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 TEN USEFUL FACTS ABOUT THE WESTERN AUSTRALIAN CONSTITUTION [2]

 FACT NUMBER 1:    THE CONSTITUTION AS A VEHICLE TO ATTAIN SELF-GOVERNMENT

 The proclamation of the Western Australian Constitution on 21 October 1890 was a significant occasion.  Its enactment provided the legal basis for the dissolution of the partially nominated single chamber legislature and the establishment of a fully elective Parliament consisting of a Legislative Assembly and Legislative Council. This new political arrangement, known as responsible government, enabled the colony to make the transition to a self-governing entity with the power to make laws for peace, order and good government of the colony of Western Australia.[3]  The administration of the colony was taken out of the hands of an un-elected Governor[4] and placed into the care of popularly elected local officials.  The Governor, while retaining significant formal power in the new governmental system, was now obliged to exercise the powers of his office on the advice of the Legislative Assembly, rather than at the behest of the British colonial office.[5]

 FACT NUMBER 2:    AN ACT OF BOTH THE BRITISH AND WESTERN AUSTRALIAN PARLIAMENTS

 The Western Australian Constitution is an Act of both the British and Western Australian Parliaments.  It was drafted by local politicians in the late 1880s but required the approval of the British Imperial Parliament before it could be fully enacted. This assent was necessary because Western Australia’s status as a colony of the British Empire effectively precluded the local population from lawfully undertaking such action without first obtaining the consent of the British home-office.

 Table 1

The founding fathers of the Western Australian Constitution: The members of the last Parliament prior to self-government  

Official Members

Nominee Members

Elected Members

Elected Members

The Hon. Fraser

(Colonial Secretary)

Mr. Edmund Brockman

Mr. H. Brockman

Mr. S. Parker

The Hon. C.N. Warton

(Attorney General)

Mr. Daniel Congdon

Mr. S. Burt

Mr. W. Pearse

The Hon. J. Arthur Wright (Director of Public Works and Railways)

Mr. James Morrison

Sir T. Cockburn-Campbell  (Chairman of Committees)

Mr. A. Richardson

The Hon. J. Forrest  (Surveyor General and Commissioner of Lands)

Mr. George Randell

Captain T. Fawcett

Mr. E. Scott

 

The Hon. Lee Steere  (Speaker)

Mr. A. Forrest

Mr. G. Shenton

 

 

Mr. C. York

Mr. R. Scholl

 

 

Mr. A. Hensman

Mr. H. Venn

 

 

Mr. J. Horgan

 

 

 

Mr. E. Keane

 

 

 

Mr. W. Marmion

 

 

 FACT NUMBER 3:    THE ODD COLONY OUT: THE LAST ORIGINAL STATE TO ENACT ITS OWN CONSTITUTION

 Western Australia was the last colony in Australia to develop and implement its own  Constitution. This is despite the fact the area was formally proclaimed a colony in 1829, and some thirty years behind the other Australian colonies which received permission to frame similar constitutions in the mid-1850s (see Appendix 1).  

 The delay in the attainment of self-government resulted from the fact Western Australia failed to fulfill the requirements set down by the British authorities under the terms of the Australian Colonies Constitution Act 1850.  This Act specified that Western Australia could only proceed with the transition to self-government upon receipt of a petition from one third of householders in the colony requesting that this occur.  The Act further stipulated that the colony had to provide evidence that it could meet all of the expenses of government out of the public purse.  

 While the colony had little trouble in acquiring the requisite number of signatures from Western Australian householders, it was unable to persuade the Imperial authorities of its capacity to underwrite the costs of self-rule.  Since its inception, the colony had been a poor economic performer, a fact generally attributed to the size and composition of the white population, which was relatively small in number and dispersed over a wide geographical area.  Western Australia had struggled to attract new migrants with the majority of free settlers opting to settle in the more prosperous eastern colonies.  The low number of white inhabitants hindered efforts to develop a viable local economy, and to ultimately become financially self-sufficient.  It also had the undesirable effect of increasing the colony’s dependence on convicts to meet its labour needs, with convicts contributing to more than half of the colony’s natural population growth between the years of 1850 to 1868.[6] This did not go unnoticed by the British authorities who proved reluctant to permit a small population made up principally of convicts and ex-convicts to become internally autonomous.  It was only following the announcement of the cessation of convict transportation to Western Australia in 1868 and the discovery of gold in 1885 that the home office finally acceded to the colony’s request for self-government.

 FACT NUMBER 4:    THE MAKING OF THE CONSTITUTION: TANTRUMS, TEARS AND COMPROMISE

 Western Australia’s quest to attain self-government was not without tribulation.  Quite apart from the difficulties the colonists experienced trying to convince the British of their readiness for autonomy was the battle to secure agreement with the home-office about the terms under which the transition to responsible government would occur.  The Imperial authorities had initially indicated that they were not prepared to allow the colonists to take possession of the northern section of the territory.   They were extremely reluctant to permit 40,000 people to assume responsibility for the administration of a million square miles of land.[7]  Nor would the British Parliament consent to the establishment of a bicameral Parliament, preferring instead that the colony continue to operate with a single chamber legislature.  Matters were compounded by the refusal of the British Parliament to accede to the colonist’s demand for prompt passage of the Constitution Bill through the House of Commons.

 In order to expedite proceedings, the colonists eventually sent a three-man delegation to Britain to lobby the House of Commons.  While the delegation ultimately proved successful in convincing the British Parliament to pass the Bill, they did not come away from negotiations having achieved all of their objectives.  More significantly, perhaps, the new constitutional Act did not guarantee full independence to Western Australian.  The colonists were not given broad powers in relation to the administration of the territory.  The grant of self-government was essentially restricted to the colony’s internal affairs and did not extend to external matters, which remained the purview of the British Parliament. Similarly, the British Parliament retained the power to intervene in the colony’s domestic affairs.  The Western Australian Parliament was not permitted to make laws which were repugnant to, or inconsistent with, British laws, a right which was not officially extinguished until the passage of the Australia Acts 1986.

FACT NUMBER 5:    A TWO CONSTITUTION STATE

 Western Australia’s constitutional arrangements are slightly anomalous in the Australian context because its principal constitutional Acts consist of two separate statutes, the Constitution Act 1889 and the Constitution Act Amendment Act 1899 (see Appendix 2).   

 The bifurcation of the State Constitution is the result of an attempt by the Forrest Government to preserve the historical integrity of the Constitution Act 1889.  Ten years after the enactment of the first Constitution Act in 1889, the Forrest Government decided to bring together the various amendments it had made to the original Act in each of 1893, 1894 and 1896, along with some additional revisions, and to consolidate the changes into a new constitutional statute, titled the Constitution Acts Amendment Act 1889.  The Government justified its decision to pursue this particular course of action on the grounds that ‘it is not wise nor in accord with precedent to altogether consolidate the Constitution Acts, because they would remove from the statute book the landmarks of the original constitution’.[8]  Since this time, Western Australia has maintained two discrete constitutional Acts.

Whereas all of the Australian States have since substantially consolidated their constitutions, Western Australia is the only jurisdiction to retain this anomaly.[9] This is despite the recommendations of the Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution (1992), the Western Australian Constitutional Committee (1995) and the Commission on Government (1996) that the Constitution be consolidated into a single statute. 

 Table 2

Arguments for and against the Consolidation of the Western Australian Constitution into a Single Statute

 

Arguments for Consolidation

 

Arguments against Consolidation

 

Makes the Constitution more accessible to both the public and practioners by ensuring that the document is located within a single statute

 

The Constitution is an inviolable instrument, any reform of which should not be entered into lightly

Provides an opportunity to revise and modernise the language of the Constitution

 

Even fairly minor changes to the Constitution, such as re-ordering sections and updating the language, can have unintended legal implications 

 

Spent and redundant provisions can be removed from the statute book

 

Current arrangements are satisfactory and have served Western Australians well

The exercise can be used as an opportunity to think more generally about reforming the Constitution

 

Can be used as an opportunity to remove from the statute book spent and miscellaneous provisions which, while of no practical effect, are of historical importance

Permits the reorganisation and reordering of each of the various provisions contained within the statutes so as to improve their readability and ease of use

 

Consolidation can prove to be an expensive exercise, particularly if the process prompts the establishment of a costly constitutional convention

Sections of the Constitution which are duplicated or inconsistent with other provisions can be repealed

 

Does not solve the problem of ensuring that all statutes which are of constitutional significance are located within a single document

Amalgamation will ensure that the Constitution Acts Amendment Act 1899 is subject to manner and form provisions contained in s. 73(1) of the Constitution Act 1889

Parliament has more pressing and urgent matters to attend to than consolidating the State’s Constitution.

 Over the years, various models have been proposed for consolidating the Constitution (see Appendix 3).  Few of these, however, have been formally presented to Parliament for its consideration.  The one exception to this occurred in 1997 when Labor MLC, the Hon. John Cowdell, introduced the Constitution of Western Australia Bill 1997 into the Legislative Council.   This Bill was later withdrawn from Parliament owing to technical problems associated with its construction.  Work is presently underway on a new draft Bill tentatively titled the Constitution (Consolidation) Bill 2004.

FACT NUMBER 6:    THE CONSTITUTION AS AN INSTRUMENT TO LIMIT THE POWERS OF ELECTED OFFICIALS OVER THE PEOPLE[10]

 The Western Australian Constitution is designed to limit the authority of the government so as to ensure that elected officials remain accountable and responsive to the people. 

 The Western Australian Constitution attempts to circumscribe the actions of government in four ways: 

1.      Codification – the Constitution sets out the rights and responsibilities of government in an Act of Parliament.  The advantage of a written constitution is that it permits citizens to challenge the actions of government through the courts if they believe that government has acted in a manner that contravenes the terms of the Act.[11]     

2.      Strong Bicameralism – the Constitution specifies that the Western Australia Parliament consist of two elected chambers which enjoy near identical powers.  The existence of two powerful chambers can provide a significant check on the activities of Government.  One important way in which this occurs is that all proposed legislation must survive the scrutiny of a majority of representatives in each of the Legislative Assembly and the Legislative Council before it can become law.  

3.      A Separation of Powers – the Western Australian Constitution contains provisions to ensure that a single authority does not exercise all of the major functions of government.  This has been mostly achieved by the dispersal of governmental power into three separate and relatively independent organs. The manifestation of this is the reference in the constitution to: 

  •       the office of the Queen and the Governor who constitute the formal executive responsible for the administration of the State.  In practice, however, this power is exercised by a popularly elected government;  
  •       the Parliament which functions as the supreme law making institution; and 
  •       the Supreme Court which enjoys inherent jurisdiction to determine matters and issues arising from the State Constitution. 

4.      Entrenchment – the Western Australian Constitution can be distinguished from other ordinary Acts of Parliament on the basis that the government cannot alter certain aspects of the text by ordinary legislative means. Some of the sections contained in the Constitution can only be amended or repealed provided certain procedures have been observed.  Entrenchment takes the form of either an absolute majority or a popular referendum.  The items which are protected by entrenchment can be located in s. 73 of the Constitution Act 1889 and include: 

  •       any alteration to the office of the Governor ; 
  •       the abolition of the Legislative Assembly or of the Legislative Council; 
  •       change to the provision that members of Parliament must be chosen directly by the people; 
  •       any reduction in the number of members or the powers of Parliament; 
  •       alteration to the composition of Parliament (see s. 2 of the of the Constitution Act 1889); and 
  •       abolition or alteration of the entrenchment provisions (see s. 73 of the Constitution Act 1889). 

FACT NUMBER 7:     BOTH A WRITTEN AND UNWRITTEN DOCUMENT

 Many aspects of Western Australia’s system of government are not specified in the Constitution.  A number of key elements are unwritten and exist in the form of conventions. 

 Conventions are unwritten rules or customs which have developed over time and which are intended to permit evolutionary development of the text.  The perceived advantage of conventions is that they inject a measure of flexibility to the operation of the State Constitution and allow it to adapt to changing political realities without having to pursue amendment via formal parliamentary means.  

 Many important rules and institutions are not explicitly codified in the Constitution, even though these exert a significant influence on the day-to-day operation of government.  The functions and roles of some key political actors, such as the office of the Premier, are not defined, and in some cases not mentioned, as in the case of Cabinet. 

Some of the core conventions that supplement our understanding of the written text include, for example:  

  •         the Governor, as the formal Executive, is vested with substantial constitutional power, however it is assumed that this office almost always acts on the advice of the popularly elected government. 
  •         the political group or party with majority support in the Legislative Assembly serves as the government; 
  •         a government unable to secure the passage of its budget through both houses of Parliament is expected to stand down; and 
  •         Government Ministers are required to resign their position for failing to maintain cabinet secrecy, for acts of incompetence by the department/s they manage, or for using their position for self-gain. 

FACT NUMBER 8:    NOT THE ONLY SOURCE OF STATE CONSTITUTIONAL LAW

 The Constitution Act 1889 and the Constitution Act Amendment Act 1899 are not the only sources of constitutional law in Western Australia.  There is a plethora of other statutes and practices which are also important and which are important components of the ‘fundamental’ or ‘higher’ laws of the State.  These include:  

  •         various items of legislation enacted by the Western Australian Parliament such as the Electoral Act 1907, Judges Retirement Act 1937, Electoral Distribution Act 1947 and the Financial Administration and Audit Act 1985
  •         the Federal Commonwealth Constitution which was enacted in 1900; 
  •         the Australia Acts 1986 (Cwlth)(UK); 
  •         official letters of instruction from the Crown to the Governor known as Letters Patent; 
  •         established practices and customs referred to as constitutional conventions;  
  •         some United Kingdom and Commonwealth legislation; and 
  •         the common law[12] 

FACT NUMBER 9:    THE CONSTITUTION AS A STUDY IN CONTINUITY IN CHANGE

 The Western Australian Constitution has not altered essentially in the 114 years since its enactment.  The core political institutions of the governmental system that were enshrined in the original Constitution remain largely intact, such as the requirements that:  

  •         Parliament consists of the Legislative Council, the Legislative Assembly and the Monarch; 
  •         The Legislative Council and the Legislative Assembly enjoy near identical powers in relation to the initiation and passage of all new proposed laws; 
  •         The government must retain the confidence of the Lower House between elections in order to remain in office; 
  •         All Bills passed in Parliament require the assent of the Governor before they can become law; 
  •         The Governor has the power to dissolve either house of Parliament. 

During the years, however, a number of significant modifications have been made to the Constitution, including: 

  •         The Legislative Council has increased in size from 15 to 34 members and the Legislative Assembly from 30 to 57 members;   
  •         Property qualifications for voting have been eliminated; 
  •         Women have been granted the right to vote and to contest elections.  Religious leaders are eligible to become members of Parliament also;
  •         The age restriction for voting has been lowered from 21 years to 18 years in the Legislative Assembly and from 30 years to 18 years in the Legislative Council; 
  •         Since 1978, certain sections of the Constitution can only be altered subject to a popular referendum; 
  •         The duration of the Legislative Council has been reduced from 6 to 4 years with all members facing election at the same time; 
  •         The number of Ministers that the Government can appoint has increased in number from 5 to 17.  There is also the requirement that at least one Minister must be drawn from the Legislative Council.  Moreover, Ministers are no longer required to re-contest their seat in a by-election upon appointment; 
  •         Formal constitutional recognition for the role of Local Government; 
  •         Many of the sections dealing with electoral matters have been removed and placed into separate items of legislation.[13] 

FACT NUMBER 10: INTERESTING TRIVIA 

  •         The Constitution Act 1889 consists of 46 sections and 2 schedules and has been directly amended at least 18 times since its enactment.  Many of the provisions contained within this Act, while of historical importance, are no longer operative such as sections 42, 43, 46, 47, 49, 59 and 60. 
  •         The Constitution Act Amendment Act 1899 is comprised of 44 sections and 2 schedules and has been amended, both directly and indirectly, more than 160 times since its commencement.  This Act deals mostly with matters that affect the daily operation of the Parliament, such as make-up of the Legislative Assembly and the Legislative Council, the rules relating to the conduct of Parliament and the powers of the two houses in respect of legislation. 
  •         The Western Australian Constitution is the only State constitution to make reference to its former status as a colony. 
  •         The original version of the Constitution Act 1889 included a constitutional guarantee that ‘in every year, out of Consolidated Revenue Funds the sum of five thousand pounds...be appropriated to the welfare of Aboriginal natives … to be issued to the Aborigines Protection Board’.  This provision was included at the insistence of the British Parliament who expressed strong doubts about the willingness of the colonists to provide for the material needs of the Indigenous inhabitants.  This section was, however, strongly opposed by the white colonists and within three years of the enactment of the Constitution Act 1889, the Western Australian Parliament commenced action to repeal this section [14].   
  • The British Parliament refused Western Australia permission to proceed immediately with an elective Legislative Council.  The Constitution Act 1889 stipulates that the colonists could constitute an elective chamber within six years from the date of the enactment of the Act or when it had been certified that the population of the colony has reached sixty thousand people, exclusive of Aboriginal natives.  However, the discovery of gold in the 1880s permitted the colony to quickly surpass the population requirement imposed by the British Parliament with the result that the first elections of the new Legislative Council were held in 1894.

______________________________________________________________________

  [2] This section has drawn on a variety of references for its content such as J.S. Battye, Western Australia: A History from its Discovery to the Inauguration of the Commonwealth, Clarendon Press, Oxford, 1924; Hal Colebatch, A Story of 100 Years of Western Australia 1829-1929, Government Printer, Perth, 1929; the Constitutional Centre of Western Australia website http://ccentre.wa.gov.au; the Constitutional Centenary of Federation website http://www.centenary.org.au; Brian de Garis, ‘Constitutional and Political Development’ in David Black (ed), The House on the Hill, Parliament of Western Australia, Perth, 1991, pp.41-62.

[3] See the preamble in the Constitution Act 1889.

[4] For more information on the role of the Governor see P. Boyce ‘Governor and Parliament’ in D. Black (ed) The House on the Hill, Parliament of Western Australia, Perth, 1991, pp.265-286.

[5] For more information on this see C. Sharman, ‘The Constitution of Western Australia, 1890 and 1990’ in David Black (ed.) The House on the Hill, Parliament of Western Australia, Perth, 1991.

[6] For more information see R.T. Appleyard, ‘Western Australia: Economic and Demographic Growth’ in Tom Stannage (ed), A New History of Western Australia, University of Western Australia Press, 1981.

[7] For more information on this see Brian de Garis, ‘Political tutelage 1829-1890’ in Tom Stannage (ed.) A New History of Western Australia, University of Western Australia Press, Perth, 1981.

[8] Western Australian Parliamentary Debates, Legislative Assembly, Vol. 29 August, 1899.

[9] The only other exception to this is Queensland. However, it completed a major consolidation of its Constitution in 2002.

[10] The information contained in the next four factoids was drawn from a variety of sources including the Final Report of the Commission on Government; Phillips et al op. cit.,;C. Sharman, op. cit.,.

[11] See C. Sharman, op cit., p. 292.

[12] The Commission on Government, Report No. 5 August 1996, pp 35-36.

[13] Commission on Government op. cit., 1996, p 37

[14] For more information on this topic see Peter Johnston, ‘Freeing the Colonial Shackles: The First Century of Western Australia’s Constitution’ in David Black (ed.) The House on the Hill, Parliament of Western Australia, Perth, pp. 313-342 & ‘Waiting For The Other Shoe To Fall: The Unresolved Issues in Yougarla v Western Australia’, AACL Conference Paper, 15 February 2002, pp. 1-40.