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Appendix 2

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A Chronology of Constitutional Change

Western Australia's early government was organised in a similar fashion to the system of administration  in the first Australian colony of New South Wales. In the early phase of colonisation in NSW, political authority was exercised by autocratic governors who had extraordinary powers to make laws and administer territory. In 1823, the New South Wales Judicature Act, passed by the British Parliament, established a Legislative Council with members nominated by the governor. Two years later, a small Executive Council was formed to advise and consult the governor on matters of policy and administration. Similar councils were established in Tasmania, then known as Van Diemen's Land, when it became a separate colony in 1825, while in South Australia a single council was given executive and legislative roles. All these councils were dominated by their respective governors, who retained considerable personal power and prestige. Similarly, Captain James Stirling ruled alone as Lieutenant-Governor of Western Australia from 1829 until 1831, when he was formally appointed as full governor of the colony. He then nominated four senior officials to an Executive Council, and the same members to a Legislative Council. In 1838, four non-official members were appointed to the Legislative Council from the ranks of the colony's substantial landowners.

The Durham Report 1839

This report published in 1839 recommended the introduction of limited self-government to Canadian territories of the British Empire, to be modelled on the Home Parliament at Westminster. It was an innovative document that laid foundations for the future internal independence of colonies throughout the Empire. Lord Durham advised that popular agitation in Canada could only be solved by . . . "administering the Government on those principles which have been found perfectly efficacious in Great Britain". That meant ensuring that the executive arm of government -  the Cabinet -  was drawn from and answerable to the legislature, a form of administration known then as Responsible Government and which today we call the Westminster system.

Australian Constitutions Act (No.1) 1842

The Legislative Council in New South Wales became a partly-elected representative chamber, with two thirds of its members returned by voters in the colony, by this Act of the British Parliament. However, the Executive Council was still constitutionally separate from the legislature, not responsible to it. Only men who owned freehold property worth 200 pounds or who were householders paying 20 pounds rent a year could vote. Women were excluded from the reform.

Australian Colonies Government Act (or Australian Constitutions Act No. 2) 1850

This Act allowed for the transition in all Australian colonies to responsible self-government, with the executive drawn and answerable to the legislature. It also created the new colony of Victoria by excising the Port Phillip district from New South Wales. The Act, passed by the British Parliament, retained the property franchise for the existing Legislative Councils, but halved the qualifications.

New South Wales, Victoria and Tasmania availed themselves of the Act to establish parliaments in 1855; South Australia followed in 1856; and Queensland in 1859. South Australia introduced manhood suffrage - votes for all men irrespective of property qualifications - from the start of responsible self-government, Victoria followed in 1857, New South Wales in 1858, Queensland in 1872, Western Australia in 1893 and Tasmania in 1900.

Colonial Laws Validity Act 1865

The British Government passed this Act to confirm the validity of laws made by colonial parliaments. Colonial law was only to be superseded when it was in conflict with British law specifically designed to apply to the colony. However, the Act also included "manner and form" requirements that later limited the legislative power of colonial parliaments to amend their constitutions.

"An Ordinance to provide for the establishment of a Legislative Council . . ." 1870

The Australian Constitutions Act (No. 2) allowed Western Australia to establish a partly-elected legislature on the presentation of a petition signed by one third of its householders. A petition was compiled in 1865 and after some delay a new, more representative Legislative Council was established by the above ordinance, in 1870. Twelve members of the Council were to be elected by voters, while six were to be appointed by the governor as before. The franchise was restricted along the same lines as in New South Wales between 1850 and 1855 - voters had to be men who owned freehold property worth 100 pounds or who paid rent of 10 pounds a year. The size of this council was increased from time to time, so that by 1886 there were 24 members.

Constitution Act 1889

Western Australia gained responsible self-government under this Act, first passed by the partly-elected Legislative Council in 1889 and then by the British Parliament in 1890. The new constitution established two Houses of Parliament with an elected Legislative Assembly and a nominated Legislative Council, though this latter body became elective within three years. The Cabinet, comprising the premier and four other ministers, was drawn from the ranks of parliamentary members and not appointed by the governor. This system of responsible government was of the kind advocated by Lord Durham for Canada fifty years before.

The franchise was still restricted, along the same lines as had prevailed under the old Legislative Council. Men who owned freehold property worth 100 pounds, or who rented or leased property for 10 pounds a year, could vote. Women were still barred from voting.

Constitution Act Amendment Act 1893

This Act of the new Western Australian Parliament introduced manhood suffrage for Legislative Assembly elections, subject to residency requirements. The Act also specifically discriminated against Aboriginal, Asian and African men - all of whom were only allowed to vote if they owned freehold property worth 50 pounds. The Act also increased the size of the Assembly and established a new full-elected Legislative Council, though with a restricted property franchise.

Constitution Act Amendment Act 1896

This colonial Act increased the members in both Houses of Parliament and added another minister to the Cabinet.

Aborigines Act 1897

By this Act the Western Australian Parliament tried to repeal Section 70 of the Constitution Act 1889 which obliged it to set aside one percent of consolidated revenue for Aboriginal people. However, the Act miscarried and the Parliament made another attempt to abolish the section in 1905.

Constitution Acts Amendment Act 1899

The colonial parliament passed several Acts in the first decade to self-government to amend the original Constitution Act 1889. The Constitution Acts Amendment Act consolidated these amendments and introduced some new provisions in a single piece of legislation. Since then, the courts have found that the Constitution Acts Amendment Act 1899 is a complete Act in its own right, and not simply an amendment of the original Constitution Act 1889. Much of the legislative rule for Government in Western Australia is now contained in this later consolidating Act, and not in the original Constitution Act.

Aborigines Act 1905

This Act of the colonial parliament sought to confirm the abolition of the special provision for Aboriginal people in the original Constitution Act 1889. Section 70 of the 1889 Act forced the colony to set aside 1% of its revenue for the Aborigines Protection Board, to be administered directly by the governor rather than the parliament. However, the validity of this Act is subject to a legal challenge in the Supreme Court of Western Australia.

Australian States Constitution Act 1907

This Act confirmed the British Government's continued interest in the legislative affairs of the State of Western Australia, despite the federation of the Australian colonies in 1901. Under this Act, proposals to alter the form of the Legislative Assembly or Legislative Council still had to be approved by the King, acting on the advice of British ministers.

The Statute of Westminster 1931

The Commonwealth of Australia confirmed this Act of the British Government in 1942 and ended the legal subordination of the Australian Parliament to Westminster. The Act assured the national government of its legislative independence and, in theory at least, ranked the national parliaments of the Empire dominions - including the Home Parliament at Westminster - on the same legal standing. However, it did not apply to the States, which chose to retain subordinate links to London.

Acts Amendment (Constitution) Act 1978

This Act of the Western Australian Parliament entrenched the position of the governor and the two Houses of Parliament in the State's Constitution. The amendment meant that any attempt to abolish the office of governor or the Houses of Parliament had to be approved by popular vote in a referendum, as well as by absolute majorities in the Legislative Assembly and Legislative Council. Before this, State Parliament had been able to amend the constitution in its entirety, without the agreement of the people.

The Australia Acts 1986

The Australia Acts, passed simultaneously by the Australian and British Parliaments, severed the remaining links between the State governments of Australia and the British Government. The position of governor was retained, but appointments were to be made by the Queen or King on the advice of Western Australian ministers, not those of the British Government. Other links between the States and the British Government terminated, and the Commonwealth of Australia became the sole limiting body on the constitutional fabric of the States.