Finding State Constitutions
Before federation, each of the six colonies had its own constitution. These constitutions regulated, among other things, the Legislature, the Executive Government, and the Judiciary of the States. The Australian Constitution expressly guarantees the continuing existence of the States and preserves each of their constitutions. However, the States are bound by the Australian Constitution, and the constitutions of the States must be read subject to the Australian Constitution (ss 106 and 107).
In contrast to the Commonwealth Constitution, the State Constitutions are in general, simply regular pieces of legislation that are subject to amendment or repeal by the State Parliaments in the same way as other legislation. The State constitutions are the source of the State parliaments' power to make legislation and are concerned with the structure and process of the institutions of government: the legislature, executive and the judiciary.
The official versions of State Constitutions, as passed, as amended, point in time and current compilations are available on the respective states' government legislation websites.
The current compilations are:
- Constitution Act 1902 No 32New South Wales
- Constitution Act 1867Queensland
- Constitution of Queensland 2001Queensland
- Constitution Act 1934South Australia
- Constitution Act 1934Tasmania
- VictoriaVictoria, please note that no direct link to Victorian Acts is possible. From the home page, select Victorian Law Today to access the Act.
- Western AustraliaWestern Australia
Finding Territory Constitutions
The position of the territories is different - they do not have constitutions as such. The Northern Territory and Australian Capital Territory (ACT) were granted self-government by the Commonwealth in 1978 and 1988 respectively with the passage of Commonwealth legislation. These self-government laws are the source of the ACT and NT parliaments' law-making power and are structured similarly to the State and Commonwealth constitutions, with chapters on the functions of the Legislature, the Executive and the Judiciary. Territories can make laws for any matter as long as it is not inconsistent with a Commonwealth law made under s 51 of the Commonwealth Constitution.
- Halsbury's Laws of Australia, Title 90More information on state constitutions may be found here at Constitutional Law [90-65]: 'State Constitution Acts'.
Some Landmark State Constitutional Cases
- [1885] UKPC 5Powell v Apollo Candle Company Ltd (New South Wales) (1885) 10 AC 282; This Privy Council decision dealt with the powers of colonial legislatures. It decided that colonial legislatures, though subordinate to the Imperial Parliament, were not mere delegates and were empowered to delegate legislative power to the executive.
- [1920] UKPCHCA 1McCawley v The King [1920] AC 691; (1920) 28 CLR 106; This Privy Council decision concluded that the Parliament is legislatively sovereign. This essentially has been the basis for all subsequent State constitutional law in Australia.
- [1931] HCA 3Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; This case, on appeal from the Supreme Court of New South Wales, concerned the Constitution Act 1902 (NSW) and revolved around the Premier of New South Wales, Jack Lang, and his attempt to abolish the New South Wales Legislative Council. It was found that the Legislative Council could not be abolished by mere legislation, but rather there is an entrenched requirement for a referendum to precede any such abolition.
- [1960] HCA 92Clayton v Heffron (1960) 105 CLR 214; This case revolved around whether there was a requirement under s 5B of the Constitution Act 1902 (NSW) that a bill to abolish the Legislative Council, twice passed by the Legislative Assembly and rejected by the Legislative Council, required a free conference between the houses first before being put to a referendum. It was held that it did not.
- [1996] HCA 24Kable v The Director of Public Prosecutions for New South Wales (1996) 189 CLR 51; This case is about Chapter III rights in the Commonwealth Constitution and the scope of power of state courts vested with federal jurisdiction. It restricts the power of State Parliaments to control the activities of State courts.
- [1997] NSWSC 468Arena v Nader (1997) 42 NSWLR 427; This case revolved around the validity of legislation providing for the waiver of privilege by a House of the New South Wales Parliament. Both the NSW Supreme Court and the High Court found the legislation to be valid.
- [1998] HCA 71Egan v Willis (1998) 195 CLR 424; On appeal from the Supreme Court of NSW, this case concerned the Constitution Act 1902 (NSW) and confirmed that the Parliament has the power to call the Government into account. This is the principle of responsible government. The Government is answerable to the demands of Parliament.
- [1999] NSWCA 176Confirmation of the above (Egan v Willis (1998) 195 CLR 424) principle.
Source: George Winterton (ed) State Constitutional Landmarks (Federation Press, 2006).
Books on Australian State Constitutions
The Constitution of New South Wales by Call Number: KM 77 N44 TWOMPublication Date: Federation Press, 2004
The Constitution of South Australia by Call Number: KM 77 S62 SELWPublication Date: Federation Press, 1997
