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The Constitution of New South Wales

By Anne Twomey

CONTENTSREVIEWS

The Constitution of New South Wales provides for the first time a detailed analysis of all the provisions of the Constitution Act 1902 (NSW), including their legislative history and examples of their use. It covers the constitution, operation and interaction of the State legislature, executive and judiciary, as well as the relationship between the State and the Commonwealth in the federal system.

Most importantly, it deals with all the issues necessary to determine the validity of State laws, including: the legislative power of the State Parliament; limitations on legislative power derived from different sources including express and implied limitations in the Commonwealth Constitution; the effectiveness of State manner and form constraints and the consequences of their breach; legislative procedure; and the technical rules concerning the passage of taxation and appropriation bills.

Whilst the book uses the Constitution Act 1902 (NSW) as its focus, it addresses constitutional issues arising in all Australian States, such as parliamentary privilege, electoral law and disputes about the qualification and disqualification of Members of Parliament, money bills and parliamentary procedure. It deals with these issues from a State perspective, raising important distinctions that are not addressed in texts on Commonwealth constitutional law.

The Constitution of New South Wales places the constitutional framework of the State in its historical and political context. Using previously unpublished government material, it provides a fundamental reassessment of the relationship between the States, the Commonwealth and the United Kingdom, and the first detailed analysis of the negotiation and application of the Australia Acts 1986, which now form a significant part of State constitutions. It explains how the Parliament, the Executive Council and the Cabinet operate in practice, rather than theory, and gives practical examples to illustrate the operation of constitutional provisions.

This, the first and only comprehensive analysis of the New South Wales Constitution, is an essential addition to all legal, government and university libraries.

Sesquicentenary 1856-2006 Responsible Government in New South Wales   A NSW Sesquicentenary of Responsible Government publication.


CONTENTS

Foreword by The Hon Justice Keith Mason AC

Preface
New South Wales and its Constitution
Imperial links with the States and their removal
The legislature and legislative power
Deadlocks between the Houses 
Manner and form 
Electoral procedure 
The Houses of the legislature and their Members
Qualification, disqualification and the expulsion of Members of Parliament 
Parliamentary procedure 
Parliamentary privilege 
Appropriation and taxation 
The executive
The judiciary 
The States and a republic 
Federalism, the States and the Commonwealth Constitution
Appendix: Constitution Act 1902 (NSW)

Abbreviations/ Terminology/ Table of Cases/ Table of Statutes/ Bibliography/ Index


REVIEWS

Anne Twomey’s carefully researched work fills a gap in the legal history of the colony, its meticulous detail illustrating the gradual separation from the mother country. …
This book will prove a valuable resource to lawyers, parliamentary officials, parliamentarians, political scientists, public administrators, and teachers and students of Australian legal history. It combines a historical perspective with an account of the sources of power for modern government in New South Wales and Australia today.

Australian Law Librarian, Vol 14:2, Winter 2006

A massive and intriguing book on the state’s constitution that will undoubtedly become an indispensable classic. One of its major strengths is Twomey’s recognition that a constitution is more than just a document …
In short, or more accurately in nine hundred pages, Twomey has covered pretty well every eventuality, sensibly and comprehensively.

Reviews in Australian Studies No 1, March 2006

This book constitutes the first sustained, serious and comprehensive study of the Constitution of the State of New South Wales. … It will be widely acknowledged that this is a substantial intellectual contribution to our understanding of the Constitution. It deals exhaustively with the case law, the historical background, and as Mason P in his Foreword has pointed out, given the unique perspective of the author, also facilitates an understanding of “how a great deal of constitutional law is discussed, resolved, enforced and developed in private”.
Ms Twomey, now at the University of Sydney Law School, was a pre-eminent legal adviser in the New South Wales Cabinet Office at a time of critical decision making about the future of the Constitution. …
I commend the scholarship, clarity of exposition and practical utility of this work. It is impossible, in the course of this brief review, to encapsulate all of the issues which the author has explored. However, I propose to refer to a few examples of questions with which the book deals.
One vexed issue is whether the Australia Act had consequences by way of the expansion of State legislative power. The author points out that State Parliaments have always had a plenary (or sovereign) legislative power to enact laws conferring powers on the Houses of Parliament, although New South Wales, unlike other States, has not done so. She argues that the Australia Acts of 1986 did not alter this power at all. They may have “clarified” the power to enact laws for the peace, order and good government of the State with extraterritorial effect, but these powers, so it is argued, have no bearing on the ability of the House to exercise powers not reasonably necessary for the legislative process.
A difficult topic, which the author tackles in detail, is that of a “manner and form” requirement in the Constitution. In particular, in New South Wales this is crystallised in a practical sense by way of findings by the court that the Legislative Council cannot be abolished by mere legislation, but rather there is an entrenched requirement for a referendum to precede any such abolition. This contrasts with what occurred in Queensland in 1921 when the Queensland Upper House was abolished. The leading case is Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; [1932] AC 526, in which it was held that the relevant provision of the Constitution Act was a law which deprived the legislature of the requisite power. The Privy Council concluded that the words “manner and form” were amply wide to comprehend a requirement that a Bill must be put to referendum prior to its valid passage.
By way of analogy, the author also notes and analysis a case arising from Queensland, namely Commonwealth Aluminum Corporation Ltd v Attorney-General [1976] Qd R 231, in which an agreement between the Premier of the State and a company was set out in a Schedule to an Act of the State Parliament, with the Act giving that agreement the force of law and providing that the agreement could only be varied by agreement between the Minister and the company with approval of the Governor-in-Council and in no other manner. The Full Court of the Queensland Supreme Court held that later legislation affecting the agreement was valid even though the agreement of the company had not been given, that is, this was not a “manner and form” provision because it was not directed to prescribing the manner and form for the passage of a law, rather it was directed to the prevention of the Parliament from legislating on the subject, therefore a reported abdication of power.
There is a tension between these manner and form cases and the Dicey theory of a sovereign Parliament that generally empowers a Parliament to pass any law save one which would bind its successors, extend indefinitely the term of tenure of the Parliament, or abolish itself.
Another area of creative tension explored in this book is that between the notion of a sovereign Parliament (Building Construction Employees & Builders’ Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 327) and the restrictions imposed by the High Court upon the legislature conferral of powers on State courts (Kable v Director of Public Prosecutions (1986) 189 CLR 31). An intriguing question arises as to whether Kable will be given a narrow (that is, applicable to extreme or ad hominen legislation) or a wider ambit.
The book also deals with the qualification and disqualification and expulsion of Members of Parliament. Though the cases are “happily rare” it is nonetheless a topic of discourse of real relevance to a liberal democracy. In particular, the author is right to draw attention to the difficulty and ambiguity of the criterion of an “infamous crime” as a test for disqualification from elected office. The author correctly concludes that this term is fraught with uncertainty, especially in the absence of any definition of a maximum sentence, reference to imprisonment, and the like.
In short, there are many areas of interesting discussion contained in this book that will be of interest not only to New South Wales practitioners, Members of Parliament, and relevant courts and tribunals dealing with the Constitution, but also by way of analogy to other State jurisdictions and to those interested in questions of constitutional law principles. I commend this work to readers.

J W Shaw QC , Australian Law Journal, (2005) 79 ALJ 722

   

Published October 2004
Publisher The Federation Press
Hardback/960pp
ISBN 9781862875166
Australian RRP $135.00
Direct Price $125.00
International Price $125.00
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Law - Constitutional

NSW Sesquicentenary of Responsible Government


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