1.3.1 A Constitution as a Higher Law
In a community that values individual freedom and the rule of law, a constitution is a set of basic rules designed to ensure that the government acts in the interest of all people. It establishes and defines the powers of the institutions of government and sets out the basic rules and procedures that it must follow for its actions to be lawful. But a constitution is more than a description of the structure of government. The government holds power only on trust for the people and must be accountable to the people. A constitution is a ‘higher’ law in that it grants power to the government to carry out the collective wishes of the people. At the same time, it confines the power of government by specifying the procedures that the government must follow if its legislative enactments are to be valid. A constitution reflects a belief in the importance of setting limits on the power of government and ensuring it is responsive and accountable to the people.
1.3.2 The State Constitution
There is no single document containing all of the constitutional laws of our State. Our primary constitutional documents are the Constitution Act 1889 (the Constitution Act) and the Constitution Acts Amendment Act 1899 (the Constitution Acts Amendment Act). Apart from these Acts, there are other statutes of a constitutional character which go to make up the constitutional framework in Western Australia, including:
the Commonwealth Constitution;
the Australia Act 1986 (UK),the Australia Act 1986 (Cwlth) (the Australia Acts);
other Western Australian legislation (for example, the Electoral Act 1907, [the Electoral Distribution Act 1947, was repealed by S.8 of the Electoral Amendment and Repeal Act 2005 and the relevant provisions inserted into the Electoral Act], Supreme Court Act 1935, Parliamentary Privileges Act 1891, Financial Administration and Audit Act 1985);
United Kingdom statutes such as the Bill of Rights 1688.
In addition, the common law - such as, the prerogative powers of the Governor and the case law concerning the effect and interpretation of the above constitutional sources - and constitutional conventions are also relevant.
When Western Australia gained self-government, the Constitution Act 1889, set out the basic elements of parliamentary government. That Act was enacted as a schedule to an 1890 United Kingdom Act. The Constitution Act vests the legislative power of the State in the Parliament and provides for the Parliament to make laws for the 'peace, order and good government' of the State.(4) In 1899, the Western Australian Parliament passed the Constitution Acts Amendment Act 1899 which amended and consolidated changes made to the Constitution Act 1889, increased the number of members in both houses, reduced the property qualifications for the Legislative Council and increased from five to six the number of 'principal executive officers liable to retire on political grounds'.
Despite many changes in the State and the role of government since 1890, the constitutional structure of Western Australian has remained largely unchanged.
Upon the establishment of the Commonwealth of Australia in 1901, State Constitutions were not replaced. The Commonwealth Constitution specifically recognises their continued existence and it has been suggested that it may also be a source of their constitutional authority.(5) The Commonwealth Constitution and laws validly made under it, prevail over the State Constitution and State laws where there is any inconsistency. However, the Commonwealth Constitution says very little about State Constitutions or the system of government at State level, leaving this to the State Parliaments.(6)
The Commonwealth Constitution gives the Commonwealth Parliament exclusive powers to make laws about certain matters (for example, all places acquired by the Commonwealth for public purposes, or the coining of money).(7) If the State Parliament attempts to make laws concerning any of these matters, the State law is invalid.
The High Court of Australia adjudicates on disputes about the powers of the Commonwealth and State Parliaments.(8) The High Court, as interpreter of the Commonwealth Constitution, strikes down Commonwealth, State and Territory legislation which is contrary to the Commonwealth Constitution.
State constitutions are affected by the Australia Acts. The Australia Acts (which are identical statutes passed by UK and Commonwealth Parliaments) are part of a United Kingdom, Commonwealth and State legislative scheme passed by all eight Parliaments, which severed the constitutional links between Australia and the United Kingdom. The Acts sought to eliminate the legal ties to Western Australia's colonial past by terminating such things as appeals from State Courts to the judicial committee of the Privy Council; the ability for the United Kingdom Parliament to legislate for Australia; and the obligation to reserve some State bills for Royal Assent.(9)
Another source of law governing the State Constitution is the various decisions of the Courts concerning constitutional questions. While there have been few cases that directly relate to the Western Australian Constitution, some have been particularly significant, including:
Western Australia v Wilsmore (1982) 149 CLR 7 which unsuccessfully challenged the validity of the law disqualifying prisoners from voting in elections;
McGinty v State of Western Australia (1996) 186 CLR 140, which was an unsuccessful challenge to the validity of the laws governing the distribution of electorates for both the Legislative Assembly and the Legislative Council; and
Attorney General v Marquet (2003) 217 CLR 545, which concerned the lawfulness of presenting two Bills, which sought to change the electoral distribution in Western Australia, to the Governor for assent when they had not been passed by an absolute majority in the Legislative Council.
Cases relating to other state constitutions, the Commonwealth Constitution and some overseas cases can be useful in interpreting the Western Australian constitutional laws.