this section, and a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act. (3)  On a day fixed by the Governor by Order in Council, being a day not sooner than 2 months, and not later than 6 months, after the passage through the Legislative Council and the Legislative Assembly of a Bill of a kind referred to in subsection (2), the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Electoral Act 1907.

 In the Acts Amendment (Constitution) Act, 1978—An Act to amend the Constitution Act, 1889–1970 and the Constitution Acts Amendment Act, 1899–1977. In doing so, it was following the Bjelke-Petersen government’s example of 2 years earlier, both undertaken to shore up existing institutions in the face of the furore following from the dismissal of the Labor prime minister by the Governor General in 1975. The premier presented it as delivering on the Liberal Party’s election commitment to “legislate to block any further attempt to damage or destroy the rights and status of the Parliament of Western Australia, without the consent of the people”; Sir Charles Court, “Acts Amendment (Constitution) Bill,” Hansard (22 March 1978): 307. 50

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(4)  When the Bill is submitted to the electors the vote shall be taken in such manner as is fixed by law. (5)  If a majority of the electors voting approve the Bill, it shall be presented to the Governor for assent by or in the name of the Queen. (6)  Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (2) is presented for assent by or in the name of the Queen.

8.5 Reflections on Manner and Form The 1978 amendment to the Constitution Act was passed with absolute majorities in both chambers. Even though section 73—now section 73(1)—was not itself formally entrenched, it did require reservation for Her Majesty’s pleasure and this was obtained.51 While scrupulously abiding by these prior manner and form rules, the 1978 amendment did not abide by the rule it was itself imposing on future WA Parliaments, the referendum requirement. On this basis, the constitutional validity of the 1978 amendments has been questioned. Indeed, one High Court justice has expressed the view that: There is a conceptual difficulty, to my mind, with the legitimacy of a manner and form requirement which is inserted in a written constitution otherwise than by a law made with observance of that manner and form which is thereafter to apply, or by a law having paramount force.52

Similarly, Anne Twomey has written: The problem with manner and form requirements is that the procedure for imposing them only requires the enactment of ordinary legislation. Thus one parliament can enact a law by a slim majority and provide that the law cannot be amended or repealed without the approval of a special majority or a referendum. This undermines the principle of Westminster government that one Parliament cannot bind its successors.53

As William Blackstone put it long ago, “Acts of parliament derogatory from the power of subsequent parliaments bind not.”54 However, Twomey’s formulation does not quite capture the issue. Australia does not have ‘Westminster government’— only the UK has that. Australia’s governments have certainly inherited large elements of the Westminster model, but that is not the same thing. And, obversely, there is nothing peculiarly Westminster about the venerable constitutional principle that a legislature cannot impose its decision of one point in time on itself at a

51  Peter Congdon, “The History, Scope and Prospects of Section 73 of the Constitution Act 1889 (WA),” University of Western Australia Law Review 36, no. 2 (2013): 87–88. 52  McGinty v Western Australia (1996) 186 CLR 140, at 297 (Gummow J). 53  Twomey, The Constitution of New South Wales, 313. 54  William Blackstone, Commentaries on the Laws of England (Oxford: Oxford University Press, 1765–69).

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s­ ubsequent point in time. As Greg Taylor notes, what legal philosopher H. L. A. Hart called “continuing omnipotence” is as much a fundamental principle of legislative practice in Germany or the United States as it is in the UK, Australia or Canada.55 Moreover, the fact that manner and form undermines the principle of parliamentary sovereignty is not in itself the issue. The issue is that these entrenchments are about one parliamentary majority using the principle of parliamentary sovereignty to deny subsequent majorities that same right. These jurisprudential concerns were raised in the Marquet ruling. However, the High Court found there that the “subordinate” status of State parliaments made such considerations unhelpful: Discussion of the application of manner and form provisions has provoked much debate about the theoretical underpinnings for their operation. Thus, to ask whether a Parliament has power to bind its successors by enacting a manner and form provision has, in the past, led into debates cast in the language of sovereignty or into philosophical debates about whether a generally expressed power includes power to relinquish part of it. Neither the language of sovereignty, nor examination in the philosophical terms described, assists the inquiry that must be made in this case.56

The main objection, other than as potential acts of partisan opportunism, is that such amendments impose requirements that they themselves did not meet.57 To reduce “the risk of abuse of power”, entrenchment should be “symmetric”: complying with its own requirements.58 Best practice in this important regard has been established by section 26 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).59 This empowers the ACT legislature to introduce manner and form requirements, but specifies that any such requirement itself be approved in a referendum and be passed by any special procedural requirements it imposes. Following that principle, the Queensland Constitutional Review Commission recommended that for the State’s new consolidated Constitution, “the possibility of a Government entrenching by a referendum requirement should be subject to a previous application to the electorate for its permission to do so (R12.2). If the State Constitution is to be seen as the property of the people of Queensland, they should have as much

 Greg Taylor, The Constitution of Victoria (Leichhardt NSW: Federation Press, 2006), 466–69.  Attorney-General (WA) v Marquet (2003) 217 CLR 545, 568 (Gleeson CJ, Gummow, Hayne, Heydon JJ). 57  As, for instance, was deplored by Professor George Winterton in his submission to the Commission on Government: “I do think it’s extremely important ... that the parliament should not be able to impose a manner and form requirement on future parliaments without itself complying with the manner and form requirement that it is imposing. That is a gross abuse of democracy.” Commission on Government, Report No. 5 (Perth: Government of Western Australia, 1996), 97. 58  Thomas Roszkowski and Jeffrey Goldsworthy, “Symmetric Entrenchment of Manner and Form Requirements,” Public Law Review 23, no. 3 (2012): 222. 59  Geoffrey Lindell, “Lessons to be Learned from the Australian Capital Territory Self-Government Model,” in Peace, Order and Good Government: State constitutional and parliamentary reform, ed. Clement MacIntyre and John Williams (Kent Town SA: Wakefield Press, 2003), 55. 55 56

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right to determine what is put in as what is taken out in those areas of such special significance that a referendum is advisable.”60

8.6 Limits to Manner and Form? In addition to the in-principle issue of amendment by ordinary legislation to close the door on amendment by ordinary legislation, there are two other, more specifically legal, issues that have arisen in regard to manner and form requirements. One concerns how demanding or stringent they can be; the other concerns the contexts in which they will be accepted as binding.

8.6.1 Sky’s the Limit? The stringency question serves as a reductio ad absurdum to test the underlying logic and jurisprudence of manner and form procedures. Is there any limit to how high the bar can be set, and if so, what is the basis for determining where that limit lies? Clearly, an extra-parliamentary requirement, such as requiring a private company to consent to an amendment, would be invalid as a substantive restraint on parliament rather than a valid manner and form requirement.61 Relatedly, in the recent challenge by Clive Palmer and Mineralogy Pty Ltd. to amendments to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2022 (WA), the High Court found that the relevant State Agreement operated at a contractual level rather than restricting the Parliament’s powers and for that reason took the State Agreement outside the scope of a manner and form provision for the purposes of s 6 of the Australia Act 1986 (Cth).62 Edelman J concluded, that in any event, if it did amount to procedural limit on Parliament, it would be “an implied restructure of parliamentary power” and hence not a manner and form provision.63 Similar questions arise in regard to the referendum requirement. These might be considered “extra-parliamentary” and invalid on that basis. However, courts have not taken this position, on the basis that referendums derive legitimacy from the electorate itself.64 Requiring approval in a referendum imposes a powerful constraint on constitutional change. What is to stop one majority from imposing an  Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution (Brisbane: Government of Queensland, 2000), 76. 61  West Lakes v South Australia (1980) 25 SASR 389,397 (King CJ). 62  Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832, [78]–[80] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). 63  Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832, [152] (Edelman J). 64  See, eg, Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, 421 (Rich J). 60

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even more powerful constraint—say an absolute majority of electors in a referendum, or a two-thirds majority of voters, or even a threshold of “99% of the electorate”?65 On any remotely partisan issue such a requirement would present an almost insuperable obstacle to change. Most commentators, with judicial support, confidently respond that courts would invalidate such excessively tough requirements because they diminish Parliament’s power—amounting to substantive restraint, rather than procedurally regulating its exercise.66 As King CJ noted in West Lakes: There must be a point at which a special majority provision would appear to deprive the parliament of powers rather than as a measure to prescribe the manner and form of their exercise. This point might be reached more quickly where the legislative topic which is the subject of the requirement is not a fundamental constitutional provision.67

Questions of constitutional validity can also be self-relating in that a manner and ­form provision may not be valid if its insertion failed to comply with prior manner ­and ­form provisions that are held to have been binding on it. This requires a series of investigations into whether prior provisions amounted to valid procedural obstacles if these were not complied with.

8.6.2 Breadth of Application Much less hypothetical is what limits there are to the aspects of the system of government that Courts will regard as validly subject to manner and form requirements. Victoria’s constitutional overhaul in 2003 introduced a wide-ranging entrenchment. “Section 18 of the Act now contains a series of provisions purporting to protect constitutional provisions from amendment by the ordinary process of legislation which is far and away the most extensive of any Australian State’s.”68 It was immediately argued that a good part of this is of dubious validity since in several areas the manner and form requirements exceed the valid range of subject matters.69 That range is determined by the overarching authority providing the legal basis for entrenchment provisions in State Constitutions—that proviso, cited above, from the Colonial Laws Validity Act that found its way into the Australia Act 1986 (Cth). That clause, section 6, expressly limits applicability of manner and form provisions to amending laws “respecting the constitution, powers or procedure of the Parliament

 Gerard Carney, “An Overview of Manner and Form in Australia,” Queensland University of Technology Law Journal 5, no. 5 (1989): 69, 82. 66  For example, Jeffrey D. Goldsworthy, “Manner and Form in the Australian States,” Melbourne University Law Review 16, no. 2 (1987). 67  West Lakes v South Australia (1980) 25 SASR 389, 397. 68  Taylor, The Constitution of Victoria, 464. 69  Such as: Carolyn Evans, “Entrenching Constitutional Reform in Victoria,” Public Law Review 14, no. 3 (2003): 202. 65

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of the State”. Thus, it will not typically extend to laws respecting aspects of the system of government outside the parliament, including accountability agencies or the judiciary. Manner and form provisions exist in some ordinary legislation in WA.  The Western Australian Future Health Research and Innovation Fund Act 2012, establishing the Western Australian Future Health Research and Innovation Fund, is one example. It provides in section 10(2) that an absolute majority of both the Legislative Assembly and Legislative Council is required to appeal or amend sections 7, 8 and 9, which regulate the crediting of money to the fund, and protects section 10 itself, thereby being self-entrenched. For section 10(2) to bind a later WA Parliament it would be necessary for a law amending or repealing the 2012 Act to be “respecting the constitution powers or procedure of the Parliament of the State”, as section 6 of the Australia Act 1986 requires. Most ordinary amending laws, however, would be unlikely to be encompassed by these section 6 limitations. This would depend on the how the scope of “constitution, powers or procedure” was understood, and the legal effect of the statute in question. It does suggest, though, that section 10(2) would be unlikely to be binding on the WA Parliament. There may be other reasons for inserting manner and form provisions when they can provide an aura of solidity to a particular legislative position. However, such measures may not carry the purported legal force.

8.7 In Summary In their degree of entrenchment, Australia’s State Constitutions have lurched from one extreme to the other. Constitutional conundrums remain unresolved. Being statutes, the original Constitution Acts were denied status as fundamental law, leading to the early JCPC judgment that they could be treated by parliaments as ordinary law, and, as a consequence, amended explicitly or impliedly. Entrenchment, and hence elevation to superior status, has been driven by desire for partisan political advantage and imposes an amendment threshold that is not only high,70 but also one that it did not itself have to meet. This was clearly on display in the 1978 amendments to section 73 of the WA Constitution Act imposing a referendum requirement for any subsequent changes to key parts of the system of government as well as for any subsequent changes to section 73 itself. Courts have wrestled with the conundrum of manner and form requirements, with majority opinions generally endorsing the practice, based on the continuing authority they attached to the Colonial Laws Validity Act 1865 (Imp) and, from 1986 on, the authority they held to be exercised by the Australia Act (Cth), as discussed in Chap. 3.

 Indeed, it is questionable whether the referendum method is the optimal amendment procedure because of the barriers to negotiated consensus that it imposes; see Chap. 9. 70

References

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References Allan, James. 1998. Why New Zealand Doesn’t Need a Written Constitution. Agenda 5 (4): 487–494. Aroney, Nicholas. 2006. Politics, Law and the Constitution in Mccawley’s Case. Melbourne University Law Review 30 (3): 605–656. Aroney, Nicholas, Peter Gerangelos, Sarah Murray, and James Stellios. 2015. The Constitution of the Commonwealth of Australia: History, Principle and Interpretation. Cambridge: Cambridge University Press. Blackshield, Tony. 2001. Australia Acts. In The Oxford Companion to the High Court of Australia, ed. Tony Blackshield, Michael Coper, and George Williams. South Melbourne: Oxford University Press. Blackstone, William. 1765–69. Commentaries on the Laws of England. Oxford: Oxford University Press. Botterill, Linda Courtenay, and Alan Fenna. 2020. Initiative–Resistance and the Australian Party System. Australian Journal of Politics and History 66 (1): 63–77. Carney, Gerard. 1989. An Overview of Manner and Form in Australia. Queensland University of Technology Law Journal 5 (5): 69–95. ———. 2006. The Constitutional Systems of the Australian States and Territories. Cambridge: Cambridge University Press. ———. 2010. Chap. 5: Constitutional Milestones from 1867 to 2009. In Queensland’s Constitution: Past, Present and Future, ed. Michael White and Aladin Rahemtula, 93–118. Brisbane: Supreme Court of Queensland Library. ———. 2022. Labor’s Aspiration Realised: Abolition of the Legislative Council of Queensland, 1915 to 1922. Queensland History Journal 25 (3): 242–259. Commission on Government. 1996. Report No. 5. Perth: Government of Western Australia. Congdon, Peter. 2013. The History, Scope and Prospects of Section 73 of the Constitution Act 1889 (Wa). University of Western Australia Law Review 36 (2): 83–113. Evans, Carolyn. 2003. Entrenching Constitutional Reform in Victoria. Public Law Review 14 (3): 133–137. Goldsworthy, Jeffrey D. 1987. Manner and Form in the Australian States. Melbourne University Law Review 16 (2): 403–429. Goldsworthy, Jeffrey. 2006. Chap. 4: Trethowan’s Case. In State Constitutional Landmarks, ed. George Winterton, 98–128. Leichhardt: Federation Press. Lindell, Geoffrey. 2003. Lessons to Be Learned from the Australian Capital Territory Self-­ Government Model. In Peace, Order and Good Government: State Constitutional and Parliamentary Reform, ed. Clement MacIntyre and John Williams. Kent Town: Wakefield Press. McClure, C.J. 2012. Key Judicial Decisions on the Constitution Act 1889 (Wa) and the Constitution Acts Amendment Act 1899 (Wa). University of Western Australia Law Review 36 (2): 234–251. McLure, Hon C.J. 2013. Key Judicial Decisions on the Constitution Act 1889 (Wa) and the Constitution Acts Amendment Act 1899 (Wa). University of Western Australia Law Review 36 (2): 234–251. McMinn, W.G. 1979. A Constitutional History of Australia. Melbourne: Oxford University Press. Miragliotta, Narelle. 2003. Western Australia: A Tale of Two Constitutional Acts. University of Western Australia Law Review 31 (2): 154–170. Murray, Sarah, and James A.  Thomson. 2013. A Western Australian Constitution? Documents, Difficulties and Dramatis Personae. University of Western Australia Law Review 36 (2): 1–48. Queensland Constitutional Review Commission. 2000. Report on the Possible Reform of and Changes to the Acts and Laws That Relate to the Queensland Constitution. Government of Queensland: Brisbane. Roszkowski, Thomas, and Jeffrey Goldsworthy. 2012. Symmetric Entrenchment of Manner and Form Requirements. Public Law Review 23 (3): 216–222. Sir Charles Court. 1978. Acts Amendment (Constitution) Bill. Hansard, March 22.

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Taylor, Greg. 2006. The Constitution of Victoria. Leichhardt: Federation Press. Twomey, Anne. 2004. The Constitution of New South Wales. Leichhardt: Federation Press. Vermeule, Adrian. 2007. Absolute Majority Rules. British Journal of Political Science 37: 643–658. Williams, John M. 2006. Chap. 1: Justice Boothby: A Disaster That Happened. In State Constitutional Landmarks, ed. George Winterton, 21–51. Leichhardt: Federation Press.

Chapter 9

What Should Be Done? Consolidation and Beyond

With Australia’s State constitutions being expressed in a number of statutes, it is not surprising that the dominant mode of reform has been rationalisation—amalgamation of the various written components of the State Constitution into (ideally) a single statute and the jettisoning of spent clauses. Queensland having consolidated its Constitution effective 2002,1 Western Australia (WA) is the only State not to have carried out this basic housekeeping type of constitutional reform. The centenary of self-government in WA occasioned the remark that “it seems … untenable that the principal constitutional provisions establishing and regulating the fundamental organs of government themselves should not be set forth in a single statute”.2 With another third of a century having passed since then, that remark seems even more apt. Consolidation is not new. Indeed, Queensland initiated the practice well over a century ago with the passage of the Queensland Constitution Act 1867 very soon after the State was established.3 New South Wales followed in 1902, South Australia and Tasmania in 1934, Victoria in 1975. In 1989, the WA Parliament established a Joint Select Committee on the Constitution as proposed by the Labor Party’s Dr. Geoff Gallop MLA.4 In 1991, the Joint Select Committee brought down its report recommending that Western Australia pursue constitutional consolidation. To facilitate that, the Committee prepared a draft amalgamation of the Constitution Act and the Constitution Acts

1  With the Queensland Constitution 2001 Act [sic], An Act to consolidate particular laws relating to the Constitution of the State of Queensland, and for other purposes. 2  Peter W. Johnston and Stanley D. Hotop, “Patches on an Old Garment or New Wineskins for Old Wine? Constitutional reform in Western Australia—evolution or revolution?,” University of Western Australia Law Review 20, no. 2 (1990): 437. 3  Queensland having been separated off from New South Wales and given the status of a self-­ governing colony in 1859. 4  Dr. Gallop, Constitutional Reform, Parliament of Western Australia Hansard (Perth WA, 7 December 1989).

© Springer Nature Singapore Pte Ltd. 2023 A. Fenna, S. Murray, The Constitution of Western Australia, https://doi.org/10.1007/978-981-99-3181-1_9

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Amendment Act.5 As noted in the Chap. 8, there had been a convenience to the status quo in that only the Constitution Act was covered by section 73’s original manner ­and ­form requirements. This helps explain the origins of the Constitution Acts Amendment Act as separate legislation and the perpetuation of the bifurcated enactments.6 However, this major procedural discrepancy between the two Acts also had the opposite effect of motivating that effort at consolidation—prompted by the Coalition’s opportunistic exploitation of the manner and form potential in 1978. The Joint Select Committee’s 1991 draft consolidation provided the blueprint for the Constitution of Western Australia Bill 1997 introduced into the Legislative Council as a Private Member’s Bill by The Hon John Cowdell MLC of the Labor Party. The Labor Party did not have a majority in either chamber at that point, and the Bill did not proceed beyond second reading. No further developments have occurred. Consolidation addresses questions of the form and location of the State Constitution and offers not-insignificant benefits in terms of clarity and recognisability. No matter how useful, though, consolidation does not address the lingering substantive questions about how ‘fit for purpose’ the WA Constitution really is. Even after consolidation, State constitutions remain statutes—even if, as in Queensland, the symbolic step is taken of dropping with the word “Act” from the title. Nor do amalgamations manage to consolidate everything. Then there is the matter of its content: does it make sense to create a fresh document peppered with archaisms, circumlocutions, fictions and silences? This chapter rounds out an examination of the WA constitutional framework by scrutinising the case for consolidation as well as the case for looking beyond change in form to change in substance.7

9.1 Consolations of Consolidation The fact that all the other States have consolidated their constitutions provides strong prima facie grounds for constitutional rationalisation in Western Australia. Consolidation is intuitively attractive and logical, with the following the potential

 Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution, Final Report Vol. 2: Draft Consolidated Constitution of Western Australia, Parliament of Western Australia (Perth, 1991). As is the case for the other chapters, all legislation is Western Australian unless otherwise indicated. 6  Narelle Miragliotta, “Western Australia: a tale of two constitutional acts,” University of Western Australia Law Review 31, no. 2 (2003). 7  A more nuanced distinction than that between form and substance was proposed by Johnston and Hotop, who suggested a fourfold typology of cosmetic, substantive, fundamental and radical change. However, the simple binary distinction is sufficient for purpose here. Johnston and Hotop, “Patches on an Old Garment or New Wineskins for Old Wine? Constitutional reform in Western Australia—evolution or revolution?,” 429. 5

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benefits: tidiness and clarity; greater recognisability; and the relative ease with which it can be accomplished.8

9.1.1 Clarity The main attraction is tidiness. First, as noted in other chapters, the most glaring deficiency of the WA Constitution is that it does not exist as a single locatable artefact and indeed cannot easily be located as a collection of separate artefacts. The fact that WA has not one but two main Constitution Acts—“both of which have been amended from time to time and neither of which makes much sense to the ordinary reader, either in isolation or even when they are read together”9—would seem in itself to justify textual reform. Second, the two main Acts are cluttered with spent clauses whose removal could only represent an improvement in clarity and coherence. Among those are transitional clauses that became obsolete as soon as the new system of parliamentary self-government was underway;10 large numbers of clauses vacant as a consequence of subsequent repeal;11 clauses giving WA Parliament authority that it could no longer exercise once the Commonwealth Constitution came into effect; 12 and clauses assuming a continuing Imperial authority that no longer exists.13 This clutter significantly compromises the integrity of the two main constitutional statutes as symbolically and practically important public documents providing the framework for the system of government in Western Australia. Third, consolidation provides the opportunity to organise and arrange the clauses in a maximally logical and comprehensible fashion. In addition to all the other obstacles, approaching WA’s constitutional texts is made that more challenging by their lack of coherent structure.

 The first two of these are essentially the same as the first two arguments put forward by the Joint Select Committee’s sponsoring minister, Dr. Geoff Gallop, MLA, on 7 December 1989. Gallop, Constitutional Reform. 9  Brian de Garis, “The History of Western Australia’s Constitution and Attempts at its Reform,” University of Western Australia Law Review 31, no. 2 (2003): 147. 10  Such as sections 6, 7, 63, 76, 77 of the Constitution Act 1889. 11  With deleted clauses having simply being erased, such that of the Constitution Act’s 78 sections, it no longer has sections 10, 11, 14, 16 through 21, 23 through 33, 37, 39, 40, 42, 44, 45, 48, 56, 66, 67, 69, 70, 71, or 78. 12  Such as s 59 of the CA, “It shall be lawful for the Legislature of the Colony … to impose and levy such duties of Custom as to it may seem fit, on the importation into the Colony of any goods whatsoever….”. 13  Such as s 60 and s 61 of the CA, “Nothing in this Act contained shall prevent Her Majesty from dividing the Colony of Western Australia as she may from time to time think fit, by separating therefrom any portion thereof….” 8

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9.1.2 Visibility From this follows a second attraction of consolidation. If an important attribute of a constitution is popular recognition, then the current situation is sadly deficient. “What … needs to change is the relative obscurity of State Constitutions.”14 Amalgamated into a single and clearly identifiable document—its “disparate fragments … gathered”15—and sporting a more comprehensible structure and text, the WA Constitution could develop if not an iconic quality at least a public awareness and perhaps even a certain stature. Such a recognised and knowable document could provide the kind of source around which to build a continuing conversation about the way in which WA’s system of government is organised and regulated. From this perspective, consolidation would represent a substantial advance on the status quo and would, at the very least, improve the State Constitution’s public profile. Little is lost and something is gained. The consolidated constitution is cleaner, more readily accessible and understandable, more worthy of the democratic system of government enjoyed by the modern Australian State, and perhaps politically and constitutionally therapeutic.

9.1.3 Feasibility Finally, there is the readiness with which it could be accomplished—no small virtue in the world of constitutionalism. Since, in principle, consolidation involves no change to the substance or meaning of the Constitution but rather only a change to the textual form or presentation, it should be the case that change can be achieved by ordinary legislative process in a bipartisan way.16 None of the consolidations in the other State involved the holding of a constitutional convention and none was put to the voters for ratification. Queensland’s codification did, though, proceed via a very considered process allowing broad scope for analysis, discussion and popular consultation that occurred over the period of nearly a decade (1992–2001). Consolidation does not open the Pandora’s box of constitutional change.

 James A. Thomson, “State Constitutional Law: gathering the fragments,” University of Western Australia Law Review 16, no. 1–2 (1985): 91. 15  Thomson, “State Constitutional Law: gathering the fragments,” 91. 16  The Joint Committee set out the following aims guiding its approach to consolidation: “(a) to prepare a single consolidated Act which largely reflects the present Acts; (b) to omit those sections of the present Acts which are obsolete; (c) where possible to use modern language to make the Act more readable without inadvertent changes to the meaning; (d) to consider where it may be appropriate to include sections from other statutes in the Constitution; (e) to consider where parts of the Constitution Acts may more appropriately belong in other statutes; (f) to structure the consolidated Act in order to make it easier to read and understand….” Final Report, Volume 1, p. 24. 14

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9.2 Second Thoughts on Consolidation If all this sounds like it may be too good to be true, it may well be. While consolidation might be seen as a valuable first step towards the firm establishment of Australia’s State charters and governing documents as genuine fundamental law—a step in the right direction—some words of caution are in order. First of all, consolidation is not as straightforward as it might appear. Secondly, and more importantly, in itself consolidation does not address some of the more serious issues of State constitutionalism.

9.2.1 The Entrenchment Obstacle One reason that consolidation is not likely to be quite as straightforward as the discussion above would suggest is the obstacle presented by manner and form entrenchment clauses. As discussed in Chap. 8, these impose conditions, sometimes stringent, on alteration of parts of the Constitution or system of government or even other protected legislation. In the case of the most stringent of those conditions—the requirement for approval by the voters in a referendum—presumably parliament’s hands would be tied unless there was a willingness to seek the approval of voters in this way. While State constitutions typically include entrenchment clauses protecting certain aspects of the constitutional order, there is no Australian document of State constitutionalism that has ever contained a requirement that its existing form—as distinct from specific clauses or requirements—be preserved or only altered according to a specified procedure. In principle, entrenched clauses remain in their original form, with their original effect, and retain their original sureties. Nonetheless, the WA Select Committee’s legal advice suggested that not just the substantive provisions but the: section numbering was caught by the wording of section 73 (2). Even if the Committee accepted an alternative argument that sections could be re-numbered without requiring approval by referendum and there remained only a small element of doubt as to the correctness of this position it would still require a referendum to provide the assurance essential for a statute of this significance.17

Accordingly, the Committee adopted a very circumspect view. “The Committee thus worked with the assumption that a referendum would be required to enact a consolidated Constitution Act”—even though consolidation was dutifully respecting every relevant substantive feature of the original texts. The main reason a referendum (along with an absolute majority in Parliament) may be required is that section 73(2)(e) imposes such procedural steps if a later Bill “expressly or impliedly in any way affects any of the following sections of this Act, namely – sections 2, 3, 17

 Final Report, vol 1, p. 29.

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4, 50, 51 and 73”. Something which may be inevitable in a new redrafted consolidated Constitution Act. Fearful of legal complications that might sully the result of their labours, parliaments are quite likely to err on the side of caution in this respect. Push has not yet come to shove in Western Australia, since no move has made to implement the Select Committee’s scheme. This was not so in Queensland, where Parliament a decade later proceeded with similar plans under similar circumstances. Substantial components of the constitutional order had been entrenched at various times in the Queensland’s history; how would those be accommodated in a new document? It was also concluded in Queensland that the only way to proceed with full confidence was to proceed cautiously—not, though, by risking the referendum test, but rather by avoiding anything that might trigger that test. None of the entrenched sections were moved to the new consolidated Queensland Constitution. Instead, the new document referred back to the statutes it was ostensibly superseding in each case. The result was something of a Clayton’s consolidation with the State’s constitutional enactments being reduced down to four rather than one and the new Act being punctuated with reference to other statutes.18

9.2.2 The Boundary Problem If the boundaries of the State Constitution are indeterminate, then consolidation involves potentially controversial judgements about what’s in and what’s out. It is inevitably more than an exercise in repackaging. Decisions must be made about which documents are being consolidated and what within those documents is genuinely constitutional in nature. As noted in previous chapters, constitutional significance attaches to laws concerning the electoral system and the judiciary in Western Australia in addition to the two main constitutional statutes.

9.2.3 The Status Problem A further complication is that even after the most elegant and comprehensive consolidation, the result remains an Act of Parliament. This deficiency was obliquely recognised in the recent Queensland exercise. To enhance the distinct status of this new constitutional statute, the decision was taken to deviate from standard parliamentary practice and omit the word ‘Act’ from the legislation’s title—making it the Constitution of Queensland 2001 rather than the Queensland Constitution Act

 The three historic Acts whose continuation was entailed by this scrupulous respect for entrenchment provisions were: the Constitution Act 1867, the Constitution Act Amendment Act 1890 and the Constitution Act Amendment Act 1934; see Attachments 1–4 of the Constitution of Queensland 2001. 18

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2001.19 This was akin to the Israeli practice, noted in Chap. 2, of designating constitutional statutes by omitting any indication of a year.20 Semi-constitutional material concerning the functioning of the Legislature was relegated to the conventionally titled Parliament of Queensland Act 2001. A modest symbolic gesture of that nature makes sense, but does not alter the legal reality that the Constitution of Queensland 2001 is an ordinary parliamentary Act. To go beyond this, consolidation would, then, need to include some special constituent act grounding the Constitution in the sovereignty of the people. This was the recommendation of the WA Joint Select Committee in 1991 and the Queensland Constitutional Review Commission in 2000. Both recommended popular ratification as one of several steps that might be taken to enhance the status of the State’s Constitution.21 For some commentators, Queensland’s failure to do this was a missed opportunity—not only in regard to the more symbolic aspect, but also because such a step “would have the potential … to bring about a fundamental change in the ground rules of the entire constitutional system”, giving it a much more autochthonous foundation and character.22 Popular endorsement would establish the State Constitution as higher law and resolve the entrenchment conundrum examined in the previous chapter. Of course, to take such a step is to invite further complication in the process and risk rejection. In Queensland, the timing was not propitious. A certain wariness was perfectly understandable given how fresh was the defeat of the republic and preamble proposals in the 1999 Commonwealth constitutional referendum was at that time. Finally, there is the question of whether the referendum process is well-suited to constitutional decision making at all. Not only is the referendum central to the Commonwealth Constitution’s amendment process but worldwide it has “proliferated”.23 This is consistent with the notion of popular sovereignty that underpins democracy. However, as noted in Chap. 2, it can impose an impracticably

 As recommended by the Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution (Brisbane: Government of Queensland, 2000), 36. 20  Janet McLean, “Constitution Making: the case of “unwritten” constitutions,” in Comparative Constitution Making, ed. David Landau and Hanna Lerner (Cheltenham: Edward Elgar, 2019), 329. 21  Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution, Final Report, Parliament of Western Australia (Perth, 24 October 1991), rec 1. Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution, 24–25. 22   Nicholas Aroney, “The People of Queensland and their Constitution,” in Queensland’s Constitution: past, present and future, ed. Michael White and Aladin Rahemtula (Brisbane: Supreme Court of Queensland Library, 2010), 231. 23  Stephen Tierney, Constitutional Referendums: the theory and practice of republication deliberation (Oxford: Oxford University Press, 2012), 1. 19

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high threshold for change, as well as being a device that is insufficiently deliberative to be suitable for constitutional questions.24

9.2.4 The Inherent Deficiencies Problem Most significantly, there is the problem that precisely because codification represents a change in form only, it leaves substantive deficiencies unaddressed. Worse yet, it may well have the perverse effect of entrenching those deficiencies by modernising their form. While consolidation certainly represents an invitation to make substantive changes,25 it by no means ensures that they will be introduced—indeed, experience suggests otherwise. The WA Joint Select Committee engaged with this question, but did so on the assumption that correcting any substantive deficiencies would entail “a massive alteration of the system”.26 As Chap. 6 indicated, and as discussed below, exactly the opposite is the case. Substantial changes in the wording of the State’s constitutional texts are required if those governing documents are to provide an accurate and helpful description of the existing system in exactly its present form.

9.3 The Select Committee’s Draft Consolidated WA Constitution The second of the WA Joint Select Committee on the Constitution’s three terms of reference was “to give consideration to consolidating the law, practice and statutes comprising the constitution of Western Australia.” Volume 2 of the Committee’s Final Report presented a draft consolidated Constitution, and this remains the closest WA has come to following the practice of other States.

 Simone Chambers, “Constitutional Referendums and Democratic Deliberation,” in Referendum Democracy: citizens, elites and deliberation in referendum campaigns, ed. Matthew Mendelsohn and Andrew Parkin (Basingstoke: Palgrave, 2001). 25  This was the third of three arguments for consolidation put forward by the Committee’s sponsoring minister. Gallop, Constitutional Reform, 6328. 26  As some submissions had suggested should occur. Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution, Final Report, 5. 24

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9.3.1 What Was to Stay? To achieve its goal, the Committee set about merging the active clauses of the Constitution Act and the Constitution Acts Amendment Act. It also inserted selected clauses from the Supreme Court Act 1935. Spent clauses were omitted and the decision was taken that language would be modernised where accessibility would be thereby improved and meaning not compromised. A logical and conventional structure was followed: dividing the new document into discrete chapters on parliament, the executive, the judiciary, and local government. The draft consolidated WA Constitution was, then, in the first instance very much an exercise in rationalising the current messy situation.

9.3.2 What Was to Go? In addition, the Committee faced the further challenge of determining which clauses or components of existing constitutional enactments do not actually qualify as “constitutional” in nature and thus should not receive the special recognition that follows from being included in a consolidated Constitution. This represented a considerable challenge—one that inescapably involved analytic and normative decisions. The Committee identified some clauses as sub-constitutional in nature and thus more appropriately transferred or left to the relevant statute—primarily rules concerning disqualification of elected members. While the clause outlining the division of the State into a prescribed number of electoral regions for the Legislative Council with prescribed numbers of representatives and the clause stipulating exactly how many seats there are to be in the Legislative Assembly were carried over into the consolidated draft Constitution Act, electoral matters were otherwise left to the separate (and implicitly lower order) Electoral Act 1907.

9.3.3 What Was to Be Changed? The one notable change proposed by the committee was replacement of the impenetrable and obsolete original Preamble that still opens the Constitution Act 1889 with a more comprehensible and current one: WHEREAS Western Australia occupies the Western third of the Australian continent: AND WHEREAS Western Australia has been inhabited by Aboriginal people and occupied and proclaimed as a British Colony: AND WHEREAS responsible government was granted to the Colony of Western Australia and a Parliament comprising representatives of the people established: AND WHEREAS Western Australia is a State of the Commonwealth: AND WHEREAS the Constitution on Act 1889 and the Constitution Acts Amendment Act 1899 have been enacted by the Parliament of Western Australia:

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AND WHEREAS it is to advance the welfare of Western Australia for the Parliament and people of this State to re-enact and consolidate those Constitution Acts: IT IS HEREBY ENACTED by the Parliament of Western Australia and APPROVED by the people as follows:27

This was drafted prior to the amendment of 2015 inserting two new clauses into the existing Preamble. As discussed in Chap. 5, one of those, most significantly, acknowledges “Aboriginal people as the First People of Western Australia and traditional custodians of the land”.

9.3.4 What Was Ignored? Expressing the cautious approach of the 1991 exercise, the draft consolidation made no attempt to cast the net more widely. The opportunity was not taken to bring the judicial branch within the scope of the consolidated document. Nor were any of the important accountability offices of modern parliamentary government included. Seeking to compensate for limitations of parliamentary oversight, absence of transparency in public administration, and inadequate mechanisms of executive accountability, liberal democracies adopted various institutional and procedural enhancements over the course of the twentieth century. These included auditors general, ombudsmen and information commissioners. The importance of these mechanisms for augmenting and ensuring the integrity of the democratic process was recognised by the Royal Commission and the Commission on Government (COG). Its recommendation 258, was that: The Constitution Act 1889 should be amended to specify the offices of the Auditor General, Ombudsman and the proposed Commission for the Investigation, Exposure and Prevention of Improper Conduct, by setting out that they: (a) shall be independent and impartial; and (b) shall report directly to Parliament.

Consistent with that, the sweeping change made to Victoria’s Constitution in 2003 inserted sections on the Auditor-General, the Ombudsman, the Electoral Commissioner and the Director of Public Prosecutions into the Constitution Act 1975 (Vic).

9.3.5 From Form to Substance The Committee’s product was worthy but uninspiring. The relevant components of the Constitution Act and the Constitution Acts Amendment Act were reduced to 50 sections and re-packaged into a single document. Together with a more rational  Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution, Final Report Vol. 2: Draft Consolidated Constitution of Western Australia. Perth: Parliament of Western Australia, 1991. 27

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structure, these changes made for a much more coherent and readable text. While certainly an improvement on the old, the proposed new Preamble provided good indication of the limitations of the exercise. Rich in “whereases” and colons, but little else, it has scant substance. Although premised on a decision to seek popular ratification, the draft consolidation did not include any of the reforms that such approval would make possible. Would consolidation bring the formal constitution into line with the real constitution, giving better recognition to the core principles of representative government in Western Australia? Would it resolve issues surrounding amendment provisions? Would it confer the State’s constitution with greater legitimacy? The following sections, then, consider some of the areas in which a strong case can be made for substantive reform of the WA Constitution—many of which would in all likelihood activate section 73 manner and form provisions.

9.4 The Legislature There are two main matters for potential reform in this regard: the way the legislative branch is defined; and the regulation of the relationship between the two chambers.

9.4.1 Who Makes the Laws? As noted in Chap. 6, the core written components of the WA Constitution betray their colonial origins by relying on a number of Westminster formalisms that are grounded in constitutional tradition but substitute a mythical façade for clear and accurate description of actual practices and rules. Section 2 of the Constitution Act provides: (1) There shall be, in place of the Legislative Council now subsisting, a Legislative Council and a Legislative Assembly: and it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies: and such Council and Assembly shall, subject to the provisions of this Act, have all the powers and functions of the now subsisting Legislative Council. (2) The Parliament of Western Australia consists of the Queen and the Legislative Council and the Legislative Assembly.28

 Section 75 of the Constitution Act defines “Her Majesty” as “when not repugnant to the context, Her Majesty, her heirs and successors”. 28

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(3) Every Bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to section 73, be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen. Particularly noteworthy is section 2(1), which mandates a Legislative Council and Legislative Assembly not to legislate, but merely to provide advice to Her Majesty in legislating with their advice and consent. Leaving aside the question of whether such monarchical remnants are worth protecting, provisions such as section 2(1), have an obfuscating effect. What Peter Johnston referred to as “this feudal notion of the monarch legislating” was not an accurate depiction of the UK’s constitutional practices in the late nineteenth century when the Constitution Act was drafted, let alone in the twentieth or the twenty-first centuries.29 As Gerard Carney has argued, this “archaic formulation whereby the legislative power is formally vested in the Queen acting with the advice and consent of both Houses....should be replaced with one which reflects the central role of both Houses as the embodiment of the sovereignty of the people.”30 Defining Parliament as the Queen and the two chambers of the legislature also creates contradictions with other sections.31 For example, section 23 of the Constitution Acts Amendment Act begins with the words “In case of the dissolution of Parliament…”. What, exactly, is being dissolved here? Is the Queen being dissolved, since, as section 2(2) of the Constitution Act declares, the Parliament consists of her and the two chambers of the legislature?32 Slightly more adventurous than doing away with the “charade” that it is the British monarch who makes Australian laws,33 is Carney’s suggestion of dispensing with the “ancient English requirement” of Royal Assent, something that the ACT has achieved.34 While “the requirement of assent for enactment is implicit where parliament or the legislature is defined to include the Queen and the Houses”35 it is almost entirely a formality in current practice. Royal Assent can be seen as a constitutional safeguard—a mechanism of last resort should the executive government act

 Peter W. Johnston, “The Legal Personality of the Western Australian Parliament,” University of Western Australia Law Review 20, no. 2 (1990): 324. 30  Gerard Carney, The Constitutional Systems of the Australian States and Territories (Cambridge: Cambridge University Press, 2006), 78. 31  Johnston, “The Legal Personality of the Western Australian Parliament,” 324. 32  The Commonwealth Constitution gets around this problem by referring, as it does in section 57, specifically to the dissolution of the two Houses, rather than of “Parliament”. 33  As characterised in the context of another Westminster-infused system. Gerald Baier, “Canada: federal and sub-national constitutional practices,” in Constitutional Dynamics in Federal Systems: sub-national perspectives, ed. Michael Burgess and G. Alan Tarr (Montreal & Kingston: McGill– Queen’s University Press, 2012), 182. 34  Carney, The Constitutional Systems of the Australian States and Territories. 35  Carney, The Constitutional Systems of the Australian States and Territories. 29

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in some way illegally.36 However, occasion for the withholding of Assent is very unlikely and such a step would be of uncertain constitutionality.37

9.4.2 Regulating Bicameralism Elevation of WA’s current constitutional rules to the higher status of a consolidated constitution would also mean endorsement of Western Australia’s current arrangements and silences on the respective roles and powers of the Legislative Assembly and Legislative Council. As noted in earlier chapters, Australia is highly unusual among parliamentary federations in having bicameral parliaments at the State level, let alone having such strong bicameralism. The fact that Australia’s State upper houses existed to serve as “bastions of a privileged conservative class”38 is the reason why their powers and privileges have historically been so staunchly defended. Much has changed across the States over recent decades, most notably in WA the 2021 reform of the Legislative Council to eliminate malapportionment, effective 2025. Western Australia’s constitutional arrangements continue, though, to assign the Legislative Council almost identical roles and powers to the Legislative Assembly while providing no mechanism for resolving deadlocks between the two chambers. Because of the biases in the electoral system, this long worked to the Coalition’s advantage; 2021 was the first time in the history of the State that the Labor Party enjoyed a majority in the Legislative Council. Coalition governments rarely, if ever, had legislation blocked, while Labor governments have had as many as 21 Bills rejected by the Council in a single term.39 In 1983 the Legislative Council rejected a Bill to introduce a deadlocks procedure.40 In response, the Labor government established the WA Royal Commission into Parliamentary Deadlocks. The Royal Commission recommended in 1985 that the Council’s power over money bills be reduced to a suspensory veto and adopting a mechanism along the lines of the Commonwealth Constitution’s section 57 for deadlocks over other matters.41 Unsurprisingly, this was again defeated in the Legislative Council.42 There are two aspects to the issue. One is the potential for the Legislative Council to bring a government to its knees by blocking supply, as occurred federally in 1975.  Anne Twomey, The Veiled Sceptre: reserve powers of heads of state in Westminster systems (Cambridge: Cambridge University Press, 2019), Ch 9. 37  Carney, The Constitutional Systems of the Australian States and Territories. 38  Gerard Carney, “State Constitutions,” in The Oxford Handbook of the Australian Constitution, ed. Cheryl Saunders and Adrienne Stone (Oxford: Oxford University Press, 2018), 283. 39  Minister for Parliamentary and Electoral Reform, Resolution of Parliamentary Disagreements Bill: background and summary, Parliament of Western Australia (Perth WA, 1985), 3. 40  Acts Amendment (Parliament) Bill. 41  That is, a double dissolution. Royal Commission into Parliamentary Deadlocks, Report, Government of Western Australia (Perth, 1985), 79. 42  Acts Amendment (Resolution of Parliamentary Disagreements) Bill 1983. 36

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The other is for the Council to stymie the government’s legislative agenda by voting down regular Bills. New South Wales and Victoria addressed the first problem by limiting the Council’s power over appropriations legislation to a one-month delay. Various procedures have been adopted in other States for ordinary legislation, with Victoria following the Commonwealth example in culminating in a joint sitting of the two Houses, where the Assembly could be expected to prevail given the structural disparity in numbers.43 The Victorian changes of 2003 even went so far as to insert a section 16A titled “The principle of Government mandate” into the Constitution Act 1975 (Vic). This enjoins the Legislative Council to confine its role to that of a “House of Review” and recognise “the right and obligation” of the government to implement its mandate. By its own declaration, though, the section is hortatory in nature and without legal force.

9.5 The Executive One of the most conspicuous—but also most daunting—candidates for reform is the way the WA Constitution describes (or fails to describe) the executive branch of government and regulates (or fails to regulate) the exercise of executive power. As we have seen, key instruments are, to a degree, “deafeningly silent” when it comes to the pivotal notion of responsible government.44 Depiction of the executive branch is one of the most obvious reform candidates, for two reasons. First, as noted above, this is the area in which Australia’s State constitutions are the least consistent— indeed, flagrantly at odds—with actual constitutional practices and least helpful in regulating the exercise of power. If the goal is to operate under a codified constitution, then this would be the pre-eminent area for reform. Second, in parliamentary systems political power is concentrated in the executive; the executive matters. As the WA Commission on Government put it: Limiting the exercise of executive power is … a prerequisite for ensuring the propriety of government activity. Yet, the constitutional laws of the State give little guidance as to the nature and scope of the exercise of executive power.45

The Joint Select Committee had said relatively little about the deficiencies of executive accountability in the existing constitutional arrangements and political practices. Immediately following the Select Committee’s report on the Constitution, the WA Royal Commission into Commercial Activities of Government and Other  Carney, “State Constitutions,” 284. Currently in Western Australia the Legislative Assembly has 59 members and the Council 36. In addition, the single-member electoral system used for the Assembly has an inherent tendency to inflate the winning party’s share of seats. The 2021 WA State election provides an illustration, if a rather extreme one: with just under 60% of the vote, the Labor Party won almost 90% of the Assembly’s seats (53 of 59). 44  L. B. Marquet, “The Separation of Powers Doctrine and the Constitution of Western Australia,” University of Western Australia Law Review 20, no. 2 (1990): 446. 45  Commission on Government, Report No. 5 (Perth: Government of Western Australia, 1996), 38. 43

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Matters brought down its report condemning the way inadequate transparency and accountability in the system of executive government had invited the abuses known as “WA Inc”.46 That Report was followed by the more systemic analysis of the Commission on Government as recommended by the Royal Commission into Commercial Activities.

9.5.1 Aligning Constitutional Language with Constitutional Reality Extraordinary as it might seem, none of the original Constitution Acts of the Australian States even acknowledged the existence of some of the most important offices in the entire system of government: There is little if any reference to the Premier, to Cabinet, or to the fundamental conventions which determine how responsible government operates in practice [in any of the State Constitutions]. The reasons for this woefully inadequate coverage are history and timidity. The new colonial Constitutions only addressed those matters which required statutory recognition.47

From colonial days, the genteel fiction has been maintained that the Queen, through her representative, the Governor, governs with the advice of her chosen ministers. The State Constitutions are not alone in this respect. It is the most controversial element of the much more codified Commonwealth Constitution that it likewise maintains this pretence. To this day neither prime minister nor cabinet are known to the Commonwealth Constitution—and there is only minimal guidance as to the constitutional realities, practices and rules of responsible government. Section 61 assigns executive power to the Queen and her representative, the Governor-General. Section 64 grants the Governor-General authority “to administer … departments of State” and declares that they shall hold office “during the pleasure of the Governor-­ General.” Recognition of the principle of responsible government is limited to section 64’s requirement that Ministers of State hold a seat in Parliament. It is a testimony to the centrality of the unwritten Westminster conventions of responsible government in colonial Australia that as far as the original WA Constitution Act is concerned, the executive branch scarcely exists. As we noted in Chap. 6, only a handful of provisions in that foundation Act concern themselves with matters of executive government. Section assigns the Governor sole authority to “fix the time and place” for holding sessions of each House as well as to prorogue  Royal Commission into Commercial Activities of Government and Other Matters, Report (Perth: Government of Western Australia, 1992). Allan Peachment, ed., The Business of Government: Western Australia 1983–1990 (Leichhardt NSW: Federation Press, 1991); Allan Peachment, ed., Westminster Inc: a survey of three States in the 1980s (Annanndale NSW: Federation Press, 1995); Allan Peachment, ed., The Years of Scandal: commissions of inquiry in Western Australia 1991–2004 (Crawley: University of Western Australia Press, 2006). 47  Carney, Constitutional Systems, p. 255. 46

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either chamber and dissolve the Assembly. Section 50 declares that “The Queen’s representative in Western Australia is the Governor who shall hold office during Her Majesty’s pleasure.” Section 74 gives the Governor in Council authority over appointment to all public offices and to the Governor alone authority over “appointments of officers liable to retire from office on political grounds”—viz., members of the political executive. Limited guidance about the duties, roles, powers, or limits on the powers of that office is provided. The situation was only very slightly improved with the passage of the Constitution Acts Amendment Act. In that second of the State’s two main constitutional documents, section 43 acknowledged—albeit only by implication—the principle of responsible government by stipulating that “There may be 5 principal executive offices of the Government liable to be vacated on political grounds, and no more,”48 and that “One at least of such executive offices shall always be held by a member of the Legislative Council”. The perversity of maintaining constitutional forms providing such modest and oblique acknowledgement of pivotal constitutional practices and assumptions may be sufficient grounds for reform in itself. Approaching the question with different concerns, the issue for the Commission on Government was how to construct a framework regulating the exercise of power by offices that according to the existing Constitution do not exist or do not exercise that power. Codification of the conventions of responsible government and the ‘reserve powers’ of the Head of State is often described as too difficult to be feasible.49 “Recommendations to fill this void are often rejected for fear of unintended damage to the constitutional system. Clearly, a more robust attitude is needed to rewrite the State Constitution Acts for this new century.”50 In eight full paragraphs of its recommendation 254, the Commission on Government submitted an extensive range of proposals for the codification of executive power. These included the procedure for appointment and removal of the Governor and the premier’s role therein; the fact that the Governor acts only on the advice of elected officials except where it is necessary “to safeguard the Constitution of the State”; formal recognition of the office of Premier as Head of Government; formal recognition of Cabinet; and acknowledging and delimiting the place of State ministers.51 None of this has occurred. Examples where the formal rules have moved in this direction can be found in other jurisdictions. While consolidation of the Queensland Constitution did not incorporate a great number of changes, it did include an explicit acknowledgement of the real executive. Part 3 of the Constitution of Queensland privileges the term Cabinet in its title and leads off with section 42 stipulating that:

 Ordinary legislation has amended that number upward over the years and it now stands at 17.  For example: Twomey, The Veiled Sceptre: reserve powers of heads of state in Westminster systems, 37–43. 50  Carney, The Constitutional Systems of the Australian States and Territories, 255. 51  Commission on Government, Report No. 5, 231–34. 48 49

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(1) There must be a Cabinet consisting of the Premier and a number of other Ministers appointed under section 43. (2) The Cabinet is collectively responsible to the Parliament.

In section 43, it declares that: (1) The Governor, by proclamation, may declare the offices to which persons may be appointed as Ministers of the State. (2) The Governor, by commission, may appoint a person as a Minister of the State.

Thus, both Premier and Cabinet are recognised; the rule that they are responsible to parliament is expressly stated; and there is no suggestion Ministers hold office during the Governor’s pleasure. This represents a significant step toward constitutional realities and democratic practice—by comparison with either the Commonwealth or the WA Constitutions. What even the best effort at bringing constitutional wording into line with those basic constitutional realities cannot do, though, is address some of the tougher questions raised by the WA Commission on Government and the Royal Commission. Most importantly, they do not provide regulation of the exercise of executive power—which a number of commentators regard as one of the most pressing challenges of modern Westminster-style parliamentarism.

9.5.2 A Republican Head of State There has been considerable interest for several decades in replacing Australia’s colonial–monarchical dual Head of State with a single, ‘republican’, one. That would terminate the last of the colonial ties to Britain, with a locally appointed Head of State taking the place of the monarch and the Governor-General and/or State Governors.52 However, as the failed republic referendum of 1999 clearly demonstrated, there are difficult political and constitutional questions to answer about means of appointment and delineation of powers standing in the way of such a change. This is particularly the case given, as noted in Chap. 6, the grave disjuncture between the written text and the conventions of responsible government characteristic of Australian constitutionalism. Attention has generally focused on the Commonwealth level; however, it could readily focus first on the State level. In addition, should such change occur at the national level it would have obvious ramifications for the States, with residual monarchism at the State level extremely incongruous if not legally untenable. Change could be implemented synchronically;53 however, that would deny some of the  ‘Appointed’ in the broad sense of the term, encompassing various suggested modes of election.  Anne Twomey, “One In, All In: the simultaneous implementation of a republic at Commonwealth and State levels,” in Constitutional Perspectives on an Australian Republic: essays in honour of George Winterton, ed. Sarah Murray (Leichhardt NSW: Federation Press, 2010). George Winterton, Monarchy to Republic: Australian republican government (Melbourne: Oxford University Press, 1994; repr., “with a new introduction”). 52 53

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b­ enefits of a federal system. The scope for experimentation and inter-jurisdictional learning that federalism provides means that in many ways, subject to inevitable constitutional complexities,54 it would be better for all if the States rather than the Commonwealth were to initiate such reforms. Individual States could experiment with modes of appointment and delineation of roles and powers for a republican Head of State, before the Commonwealth committed to such a change.55

9.6 The Judiciary As is noted above, the WA Joint Select Committee’s draft consolidation incorporated some relevant sections from the Supreme Court Act 1935, thus acknowledging the importance of grounding all three branches of government in the State Constitution. While the importance of the rule of law to a system of constitutional government is indisputable,56 it has neither been thought nor proven particularly necessary to provide strong constitutional protection for the judiciary in the Australian States. In this context, there are two very different aspects to the judiciary’s role. First is that sine qua non of the rule of law, the independence of the judiciary or separation of judicial powers. Secondly, there is the extent to which the judiciary should exercise a power of judicial review over the constitutionality of executive and legislative actions. The principle of an independent judiciary is deeply entrenched within Western legal systems and tends to be embedded in constitutional or statutory instruments in the ways those instruments stipulate rules of appointment, remuneration and removal. As discussed in Chap. 2, judicial review is a radical departure from traditional British practice, pioneered in the United States (US), now a broadly accepted component of constitutionalism. Like the executive branch, the judicial branch of government receives only cursory treatment in the State Constitutions. As noted in Chap. 3, this reflected the fact that the judiciary preceded the constitutional systems of the Australian States and  Including those created by the Australia Act 1986 (Cth) that could make Commonwealth co-­ operation necessary or helpful. Peter Johnston, “Going it Alone: republican states under a monarchical Commonwealth,” in Constitutional Perspectives on an Australian Republic, ed. Sarah Murray (Leichhardt NSW: Federation Press, 2010). 55  Alan Fenna, “The Incremental Republic,” in Constitutional Perspectives on an Australian Republic: essays in honour of George Winterton, ed. Sarah Murray (Leichhardt NSW: Federation Press, 2010). 56  On which, see, inter alia: Cheryl Saunders and Katie Le Roy, eds., The Rule of Law (Leichhardt NSW: Federation Press, 2003). Brian Z. Tamanaha, On the Rule of Law: history, politics, theory (Cambridge: Cambridge University Press, 2004). N. W. Barber, The Principles of Constitutionalism (Oxford: Oxford University Press, 2018). Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Leichhardt NSW: Federation Press, 2018). Kenneth Hayne, “Rule of Law,” in The Oxford Handbook of the Australian Constitution, ed. Cheryl Saunders and Adrienne Stone (Oxford: Oxford University Press, 2018). 54

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policed the actions of colonial governments—judging whether local laws were consistent with Imperial laws or invalid as ultra vires.57 Since 1956, the High Court has strictly enforced the inference it has drawn from section 71 of the Commonwealth Constitution that only Chapter III Courts may exercise the judicial power of the Commonwealth.58 In the Boilermakers’ decision, the High Court emphasised the importance of a separation of judicial powers to the proper functioning of the judicature in the exercise of Commonwealth judicial power.59 A clear separation of judicial powers also helps ensure the independence of the judiciary and thus fair administration of the law.60 The absence of constitutive sections for the judiciary in either of WA’s two Constitution Acts means that this distinction as a strict matter of constitutional law cannot be made at the State level. Accordingly, the High Court has recognised the absence of a State separation of judicial power.61 A stark manifestation of that absence is the fact that the Chief Justice of Western Australia fulfils the role of deputy or acting Governor if required through the appointment of Lieutenant-­ Governor. And while an independent judiciary is found as a matter of practice, it is not constitutionally entrenched at the State level in a general sense.62 As noted in Chap. 8, to the extent that section 73(6) of the Constitution Act entitles a WA voter to bring proceedings in the Supreme Court to enforce compliance with manner and ­form requirements, it may have the effect of entrenching the Supreme Court for this purpose. However, a consolidated Constitution of Western Australia could look to incorporate provisions to constitutionally entrench the separation of the state judiciary more broadly.  W.  G. McMinn, A Constitutional History of Australia (Melbourne: Oxford University Press, 1979), 21. 58  Section 71 opens with the declaration that “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.….” The High Court has however been more obliging in crafting exceptions to the Boilermakers’ requirement that the Commonwealth cannot confer non-judicial powers on Chapter III Courts. 59  The Queen v. Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. 60  A rationale going back to the arguments of Montesquieu and Blackstone in the eighteenth century, that the separation of judicial powers is essential to the preservation of liberty. “In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.” William Blackstone, Commentaries on the Laws of England (Oxford: Oxford University Press, 1765–69), vol 1, ch 7. Charles de Secondat Baron de Montesquieu, De l’esprit des loix: ou du rapport que les Loix doivent avoir avec la Constitution de chaque Governement, les Moeurs, le Climat, la Religions, le Commerce, &c (Geneve: Barriollot & Fils, 1748).—The Spirit of the Laws. 61  Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 67 (Brennan J), 77–8 (Dawson J), 93 (Toohey J), 109, 118 (McHugh J), 132 (Gummow J); Garlett v Western Australia (2022) 96 ALJR 888, [184] (Gordon J), [248] (Edelman J) 62  Gerard Carney, The Constitutional Systems of the Australian States and Territories (2006) 349. 57

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Such consolidating reforms cannot be done in isolation of State courts integrated role in the Federation. As discussed in Chap. 3, the Kable doctrine requires any “court of a State” to remain capable of being a repository of federal jurisdiction,63 as well as the High Court’s acknowledgement that Supreme Courts, in their reference in section 73 of the Commonwealth Constitution, must retain, as one of their ‘defining characteristics’, their ‘supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power’.64 These High Court decisions provide a degree of constitutional protection of State courts. Further to the extent that State Tribunals are in fact “court[s] of a State”65 they may be protected from State legislative encroachment.66 However, there are clear gaps that arise from the lack of an entrenched state separation of judicial powers. For instance, the WA Parliament, free from the strictures of the Boilermakers’ doctrine, is able to confer non-judicial powers on State courts provided that it does not affect the institutional integrity of State courts such that they are incapable of being fit repositories for federal judicial power. Similarly, constitutional questions remain as to the degree to which the State executive branch could be vested with State judicial powers.67 Providing greater State-based constitutional protection for State courts would first, enhance the State Constitution as an autonomous—and indeed what has been envisioned as an “autochthonous” or home-grown—body of fundamental law.68 Second, it would better delineate the nature and limits of the scope of judicial review over the constitutionality of State legislative and executive action exercised by a separate and independent State judicial arm.

9.7 Optional Extras In addition to changes that go beyond consolidation to give better expression to the actual way in which government works and is expected to work in Western Australia, there are other additions that might be considered. We discuss two here: rights protection and a Preamble.

 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.  Kirk v Industrial Relations Commissioner of New South Wales (2010) 239 CLR 531, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 65  Section 77(iii) of the Commonwealth Constitution. 66  Burns v Corbett (2018) 265 CLR 304. 67  See, e.g., though in the Territory context, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569. 68  James A.  Thomson, “State Constitutional Law: the quiet revolution,” University of Western Australia Law Review 20, no. 2 (1990). 63 64

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9.7.1 A Human Rights Act? As we noted in Chap. 2, formal protection of individual rights is a broadly established element of modern constitutionalism. Australia is unusual in having no formal constitutional “Bill of Rights” as part of the Commonwealth Constitution, and there has been demand from certain quarters for some time that that be changed.69 While the Commonwealth Constitution is not completely absent of any rights provisions, the addition of further rights guarantees to the Commonwealth Constitution was rejected by voters in the 1988 referendum. As also noted in Chap. 2, it is not abnormal in federations for the constituent units to have their own set of rights guarantees, even when these also exist for the federation as a whole. The role for constituent units in this respect is potentially greater in the absence of a national bill of rights. Not only can they, at least to some extent, “compensate” for federal inaction,70 but they can also provide opportunities for experimentation and learning. There is good evidence of this in Australia, where rights legislation has been enacted in three jurisdictions: the ACT, Victoria and Queensland.71 All of those follow the “dialogue” model, whereby the court can issue a declaration of incompatibility in relation to a State law to parliament, using ordinary law that cannot trump other legislation as a constitutionally-entrenched set of rights guarantees does in the US or Canada. In 2007, the WA government made steps to follow suit, establishing a consultation committee and producing a draft Act.72 A WA Human Rights Act would “focus on the civil and political rights set out in the International Covenant on Civil and Political Rights”, not the more contentious economic, social or cultural ones, and “take the form of an ordinary Act of Parliament”.73 Such an Act would have added

 For example: George Williams and Daniel Reynolds, A Charter of Rights for Australia (Sydney: UNSW Press, 2017); cf. Nicholas Barry and Tom Campbell, “Towards a Democratic Bill of Rights,” Australian Journal of Political Science 46, no. 1 (2011). This is not to deny the existence of Commonwealth statutory rights instruments. 70  An idea developed in Martha Derthick, “Compensatory Federalism,” in Greenhouse Governance: addressing climate change in America, ed. Barry G.  Rabe (Washington, DC: Brookings Institution, 2010). 71  Brian Galligan and Emma Larking, “Rights Protection: the bill of rights debate and rights protection in Australia’s states and territories,” Adelaide Law Review 28, no. 1/2 (2007). Carolyn Maree Evans and Simon Evans, Australian Bills of Rights: the law of the Victorian Charter and ACT Human Rights Act (Chatswood NSW: LexisNexis Butterworths, 2008). Matthew Groves and Colin Campbell, eds., Australian Charters of Rights a Decade On (Leichhardt NSW: Federation Press, 2017). 72  Fred Chaney et al., A WA Human Rights Act: Report of the Consultation Committee for Proposed WA Human Right Act, Department of the Attorney-General, Government of Western Australia (Perth WA, 2007), https://alhr.org.au/wp/wp-content/uploads/2017/03/Annexure-1-WA-­ Government-Consultation-Committee-for-a-Proposed-WA-Human-Rights-Act-Final-Report-­ November-2007.pdf; Jim McGinty, A WA Human Rights Act: statement of intent by the Western Australian Government (Perth: Government of Western Australia, 2007). 73  McGinty, A WA Human Rights Act: statement of intent by the Western Australian Government. 69

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another constitutional statute to the set of WA governing instruments. While the 2007 consultative process found that 89% of the State’s population were supportive of a Human Rights Act, the initiative lapsed after being put on hold while the Commonwealth government’s human rights charter was debated, then also failed to proceed.74

9.7.2 A Preamble? To conclude this survey of elements that go beyond consolidation, we return to the very beginning: the Preamble. The absence of an evocative opening statement of principles is not infrequently deplored as a significant deficiency in all of Australia’s constitutions. Lacking eloquence, it might be said that Australia’s Constitutions lack popular resonance, and lacking popular resonance, they lack appeal. As noted above, the WA Joint Select Committee’s draft consolidated Constitution Act included a Preamble, if a rather pedestrian one. Because it does not exist in any one document, the WA Constitution as it currently stands cannot have a Preamble at all. However, the Constitution Act included one, explicitly identified as such, and that remains in place (amended as discussed in Chap. 5). That original Preamble was only one sentence long—albeit a sentence of 267 words. It empowered the Governor to introduce the system of parliamentary government outlined in the Act. However, it says nothing else and was by definition obsolete the moment the new system of government came into effect. It is difficult to think of reasons why it should not be replaced. The Commonwealth Constitution, meanwhile, has no Preamble at all. The 1900 Act of Parliament within which the Commonwealth Constitution is contained does have an opening Preamble.75 It begins as follows. Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

Not only is the existing Preamble not part of the Constitution itself, it does little to articulate a meaningful statement about the nature and purpose of the government the Constitution was creating. For this reason, the 1999 ‘republic’ referendum included as its second question a proposal to insert a more resonant Preamble into the Commonwealth Constitution. The proposed Preamble sought to encapsulate Australian political identity through enumeration of a number of values including “hope in God”; respect for the martial sacrifices of our country’s forefathers, the

 Sarah Murray, “Western Australia: the case for more formalised and heightened rights protection,” in Law Making and Human Rights: executive and parliamentary scrutiny across Australian jurisdictions, ed. Julie Debeljak and Laura Grenfell (Sydney: Thomson Reuters, 2020). 75  The Commonwealth of Australia Constitution Act 1900. 74

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indigenous cultures and environment; as well as principles of the political systems such as federalism and the rule of law. Like the republic proposal with which it was paired, this was rejected by a solid majority of voters.76 The Queensland Constitutional Review Commission recommended a Preamble that would combine factual constitutional statements—for example, that since 1986 Queensland has been constitutionally independent from the UK—with what they called “aspirational” value statements, such as respect for the environment and indigenous people.77 However, this suggestion was not pursued (though flagged in the parliamentary committee’s report for eventual consideration) and the Constitution of Queensland 2001 was passed in conventional Act form. However, in 2010, the suggested statements were added, and the Constitution of Queensland 2001 now has a Preamble of six clauses. Complicating matters is the various ways, as discussed in Chap. 2, in which the role and purpose of preambles may be understood. As has been noted, “the debate over the Preamble proceeded largely on a conception of a constitutional Preamble as a nation-building device.”78 But how feasible, necessary or even appropriate is such an objective? The core task of a constitution is rather more circumscribed. It is to define a system of government and to do so in a way that optimises democratic effectiveness, efficiency, responsiveness and accountability. From this point of view the proposed Preamble for the Commonwealth Constitution was misconceived. Despite having identified some relevant values, the version of the Preamble which was put to referendum does not do nearly enough to link these values with the Constitution itself and it persists in attempting to list...national values...which bear little relation to the content and social function of the Constitution. The primary purpose of a constitutional Preamble, on analogy with the preamble to any statute, should surely be to explain what it is that the Constitution is intended to achieve and how the Constitution is expected to contribute to this achievement. The proposed Preamble did neither of these things. [emphasis in original]79

Similarly, P.  H. Lane has observed that the proposed preamble of 1999 was not really a preamble at all, rather a “stand-alone miscellany of facts, a credo of beliefs”.80 There is every reason to improve upon the Preamble as it currently exists in the WA Constitution Act. Consolidation would provide the opportunity to craft a Preamble that might state the purpose of the Constitution as being to establish a system of parliamentary representative government that embodied the principles of democracy and the rule of law; assert Western Australia’s plenary authority to self-­ government within the federal Commonwealth of Australia; and articulate the  Being rejected in all States and by over 60% of voters in total.  Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution, 29. 78  Bruce Stone, “A Preamble to the Australian Constitution: a criticism of the recent debate,” Australian Journal of Political Science 35, no. 2 (2000): 292. 79  Stone, “A Preamble to the Australian Constitution: a criticism of the recent debate,” 293–94. 80  P. H. Lane, “Referendum of 1999,” Australian Law Journal 73 (1999): 749. 76 77

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underlying principle of popular sovereignty. While wholly symbolic in nature, and therefore open to criticism on that basis, it also provides an opportunity to recognise and acknowledge WA’s First Peoples. For example, one recent example is section 5 of the Noongar (Koorah, Nitja, Boodahwan) (Past, Present, Future) Recognition Act 2016, which, as part of the Noongar Settlement, provides: (1) Parliament acknowledges and honours the Noongar people as the traditional owners of the Noongar lands. (2) Parliament recognises —

(a) the living cultural, spiritual, familial and social relationship that the Noongar people have with the Noongar lands; and (b) the significant and unique contribution that the Noongar people have made, are making, and will continue to make, to the heritage, cultural identity, community and economy of the State.

The 2017 Uluru Statement from the Heart and its direct call to the Australian people for “Voice, Treaty, Truth”81 provide an opportunity to embark on a collaborative constitutional reform journey to re-set the State’s relationship with its First Peoples. In strict constitutional terms, the greatest potential benefit given the indeterminate status of Australia’s State Constitutions is the contribution a Preamble could make to establishing ‘the Constitution’ as higher law.82 An appropriate preamble would play a central role in defining and declaring the nature and authority of the State Constitution.

9.8 In Summary The WA Constitution certainly cries out for consolidation. That would make it more usable and recognisable as well as giving it a dignity that it currently lacks. This has been done in the other States and their experiences are something Western Australia can learn from and improve upon. However, there are both obstacles and limitations to consolidation. As the Queensland example shows, entrenched clauses pose a challenge that may subvert the exercise. Such obstacles can be overcome by submitting the consolidated document to the people in a referendum, and that would enhance the exercise as a constitutive process significantly. Notwithstanding the very real merits of consolidation, there is the complication that consolidation would embed the language and approach of a constitution that is not entirely aligned with constitutional reality and political needs. This would be even more the case were popular endorsement through referendum sought—locking in the existing inadequacies. The logical conclusion from those realities is that a bold rather than a cautious consolidation is called for—one that would go beyond merely tidying up the constitutional material in WA’s two main constitutional Acts  https://ulurustatement.org/the-statement/view-the-statement/ (accessed 30 March 2023).  As noted by the Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution, 24, 35–6. 81 82

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to include formal recognition of the representative and democratic nature of the political system it purports to describe and regulate but which would not alter the nature of the State’s political system. In particular, as Carney argues, there is the parliamentary executive: There remains a need, using the Constitutions of the self-governing territories as a model, to redraft the State Constitutions to clearly recognise the principle of responsible government. Otherwise, they risk being viewed as irrelevant and redundant.83

Consolidating provides an opportunity to attend to these concerns while giving the WA Constitution greater prominence and resonance as the State’s primary legal document.

References Aroney, Nicholas. 2010. Chap. 10: The People of Queensland and Their Constitution. In Queensland’s Constitution: Past, Present and Future, ed. Michael White and Aladin Rahemtula, 214–232. Brisbane: Supreme Court of Queensland Library. Baier, Gerald. 2012. Chap. 8: Canada: Federal and Sub-National Constitutional Practices. In Constitutional Dynamics in Federal Systems: Sub-National Perspectives, ed. Michael Burgess and G. Alan Tarr, 174–192. Montreal & Kingston: McGill–Queen’s University Press. Barber, N.W. 2018. The Principles of Constitutionalism. Oxford: Oxford University Press. Barry, Nicholas, and Tom Campbell. 2011. Towards a Democratic Bill of Rights. Australian Journal of Political Science 46 (1): 71–86. Blackstone, William. 1765–69. Commentaries on the Laws of England. Oxford: Oxford University Press. Carney, Gerard. 2006. The Constitutional Systems of the Australian States and Territories. Cambridge: Cambridge University Press. ———. 2018. Chap. 12: State Constitutions. In The Oxford Handbook of the Australian Constitution, ed. Cheryl Saunders and Adrienne Stone, 277–312. Oxford: Oxford University Press. Chambers, Simone. 2001. Chap. 11: Constitutional Referendums and Democratic Deliberation. In Referendum Democracy: Citizens, Elites and Deliberation in Referendum Campaigns, ed. Matthew Mendelsohn and Andrew Parkin, 231–255. Basingstoke: Palgrave. Chaney, Fred, Lisa Baker, Peter Carnley, and Colleen Hayward. 2007. A Wa Human Rights Act: Report of the Consultation Committee for Proposed Wa Human Right Act. Perth: Department of the Attorney-General, Government of Western Australia. https://alhr.org.au/wp/wp-­content/ uploads/2017/03/Annexure-­1-­WA-­Government-­Consultation-­Committee-­for-­a-­Proposed-­ WA-­Human-­Rights-­Act-­Final-­Report-­November-­2007.pdf. Commission on Government. 1996. Report No. 5. Perth: Government of Western Australia. Crawford, Lisa Burton. 2018. The Rule of Law and the Australian Constitution. Leichhardt: Federation Press. de Garis, Brian. 2003. The History of Western Australia’s Constitution and Attempts at Its Reform. University of Western Australia Law Review 31 (2): 142–153. Derthick, Martha. 2010. Chap. 3: Compensatory Federalism. In Greenhouse Governance: Addressing Climate Change in America, ed. Barry G. Rabe, 58–72. Washington, DC: Brookings Institution.

83

 Carney, The Constitutional Systems of the Australian States and Territories, 261.

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Evans, Carolyn Maree, and Simon Evans. 2008. Australian Bills of Rights: The Law of the Victorian Charter and Act Human Rights Act. Chatswood: LexisNexis Butterworths. Fenna, Alan. 2010. Chap. 7: The Incremental Republic. In Constitutional Perspectives on an Australian Republic: Essays in Honour of George Winterton, ed. Sarah Murray, 126–143. Leichhardt: Federation Press. Galligan, Brian, and Emma Larking. 2007. Rights Protection: The Bill of Rights Debate and Rights Protection in Australia’s States and Territories. Adelaide Law Review 28 (1/2): 177–199. Gallop, Dr. 7 December 1989. Constitutional Reform. Perth: Parliament of Western Australia Hansard. Groves, Matthew, and Colin Campbell, eds. 2017. Australian Charters of Rights a Decade On. Leichhardt: Federation Press. Hayne, Kenneth. 2018. Chap. 7: Rule of Law. In The Oxford Handbook of the Australian Constitution, ed. Cheryl Saunders and Adrienne Stone, 167–189. Oxford: Oxford University Press. Johnston, Peter W. 1990. The Legal Personality of the Western Australian Parliament. University of Western Australia Law Review 20 (2): 323–339. Johnston, Peter. 2010. Chap. 5: Going It Alone: Republican States Under a Monarchical Commonwealth. In Constitutional Perspectives on an Australian Republic, ed. Sarah Murray, 82–105. Leichhardt: Federation Press. Johnston, Peter W., and Stanley D. Hotop. 1990. Patches on an Old Garment or New Wineskins for Old Wine? Constitutional Reform in Western Australia—Evolution or Revolution? University of Western Australia Law Review 20 (2): 428–444. Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution. 24 October 1991a. Final Report. Perth: Parliament of Western Australia. ———. 1991b. Final Report Vol. 2: Draft Consolidated Constitution of Western Australia. Perth: Parliament of Western Australia. Lane, P.H. 1999. Referendum of 1999. Australian Law Journal 73: 749–750. Marquet, L.B. 1990. The Separation of Powers Doctrine and the Constitution of Western Australia. University of Western Australia Law Review 20 (2): 445–452. McGinty, Jim. 2007. A WA Human Rights Act: Statement of Intent by the Western Australian Government. Perth: Government of Western Australia. McLean, Janet. 2019. Chap. 15: Constitution Making: The Case of “Unwritten” Constitutions. In Comparative Constitution Making, ed. David Landau and Hanna Lerner, 324–340. Cheltenham: Edward Elgar. McMinn, W.G. 1979. A Constitutional History of Australia. Melbourne: Oxford University Press. Minister for Parliamentary and Electoral Reform. 1985. Resolution of Parliamentary Disagreements Bill: Background and Summary. Perth: Parliament of Western Australia. Miragliotta, Narelle. 2003. Western Australia: A Tale of Two Constitutional Acts. University of Western Australia Law Review 31 (2): 154–170. Montesquieu, Charles de Secondat Baron de. 1748. De L’esprit Des Loix: Ou Du Rapport Que Les Loix Doivent Avoir Avec La Constitution De Chaque Governement, Les Moeurs, Le Climat, La Religions, Le Commerce, &C. Geneva: Barriollot & Fils. Murray, Sarah. 2020. Chap. 15: Western Australia: The Case for More Formalised and Heightened Rights Protection. In Law Making and Human Rights: Executive and Parliamentary Scrutiny Across Australian Jurisdictions, ed. Julie Debeljak and Laura Grenfell, 471–497. Sydney: Thomson Reuters. Peachment, Allan, ed. 1991. The Business of Government: Western Australia 1983–1990. Leichhardt: Federation Press. ———, ed. 1995. Westminster Inc: A Survey of Three States in the 1980s. Annanndale: Federation Press. ———, ed. 2006. The Years of Scandal: Commissions of Inquiry in Western Australia 1991–2004. Crawley: University of Western Australia Press.

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Queensland Constitutional Review Commission. 2000. Report on the Possible Reform of and Changes to the Acts and Laws That Relate to the Queensland Constitution. Brisbane: Government of Queensland. Royal Commission into Commercial Activities of Government and Other Matters. 1992. Report. Perth: Government of Western Australia. Royal Commission into Parliamentary Deadlocks. 1985. Report. Perth: Government of Western Australia. Saunders, Cheryl, and Katie Le Roy, eds. 2003. The Rule of Law. Leichhardt: Federation Press. Stone, Bruce. 2000. A Preamble to the Australian Constitution: A Criticism of the Recent Debate. Australian Journal of Political Science 35 (2): 291–297. Tamanaha, Brian Z. 2004. On the Rule of Law: History, Politics, Theory. Cambridge: Cambridge University Press. Thomson, James A. 1985. State Constitutional Law: Gathering the Fragments. University of Western Australia Law Review 16 (1–2): 90–104. ———. 1990. State Constitutional Law: The Quiet Revolution. University of Western Australia Law Review 20 (2): 311–322. Tierney, Stephen. 2012. Constitutional Referendums: The Theory and Practice of Republication Deliberation. Oxford: Oxford University Press. Twomey, Anne. 2010. Chap. 2: One In, All In: The Simultaneous Implementation of a Republic at Commonwealth and State Levels. In Constitutional Perspectives on an Australian Republic: Essays in Honour of George Winterton, ed. Sarah Murray, 20–40. Leichhardt: Federation Press. ———. 2019. The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems. Cambridge: Cambridge University Press. Williams, George, and Daniel Reynolds. 2017. A Charter of Rights for Australia. Sydney: UNSW Press. Winterton, George. 1994. Monarchy to Republic: Australian Republican Government. Melbourne: Oxford University Press. "With a new introduction".

Chapter 10

Conclusion

This book has been an exploration of Western Australia’s (WA) Constitution: locating and explicating its components; detailing its origins; establishing its character; understanding its status and functioning; considering its reform. The need for such an exercise should be clear by now: the WA Constitution is elusive in nature; uncertain in status and operation; and home to some serious discrepancies. It is certainly not a constitution of the codified sort; nor, though, is it entirely uncodified. The WA Constitution is part fish, part fowl, in that regard, with some rather perverse consequences. There are good grounds to regard it as not only uncertain but also unsatisfactory in several respects, ripe for overhaul and reform. In adopting that position, this book works from the consensus view that a constitution is a set of rules establishing and regulating the operation of a system of government, enjoying the status of fundamental law as distinct from ordinary law. The WA Constitution and system of government has been operating for well over a century now, spanning from the end of colonial times in the nineteenth century through to the second decade of the twenty-first century. Over that not-insubstantial period, there has been surprisingly little change in either the way it defines the structure of government or in its own loose structure. The main changes have been twofold: democratisation of the system of representative government through electoral reform, notably in 1963 and recent years; and the dramatic escalation in the degree and scope of entrenchment.

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10.1 The Shape of the Constitution Like that of the other States, the WA Constitution has its origins in the colonial period, deriving its authority from the sovereign power of the British, ‘Imperial’, parliament that passed the Constitution Act 1889 into law.1 That enabling Act, The Western Australia Constitution Act 1890 (Imp), granted the colony self-government as of the Act’s proclamation in October 1890. In a combination of explicit and implicit, direct and indirect, ways, that Act established a system of parliamentary democracy, with a bicameral parliament of Legislative Assembly and Legislative Council at its centre, and a colonial–monarchical dual head of state of the monarch and their representative, the Governor. While not saying so, this introduced ‘responsible government’, whereby the political executive of premier and fellow cabinet ministers hold office and exercise power insofar as they have the support of the lower house of parliament, the Legislative Assembly, rather than being answerable to the Crown. That charter document, the Constitution Act, remains one of the key instruments of the WA Constitution—albeit, somewhat altered. Almost immediately following self-government, the fledgling parliament began a process of constitutional amendment. It did so, however, by creating separate amendment Acts. These were then consolidated into a second, main constitutional statute the Constitution Acts Amendment Act 1899. Those two statutes remain the core textual instruments of the WA Constitution. Other statutes also play a constitutional role, though, notably those dealing with judicial and electoral matters, including the Electoral Act 1907 and the Supreme Court Act 1935. But the matter does not end there. The approach taken to defining executive power in the written instruments meant from the very outset a crucial role for the unwritten rules of constitutional convention, which we revisit below.

10.2 The Status of the Constitution The WA Constitution began life via a clearly identifiable charter document, which by outlining a system of government, departed quite significantly from the uncodified UK Constitution. As noted in Chap. 2, there is no constitutional instrument in the UK Constitution that provides even a rudimentary architecture of government. However, the WA Constitution falls short of being a codified constitution in several respects. These include its disparate nature as described above; its sins of omission and commission; its derivative basis; its character as both ordinary and fundamental law; and its reliance on, first, lingering Imperial ties, then subsequently, Commonwealth legislation.

 As with the other chapters, all legislation is Western Australian unless otherwise indicated.

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10.2.1 Constitutional Text Versus Constitutional Reality Most prominent of the omissions and fictions is that the two main Acts made, and make, almost no provision for the executive branch of government—and insofar as they do, it is in a way that bears little relationship to reality. From the outset, unwritten elements were a crucial component of the WA Constitution, for it was the conventions of responsible government that made the system a parliamentary democracy rather than the colonial monarchy that it appeared to be on paper. Well over a century later, the only thing that has changed is that the gulf between constitutional text and constitutional reality has been strengthened by the amendments of 1978, which set out to entrench the monarchical element as well as bicameralism.

10.2.2 What Foundation? A second significant way in which WA’s constitutional texts fall short of amounting to a codified constitution is in the very limited way in which they are based in a true constituent process. Although the Commonwealth Constitution likewise came into effect through Imperial enabling legislation, that was only after it had been drafted by a process of constitutional conventions and ratified by the voters in colony-by-­ colony referendums. Nothing equivalent in terms of popular ratification had taken place for the Constitutions of the separate colonies, or what are now the States.

10.2.3 Fundamental Law? A third, and enormously consequential, way in which WA’s charter document lacked the qualities of a codified constitution was in not containing a procedural requirement for alteration of all or even most of its provisions that would have established it as fundamental law, clearly superior to ordinary legislation. It was intended and understood to be, in procedural terms, essentially ordinary law—with the one exception of (the original) section 73 in the Constitution Act 1889 which was given force by section 5 of the Imperial Act to which the 1889 Act was attached. It was this that set the scene for political opportunism and accompanying constitutional conundrums as the courts wrestled with the problem of entrenchment: is an amendment that denies equivalent power to amend valid?

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10.2.4 Imperial Legacies A fourth, and closely related, way in which WA’s charter document was only quasi-­ constitutional in nature, is the basis on which the question was answered. Key judicial decisions earlier in the twentieth century ruled that statutory amendments, including to State constitutions, are regulated by a piece of UK legislation from the nineteenth century, the Colonial Laws Validity Act 1865, and that section 5 of that Act should be interpreted as allowing State parliaments to impose restraints on their successors. Section 5 empowered the colonial legislatures to “make laws respecting the constitution, powers, and procedure of such legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by an Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony”. The Act’s manner and form requirement has ever since been the governing concept of State constitutional amendment. Self-government did not mean a fresh start as traditionally occurs with a new constitution. The Colonial Laws Validity Act has been accepted by the courts as decisive in this regard, not only after the colonies transitioned from being colonies to being States of the Commonwealth of Australia in 1901, or even when Britain passed the Statute of Westminster renouncing Imperial legislative force in 1931, but right up until the Australia Act(s) of 1986. The impact of paramount enactments, like the Australia Act(s), is that some procedural obstacles will be binding and make it harder for WA parliaments that follow to change (at least some types of) legislation put in place by parliaments before them.

10.3 The Amendment Conundrum Questions of correct amendment procedure arose early in Western Australia as a result of the colonists’ determination to shed the burden of section 70’s requirement that there be a fund maintained from general revenues for “the welfare of the aboriginal natives”. Although there were earlier attempts, by 1905, legislation had been passed repealing section 70 altogether. Almost a century later, those attempts were challenged in the courts on procedural grounds, with the challenge, however, failing in the High Court. Questions about how broadly WA entrenchment requirements applied were addressed in the Wilsmore case of 1980–81, where it was decided that the entrenchment provisions in section 73(1) of the Constitution Act applied only to clauses within that same Act and not to similar subject material outside that Act. Meanwhile, questions about how literally one should interpret constraints on amendment were addressed in the Marquet case of 2002–03, where it was decided that repeal was simply amendment by another name and thus not a valid way to circumvent entrenchment provisions. Marquet also saw the majority reinforce the primacy of

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the Australia Act(s) as the higher law enabling parliaments to lock in restraints on future legislative (including constitutional) amendment.

10.3.1 Exploiting the Partisan Potential of Manner and Form WA was late, though, to see the potential of manner and form exploited for partisan gain, for nobbling the other side of politics. That potential had been demonstrated quite decisively in Queensland and New South Wales early in the twentieth century and confirmed by the High Court in Trethowan. There it was ruled that the CLVA’s manner and form proviso operated to make it possible for one parliament to bind the hands of its successor by imposing extra-parliamentary amendment requirements, notably a referendum. This potential was not seized upon in WA until 1978. Up until that point, section 73 had been a decidedly anodyne form of entrenchment. It was the minimal requirement that amendment legislation pass with an absolute majority in each of the two houses. Seeking to set bicameralism in stone, the conservative government of Sir Charles Court legislated to insert an entrenched referendum requirement—using its parliamentary majority to alter the constitution in a way that would, if valid and binding, deny any subsequent parliamentary majority from exercising the same freedom of amendment in regard to those parts of the Constitution. According to the prevailing interpretations of manner and form, it can constitute a valid provision, if not substantively restraining parliament from making laws, and binding action, at least when amendments relate to the “constitution, powers or procedure” of Parliament. Objections have been made on numerous occasions to the dubious constitutional morality of measures that exploit the one-time-only opportunity to entrench. Constitutional morality would seem to require that the action raising the amendment threshold should itself be expected to meet that requirement itself—what has been called “symmetric entrenchment”. However, constitutional morality does not always align with constitutional law.

10.4 Federalism On Tuesday 1 January 1901, Western Australia transitioned along with Britain’s five other Australian colonies from being otherwise independent self-governing polities, to being self-governing States of the Commonwealth of Australia. They entered the federation with their existing Constitutions, political systems, administrative organs, and the great bulk of their powers “intact”. Under the terms of the Commonwealth Constitution’s section 106, the State Constitutions were reaffirmed. However, that was a double-edged sword: the State Constitutions were reaffirmed with the proviso that they are “subject to” the Commonwealth Constitution. As noted in Chap. 2, federal systems allow varying degrees of political space for constituent unit constitutionalism and that is exploited to varying degrees. Section 106 allows substantial

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constitutional space to the Australia States, though not quite as much as enjoyed by their US counterparts. They have probably not exploited that space to the extent they might. There are constraints, including the fact that State constitutional jurisprudence is ultimately finally determined by the High Court. However, there remains scope for the States to codify their Constitutions more thoroughly, to reform them, or to give them a more autochthonous foundation. As we noted above, Federation brought WA under the umbrella of the Commonwealth Constitution while not severing the State’s imperial ties, this establishing some sort of triangular relationship. The eventual solution to this was the passage by the Commonwealth Parliament of the Australia Act 1986 (reinforced by mirror legislation in the UK). While effectively terminating the role of British legislation in State matters, this had to establish a replacement entrenchment authority for State constitutions. It did so by transposing the manner and form language of the Colonial Laws Validity Act into the Australia Act(s). As we noted in Chap. 3, though not unquestioned, it has significant legal implications for entrenched State constitutional provisions.

10.5 Looking Forward Chapter 9 asked what is to be done?2 It is clear that there is great scope for improvement as far as the WA Constitution is concerned. Merging, massaging and modernising the existing textual components would give WA something closer to a codified Constitution with a recognisability and accessibility that would enhance its status and role. As noted in that chapter, it would also provide the opportunity to enhance the quality of the Constitution as an instrument regulating the exercise of power and establish a more satisfactory constitutional identity. With that opportunity also comes challenges. The WA Parliament made important first steps in this direction in 1991 when the Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution presented its Draft Consolidated Constitution of Western Australia and when the Constitution of Western Australia Bill 1997 was put before the Legislative Council. The initiative stalled, and following Queensland’s consolidation a few years later, WA stands as the only jurisdiction not to have undertaken what Chap. 9 described as this basic housekeeping exercise. Consolidation gives the State (potentially, though not inevitably) one clearly-identifiable constitutional text and provides the opportunity for a not-insignificant refresh—pruning of spent and vacated clauses, and a more logical and intuitive structure. As Chap. 9 noted, though, the task is not quite that straightforward: there are existing constitutional obstacles and there are the challenges of constitutional

 Couched like this, that question was, of course, originally the title of a famous revolutionary pamphlet by Lenin; nothing quite so radical is being contemplated here. 2

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reform (as distinct from mere re-structure) that such a process invites. The chief obstacle is the existing referendum entrenchment provisions protecting various sections of the Constitution Act. Meanwhile, the risk of consolidation without reform is that by improving the form of the Constitution, the process would serve to reinforce and even ‘entrench’ problems in the content. The ‘WA Inc’ Royal Commission and the Commission on Government, for instance, urged constitutional improvements to provide better regulation of executive government in the State. That suggests more comprehensive textual reform to remove the Westminster fictions of royal rule and bring the constitutional text into line with the realities of parliamentary democracy. The Constitution of Queensland 2001 provides some pointers in this respect, but reform could certainly go further. A consolidation-plus-reform initiative would also provide the opportunity not just to craft a Preamble laying out the constitutional and political principles on which the Constitution is based, but to take further steps towards reconciliation with the State’s First Peoples. The Uluru Statement and its call for “Voice, Treaty and Truth” is as relevant at the State level as at the Commonwealth and initiatives are already being taken in other jurisdictions. The existing referendum entrenchment provisions do indeed represent an obstacle to parliamentary action on constitutional consolidation and reform. As the Queensland exercise illustrates, settling for compromise measures to avoid triggering such provisions results in a significantly compromised outcome. It may well be better to embrace the idea of taking a new beaut WA Constitution to the people, thus not only allowing unconstrained consolidation and reform to be carried out, but also giving the text a much stronger and autochthonous basis as the fundamental law of a State within the Commonwealth.

Appendices

 ppendix A: Abbreviated Western Australian A Constitutional Chronology Year Event Aboriginal and Torres Strait Islander Peoples inhabited Western Australia for many millennia prior to the arrival of European explorers and British settlers. 1829 Western Australia Act 1829 (Imp)  Imperial Act that provided for commencement of WA colony. 1842 Australian Constitutions Act 1842 (Imp)  “An Act for the Government of New South Wales and Van Diemen’s Land”, which sought to provide for limited forms of representative government. 1850 Australian Colonies Government Act 1850 (Imp) – Statutory basis on which Australian colonies could establish their own parliaments and achieve self-government. – Also known as the Australian Constitutions Act 1850 (Imp). 1865 Colonial Laws Validity Act 1865 (Imp) [CLVA] – Strengthened the authority of colonial legislatures to pass laws inconsistent with those in force in England with repugnancy only in with respect to laws that “extended to the colonies”. – Required constitutional alterations to be undertaken “in such manner and form from time to time required…”. (section 5). 1879 Two-thirds-elected Legislative Council of WA established. 1889 Constitution Act 1889 [CA] – Outlined scheme for a system of parliamentary self-government under the British Empire in Western Australia. – Once enacted in Western Australia it was sent to the Colonial Office to be scheduled to an Imperial enabling Act. 1890 Constitution Act 1890 (Imp) – CA was scheduled in a slightly amended version from that passed by the WA Parliament (with alterations to the Attorney-General’s pension). – Imperial Act received royal assent on 25 July 1890. 1893 Constitution Act 1889 amended to allow Council to suggest amendments to money bills. (continued) © Springer Nature Singapore Pte Ltd. 2023 A. Fenna, S. Murray, The Constitution of Western Australia, https://doi.org/10.1007/978-981-99-3181-1

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Year Event 1893 Constitution Act Amendment Act 1893  Transformed Legislative Council into fully elective chamber. 1896 Constitution Act Amendment Act 1896  Made changes to parliamentary eligibility and voting districts. 1897 Aborigines Act 1897  Initial WA parliamentary attempt to repeal s 70 of the CA. 1899 Constitution Acts Amendment Act 1899 [CAAA]  First introduced as a Bill to consolidate the various Amendment Acts with the CA.  After second reading changed to a Bill to consolidate the various Amendment Acts in a new and separate Act, leaving the CA intact except as amended. 1900 Commonwealth of Australia Constitution Act 1900 (Imp) – Enabled Britain’s six separate Australian colonies to become a federation. – Comprised a short Preamble and nine subsequent clauses, the last of which was the Constitution of the Commonwealth of Australia. 1901 Federation – Western Australia became a State of the commonwealth of Australia, effective 1 January. 1904 Redistribution of Seats Act 1904 – Divided States into districts and provinces for the purposes of representation in the WA Legislative Assembly and Legislative Council and included an entrenchment clause. 1905 Aborigines Act 1905  Further WA parliamentary attempt to repeal s 70 of the CA. 1907 Australian States Constitution Act 1907 (Imp)  Required that any legislation affecting the constitution of the legislature or the salary of the Governor be reserved for “signification of his Majesty’s pleasure thereon”. 1907 Electoral Act 1907  An Act to regulate parliamentary elections and introduction of optional preferential voting. 1935 Supreme Court Act 1935  An Act consolidating the laws relating to the Supreme Court of Western Australia. 1947 Electoral Distribution Act 1947  Entrenched (by s 13) aspects of WA electoral boundaries. 1978 Acts Amendment (Constitution) Act 1978 – Section 2 amended by insertion of subsections (2) declaring that the Queen is a component of the WA Parliament, and (3) stipulating that Bills “shall be of no effect” unless they receive royal assent. – New sections 50 and 51 inserted identifying and emphasising entrenched status of the office of Governor. – Section 73 amended by insertion of an absolute majority and referendum requirement (in subsection 2) for amendment of specified components of the system of government. 1983 Referendums Act 1983  Act regulating the submission of referendum questions to the WA electorate. 1985 Royal Commission into Parliamentary Deadlocks, Report – Recommended that WA adopt the NSW model of suspensory veto over money bills only. – Recommendation not adopted. (continued)

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Year Event 1986 Australia Act 1986 (Cth) & Australia Act 1986 (UK) – Meant that the CLVA would no longer apply to any law after the commencement of the Australia Act(s) by a State Parliament. – Included amendments to sections 50 and 51 of the CA. – Section 10 provided that UK Ministers were not to be responsible for state matters. – Section 11, subject to the operation of section 11(4), had the effect of terminating appeals from the State and Territory courts to the Privy Council. 1986 Letters Patent relating to the office of Governor of the State of Western Australia 1986  This followed the Australia Act(s) 1986 inclusion of provisions relevant to the WA Governor. 1987 Re-introduction of 4-year terms for the WA Parliament, and introduction of multi-member seats for the Legislative Council. 1991 Joint Select Committee of the Legislative Council and Legislative Assembly on the Constitution, Final Report  Recommended that WA pursue constitutional consolidation. 1992 WA Royal Commission into the Commercial Activities of Government and Other Matters.  Established to report into corruption, illegal conduct, improper conduct, or bribery in WA government affairs. 1996 WA Commission on Government, Reports  Established to explore the institutional reasons for issues concerning public accountability that had been identified by the Royal Commission into the Commercial Activities of Government and Other Matters. 1997 Constitution Acts Amendment Bill – Introduced by John Cowdell, MLC, to effect consolidation recommended by Joint Committee in 1991. – Withdrawn out of concern about legality of consolidation without referendum. 2001 Electoral Distribution Repeal Bill & Electoral Amendment Bill – Attempt to introduce ‘one vote, one value’. – Electoral Distribution Repeal Bill introduced to repeal the Electoral Distribution Act thereby to circumvent the Act’s s 13 amendment requirements. Found to be invalid. 2005 Electoral Amendment and Repeal Act 2005 (previously called the One Vote One Value Bill 2005) & Constitution and Electoral Amendment Act 2005 – Repealed the Electoral Distribution Act 1947 and made amendments to the Electoral Act 1907 and the Constitution Acts Amendment Act 1899. – Resulted in an increase to the number of members in the Legislative Assembly and the Legislative Council and sought to entrench one vote one value in the Legislative Assembly. 2015 Constitution Amendment (Recognition of Aboriginal People) Act 2015  Inserted into the CA’s Preamble an acknowledgement of “Aboriginal people as the First People of Western Australia and traditional custodians of the land”. 2021 Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021  Introduced electoral reforms including a whole of state electorate in the Legislative Council and the removal of group voting tickets and the introduction of optional preferential voting.

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Appendix B: Western Australia Constitution Act, 1890 An Act to Enable Her Majesty to Assent to a Bill for Conferring a Constitution on Western Australia 25th July 1890 An Act to enable Her Majesty to assent to a Bill for conferring a Constitution on Western Australia. Whereas a Bill for conferring a constitution on Western Australia has been passed by the Legislative Council of Western Australia and has been reserved for the signification of Her Majesty’s pleasure thereon: And whereas it is provided by the said Bill that the provisions thereof shall have no force or effect until so much and such parts of the Acts of Parliament specified in the Second Schedule to this Act as relate to the colony and are repugnant to the Bill have been repealed: And whereas it is expedient that Her Majesty be authorised to assent to the said Bill, subject to an amendment thereof as to the pension of the Attorney-General: And whereas the said Bill as so amended is set forth in the First Schedule to this Act and is in this Act referred to as the scheduled Bill: Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. It shall be lawful for Her Majesty by Order in Council to assent to the scheduled Bill, notwithstanding anything contained in any of the Acts mentioned in the Second Schedule to this Act. 2. From the day of the proclamation of this Act in the colony of Western Australia so much and such parts of the several Acts mentioned in the Second Schedule to this Act as relate to the colony of Western Australia and are repugnant to the scheduled Bill shall be repealed. Provided as follows:

(a) The provisions of the Acts of the session held in the thirteenth and fourteenth years of Her Majesty, chapter fifty-nine, and of the session held in the fifth and sixth years of Her Majesty, chapter seventy-six (being two of the Acts mentioned in the said schedule), which relate to the giving or withholding of Her Majesty’s assent to Bills, and the reservation of Bills for the signification of Her Majesty’s pleasure thereon, and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid, and the disallowance of Bills for the signification of Her Majesty, shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and by any other legislative body or bodies which may at any time hereafter be substituted for the said Legislative Council and Assembly: (b) So much of the two last-mentioned Acts as relates to the constitution, appointment, and powers of the Legislative Council of the colony of ­Western

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Australia shall continue in force until the first writs have been issued for the election of members to serve in the Legislative Assembly in pursuance of the provisions of the scheduled Bill, but no longer. 3. The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony. 4. (1.) Section seven of the Act of the session held in the eighteenth and nineteenth years of Her present Majesty, chapter fifty-six, is hereby repealed, but all regulations made under that section, and in force at the commencement of this Act, shall continue in force until altered or repealed in pursuance of the powers conferred by this Act; and for the purposes of this section the Acts of the Legislative Council of Western Australia, entitled the Gold Fields Act, 1886, and the Gold Fields Act Amendment Act, 1888, shall have effect as if they were such regulations as aforesaid. (2.) Nothing in this Act shall affect any contract or prevent the fulfilment of any promise or engagement made before the time at which this Act takes effect in the colony of Western Australia on behalf of Her Majesty with respect to any lands situate in that colony, nor shall disturb or in any way interfere with or prejudice any vested or other rights which have accrued or belong to the licensed occupants or lessees of any Crown lands within that colony. 5. It shall be lawful for the legislature for the time being of Western Australia to make laws altering or repealing any of the provisions of the scheduled Bill in the same manner as any other laws for the good government of that colony, subject, however, to the conditions imposed by the scheduled Bill on the alteration of the provisions thereof in certain particulars until and unless those conditions are repealed or altered by the authority of that legislature. 6. (1.) It shall be lawful for Her Majesty, if at any time or times Her Majesty so thinks fit, by Order in Council, to divide the colony of Western Australia by separating therefrom any portion thereof, and either to erect that portion or any part thereof into a separate colony or colonies under such form of government and legislature as Her Majesty may think fit to establish therein, or to unite the same or any part thereof to any other Australian colony, and further to sub-divide any separate colony so created as aforesaid and to establish in such sub-division any form of government and legislature which Her Majesty may think fit, and to re-­ unite to the colony of Western Australia any part of any colony so created. (2.) In the event of any such separation or other proceeding the provisions of the scheduled Bill and of this Act shall apply as far as practicable to the colony of Western Australia as for the time being existing. (3.) In under the powers conferred by this section any portions of electoral districts are separated from the colony of Western Australia, the remaining portions not separated shall, until the Legislature of Western Australia otherwise provides, continue to return to the Legislative Assembly of that colony the same number of members as if the separation had not taken place, and the said

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Assembly shall retain, so far as concerns the colony of Western Australia as constituted after the separation, all the powers and functions vested in it, though it may not thereafter consist of the same number of members as before. (4.) By any Order in Council made in pursuance of this section power may be given to the legislature of any colony thereby created to make further provision with respect to the government of that colony. 7. This Act and the Order in Council signifying Her Majesty’s assent to the scheduled Bill shall be proclaimed in Western Australia by the governor or other person lawfully administering the government of Western Australia within three months after he has received a copy thereof, and this Act and the scheduled Bill shall, except as provided in section forty-two of the scheduled Bill, take effect in the colony from the day of such proclamation. 8. This Act may be cited as the Western Australia Constitution Act, 1890. Schedules First Schedule Western Australia Anno Quinquagesimo Victoria Reginae An Act to confer a Constitution on Western Australia and to grant a Civil List to Her Majesty. (Reserved 29th April 1889) Whereas by the thirty-second section of the Imperial Act passed in the session holden in the thirteenth and fourteenth years of the reign of Her present Majesty, intituled “An Act for the better Government of Her Majesty’s Australian Colonies”, it was among other things enacted that, notwithstanding anything therein-before contained, it should be lawful for the Governor and Legislative Council of Western Australia, from time to time, by any Act or Acts, to alter the provisions or laws for the time being in force under the said Act or otherwise concerning the election of the elective members of such Legislative Council, and the qualification of electors and elective members, or to establish in the said Colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as by such Act or Acts should be determined, and to vest in such Council and House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as by such Act or Acts should be determined, and to vest in such Council and House of Representatives, or other separate Legislative Houses, the powers and functions of the Legislative Council for which the same might be substituted; and whereas it is expedient that the powers vested by the said Act in the said Governor and Legislative Council should now be exercised, and that a Legislative Council and a Legislative Assembly should be substituted for the present Legislative Council, with the powers and functions hereinafter contained: Be it therefore enacted by His Excellency the Governor of Western Australia and its dependencies, by and with the advice and consent of the Legislative Council thereof, as follows:-

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1. This Act is divided into seven parts, namely:Part I. Parliamentary Part II. Electoral Part III. Elective Council Part IV. Judicial Part V. Legal Part VI. Financial Part VII. Miscellaneous Part I. Parliamentary 2. There shall be, in place of the Legislative Council now subsisting, a Legislative Council and a Legislative Assembly: and it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good government of the colony of Western Australia and its dependencies; and such Council and Assembly shall, subject to the provisions of this Act, have all the powers and functions of the now subsisting Legislative Council. 3. It shall be lawful for the Governor to fix the place and time for holding the first and every other session of the Legislative Council and Legislative Assembly, and from time to time to vary the same as he may judge advisable, giving sufficient notice thereof: and also to prorogue the Legislative Council and Legislative Assembly from time to time, and to dissolve the Legislative Assembly by proclamation or otherwise whenever he shall think fit. 4. There shall be a session of the Legislative Council and Legislative assembly once at least in every year, so that a period of twelve months shall not intervene between the last sitting of the said Council and Assembly in one session and the first sitting of the said Council and assembly in the next session. 5. The Legislative Council and Legislative Assembly shall be called together for the first time at some period not later than six months after the commencement of this Act. 6. Before the first meeting of the Legislative Council and Legislative Assembly the Governor in council may, in Her Majesty’s name, by instruments under the public seal of the colony, summon to the Legislative Council such persons, to the number of fifteen, as he shall think fit, and thereafter may from time to time, as vacancies occur, in like manner summon to the Legislative Council such other persons as he shall think fit, and every person so summoned shall thereby become a member of the Legislative Council. No member of the Legislative Council shall hold any office of profit under the Crown other than such as is liable to be vacated on political grounds, or than that of an officer of Her Majesty’s sea or land forces on full, half, or retired pay. One at least of the executive offices liable to be vacated on political grounds shall always be held by a member of the Legislative Council.

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7. Every member of the Legislative Council shall, subject to the provisions of this Act, hold his seat therein until Part III. Of this Act shall come into operation. 8. Any member of the Legislative Council may resign his seat therein by a letter to the Governor, and upon the receipt of such letter by the Governor the seat of such member shall become vacant. 9. The Governor may from time to time, by an instrument under the public seal of the Colony, appoint one member of the Legislative Council to be President, and may remove him and appoint another in his stead; and the President may at any time take part in any debate or discussion in the said Council. 10. The presence of at least five of the members of the Legislative Council, exclusive of the President or of the member presiding, shall be necessary to constitute a quorum for the despatch of business; and all questions in the said Council shall be decided by a majority of votes of the members present, other than the President or the member presiding, and when the votes are equal the President or the member presiding shall have the casting vote. 11. The Legislative Assembly shall consist of thirty members, who shall be elected for the several electoral districts herein-after named and defined. 12. For the purpose of constituting the Legislative Assembly, the Governor before the time appointed for the first meeting of the Legislative Council and Legislative Assembly, and thereafter from time to time as occasion shall require, may in Her Majesty’s name issue writs under the public seal of the Colony for the general election of members to serve in the Legislative Assembly. 13. Upon any general election of the Legislative Assembly shall be competent to proceed to the despatch of business, at the time appointed by the Governor for that purpose, notwithstanding that any of the writs of election not exceeding five shall not have been returned, or that in any of the electoral districts the electors shall have failed to elect a member to serve in the said Assembly. 14. Every Legislative assembly shall continue for four years from the day of the return of the writs for choosing the same and no longer; subject, nevertheless, to be sooner prorogued or dissolved by the Governor. 15. The members of the Legislative Assembly shall, upon their first assembling after every general election, proceed forthwith to elect one of their number to be Speaker; and in case of his death, resignation, or removal by a vote of the said Assembly, the members shall again elect one of their number to be Speaker. The Speaker so elected shall preside at all meetings of the said Assembly. 16. The presence of at least ten of the members of the Legislative Assembly, exclusive of the Speaker or of the member presiding, shall be necessary to constitute a quorum for the despatch of business; and all questions in the said Assembly shall be decided by the majority of votes of the members present, other than the Speaker or the member presiding, and when the votes are equal the Speaker or the member presiding shall have the casting vote. 17. Any member of the Legislative Assembly may resign his seat therein by writing under his hand, addressed to the Speaker, and upon the receipt of such resignation by the Speaker the seat of such member shall become vacant.

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18. No person shall be qualified to be a member of the Legislative Council or of the Legislative Assembly unless he be a natural-born or naturalised subject of Her Majesty of the full age of twenty-one years, nor unless he be seised al law or in equity of an estate of freehold, for his own use and benefit, in lands or tenements within the Colony, of the value of five hundred pounds, above all charges and incumbrances affecting the same, or of the yearly value of fifty pounds, and shall have been possessed of such estate for at least one year previous to his election. 19. Every member of the Legislative Council or Legislative Assembly, before he shall sit or vote in the said Council or Assembly, shall make and subscribe the following declaration:I, A.B., do declare that I am seised at law or in equity of an estate of freehold for my own use and benefit, in lands or tenements in the colony of Western Australia, of the value of five hundred pounds sterling money (or of the yearly value of fifty pounds sterling money) above all charges and incumbrances affecting the same; that the said lands and tenements consist of (describing them sufficiently for identification), of which I am seised in fee simple (or as the case may be), that I have been possessed of the said lands and tenements since the day of, and that I have not collusively or colorably obtained a title to or become possessed of the said lands and tenements, or any part thereof, for the purpose of qualifying or enabling me to be elected a member of the Legislative Council (or Assembly) of Western Australia. Every member shall deliver such declaration to the clerk of the said Council or Assembly (as the case may be) during a sitting of the House, and such declaration shall be filed and kept by the clerk with the other records of his office. If any member shall in such declaration knowingly and wilfully make any false statement, he shall be guilty of a misdemeanor, and on conviction shall be liable to the same punishment as if he had been convicted of perjury. Every member who, before making such declaration, shall sit and vote in the said Council, or in the said Assembly after the election of a Speaker, shall be liable for every day on which he shall so sit and vote to a penalty of two hundred pounds, to be recovered by any person who shall sue for the same in the Supreme Court. 20. If any member of the Legislative Council or Legislative Assembly, after making such declaration, shall sell or otherwise dispose of the property described therein, or any part thereof, or shall wish to make any alteration in the description of such property, or to substitute other property for the property so described, he may at any time make and subscribe another similar declaration, and shall deliver the same to the clerk of the said Council or Assembly (as the case may be), to be by him filed and kept with the other records of his office. 21. If any member of the Legislative Council or Legislative Assembly, after making such declaration, shall sell or otherwise dispose of the property described therein, or any part thereof, so that the remainder is insufficient to constitute the qualification required for a member, he shall be disqualified from holding his seat, and if he shall sit or vote in the said Council or Assembly (as the case may

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be) after he shall have become so disqualified, he shall for every day on which he shall so offend be liable to a penalty of two hundred pounds, to be recovered by any person who shall sue for the same in the Supreme Court: Provided always, that if such member, at or before the time of selling or otherwise disposing of such property, be seised of other property sufficient to constitute a qualification, he may hold his seat in the said Council or Assembly (as the case may be) if he shall, previously to sitting or voting, have made and subscribed another such declaration, and shall have delivered the same to the clerk of the Council or Assembly (as the case may be), to be filed and kept as aforesaid: Provided further, that the property qualification mentioned in section eighteen and the provisions of this section and of the two next preceding sections shall not apply to any member of the Legislative Council until Pert III. Of this Act shall come into operation. 22. No member of the Legislative Council or Legislative Assembly shall sit or vote therein until he shall have taken and subscribed the following oath before the Governor, or before some person authorised by the Governor to administer such oath: I, A.B., do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, as lawful Sovereign of the United Kingdom of Great Britain and Ireland, and of this colony of Western Australia. So help me God. Provided always, that if the taking of an oath is according to the religious belief of any member unlawful, such member may make and subscribe the following affirmation. I, A.B., solemnly declare that the taking of an oath is according to my religious belief unlawful, and I do sincerely promise and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, as lawful Sovereign of the United Kingdom of Great Britain and Ireland, and of this colony of Western Australia. And whensoever the demise of Her present Majesty (whom may God long preserve), or of any of Her successors, shall be notified by the Governor to the said Council and Assembly respectively, the members of the said Council and Assembly shall, before they shall be permitted to sit and vote therein, take and subscribe the like oath or affirmation or allegiance to the successor for the time being to the Crown. 23. No person shall be qualified to be member of the Legislative Council or Legislative Assembly, if he

(1) be a member of the other House of the Legislature; or (2) be a judge of the Supreme Court; or (3) be the sheriff of Western Australia; or (4) be a clergyman or minister of religion; or (5) be an undischarged bankrupt or a debtor whose affairs are in the course of liquidation or arrangement; or

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(6) has been in any part of Her majesty’s dominions attainted or convicted of treason or felony.

24. Any person who shall directly or indirectly, himself, or by any person whomsoever in trust for him, or for his use or benefit, or on his account, undertake, execute, hold, or enjoy in the whole or in part any contract, agreement, or commission made or entered into with, under, or from any person whomsoever, for or on account of the Government of the Colony; Or shall knowingly furnish or provide in pursuance of any such contract, agreement, or commission any money to be remitted abroad, or any goods whatsoever to be used or employed in the service of the public; And any member of any company, and any person holding office or position in any company formed for the construction of any railway or other public work, the payment for which, or the interest on the cost of which has been promised or guaranteed by the Government of the Colony; shall be incapable of being a member of the Legislative Council or Legislative Assembly during the time he shall execute, hold, or enjoy any such contract, agreement, or commission, or office or position, or any part or share thereof, or any benefit or emolument arising from the same. 25. If any person, being a member of the Legislative Council or Legislative Assembly, shall directly or indirectly, himself, or by any person whomsoever in trust for him, or for his use or benefit, or on his account, enter into, accept, or agree for, undertake, or execute, in the whole or in part, any such contract, agreement, or commission as aforesaid, or of any person being a member of the said Council or Assembly, and having already entered into any such contract, agreement, or commission, or any part or share of any such contract, agreement, or commission, by himself, or by any other person whomsoever in trust for him, or for his use or benefit, or upon his account, shall, after the commencement of the next session of the legislature, continue to hold, execute, or enjoy the same, or any part thereof, the seat of every such member shall be void: Provided that nothing in this or the last preceding section shall extend to persons contributing towards any loan for public purposes heretofore or hereafter raised by the colony, or to the holders of any bonds issued for the purpose of any such loan. 26. The foregoing provisions shall not extend to any contract, agreement, or commission made, entered into, or accepted by any incorporated company where such company consists of more than twenty persons, and where such contract, agreement, or commission is made, entered into, or accepted for the general benefit of such company, nor to any contract or agreement in respect of any lease, license, or agreement in respect to the sale or occupation of Crown lands. 27. The foregoing provisions shall not extend to any person on whom, after the commencement of this Act, the completion of any contract, agreement, or commission shall devolve by descent, or limitation, or by marriage, or as devisee, or legatee, until twelve months after he shall have been in possession of the same,

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or to any executor or administrator until three years after he shall have been in possession of the same. 28. If any person while holding an office of profit under the Crown, other than that of an officer of Her majesty’s sea or land forces on full, half, or retired pay, be elected a member of the Legislative Assembly, or of the Legislative Council after Part III. Of this Act shall be in operation, he shall, if he takes the oath or makes the affirmation herein-before prescribed, be held by so doing to vacate his said office. Provided always, that there shall be five principal executive offices of the Government liable to be vacated on political grounds, and that to such offices this section shall not apply. The said offices shall be such five offices as shall be designated and declared by the Governor in council, within one month of the coming into operation of this Act, and thereafter from time to time as may be, to be the five principal executive offices of the Government for the purposes of this Act. 29. If any member of the Legislative Council or Legislative Assembly, after his nomination or election:(1.) Ceases to be qualified or becomes disqualified as aforesaid; or, (2.) Becomes of unsound mind; or, (3.) Takes and oath or makes any declaration or acknowledgement of allegiance, obedience, or adherence to any foreign Prince or Power, or does, concurs in, or adopts any act whereby he may become a subject or citizen of any foreign State or Power, or whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power; or, (4.) Fails to give his attendance in the Legislative Council, or in the Legislative Assembly, as the case may be, for two consecutive months of any session thereof without the permission of the said Council or Assembly, as the case may be, entered upon its journals; or, (5.) Accepts any pension during pleasure or for term of years, or any office of profit from the Crown other than that of an officer of Her Majesty’s sea or land forces on full, half, or retired pay, his seat shall thereupon become vacant: Provided that members accepting offices liable to be vacated on political grounds shall be eligible for re-­ election, or, while the council remains nominated, for re-appointment. 30. Whenever any question arises respecting any vacancy in the Legislative Council the same shall be referred by the Governor to the said Council to be by the said Council heard and determined. 31. Whenever a vacancy occurs in the Legislative Assembly from any cause upon a resolution by the Assembly declaring such vacancy and the cause thereof, the Speaker shall cause writ to be issued for supplying such vacancy.

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The Speaker may, in the case of a vacancy caused by death or resignation, issue such writ without such preceding resolution when the Assembly is not in session. 32. If any person by this Act disabled or declared to be incapable to sit or vote in the Legislative Council or Legislative Assembly shall nevertheless be summoned to the said Council, or elected and returned as a member to serve in the said Assembly (or in the Legislative Council after the coming into operation of Part III. Of this Act), such summons or election and return may be declared by the said Council or Assembly, as the case may require, to be void, and thereupon the same shall become and be void to all intents and purposes whatsoever; and if any person under any of the disqualification’s mentioned in this Act shall, whilst so disqualified, presume to sit or vote as a member of the said Council or Assembly, such person shall forfeit the sum of five hundred pounds, to be recovered by any person who shall sue for the same in the Supreme Court. 33. The proceedings of the Legislative Council or Legislative Assembly shall not be invalidated by reason of the presence thereat of any person by this Act disabled or declared to be incapable to sit or vote in the said Council or Assembly. 34. The Legislative Council and Legislative Assembly in their first session, and from time to time afterwards as there shall be occasion, shall each adopt standing rules and orders, joint as well otherwise, for the regulation and orderly conduct of their proceedings and the despatch of business, and for the manner in which the said Council and Assembly shall be presided over in the absence of the President or the Speaker, and for the mode in which the said Council and Assembly shall confer, correspond, and communicate with each other, and for the passing, intituling, and numbering of Bills, and for the presentation of the same to the Governor for Her Majesty’s assent; and for all such rules and orders shall by the said Council and Assembly respectively be laid before the Governor, and being by him approved shall become binding and of force. 35. The salary of the President of the Legislative Council shall be at least equal to the salary of the Speaker of the Legislative Assembly; and the salaries and allowances of the various officers of the Legislative Assembly; and the chief clerk for the time being of the Legislative Council and of the Legislative Assembly shall respectively be removable from office only in accordance with a vote of the House of which he is an officer. 36. It shall be lawful for the legislature of the Colony by any Act to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Legislative Council and Legislative Assembly, and by the members thereof respectively: Provided that no such privileges, immunities, or powers shall exceed those for the time being held, enjoyed, and exercised by the Commons House of Parliament, or the members thereof.

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Part II. Electoral 37. The colony shall be divided into thirty electoral districts, each returning one member to serve in the Legislative Assembly; that is to say, the districts ofEast Kimberley West Kimberly Roebourne De Grey Ashburton Gascoyne Murchison Geraldton Greenough Irwin

Moore Swan Perth East Perth West Perth Fremantle North Fremantle South Fremantle Murray Wellington

Bunbury Nelson Sussex Toodyay Northam York Beverley Williams Plantagenet Albany

The boundaries of the said electoral districts shall be those in Schedule A.  To this Act. 38. Except as otherwise provided in this Act, the existing laws relating to the qualification of electors, the mode of election, and all other matters concerning elections, shall be in force, and apply to the election of members to serve in the Legislative Assembly in the same manner as they are now in force in respect of election to the existing Legislative Council. The electoral laws existing at the date of the coming into operation of Part III. Of this Act shall, except as otherwise provided in this Act, be in force and apply to the election of members to serve in the Legislative Council for electoral divisions, in the same manner as such laws shall then be in force in respect of election to the Legislative Assembly for electoral districts. 39. Every man shall be entitled to be registered as a voter, and when registered to vote for a member to serve in the Legislative Assembly for an electoral district, who is qualified as follows; (that is to say,) (1.) Is of full age and not subject to any legal incapacity; and (2.) Is a natural-born or naturalised subject of Her majesty, or a denizen of Western Australia; and (3.) Has possessed for at least one year before being registered, and within the electoral district for which he seeks to be registered: (a.) Either a freehold estate in possession at law or in equity of the clear value of one hundred pounds sterling above all charges or incumbrances affecting the same; or (b.) A leasehold estate in possession of the clear value of ten pounds sterling per annum; or (c.) A lease or license from the Crown empowering him, subject to the payment of at least ten pounds sterling per annum, to depasture, occupy, cultivate, or mine upon Crown lands; or

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(4.) Has occupied for at least one year before being registered, and within the electoral district for which he seeks to be registered: (a.) As householder a dwelling-house of the clear value of ten pounds sterling per annum; or (b.) As a lodger a room or rooms or lodgings of the clear annual value, unfurnished, of ten pounds sterling. No man shall be entitled to vote at any election for the Legislative Assembly, or for the Legislative Council when constituted under Part III. Of this Act, who has been attainted or convicted of treason, felony, or any infamous offence in any part of Her Majesty’s dominions unless he shall have served his sentence for the same, or have received a free pardon for such offence, or a pardon conditional on his not leaving the colony. 40. Where premises are jointly owned, occupied, or held on lease or license within the meaning of the last preceding section, or of section fifty-three after Part III. Of this Act shall be in operation, by more persons than one, each of such joint owners, occupiers, leaseholders, or licensees shall be entitled to be registered as a voter, and to vote in respect of the said premises in case the value of his individual interest therein, separately considered, would, under the provisions of the last preceding section, or of section fifty-three, entitle him to be registered as a voter and to vote. 41. The names of electors under this Act shall be inserted in the electoral lists of the electoral districts, and (when Part III. Shall come into operation) in the electoral lists of the electoral divisions, in which they shall be respectively qualified; and all such lists shall specify the Christian and surnames of all such electors; the nature of the qualification, and the place where they respectively reside; and all such lists shall be signed, delivered, printed, and hung up for public inspection by the persons and in the way prescribed in the Electoral Acts for the time being in force, and shall be subject to such claims and notice from any person whose name shall have been omitted therein, and to such objections and notice as to the names of any persons inserted therein, and to such modes of altering, amending, or continuing any such lists as are, or shall be, in these said several respects provided for in the said Electoral Acts, as nearly as may be consistently with the rights of such new electors. Provided that it shall be lawful, in order to the convenient holding of the first general election under this Act to the Legislative Assembly, and of the general election, mentioned in Part III.  Of this Act, to the Legislative Council, for the Governor in council to make such arrangements, appoint such persons, and fix such dates and periods, as may to him seem under the circumstances to be required for the doing of any matter or thing necessary to be done under any Electoral Act, notifying the same in the “Government Gazette.” Any Electoral Act affected by such notice shall be deemed to be varied accordingly, for the purposes of the said elections.

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Part III. Elective Council 42. When six years shall have elapsed from the date of the first summoning, under section six of this Act, of persons to the Legislative Council, or when the Registrar General of the colony shall have certified by writing under his hand to be published in the “Government Gazette”, that the population of the colony has, to the best of his knowledge and belief, exclusive of aboriginal natives, attained to sixty thousand souls, which ever event shall first happen, this part shall come into operation, provided that the Governor in council shall have power, by proclamation in the “Government Gazette”, to further postpone the operation of this part for any period not exceeding six months. 43. On the coming into operation of this part, the first paragraph of section six, and sections eight, nine, and thirty of this Act shall, saving validity of things done, cease to have any operation. 44. From and after the coming into operation of this part, the Legislative Council, as constituted hereunder, shall take the place under this Act and have all the powers and functions of the then subsisting Legislative Council, which shall then cease to exist. Except as provided in the previous section, all the provisions of this Act relating to the Legislative Council shall apply to the Council constituted under this part. 45. The Legislative Council shall consist of fifteen elected members, who shall be returned and shall sit for electoral divisions, as herein-after stated and defined. 46. For the purpose of constituting the Legislative Council, the Governor, before the time appointed for the first meeting of the Legislative Council and Legislative Assembly, after this part shall be in operation, may, in Her Majesty’s name, issue writs under the public seal of the colony for a general election of members to serve in the Legislative Council. 47. Upon the general or any subsequent election, the Legislative Council shall be competent to proceed to the despatch of business, at the time appointed by the Governor for that purpose, notwithstanding that any of the writs of election not exceeding two shall not have been returned, or that in any of the electoral divisions the electors shall have failed to elect a member to serve in the said Council. 48. The seat of the senior member of the Legislative Council for the time being for each electoral division shall be vacated on the completion of a period of two years from the first day of March following the date on which this part shall come into operation, and also on the completion of each succeeding period of two years. For the purposes of this section, the seniority of a member of the Legislative Council shall be determined by the date of his election, and in the event of two or more persons being elected for a division upon the same day, by the alphabetical precedence of their surnames, and, if necessary, of their Christian names. Upon a seat becoming vacant under this section, the Governor may, in Her Majesty’s name, issue a writ, under the public seal of the colony, for the election of a member to fill the seat thus vacated.

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49. The members of the Legislative Council shall, upon their first assembly after the general election, proceed forthwith to elect one of their number to be President; and in the case of his death, resignation, or removal by a vote of the Council, the members shall again elect one of their number to be President. The President so elected shall preside at all meetings of the said Council. 50. Any member of the Legislative Council may resign his seat therein, by writing under his hand, addressed to the President, and upon receipt of such resignation by the President the seat of such member shall become vacant. 51. Whenever a vacancy, other than that under section forty-eight of this Act occurs in Legislative Council, from any cause, upon a resolution by the Council declaring such vacancy and the cause thereof the President shall cause a writ to be issued for supplying such vacancy. The President may, in the case of a vacancy caused by death or resignation, issue such writ without such preceding resolution, when the Council is not in session. 52. The colony shall be divided into five electoral divisions, each returning three members to serve in the Legislative Council; that is to say, The metropolitan division, comprising Perth, East Perth, West Perth, Fremantle, North Fremantle, and South Fremantle electoral districts. The north division, comprising the East Kimberley, West Kimberley, Roebourne, De Grey, and Ashburton electoral districts. The central division, comprising the Gascoyne, Murchison, Geraldton, Greenough, and Irwin electoral districts. The east division, comprising the Moore, Swan, Toodyay, Northam, York, and Beverley electoral districts. The south division, comprising the Murray, Wellington, Bunbury, Nelson, Sussex, Williams, Plantagenet, and Albany electoral districts. 53. Every man shall be entitled to be registered as a voter, and, when registered, to vote for each of any number of candidates not exceeding the number of members to be elected to serve in the Legislative Council for an electoral division, who is qualified as follows; (that is to say,) (1.) Is of full age, and not subject to any legal capacity; and, (2.) Is a natural born or naturalised subject of Her majesty, or a denizen of Western Australia; and, (3.) Has possessed for at least one year before being registered, and within the electoral division for which he seeks to be registered: (a.) Either a freehold estate in possession at law or in equity of the clear value of two hundred pounds sterling above all charges or encumbrances affecting the same; or, (b.) A leasehold estate in possession of the clear value of thirty pounds sterling per annum; or, (c.) A lease or license from the Crown empowering him, subject to the payment of at least thirty pounds sterling per annum, to depasture, occupy, cultivate, or mine upon Crown lands; or,

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(4.) Has occupied, for at least one year before being registered, and within the electoral division for which he seeks to be registered, as a householder a dwelling-house of the clear value of thirty pounds sterling per annum. Part IV. Judicial 54. The commissions of the present judges of the Supreme Court and of all future judges thereof shall be, continue, and remain in full force during their good behaviour, notwithstanding the demise of Her Majesty (whom may God long preserve), any law, usage, or practice to the contrary notwithstanding. 55. It shall be lawful nevertheless for Her Majesty to remove any such judge upon the Address of both Houses of the Legislature of the colony. 56. Such salaries as are settled upon the judges for the time being by this or any other Act, and also such salary as shall be voted to any judge of the Supreme Court, shall in all time coming be paid and payable to every such judge for the time being, so long as his patent or commission continues in force. Part V. Legal 57. All laws, statutes, and ordinances which at the commencement of this Act are in force within the colony shall until repealed or varied by any Act of the legislature continue to be of the same force, authority, and effect as if this Act had not been passed, except in so far as the same are repugnant to this Act (in which case they are to that extent hereby amended and repealed as necessary). 58. All courts of civil and criminal jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, or ministerial, within the colony at the commencement of this Act shall, except in so far as they are abolished, altered, or varied by this or any future Act of the legislature of the colony or other competent authority, continue to subsist in the same form and with the same effect as if this Act had not been passed. 59. It shall be lawful for the legislature of the colony, subject to the provisions of this Act, to impose and levy such duties of Customs as to it may seem fit, on the importation into the colony of any goods whatsoever, whether the produce of or exported from the United Kingdom or any of the colonies or dependencies of the United Kingdom or any foreign country: Provided always, that, except as authorised by the Imperial Act known as the Australian Colonies Duties Act, 1873, no new duty shall be imposed upon the importation into the colony of any article the produce or manufacture of or imported from any particular country or place which shall not be equally imposed on the importation into the colony of the like article the produce or manufacture of or exported from all other countries and places whatsoever. 60. It shall not be lawful for the legislature of the colony to levy any duty upon articles imported bona fide for the supply of the Governor or of Her Majesty’s

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land or sea forces, nor to levy any duty, impose any prohibition or restriction, or grant any exemption or any drawback or other privilege upon the importation or exportation of any articles, nor to enforce any dues or charges upon shipping, contrary to or at variance with any treaty concluded by Her Majesty with any foreign Power. 61. Nothing in this Act contained shall prevent Her Majesty from dividing the colony of Western Australia as she may from time to time think fit, by separating therefrom any portion thereof, and either erecting the same or any part thereof into a separate colony or colonies under such form of Government as she may think fit, or from sub-dividing any colony so created, or from reuniting to the colony of Western Australia any part of any colony so created. 62. In the event of any such separation or other proceeding as in the last preceding section mentioned, the provisions of this Act shall apply, so far as practicable, to the colony of Western Australia as for the time being existing. 63. Whenever any portion of the colony is about to be separated therefrom, the Lords Commissioners of Her Majesty’s Treasury may if requested by the Governor in Council, on report and accounts furnished by him, declare what portion of the public debt of the Colony has been expended within the territory about to be separated, and the interest and sinking fund, if any, upon the portion of the public debt mentioned in any such declaration shall be a reserved charge payable to the Government of Western Australia by the Government of the separated territory, and due provision for such reserved charge shall be made in any Act regulating the constitution of the separated territory. Provided always, that nothing herein contained, and no declaration or provision as aforesaid, shall in any way prejudice or affect the security of any debentures which may have been issued by the Government of Western Australia before the separation of any such territory. 64. All taxes, imposts, rates, and duties and all territorial, casual, and other revenues of the Crown (including royalties) from whatever source arising within the colony, over which the Legislature has power of appropriation, shall form one Consolidated Revenue Fund to be appropriated to the public service of the colony in the manner and subject to the charges herein-after mentioned. 65. The Consolidated Revenue Fund shall be permanently charged with all the costs, charges, and expenses incident to the collection, management, and receipt thereof; such costs, charges, and expenses being subject nevertheless to be reviewed and audited in such manner as is directed by the Audit act, 1881, or as may from time to time be directed by any Act of the Legislature. 66. All Bills for appropriating any part of the Consolidated Revenue Fund or for imposing, altering, or repealing any rate, tax, duty, or impost, shall originate in the Legislative Assembly. 67. It shall not be lawful for the Legislative Assembly to adopt or pass any vote, resolution, or Bill for the appropriation of any part of the Consolidated Revenue Fund, or of any rate, tax, duty, or impost, to any purpose which has not been first recommended to the Assembly by message of the Governor during the Session in which such votes, resolutions, or Bill is proposed.

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68. No part of the public revenue of the colony arising from any of the sources aforesaid shall be issued except in pursuance of warrants under the hand of the Governor directed to the treasurer. 69. There shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund, sums not exceeding in the whole nine thousand eight hundred and fifty pounds, for defraying the expenses of the services and purposes set forth in Schedule B. To this Act, and the said several sums shall be issued by the treasurer in discharge of such warrants as shall from time to time be directed to him under the hand of the Governor. 70. There shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund the sum of five thousand pounds mentioned in Schedule C. To this Act to be appropriated to the welfare of the aboriginal natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of aboriginal children (including half-castes), and in assisting generally to promote the preservation and well-being of the aborigines. The said annual sum shall be issued to the Aborigines Protection Board by the treasurer on warrants under the hand of the Governor, and may be expended by the said Board at their discretion, under the sole control of the Governor, anything in the Aborigines Protection Act, 1886, to the contrary notwithstanding. Provided always, that if and when the gross revenue of the colony shall exceed five hundred thousand pounds in any financial year, an amount equal to one per centum on such gross revenue shall, for the purposes of this section, be substituted for the said sum of five thousand pounds in and for the financial year next ensuing. If in any year the whole of the said annual sum shall not expended, the unexpended balance thereof shall be retained by the said Board, and expended in the manner and for the purposes aforesaid in any subsequent year. 71. And whereas by the operation of this Act certain officers of the Government may lose their offices on political grounds, and it is just to compensate such officers for such loss, be it enacted that the sums set opposite to the names of the persons in Schedule D., to this Act, who at present respectively hold the offices therein mentioned, shall be payable to them annually by way of retiring allowance upon their ceasing to hold office on political grounds after the commencement of this Act; and all such sums shall be paid to such persons out of the Consolidated Revenue Fund, and the treasurer shall make such payments accordingly, on warrants under the hand of the Governor. Provided that if after any such allowance shall have become payable, the person entitled thereto shall accept any appointment under the Crown in any part of Her Majesty’s dominions, then such allowance shall, during the tenure of such appointment, be suspended or be reduced pro tanto according as the salary of such appointment added to such allowance is greater than the salary of the office vacated in consequence of this Act. 72. After and subject to the charges herein-before mentioned, all the Consolidated Revenue Fund shall be appropriated to such purposes as any Act of the Legislature shall prescribe. Provided that nothing in this Act shall affect the

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payment of the annual interest or the principal sums mentioned in any outstanding debentures, or of any other charge upon the public revenue, as such interest, principal, or charge becomes due. Nor shall anything in this Act affect any pensions or superannuation allowances which at the commencement of this Act are by law chargeable upon the public revenue of the colony, but all such pensions and superannuation allowances shall remain and be so chargeable, and shall be paid out of the Consolidated Revenue Funds and all rights and benefits which at the commencement of this Act are by law claimable by or accruing to any civil servant of the Government are hereby reserved and maintained: Provided, nevertheless, that the power to suspend or remove any civil servant from his office shall be vested in the Governor in Council. 73. The Legislature of the colony shall have full power and authority from time to time by any Act to repeal or alter any of the provisions of this Act: Provided always, that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change in the constitution of the Legislative Council or of the Legislative Assembly shall be effected unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively: Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III. of this Act provided, and every Bill which shall interfere with the operation of sections sixty-nine, seventy, seventy-one, or seventy-­two of this Act, or of Schedules B., C., or D., or of this section, shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon. 74. The appointment to all public offices under the Government of the colony hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor in Council, with the exception of the appointments of officers liable to retire from office on political grounds, which appointments shall be vested in the Governor alone. Provided always, that this enactment shall not extend to minor appointments which by Act of the Legislature or by order of the Governor in Council may be vested in heads of departments or other officers or persons within the colony. 75. For the purposes of this Act“Her Majesty” means, when not repugnant to the context, Her Majesty, her heirs and successors. “Governor” means the person for the time being lawfully administering the Government of Western Australia, or the lawfully appointed deputy of such person. “Governor in Council” means the Governor acting with the advice of the Executive Council. “Treasurer” means the treasurer of the colony for the time being. “Aborigines Protection Board” means the board established under “The Aborigines Protection Act, 1886,” or any board with similar functions

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e­ stablished in its place under any Act adding to, amending, or substituted for the said Act. “Person” includes a corporation or association of persons. “Month” means calendar month. 76. The foregoing provisions of this Act shall have no force or effect until so much and such parts of the following Acts of the Parliament of the United Kingdom, that is to say: Thirteenth and fourteenth Victoria, chapter fifty-nine, intituled An Act for the better Government of Her Majesty’s Australian Colonies; fifth and sixth Victoria, chapter seventy-six, intituled An Act for the better Government of New South Wales and Van Dieman’s Land; seventh and eighth Victoria, chapter seventy-four, intituled An Act to explain and the Act for the Government of New South Wales and Van Dieman’s Land, as severally relate to the colony of Western Australia, and are repugnant to this Act, shall have been repealed. 77. This Act shall be proclaimed in Western Australia, by the Governor, within three months after he shall have received official information of the Royal Assent thereto, and shall commence and, except as provided in section forty-­ two, take effect from the date of such proclamation. 78. This Act may be cited for all purposes as the Constitution Act, 1889. I reserve this Bill for the signification of Her Majesty’s pleasure thereon. F. Napier Broome, Governor. [Schedules Omitted]

Appendix C: Constitution Act 18891 An Act to confer a Constitution on Western Australia, and to grant a Civil list to Her Majesty. Preamble Whereas by the 32nd section of the Imperial Act passed in the session holden in the 13th and 14th years of the Reign of Her present Majesty, intituled “An Act for the better Government of Her Majesty’s Australian Colonies”, it was among other things enacted that, notwithstanding anything thereinbefore contained, it should be lawful for the Governor and Legislative Council of Western Australia, from time to time, by any Act or Acts, to alter the provisions or laws for the time being in force under the said Act or otherwise concerning the election of the elective members of such Legislative Council, and the qualification of electors and elective members, or to establish in the said Colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such  Compilation current as at 2021.

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members to be appointed or elected by such persons and in such manner as by such Act or Acts should be determined, and to vest in such Council and House of Representatives, or other separate Legislative Houses, the powers and functions of the Legislative Council for which the same might be substituted; and whereas it is expedient that the powers vested by the said Act in the said Governor and Legislative Council should now be exercised, and that a Legislative Council and a Legislative Assembly should be substituted for the present Legislative Council, with the powers and functions hereinafter contained; And whereas the Legislature of the Colony, as previously constituted, was replaced through this Act with a Parliament, to consist of the Queen, the Legislative Council and the Legislative Assembly with the members of both Houses chosen by the people, and, as constituted, continued as the Parliament of the Colony until Western Australia’s accession as an Original State of the Commonwealth of Australia in 1901 and thereafter has been the Parliament of the State; And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia: [Preamble amended: No. 22 of 2015 s. 4.] Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows:— Part IA—Preliminary [Heading inserted: No. 47 of 2011 s. 20(2).] 1. Short title This is the Constitution Act 1889. [Section 1 inserted: No. 47 of 2011 s. 20(2).] Part I—Parliamentary 2. Legislature to be constituted in Western Australia (1) There shall be, in place of the Legislative Council now subsisting, a Legislative Council and a Legislative Assembly: and it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies: and such Council and Assembly shall, subject to the provisions of this Act, have all the powers and functions of the now subsisting Legislative Council.

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(2) The Parliament of Western Australia consists of the Queen and the Legislative Council and the Legislative Assembly. (3) Every Bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to section 73, be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen. [Section 2 amended: No. 59 of 1978 s. 4.] 3. Governor may fix place and time of sessions, prorogue Houses and dissolve Assembly It shall be lawful for the Governor to fix the place and time for holding the first and every other session of the Legislative Council and Legislative Assembly, and from time to time to vary the same as he may judge advisable, giving sufficient notice thereof: and also to prorogue the Legislative Council and Legislative Assembly from time to time, and to dissolve the Legislative Assembly by Proclamation or otherwise whenever he shall think fit. 4. A session every year There shall be a session of the Legislative Council and Legislative Assembly once at least in every year, so that a period of 12  months shall not intervene between the last sitting of the said Council and Assembly in one session and the first sitting of the said Council and Assembly in the next session. 5. First calling together of Legislature The Legislative Council and Legislative Assembly shall be called together for the first time at some period not later than 6 months after the commencement of this Act. 6. Appointment of members of Council Before the first meeting of the Legislative Council and Legislative Assembly the Governor in Council may, in Her Majesty’s name, by instruments under the Public Seal of the Colony, summon to the Legislative Council such persons, to the number of 15, as he shall think fit, and thereafter may from time to time, as vacancies occur, in like manner summon to the Legislative Council such other persons as he shall think fit, and every person so summoned shall thereby become a member of the Legislative Council. [Section 6 amended: No. 78 of 1984 s. 5.] 7. Tenure of seats in Council Every member of the Legislative Council shall, subject to the provisions of this Act, hold his seat therein until Part III shall come into operation. 8. Resignation of members of Council Any member of the Legislative Council may resign his seat therein by a letter to the Governor, and upon the receipt of such letter by the Governor the seat of such member shall become vacant. 9. Appointment of President; who may take part in debate The Governor may from time to time, by an instrument under the Public Seal of the Colony, appoint one member of the Legislative Council to be President, and

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may remove him and appoint another in his stead; and the President may at any time take part in any debate or discussion in the said Council. [10, 11. Deleted: 57 Vict., No. 14 s. 2.] 12. Convoking of Assembly For the purpose of constituting the Legislative Assembly, the Governor, before the time appointed for the first meeting of the Legislative Council and Legislative Assembly, and thereafter from time to time, as occasion shall require, may in Her Majesty’s name issue writs under the Public Seal of the Colony for the general election of members to serve in the Legislative Assembly. 13. Assembly may proceed to business although full number of members not elected at general election Upon any general election the Legislative Assembly shall be competent to proceed to the despatch of business, at the time appointed by the Governor for that purpose, notwithstanding that in any of the electoral districts the electors shall have failed to elect a member to serve in the said Assembly. [Section 13 amended: No. 36 of 2000 s. 22.] [14. Deleted: 63 Vict., No. 19 s. 2.] 15. Election of Speaker The members of the Legislative Assembly shall, upon their first assembling after every general election, proceed forthwith to elect one of their number to be Speaker; and in case of his death, resignation, or removal by a vote of the said Assembly, the members shall again elect one of their number to be Speaker. The Speaker so elected shall preside at all meetings of the said Assembly. [16, 17. Deleted: No. 78 of 1984 s. 6.] [18–21. Deleted: 63 Vict., No. 19 s. 2.] 22. Oath or affirmation of allegiance No member of the Legislative Council or Legislative Assembly shall sit or vote therein until he has taken and subscribed before the Governor, or some person authorised by the Governor in that behalf, an oath or affirmation of office in a form set out in Schedule E. [Section 22 inserted: No. 15 of 1980 s. 2; amended: No. 24 of 2005 s. 6.] [23–30. Deleted: 63 Vict., No. 19 s. 2.] [31. Deleted: 57 Vict., No. 14 s. 2.] [32, 33. Deleted: 63 Vict., No. 19 s. 2.] 34. Standing Rules and Orders The Legislative Council and Legislative Assembly, in their first session, and from time to time afterwards as there shall be occasion, shall each adopt Standing Rules and Orders, joint as well as otherwise, for the regulation and orderly conduct of their proceedings and the despatch of business, and for the manner in which the said Council and Assembly shall be presided over in the absence of the President or the Speaker, and for the mode in which the said Council and Assembly shall confer, correspond, and communicate with each other, and for the passing, intituling, and numbering of Bills, and for the presentation of the same to the Governor for Her Majesty’s assent. [Section 34 amended: No. 51 of 1987 s. 3.]

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35. Salaries of President, Speaker, and officers The salary of the President of the Legislative Council shall be at least equal to the salary of the Speaker of the Legislative Assembly; and the salaries and allowances of the various officers of the Legislative Council shall be the same as those of the corresponding officers of the Legislative Assembly; and the chief Clerk for the time being of the Legislative Council and of the Legislative Assembly shall respectively be removable from office only in accordance with a vote of the House of which he is an officer. 36. Privileges of both Houses It shall be lawful for the Legislature of the Colony, by any Act to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Legislative Council and Legislative Assembly, and by the members thereof respectively. [Section 36 amended: No. 41 of 2004 s. 4.] Part II—Electoral [37. Deleted: 57 Vict., No. 14 s. 2.] 38. Electoral laws Except as otherwise provided in this Act, the existing laws relating to the qualification of electors, the mode of election, and all other matters concerning elections, shall be in force, and apply to the election of members to serve in the Legislative Assembly, in the same manner as they are now in force in respect of election to the existing Legislative Council. The electoral laws existing at the date of the coming into operation of Part III shall, except as otherwise provided in this Act, be in force and apply to the election of members to serve in the Legislative Council for electoral divisions, in the same manner as such laws shall then be in force in respect of election to the Legislative Assembly for electoral districts. [39. Deleted: 57 Vict., No. 14 s. 2.] [40. Deleted: 63 Vict., No. 19 s. 2.] 41. Electoral lists The names of electors under this Act shall be inserted in the electoral lists of the electoral districts, and (when Part III shall come into operation) in the electoral lists of the electoral divisions, in which they shall be respectively qualified; and all such lists shall specify the Christian and surnames of all such electors, the nature of the qualification, and the place where they respectively reside; and all such lists shall be signed, delivered, printed, and hung up for public inspection by the persons and in the way prescribed in the Electoral Acts for the time being in force, and shall be subject to such claims and notice from any person whose name shall have been omitted therein, and to such objections and notice as to the names of any persons inserted therein, and to such modes of altering, amending, or continuing any such lists as are, or shall be, in these said several respects pro-

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vided for in the said Electoral Acts, as nearly as may be consistently with the rights of such new electors. Provided that it shall be lawful, in order to the convenient holding of the first general election under this Act to the Legislative Assembly, and of the general election, mentioned in Part III, to the Legislative Council, for the Governor in Council to make such arrangements, appoint such persons, and fix such dates and periods, as may to him seem under the circumstances to be required for the doing of any matter or thing necessary to be done under any Electoral Act, notifying the same in the Government Gazette. Any Electoral Act affected by such notice shall be deemed to be varied accordingly, for the purposes of the said elections. Part III—Elective Council [42. Deleted: No. 22 of 2015 s. 5.] 43. Certain sections to lapse On the coming into operation of this Part, the first paragraph of section 6, and sections 8, 9 and 30 shall, saving validity of things done, cease to have any operation. [44, 45. Deleted: 57 Vict., No. 14 s. 2.] 46. Convoking of elected Council For the purpose of constituting the Legislative Council, the Governor, before the time appointed for the first meeting of the Legislative Council and Legislative Assembly, after this Part shall be in operation, may, in Her Majesty’s name, issue writs under the Public Seal of the Colony for a general election of members to serve in the Legislative Council. 47. Council may proceed to business although full number of vacancies not filled at general election (1) Upon any general election the Legislative Council shall be competent to proceed to the despatch of business, at the time appointed by the Governor for that purpose, notwithstanding that the electors shall have failed to elect the required number of members to serve in the Legislative Council. (2) Subsection (1) does not apply if the general election has wholly failed or has been declared to be absolutely void. [Section 47 inserted: No. 40 of 1987 s. 4; amended: No. 20 of 2021 s. 4.] [48. Deleted: 57 Vict., No. 14 s. 2.] 49. Election of President The members of the Legislative Council shall, upon their first assembly after the general election, proceed forthwith to elect one of their number to be President; and in case of his death, resignation, or removal by a vote of the Council, the members shall again elect one of their number to be President. The President so elected shall preside at all meetings of the said Council.

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Part IIIA—The Governor [Heading inserted: No. 59 of 1978 s. 5.] 50. Office of Governor (1) The Queen’s representative in Western Australia is the Governor who shall hold office during Her Majesty’s pleasure. (2) Abolition of or alteration in the office of Governor shall not be effected by an Act of the Parliament except in accordance with section 73(2). (3) In this Act and in every other Act a reference to the Governor shall be taken— (a) to be a reference to the person appointed for the time being by the Queen by Commission under Her Majesty’s Royal Sign Manual to the office of Governor of the State of Western Australia; and (b) to include any other person appointed by dormant or other Commission under the Royal Sign Manual to administer the Government of the State of Western Australia; and (c) to also include any other person exercising, by virtue of an appointment by the Governor in accordance with Letters Patent, any powers and authorities of the Governor. [Section 50 inserted: No. 59 of 1978 s. 5; amended: the Australia Act 1986 (U.K.) s. 14(2) (see WA Act No. 65 of 1985 and also the Australia Act 1986 (Cwlth.) s. 14(2)).] 51. Instructions to Governor In section 50 the expression Royal Sign Manual means the signature or royal hand of the Sovereign. [Section 51 inserted: No. 59 of 1978 s. 5; amended: the Australia Act 1986 (U.K.) s. 14(3) (see WA Act No. 65 of 1985 and also the Australia Act 1986 (Cwlth.) s. 14(3)).]

Part IIIB—Local Government [Heading inserted: No. 88 of 1979 s. 3.] 52. Elected local governing bodies (1) The Legislature shall maintain a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide. (2) Each elected local governing body shall have such powers as the Legislature may from time to time provide being such powers as the Legislature considers necessary for the better government of the area in respect of which the body is constituted. [Section 52 inserted: No. 88 of 1979 s. 3.] 53. Certain laws not affected Section 52 does not affect the operation of any law—

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(a) prescribing circumstances in which the offices of members of a local governing body shall become and remain vacant; or (b) providing for the administration of any area of the State— (i) to which the system maintained under that section does not for the time being extend; or (ii) when the offices of all the members of the local governing body for that area are vacant; or (c) limiting or otherwise affecting the operation of a law relating to local government; or (d) conferring any power relating to local government on a person other than a duly constituted local governing body. [Section 53 inserted: No. 88 of 1979 s. 3.] Part IV—Judicial 54. Judges continued in the enjoyment of their offices during good behaviour The Commissions of the present Judges of the Supreme Court and of all future Judges thereof shall be, continue, and remain in full force during their good behaviour, notwithstanding the demise of Her Majesty (whom may God long preserve), any law, usage, or practice to the contrary notwithstanding. 55. But they may be removed by the Crown on the address of both Houses It shall be lawful nevertheless for Her Majesty to remove any such Judge upon the Address of both Houses of the Legislature of the Colony. [56. Deleted: No. 35 of 1950 s. 4.] Part V—Legal 57. Existing law saved All laws, statutes, and ordinances which at the commencement of this Act are in force within the Colony shall until repealed or varied by any Act of the Legislature continue to be of the same force, authority, and effect as if this Act had not been passed, except in so far as the same are repugnant to this Act (in which case they are to that extent hereby amended and repealed as necessary). 58. Courts of justice, commissions, officers, etc. All Courts of Civil and Criminal Jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, or ministerial, within the Colony at the commencement of this Act shall except in so far as they are abolished, altered, or varied by this or any future Act of the Legislature of the Colony or other competent authority, continue to subsist in the same form and with the same effect as if this Act had not been passed. 59. Custom duties may be imposed not differential

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It shall be lawful for the Legislature of the Colony, subject to the provisions of this Act, to impose and levy such duties of Customs as to it may seem fit, on the importation into the Colony of any goods whatsoever, whether the produce of or exported from the United Kingdom or any of the Colonies or Dependencies of the United Kingdom or any Foreign Country. Provided always, that, except as authorised by the Imperial Act known as the Australian Colonies Duties Act 1873, no new duty shall be imposed upon the importation into the Colony of any article the produce or manufacture of or imported from any particular country or place which shall not be equally imposed on the importation into the Colony of the like article the produce or manufacture of or exported from all other countries and places whatsoever. 60. Duties not to be levied on supplies for Governor or troops nor any duties inconsistent with treaties It shall not be lawful for the Legislature of the Colony to levy any duty upon articles imported bona fide for the supply of the Governor or of Her Majesty’s Land or Sea Forces, nor to levy any duty, impose any prohibition or restriction, or grant any exemption or any drawback or other privilege upon the importation or exportation of any articles, nor to enforce any dues or charges upon shipping contrary to or at variance with any treaty concluded by Her Majesty with any foreign Power. 61. Separation of the Colony Nothing in this Act contained shall prevent Her Majesty from dividing the Colony of Western Australia as she may from time to time think fit, by separating therefrom any portion thereof, and either erecting the same or any part thereof into a separate Colony or Colonies under such form of Government as she may think fit, or from subdividing any Colony so created, or from re-uniting to the Colony of Western Australia any part of any Colony so created. 62. After separation, Act to apply to remaining part of Colony In the event of any such separation or other proceeding as in the last preceding section mentioned, the provisions of this Act shall apply, so far as practicable, to the Colony of Western Australia as for the time being existing. Part VI—Financial 63. Liability of separated portion of Colony for public debt Whenever any portion of the Colony is about to be separated therefrom the Lords Commissioners of Her Majesty’s Treasury may if requested by the Governor in Council, on report and accounts furnished by him, declare what portion of the public debt of the Colony has been expended within the territory about to be separated, and the interest and sinking fund, if any, upon the portion of the public debt mentioned in any such declaration shall be a reserved charge payable to the Government of Western Australia by the Government of the separated territory, and due provision for such reserved charge shall be made in any Act regulating the constitution of the separated territory. Provided always, that nothing herein

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contained, and no declaration or provision as aforesaid, shall in any way prejudice or affect the security of any debentures which may have been issued by the Government of Western Australia before the separation of any such territory. 64. All duties and revenues to form Consolidated Account All taxes, imposts, rates, and duties, and all territorial, casual, and other revenues of the Crown (including royalties) from whatever source arising within the Colony, over which the Legislature has power of appropriation, shall form one Consolidated Account together with all other moneys lawfully credited to that Account, and that Account shall be appropriated to the Public Service of the Colony in the manner and subject to the charges hereinafter mentioned. [Section 64 amended: No. 6 of 1993 s. 9 and 11; No. 77 of 2006 s. 4 and 5(1).] 65. Consolidated Account permanently charged with expenses of collection The Consolidated Account shall be permanently charged with all the costs, charges, and expenses incident to the collection, management, and receipt thereof; such costs, charges, and expenses being subject nevertheless to be reviewed and audited in such manner as is directed by the Audit Act 18819, or as may from time to time be directed by any Act of the Legislature. [Section 65 amended: No. 6 of 1993 s. 11; No. 77 of 2006 s. 4.] [66, 67. Deleted: No. 34 of 1921 s. 2.] 68. No part of public revenue to be issued except on warrants from Governor No part of the public revenue of the Colony arising from any of the sources aforesaid shall be issued except in pursuance of warrants under the hand of the Governor directed to the Treasurer. [69. Deleted: 60 Vict., No. 18 s. 2.] [70. Deleted: No. 14 of 1905 s. 65.] [71. Deleted: No. 19 of 2010 s. 13(2).] 72. Consolidated Account to be appropriated by Act of the Legislature: certain charges not affected After and subject to the charges hereinbefore mentioned, all the Consolidated Account shall be appropriated to such purposes as any Act of the Legislature shall prescribe. Provided that nothing in this Act shall affect the payment of the annual interest or the principal sums mentioned in any outstanding debentures, or of any other charge upon the public revenue, as such interest, principal, or charge becomes due. Nor shall anything in this Act affect any pensions or superannuation allowances which at the commencement of this Act are by law chargeable upon the public revenue of the Colony, but all such pensions and superannuation allowances shall remain and be so chargeable, and shall be paid out of the Consolidated Account, and all rights and benefits which at the commencement of this Act are by law claimable by or accruing to any civil servant of the Government are hereby reserved and maintained. Provided nevertheless, that the power to suspend or remove any civil servant from his office shall be vested in the Governor in Council. [Section 72 amended: No. 6 of 1993 s. 11; No. 77 of 2006 s. 4.]

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Part VII—Miscellaneous 73. Legislature as constituted by this Act empowered to alter any of its provisions (1) Subject to the succeeding provisions of this section, the Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III provided, and every Bill which shall interfere with the operation of sections 69, 70, 71, or 72, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon.

(2) A Bill that—



(a) expressly or impliedly provides for the abolition of or alteration in the office of Governor; or



(b) expressly or impliedly provides for the abolition of the Legislative Council or of the Legislative Assembly; or



(c) expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people; or



(d) expressly or impliedly provides for a reduction in the numbers of the members of the Legislative Council or of the Legislative Assembly; or



(e) expressly or impliedly in any way affects any of the following sections of this Act, namely— sections 2, 3, 4, 50, 51 and 73, shall not be presented for assent by or in the name of the Queen unless—



(f) the second and third readings of the Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly, respectively; and



(g) the Bill has also prior to such presentation been approved by the electors in accordance with this section,

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and a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.

(3) On a day fixed by the Governor by Order in Council, being a day not sooner than 2 months, and not later than 6 months, after the passage through the Legislative Council and the Legislative Assembly of a Bill of a kind referred to in subsection (2), the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Electoral Act 1907.



(4) When the Bill is submitted to the electors the vote shall be taken in such manner as is fixed by law.



(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for assent by or in the name of the Queen.



(6) Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (2) is presented for assent by or in the name of the Queen. [Section 73 amended: No. 59 of 1978 s. 6.] 74. Appointment to offices under the Government of the Colony to be vested in the Governor The appointment to all public offices under the Government of the Colony hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor in Council, with the exception of the appointments of officers liable to retire from office on political grounds, which appointments shall be vested in the Governor alone. Provided always, that this enactment shall not extend to minor appointments which by Act of the Legislature or by order of the Governor in Council may be vested in heads of departments or other officers or persons within the Colony. 74A. Demise of the Crown The demise of the Sovereign— (1) has the effect of transferring all the functions, duties, powers, authorities, rights, privileges and dignities belonging to the Crown to the Sovereign’s successor; but (2) has no other effect in law for any purpose. [Section 74A inserted: No. 9 of 2017 s. 4.] 75. Interpretation For the purposes of this Act— Her Majesty means, when not repugnant to the context, Her Majesty, her heirs and successors. Governor in Council means the Governor acting with the advice of the Executive Council.

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Treasurer means the Treasurer of the Colony for the time being. Person includes a corporation or association of persons. Month means calendar month. [Section 75 amended: No. 59 of 1978 s. 7; No. 22 of 2015 s. 6.] 76. Operation of Act The foregoing provisions of this Act shall have no force or effect until so much and such parts of the following Acts of the Parliament of the United Kingdom, that is to say:—13th and 14th Victoria, chapter 59, intituled An Act for the better Government of Her Majesty’s Australian Colonies; 5th and 6th Victoria, chapter 76, intituled An Act for the better Government of New South Wales and Van Dieman’s Land; 7th and 8th Victoria, chapter 74, intituled An Act to explain and amend the Act for the Government of New South Wales and Van Dieman’s Land; as severally relate to the Colony of Western Australia, and are repugnant to this Act, shall have been repealed. 77. Act to be proclaimed This Act shall be proclaimed in Western Australia, by the Governor, within 3 months after he shall have received official information of the Royal Assent thereto, and shall commence and, except as provided in section 42, take effect from the date of such proclamation. [78. Deleted: No. 47 of 2011 s. 20(3).] [Schedule A and Schedule B deleted: 60 Vict., No. 18 s. 2.] [Schedule C related to section 70 which was deleted: No. 14 of 1905 s. 65.] [Schedule D deleted: No. 19 of 2010 s. 13(3).] Schedule E—Oath and Affirmation of Office [s. 22] [Heading inserted: No. 24 of 2005 s. 7.] Either— (a) I, [name], [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will faithfully serve the people of Western Australia as a member of the *Legislative Council/Legislative Assembly. [*Delete the inapplicable.] or— (b) I, [name], [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law and will faithfully serve the people of Western Australia as a member of the *Legislative Council/Legislative Assembly. [*Delete the inapplicable.]

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[Schedule E inserted: No. 24 of 2005 s. 7.]

[Notes Omitted]

Appendix D: Constitution Acts Amendment Act 18992 An Act to amend the Constitution Act 1889, and to amend and consolidate the Acts amending the same. Preamble Whereas by the Constitution Act 1889, it is provided that the Legislature of Western Australia shall have full power and authority from time to time to repeal or alter any of the provisions of the said Act: And whereas it is expedient to amend the said Act and to amend and consolidate the Acts amending the same: Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:— Part IA—Preliminary [Heading inserted: No. 19 of 2010 s. 43(2).] 1. Short title This Act may be cited as the Constitution Acts Amendment Act 1899. 2. Repeal The enactments mentioned in the First Schedule hereto are thereby repealed to the extent therein stated. 3. Terms used For the purposes of this Act— Her Majesty means, when not repugnant to the context, Her Majesty, her heirs and successors. Governor in Council means the Governor acting with the advice of the Executive Council. Minister means the Minister charged with the execution of this Act. Treasurer means the Treasurer of the State for the time being. Person means an individual of either sex. [Section 3 amended: No. 7 of 1920 s. 2; No. 46 of 1963 s. 8; No. 59 of 1978 s. 9.] [4. Deleted: No. 10 of 1998 s. 76.]  Compilation current as at 2022.

2

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Appendices

Part I—Legislature Division 1—Legislative Council [Heading inserted: No. 19 of 2010 s. 44(2).] 5. Constitution of Legislative Council (1) The Legislative Council is to consist of 37 elected members. (2) Those members are to be returned and sit for the whole of the State. [Section 5 inserted: No. 20 of 2021 s. 6.] [6. Deleted: No. 1 of 2005 s. 7(3).] [7. Deleted: No. 64 of 2006 s. 4.] 8. Retirement of members periodically (1) In this section— general election means a general election for the Legislative Council; member means a member of the Legislative Council.



(2) The seat of a member elected at a general election shall become vacant at the expiration of the period of 4 years beginning on 22 May next following the day of his election as member. (3) A member elected at a general election shall not sit or vote before 22 May next following the day of his election as member. (4) Whereageneralelectionfailswhollyorpartiallyorisdeclaredtobeabsolutelyvoid— (a) the seat of a member elected at an election held by reason of that failure or declaration shall become vacant at the expiration of the period of 4 years beginning on 22 May next following that general election; and

(b) if a member elected at an election held by reason of that failure or declaration is so elected before 22 May next following that general election, that member shall not sit or vote before that 22 May. (5) Subsections (2) and (4)(a) do not affect the operation of any enactment under which a member may cease to be a member, or the seat of a member may become vacant, otherwise than by effluxion of time. [Section 8 inserted: No. 40 of 1987 s. 8; amended: No. 36 of 2000 s. 23; No. 49 of 2011 s. 12; No. 20 of 2021 s. 7.] [8A. Omitted under the Reprints Act 1984 s. 7(4)(e).] [8B. Deleted: No. 40 of 1987 s. 10.] 9. Resignation of members Any member of the Legislative Council may resign his seat therein, by writing under his hand addressed to the President, or if there be no President, or if the President is absent from the State, to the Governor, and upon the receipt of such resignation by the President or the Governor, as the case may be, the seat of such member shall become vacant. [Section 9 amended: No. 46 of 1963 s. 8.]

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10. Tenure of seat by member filling vacancy (1) A member of the Legislative Council elected to fill any vacancy arising otherwise than by effluxion of time shall hold the seat during the unexpired portion of the term for which the previous member would have been entitled to hold it, and no longer. (2) Subsection (1) does not affect the operation of any enactment under which a member may cease to be a member, or the seat of a member may become vacant, otherwise than by effluxion of time. (3) The provisions of this Act and the Electoral Act 1907 as to the occurrence and filling of vacancies in the seats of members of the Council extend, with any appropriate modifications, to cases where—

(a) a person has been elected as a member but the term of office for which the person was elected has not begun; or

(b) the election of a person as a member is void and the term of office for which the person would have been elected, if the election had not been void, would have begun on 22 May next following the election. [Section 10 amended: No. 40 of 1987 s. 11; No. 36 of 2000 s. 56.] 11. Election of President Whenever the office of President of the Legislative Council becomes vacant, the Council at their first meeting thereafter shall elect one of their members to be President, and the President so elected shall preside at all meetings of the Council: Provided that pending such first meeting the Chairman of Committees shall fill the office and perform the duties of the President, subject, however, to section 13. [Section 11 amended: No. 32 of 1954 s. 2.] 12. Absence of President provided for In case of the absence of the President upon leave of absence granted to him by the Legislative Council, or by reason of illness or other unavoidable cause, the Chairman of Committees shall fill the office and perform the duties of the President during such absence. [Section 12 amended: No. 32 of 1954 s. 3.] 13. President to hold office in certain cases until meeting of Parliament The member of the Legislative Council holding office as the President thereof who shall vacate his seat by periodical retirement when the Council is not in session, shall continue in office and be deemed to be the President of the said Council until the next meeting of Parliament, unless he shall not be re-elected a member of the said Council; but nothing in this section shall enable a President hereby continued in office to preside at any meeting of the said Council. 14. Quorum—division, casting vote The presence of at least one-third of the members of the Legislative Council, exclusive of the President, shall be necessary to constitute a quorum for the despatch of business; and all questions which shall arise in the Legislative Council shall be decided by a majority of votes of the members present, other than the President, and when the votes are equal the President shall have the casting vote:

200

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Provided always, that if the whole number of members constituting the Legislative Council shall not be exactly divisible by 3, the quorum of the Legislative Council shall consist of such whole number as is next greater than one-third of the members of the Legislative Council. [15. Deleted: No. 64 of 2006 s. 5.] [16. Deleted: No. 72 of 1963 s. 9.] [17. Deleted: No. 72 of 1963 s. 10.] Division 2—Legislative Assembly [Heading inserted: No. 19 of 2010 s. 44(2).] 18. Constitution of Legislative Assembly (1) The Legislative Assembly is to consist of 59 elected members. (2) Those members are to be returned and sit for electoral districts. [Section 18 inserted: No. 20 of 2021 s. 8.] [19. Deleted: No. 1 of 2005 s. 7(4).] [20. Deleted: No. 64 of 2006 s. 6.] 21. Duration of Assembly (1) Every Legislative Assembly shall exist and continue for 4 years from the day of the first meeting thereof and no longer; subject, nevertheless, to being sooner prorogued or dissolved by the Governor. Provided that, subject as aforesaid—



(a) whenever any Legislative Assembly would expire by the effluxion of time between the last day of August of any year and the first day of February next thereafter, such Legislative Assembly shall continue up to and including the day next preceding such first day of February and no longer; and

(b) whenever the Legislative Assembly would expire by effluxion of time between the last day of January and the first day of September of any year, such Legislative Assembly shall cease and determine on the last day of January of that year. (2) Notwithstanding subsection (1) the Legislative Assembly in existence at the commencement of the Acts Amendment (Electoral Reform) Act 1987 shall, subject to section 3 of the Constitution Act 1889, cease and determine on 31 January 1989. [Section 21 amended: No. 48 of 1919 s. 2; No. 40 of 1987 s. 12.] 22. Absence of Speaker provided for In case of the absence of the Speaker upon leave of absence granted to him by the Legislative Assembly, or by reason of illness, or other unavoidable cause, the Chairman of Committees shall perform the duties and exercise the authority of Speaker in relation to all proceedings of the House as Deputy Speaker; and, in the absence of the Chairman of Committees, the Assembly shall thereupon elect some other member to fill the office and perform the duties of the Speaker during such absence.

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23. Speaker to hold office till meeting of new Parliament unless not re-elected In case of any dissolution of Parliament the Speaker of the Legislative Assembly at the time of such dissolution shall continue in office and shall be deemed to be the Speaker of the said Assembly until the first meeting of the new Parliament, unless he shall not be re-elected a member of the said Assembly; but nothing in this section shall enable a Speaker hereby continued in office to preside at any meeting of the said Assembly. 24. Quorum—division, casting vote The presence of at least one-third of the members of the Legislative Assembly, exclusive of the Speaker, shall be necessary to constitute a quorum for the despatch of business; and all questions which shall arise in the Legislative Assembly shall be decided by a majority of votes of the members present, other than the Speaker, and when the votes shall be equal the Speaker shall have the casting vote: Provided always, that if the whole number of members constituting the Legislative Assembly shall not be exactly divisible by 3, the quorum of the Legislative Assembly shall consist of such whole number as is next greater than one-third of the members of the Legislative Assembly. 25. Resignation of members Any member of the Legislative Assembly may resign his seat therein, by writing under his hand, addressed to the Speaker, or if there be no Speaker, or if the Speaker is absent from the State, to the Governor, and upon the receipt of such resignation by the Speaker or the Governor, as the case may be, the seat of such member shall become vacant. [Section 25 amended: No. 46 of 1963 s. 8.] [26–28. Deleted: No. 27 of 1907 s. 211.] Division 3—General [Heading inserted: No. 19 of 2010 s. 44(2).] [29, 30. Deleted: No. 27 of 1907 s. 211.] 31. Terms used (1) In this Division— disqualified for membership of the Legislature means disqualified for membership of the Legislative Council and for membership of the Legislative Assembly; member in relation to a commission, council, board, committee, authority, trust or other body means—

(a) any member of the body whether known as a member, commissioner, councillor, trustee, director or by any other title;



(b) any deputy, alternate or acting member of the body, and includes a person holding the office of chairman or president or any other office on the body; member of the Legislature means a member of the Legislative Council or the Legislative Assembly.

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(2) In this Division a reference to the holding of any office or place is a reference to the holding of that office or place in a permanent, temporary or acting capacity on a full-time, part-time or casual basis. [Section 31 inserted: No. 78 of 1984 s. 8; amended: No. 24 of 2000 s. 9; No. 19 of 2010 s. 51.] 32. Disqualification by reason of bankruptcy or convictions (1) A person is disqualified for membership of the Legislature if he— (a) be an undischarged bankrupt, or a debtor against whose estate there is a subsisting receiving order in bankruptcy; or (b) has been convicted on indictment of an offence for which the indictable penalty was or included— (i) imprisonment for life; or (ii) imprisonment for more than 5 years. (2) In subsection (1)(b)— indictable penalty means the penalty that such a law specified for the offence in the event of a person being convicted of it on indictment; and offence means an offence against a law of this State, the Commonwealth, another State or a Territory. [Section 32 (formerly section 31) amended: No. 111 of 1975 s. 2; renumbered as 32 and amended: No. 78 of 1984 s. 9; No. 70 of 2004 s. 81(1)–(3).] 33. Holders of offices or places not disqualified except under s. 34 to 42 Except as provided by the succeeding sections of this Part or the Electoral Act 1907 section 149A(2)— (a) the election of a person as a member of the Legislature shall not be rendered void or affected in any other way; (b) the seat of a person as a member of the Legislature shall not become vacant, by reason of his holding any office or place of profit from or under the Crown or any other office or place. [Section 33 inserted: No. 78 of 1984 s. 10; amended: No. 64 of 2006 s. 7.] 34. Disqualification of certain office-holders and members of Parliament (1) SubjecttothisActapersonisdisqualifiedformembershipoftheLegislatureifhe—

(a) holds any office mentioned in Part 1 of Schedule V; or

(b) is a member of the Parliament of the Commonwealth or the legislature of a Territory or another State of the Commonwealth. (2) A member of either House of the Legislature is disqualified for membership of the other House. [Section 34 inserted: No. 78 of 1984 s. 10.] [35. Deleted: No. 64 of 2006 s. 8.] 36. Certain offices and places must be vacated before member can take seat (1) Subject to subsections (2) and (8), this section applies to a person who— (a) holds an office or place in the service of the Crown in right of the Commonwealth or another State of the Commonwealth or in the ser-

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203

vice of the government of, or any department or agency of the ­government of, the Commonwealth or a Territory or another State of the Commonwealth; or (b) holds an office as a member of any commission, council, board, committee, authority, trust or other body, and was appointed as such a member by the Crown in right of the Commonwealth or another State of the Commonwealth, or by the government of, or any department or agency of the government of, the Commonwealth or a Territory or another State of the Commonwealth. (2) Subject to subsection (4), the Governor may, by Order in Council, exempt any office or place from the operation of this section and whilst that office or place remains so exempted this section shall not apply to a person by reason of his holding that office or place. (3) Subject to subsection (4), the Governor may, by subsequent Order in Council, amend an Order made under subsection (2) or revoke the Order either absolutely or for the purpose of substituting another Order. (4) An Order in Council shall be made under this section if and only if the making of the Order has been recommended by resolution passed by both Houses of the Legislature. (5) Subject to subsection (6), an Order in Council made under this section shall take and have effect on and from the day on which it is published in the Government Gazette. (6) Where, by reason of an Order in Council made under subsection (3), an office or place previously exempted from the operation of this section will no longer be so exempted, that Order shall take and have effect at and from the expiration of 30  days from the day on which it is published in the Government Gazette. (7) The Clerk of the Parliaments shall keep in his custody a copy of every Order in Council made under this section. (8) This section does not apply to a person by reason of his being a member of the Citizen Forces or the Reserve Forces within the meaning of the Defence Act 1903 of the Parliament of the Commonwealth. (9) If any person to whom this section applies is elected as a member of the Legislative Council at a general election, his seat shall become vacant on 22 May next following the election if he has not, before that date, resigned from or otherwise ceased to hold the office or place by reason of which this section applies to him. (10) If any person to whom this section applies is elected as a member of the Legislature otherwise than as referred to in subsection (9)— (a) he shall not take the oath, or make the affirmation, pursuant to section 22 of the Constitution Act 1889 until he has resigned from or otherwise ceased to hold the office or place by reason of which this section applies to him; and

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(b) his seat shall become vacant at the expiration of 21 days after the date on which he is declared to be elected if he has not, before the expiration of that period, resigned from or otherwise ceased to hold the office or place by reason of which this section applies to him. [Section 36 inserted: No. 78 of 1984 s. 10.] 37. Office or place vacated in certain cases (1) Subject to subsection (2), this section applies to a person who—

(a) holds any office or place mentioned in Part 2 of Schedule V not being an office also mentioned in Part 1 of Schedule V; or

(b) is a member of any commission, council, board, committee, authority, trust or other body mentioned in Part 3 of Schedule V. (2) This section does not apply to a person by reason of his being the holder of any office or place, or a member of any body, ex officio as the holder of any of the principal executive offices of the Government liable to be vacated on political grounds. (3) If any person to whom this section applies is declared to be elected as a member of the Legislature, he shall, upon and by virtue of being so declared, vacate the office or place by reason of which this section applies to him. [Section 37 inserted: No. 78 of 1984 s. 10.] 38. Seats in Parliament vacated in certain cases Subject to any resolution passed by the Legislature under section 39, if any member of the Legislature, after his election— (a) ceases to be qualified under the Electoral Act 1907 section 76A to be elected as a member of the Legislature; or (b) becomes disqualified for membership of the Legislature by section 32 or section 34; or (c) becomes a person to whom section 36 or section 37 applies; or (d) takes the benefit, whether by entering into a personal insolvency agreement or otherwise, of any law relating to bankrupt or insolvent debtors; or (e) becomes of unsound mind; or (f) takes any oath or makes any declaration or acknowledgment of allegiance, obedience, or adherence, to any foreign Prince or Power, or does, concurs in, or adopts any act whereby he may become a subject or citizen of any foreign State or Power, or whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power; or (g) fails to give his attendance in the House of which he is a member for one entire session thereof without the permission of the House entered upon its journals, his seat shall thereupon become vacant. [Section 38 amended: No. 4 of 1947 s. 2 (as amended: No. 46 of 1963 s. 10); No. 12 of 1948 s. 3 (as amended: No. 46 of 1963 s. 10); No. 111 of 1969 s. 2; No. 15 of 1975 s. 2; No. 78 of 1984 s. 11; No. 64 of 2006 s. 9; No. 18 of 2009 s. 20.]

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39. Provision for relief (1) This section applies to any case where a person has, or it is alleged that a person has, at any time (in this section called the material time) become the holder of an office or place—

(a) specified in Part 1 or 2 of Schedule V; or



(b) as a member of any commission, council, board, committee, authority, trust or other body specified in Part 3 of Schedule V; or



(c) referred to in section 36(1), and, at the material time, that person was a member of the Legislature. (2) If, in a case to which this section applies, it appears to the Legislature that the person concerned has, since the material time, resigned from or otherwise ceased to hold the office or place in question, and that it is otherwise proper so to do, the Legislature may, by resolution passed by both Houses, direct that his becoming the holder of that office or place at the material time shall be disregarded for the purposes of section 38 and the resolution shall have effect according to its tenor. (3) A resolution may be made under subsection (2), and a resolution made under that subsection shall have effect, notwithstanding that proceedings may have been commenced in the Supreme Court under section 41 and notwithstanding any declaration made by the Supreme Court under that section. (4) The provisions of sections 67(2) and (3) and 156B(2) and (3) of the Electoral Act 1907 do not apply to or in relation to any vacancy occurring by operation of section 38 in a case to which this section applies. [Section 39 inserted: No. 78 of 1984 s. 12; amended: No. 40 of 1987 s. 13.] [39A–39C. Deleted: No. 78 of 1984 s. 12.] 40. Presence of unqualified persons not to invalidate proceedings The proceedings of the Legislative Council or Legislative Assembly shall not be invalidated by reason of the presence in that House of— (a) any person not qualified under the Electoral Act 1907 section 76A to be elected as a member of that House; or (b) any person disqualified by section 32 or section 34 for membership of that House; or (c) any person whose seat as a member of that House has become vacant by operation of section 36 or section 38. [Section 40 inserted: No. 78 of 1984 s. 12; amended: No. 64 of 2006 s. 10.] 41. Jurisdiction of Court of Appeal (1) Any person entitled to vote for the election of a member of the Legislative Assembly at a general election may apply to the Court of Appeal, in accordance with Rules of Court, for a declaration as to whether or not—

(a) by operation of section 35 the election of that person or another person as a member of the Legislature is void; or



(b) by operation of section 36 or section 38 the seat of that person or another person as a member of the Legislature has become vacant; or

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(c) by operation of section 37 that person or another person has vacated an office or place. (2) Upon any application made under subsection (1) by a person other than the person in respect of whom a declaration is sought, the person in respect of whom a declaration is sought shall be the respondent; and the applicant shall give such security for the costs of the proceedings not exceeding $500 as the Court of Appeal may direct. (3) In hearing and determining an application under this section the Court of Appeal shall give effect to any resolution made under section 39(2) in respect of the person in respect of whom a declaration is sought. [Section 41 inserted: No. 78 of 1984 s. 12; amended: No. 45 of 2004 s. 37.] [41A. Deleted: No. 78 of 1984 s. 12.] 42. Power to amend Schedule V (1) Subject to subsection (2), the Governor may, by Order in Council, amend Schedule V. (2) An Order in Council shall be made under this section if and only if the making of that Order has been recommended by resolution passed by both Houses of the Legislature. (3) An Order in Council made under this section shall take and have effect—

(a) in the case of an Order adding an office to Part 1 of Schedule V, or adding an office or place to Part 2 of Schedule V or adding a commission, council, board, committee, authority, trust or other body to Part 3 of Schedule V—at and from the expiration of 30 days from the day on which the Order is published in the Government Gazette; or



(b) in the case of any other Order—on and from the day on which the Order is published in the Government Gazette. (4) The Clerk of the Parliaments shall keep in his custody a copy of every Order in Council made under this section. [Section 42 inserted: No. 78 of 1984 s. 12.] Part II—Executive 43. Principal executive offices (1) There may be 17 principal executive offices of the Government liable to be vacated on political grounds, and no more. (2) The offices shall be such 17 offices as shall be designated and declared by the Governor in Council, from time to time, to be the 17 principal executive offices of the Government for the purposes of this Act. (3) One at least of such executive offices shall always be held by a member of the Legislative Council.

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(4) Before a person who accepts such an executive office performs any function of the office, he is to take before the Governor, or some person authorised for the purpose by the Governor, the oath or affirmation set out in Division 1 of Schedule VI. [Section 43 amended: No. 25 of 1927 s. 2; No. 2 of 1950 s. 2; No. 2 of 1965 s. 3; No. 86 of 1975 s. 3; No. 5 of 1980 s. 3; No. 10 of 1986 s. 3; No. 24 of 2005 s. 9.] 44. No person to draw salaries for 2 offices If any person accepts any 2 or more of the offices liable to be vacated on political grounds, it shall not be competent for him to receive the salary of more than one office. 44A. Parliamentary Secretaries (1) The Governor in Council may—

(a) appoint a person who is a member of the Legislature to be the Parliamentary Secretary to a Minister, that is to the holder of a principal executive office referred to in section 43; and



(b) at any time revoke such an appointment. (2) An office of Parliamentary Secretary under this section is not one to which section 43 applies but is liable to be vacated on political grounds in the same manner as a principal executive office referred to in that section. (3) The functions of a Parliamentary Secretary appointed under this section are such as the Governor in Council may specify in the instrument of appointment. (4) A Parliamentary Secretary appointed under this section shall be paid an allowance or allowances under subsection (5) but otherwise shall not receive any remuneration in respect of that office. (5) The allowances referred to in subsection (4) are—



(a) an allowance in respect of holding the office of Parliamentary Secretary; and

(b) an allowance for and in respect of expenses necessarily or reasonably incurred in connection with the office of Parliamentary Secretary, determined under the Salaries and Allowances Act 1975 section 6. (6) Before a person who is appointed to be a Parliamentary Secretary performs any function of the office, he is to take before the Governor, or some person authorised for the purpose by the Governor, the oath or affirmation set out in Division 1 of Schedule VI. [Section 44A inserted: No. 38 of 1990 s. 4; amended: No. 24 of 2005 s. 10; No. 56 of 2006 s. 4.] 45. Oath of office for members of Executive Council The form of the oath or affirmation of office for a person who has been appointed to be a member of the Executive Council is that set out in Division 2 of Schedule VI. [Section 45 inserted: No. 24 of 2005 s. 11.]

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45A. Executive Council meetings (1) In this section— remote communication, in relation to a meeting, means any technology that enables all the persons taking part in the meeting to communicate with each other at the same time in a reasonably continuous way. (2) A meeting of the Executive Council may be held—

(a) in person; or



(b) using remote communication; or



(c) by a mix of those 2 ways of meeting. (3) A person (including the Governor or any member who is presiding) who participates in a meeting of the Executive Council using remote communication is taken to be present at the meeting. (4) This section applies despite anything in any Letters Patent relating to the office of Governor. [Section 45A inserted: No. 34 of 2020 s. 84.] Part III—Miscellaneous 46. Powers of the 2 Houses in respect of legislation (1) Bills appropriating revenue or moneys, or imposing taxation, shall not originate in the Legislative Council; but a Bill shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand of payment or appropriation of fees for licences, or fees for registration or other services under the Bill. (2) The Legislative Council may not amend Loan Bills, or Bills imposing taxation, or Bills appropriating revenue or moneys for the ordinary annual services of the Government. (3) The Legislative Council may not amend any Bill so as to increase any proposed charge or burden on the people. (4) The Legislative Council may at any stage return to the Legislative Assembly any Bill which the Legislative Council may not amend, requesting by message the omission or amendment of any item or provision therein: provided that any such request does not increase any proposed charge or burden on the people. The Legislative Assembly, may if it thinks fit, make such omissions or amendments, with or without modifications. (5) Except as provided in this section, the Legislative Council shall have equal power with the Legislative Assembly in respect of all Bills. (6) A Bill which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. (7) Bills imposing taxation shall deal only with the imposition of taxation.

Appendices



209

(8) A vote, resolution, or Bill for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor to the Legislative Assembly. (9) Any failure to observe any provision of this section shall not be taken to affect the validity of any Act whether enacted before or after the coming into operation of the Constitution Acts Amendment Act 1977. [Section 46 inserted: No. 34 of 1921 s. 2; amended: No. 63 of 1950 s. 2; No. 28 of 1977 s. 2.] [47, 47A. Deleted: No. 40 of 1987 s. 14.] 48. Revision or compilation of electoral rolls upon commencement of Act (1) It shall be the duty of the Electoral Registrars, immediately after the commencement of this Act, to amend the Electoral Roll for each Province and District by removing from the roll the name of every elector whose qualification by the operation of this Act is situate or arises in some other Province or District, and to insert every name so removed on the Electoral Roll of the Province or District to which the qualification is, by the operation of this Act, transferred. (2) In the case of a Province or District created by this Act for which there is no electoral roll in existence, the Electoral Registrar shall remove from the roll of the Province or District of which the newly created Province or District formed part, the name of every elector whose qualification by the operation of this Act is situate or arises in such newly formed Province or District, and shall compile a roll for every such last-mentioned Province or District of the names so removed in the form prescribed by the Electoral Act 18992, and such roll shall be forwarded by such Electoral Registrar to the Electoral Registrar of the newly formed Province or District, and such roll shall be the electoral roll for every such newly formed Province or District until a new roll is completed, and every elector whose name appears thereon, pursuant to this section, shall be entitled to vote for a member or members for such newly formed Province or District. 49. Commencement of action No action or other proceeding to recover any forfeiture, penalty, or sum of money under this Act shall be commenced except within 3  months after the time at which the right to bring such action or to take such proceeding first arose. 50. Plaintiff to give security for costs No action or other proceeding for the recovery of any penalty, forfeiture, or sum of money in respect of the breach or violation of any of the provisions of this Act shall be commenced unless and until the plaintiff shall pay into Court the sum of $200 as security for all such costs as may be awarded to the defendant in such action or proceeding, and such sum shall abide the order of the Court or a Judge. [Section 50 amended: No. 113 of 1965 s. 8(1).] 51. No action to lie against officials of either House No action or other legal proceedings shall lie or be maintained against the President of the Legislative Council, or the Speaker of the Legislative Assembly,

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or against the Chairman of Committees, or other officer of either House of Parliament, or any member of the Police Force, for anything done by, or under the warrant, or by the direction of, such President, Speaker, or other officer, under or purporting to be under the standing orders or any other order or resolution of the House in which he presides, or of which he is an officer, as the case may be, or under or purporting to be under the provisions of “An Act for defining the Privileges, Immunities, and Powers of the Legislative Council and Legislative Assembly of Western Australia, respectively.”3 [Section 51 amended: No. 8 of 2009 s. 37.] 52. Proclamation of Royal Assent and commencement of Act This Act shall be proclaimed in Western Australia by the Governor so soon as he shall have received a notification by telegraph or otherwise of the Royal Assent thereto, and shall commence and take effect from the date of the publication of such Proclamation, but the constitution of the existing Legislative Assembly shall remain unaffected by this Act until the said Assembly is dissolved by effluxion of time or otherwise. [Schedules omitted]

Index

A Aboriginal and Torres Strait Islander peoples, 13, 68, 163 Absolute majority, 16, 18, 80, 97, 99, 102, 106, 112, 114–120, 123, 124, 131, 159, 164, 183, 194 Acts Amendment (Constitution) Act 1978, 164 Australia Act/Acts, 29, 35, 36, 38–41, 50, 73, 84, 113–114, 118, 122–124, 158–160, 163, 165, 190 Australian Constitution, see Commonwealth Constitution Autochthony/autochthonous, 19, 35, 52, 133, 146, 160, 161 B Bicameralism, 72, 74–76, 81, 92, 95, 139–140, 157, 159 Binding, see Manner and form Boilermakers’, 145, 146 Branches of government, 2–3, 7, 11, 71, 144 Broome, F., 52, 55, 60 C Cabinet, 49, 85, 87, 141–143, 156 Canada, 20, 121, 147 Cockburn-Campbell, T., 52, 55 Colonial Laws Validity Act, 35–37, 39, 112, 113, 123, 124, 158, 160, 163 Commission on Government (COG), 136, 140–143, 161, 165 Commonwealth Constitution, 1, 3, 7, 10, 12, 16, 19, 22, 29, 31–34, 36, 42, 44, 72,

79, 81, 83, 86–88, 95, 96, 99–102, 105, 106, 114, 129, 133, 139, 141, 145–149, 157, 159, 160 Consolidation, 3, 88, 127–134, 136, 137, 142, 144, 146, 148–150, 160, 161, 165 Constitution Act 1975 (Vic), 15, 136, 140 Constitution Act 1889/Constitution Act, 2, 3, 20, 21, 30, 31, 35, 39, 42, 50, 52–54, 61, 63, 65–67, 71, 73, 76–81, 83, 84, 86, 91, 92, 96, 98, 99, 103, 104, 106, 107, 110, 112, 114–120, 124, 127–129, 131, 132, 135–138, 141, 142, 145, 148, 149, 156–158, 161, 163–165, 168, 184, 185, 197, 200, 203 Constitution Acts Amendment Act 1899/ Constitution Acts Amendment Act, 2, 54, 71, 77, 78, 84, 86, 91–94, 97, 103, 113, 115, 116, 127–128, 135, 136, 138, 142, 156, 164, 165, 197, 209 Constitutional amendment, 15–19, 54, 59, 156, 158 Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021, 77, 104, 165 Constitutional convention, 10, 16, 17, 19, 22, 30, 32, 74, 85, 130, 156, 157 Constitutional monarchy, 7, 8 Constitutional statutes, 8–10, 16, 17, 22, 37, 44, 54, 87, 106–108, 111, 129, 132, 133, 148, 156 Constitution of Western Australia Bill 1997, 128, 160 Crown, 8, 34, 52, 73, 83, 84, 148, 156, 167, 169, 172–174, 176, 179, 181, 182, 191, 193, 195, 202, 203

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212 D Deadlocks, 81, 82, 87, 139 Dog Act, 107 Double entrenchment, see Manner and form E Electoral Act 1907, 77, 78, 91, 119, 135, 156, 164 Electoral Distribution Act 1947, 118, 164, 165 Electoral system, 11, 12, 23, 91–93, 98, 117, 118, 132, 139 Entrench, see Manner and form Entrenchment, see Manner and form Executive branch, 73, 83–85, 87, 140, 141, 144, 146, 157 F Federal system, 5, 21, 23, 29, 32–34, 144, 159 Federation, 19, 20, 29, 35, 41, 42, 44, 48, 73, 75, 105, 115, 139, 146, 147, 159 Fundamental law, 6, 13, 14, 16, 22, 105, 124, 131, 146, 155–157, 161 G Gallop, G., 95, 96, 116, 127 Governor, 10, 35, 49, 59, 73, 95, 114, 138, 156 Governor Stirling, 54 H Head of Government, 72–74, 142 Head of State, 8, 72–74, 83, 142–144, 156 High Court, 3, 12, 33–36, 39, 40, 42, 44, 59, 64, 65, 78, 86, 88, 92, 96, 97, 99–102, 108, 111, 113, 116–118, 120–122, 145, 146, 158–160 House of Commons Select Committee, 60 Human rights, 9, 148 I Implied amendment, 17 Implied freedom of political communication, 98–103 Independence of the judiciary, 144, 145 Israel, 9, 10, 108 J John Cowdell, 128, 165

Index John Forrest, 60, 65 Joint Select Committee, 66, 127, 128, 133, 134, 140, 144, 148, 160, 165 Judicial branch, 85–87, 136, 144 Judicial Committee of the Privy Council (JCPC), 36, 108, 111, 113, 124 Judiciary, 85, 86, 124, 132, 135, 144–146 L Legislative Assembly, 21, 53, 54, 66, 73, 75–78, 80–83, 86, 92, 93, 96, 97, 99, 104, 106, 114–116, 119, 120, 124, 135, 137–139, 156, 160, 164, 165, 167–178, 181, 183, 185–189, 194–197, 200–201, 205, 208–210 Legislative Council, 49–55, 60, 63, 72, 73, 75–77, 80–83, 85, 92, 93, 95–99, 104, 106, 109–111, 114–119, 124, 128, 135, 137–140, 142, 156, 160, 163–179, 183–189, 194–201, 203, 205, 206, 208–210 Letters Patent, 36, 84, 112, 158, 165, 190, 208 M Magna Carta, 8, 9 Malapportionment, 75, 77, 91, 93, 95–98, 104, 117, 139 Manner and form, 36, 44, 53, 64, 86, 97, 99, 110–118, 120–124, 128, 131, 137, 145, 158–160, 163 Marquet, 40, 97, 116–118, 121, 158 McCawley, 107, 109–111 McLeod, D.W., 64 Monarch, 8, 38, 72–74, 84, 138, 143, 156, 157 N New South Wales (NSW), 30, 35, 50, 52, 73, 94, 98, 100, 106, 107, 109–112, 127, 140, 148, 159, 163, 184, 196 No-effect clause, see Preamble O One vote, one value, 75, 77, 96, 97, 117, 165 P Parker, S., 51, 52, 55, 60 Parliamentary democracy, 8, 156, 157, 161

Index Parliamentary sovereignty, 9, 16, 111, 116, 121 Parliamentary system, 2, 72–74, 81, 92, 99, 140 Peace, order and good government, 76, 78, 121 Preamble, 14, 23, 30, 31, 65, 133, 135–137, 146, 148–150, 161, 164, 165, 185, 197 Premier, 30, 54, 60–63, 68, 73, 85, 87, 93, 95, 118, 141–143, 156 Q Queensland, 48, 75, 106, 107, 109, 110, 121, 127, 128, 130, 132, 133, 142, 147–150, 159–161 R Referendum, 16, 18, 23, 31, 42, 44, 80, 91, 95, 99, 103–106, 110, 112, 118, 120–124, 131–133, 143, 147–150, 157, 159, 161, 164, 165 Responsible government, 8, 30, 50–53, 55, 59, 73, 74, 83, 84, 87, 99, 135, 140–143, 151, 156, 157 Restrictive procedures, see Manner and form Royal Commission into Parliamentary Deadlocks, 82, 139, 164 Royal Commission into the Commercial Activities of Government and Other Matters, 165 S Secession, 41–44 Section 73 (Constitution Act 1889), 59, 63, 65, 106, 115, 157, 186 Section 106 (Commonwealth Constitution), 33, 114 Self-government, 1–3, 8, 20, 29, 30, 35, 44, 48–50, 52–55, 59, 61, 73, 78, 106, 107, 109, 114, 121, 127, 129, 149, 156, 158, 163 Separation of judicial power, 33, 144–146

213 South Australia, 34, 35, 73, 94, 98, 123, 127, 148 Statute of Westminster 1931, 37–39 Statute of Westminster Adoption Act 1942, 37 Supply, 75, 87, 139, 180, 192 Supremacy of parliament, see Parliamentary sovereignty Supreme Court, 17, 34, 86, 87, 108, 111, 112, 116–118, 120, 145, 146, 164, 171, 172, 175, 180, 191, 195, 205 Supreme Court Act 1935, 86, 135, 144, 156, 164 T Trethowan, 111, 112, 117, 159 U UK Constitution, 7, 8, 156 Uluru Statement, 68, 150, 161 United States (US), 2, 5, 7, 8, 12, 15, 16, 18–22, 31–33, 72, 75, 121, 144, 147, 160 V Victoria, 35, 38, 50, 52, 73, 94, 107, 123, 127, 136, 140, 147, 148, 168, 172, 184, 196 Voting guarantees, 101–103 W WA Inc., 96, 141, 161 WA Parliament, 42, 53, 61, 63, 65, 67, 79, 84, 91, 92, 98, 99, 101–104, 115, 119, 120, 124, 127, 129, 146, 158, 160, 163–165 Westminster, 7, 9, 13, 17, 21, 22, 36–39, 43, 72, 74, 78, 81, 87, 120, 137, 141, 158, 161 Wilsmore, 103, 116–117, 158 Y Yougarla, 59, 60, 64, 65