Constitution Act 1889 (Western Australia)

CrestWestern Australia

Constitution Act 1889

Western Australia

Constitution Act 1889

Contents

Part IA — Preliminary

Short title 3

Part I — Parliamentary

Legislature to be constituted in Western Australia 4
Governor may fix place and time of sessions, prorogue Houses and dissolve Assembly 4
A session every year 4
First calling together of Legislature 5
Appointment of members of Council 5
Tenure of seats in Council 5
Resignation of members of Council 5
Appointment of President; who may take part in debate 5
Convoking of Assembly 6
Assembly may proceed to business although full number of members not elected at general election 6
Election of Speaker 6
Oath or affirmation of allegiance 7
Standing Rules and Orders 7
Salaries of President, Speaker, and officers 7
Privileges of both Houses 8

Part II — Electoral

Electoral laws 9
Electoral lists 9

Part III — Elective Council

Certain sections to lapse 11
Convoking of elected Council 11
Council may proceed to business although full number of vacancies not filled at general election 11
Election of President 12

Part IIIA — The Governor

Office of Governor 13
Instructions to Governor 13

Part IIIB — Local government

Elected local governing bodies 14
Certain laws not affected 14

Part IV — Judicial

Judges continued in the enjoyment of their offices during good behaviour 15
But they may be removed by the Crown on the address of both Houses 15

Part V — Legal

Existing law saved 16
Courts of justice, commissions, officers, etc. 16
Custom duties may be imposed not differential 16
Duties not to be levied on supplies for Governor or troops nor any duties inconsistent with treaties 17
Separation of the Colony 17
After separation, Act to apply to remaining part of Colony 17

Part VI — Financial

Liability of separated portion of Colony for public debt 18
All duties and revenues to form Consolidated Account 18
Consolidated Account permanently charged with expenses of collection 19
No part of public revenue to be issued except on warrants from Governor 19
Consolidated Account to be appropriated by Act of the Legislature: certain charges not affected 19

Part VII — Miscellaneous

Legislature as constituted by this Act empowered to alter any of its provisions 21
Appointment to offices under the Government of the Colony to be vested in the Governor 23

74A. Demise of the Crown 23

Interpretation 23
Operation of Act 24
Act to be proclaimed 24

Schedule E — Oath and affirmation of office

Notes

Compilation table 26

Other notes 29

Defined terms

Western Australia

Constitution Act 1889

An Act to confer a Constitution on Western Australia, and to grant a Civil list to Her Majesty.

Preamble

Whereas by the 32nd section of the Imperial Act passed in the session holden in the 13th and 14th years of the Reign of Her present Majesty 2, intituled “ An Act for the better Government of Her Majesty’s Australian Colonies”, it was among other things enacted that, notwithstanding anything thereinbefore contained, it should be lawful for the Governor and Legislative Council of Western Australia, from time to time, by any Act or Acts, to alter the provisions or laws for the time being in force under the said Act or otherwise concerning the election of the elective members of such Legislative Council, and the qualification of electors and elective members, or to establish in the said Colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as by such Act or Acts should be determined, and to vest in such Council and House of Representatives, or other separate Legislative Houses, the powers and functions of the Legislative Council for which the same might be substituted; and whereas it is expedient that the powers vested by the said Act in the said Governor and Legislative Council should now be exercised, and that a Legislative Council and a Legislative Assembly should be substituted for the present Legislative Council, with the powers and functions hereinafter contained;

And whereas the Legislature of the Colony, as previously constituted, was replaced through this Act with a Parliament, to consist of the Queen, the Legislative Council and the Legislative Assembly with the members of both Houses chosen by the people, and, as constituted, continued as the Parliament of the Colony until Western Australia’s accession as an Original State of the Commonwealth of Australia in 1901 and thereafter has been the Parliament of the State;

And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia:

[Preamble amended: No. 22 of 2015 s. 4.]

Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows: —

Part IA — Preliminary

[Heading inserted: No. 47 of 2011 s. 20(2).]

1. Short title

This is the Constitution Act 18891.

[Section 1 inserted: No. 47 of 2011 s. 20(2).]

Part I — Parliamentary

2. Legislature to be constituted in Western Australia

(1) There shall be, in place of the Legislative Council now subsisting, a Legislative Council and a Legislative Assembly: and it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies: and such Council and Assembly shall, subject to the provisions of this Act, have all the powers and functions of the now subsisting Legislative Council.

(2) The Parliament of Western Australia consists of the Queen and the Legislative Council and the Legislative Assembly.

(3) Every Bill, after its passage through the Legislative Council and the Legislative Assembly, shall, subject to section 73, be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen.

[Section 2 amended: No. 59 of 1978 s. 4.]

3. Governor may fix place and time of sessions, prorogue Houses and dissolve Assembly

It shall be lawful for the Governor to fix the place and time for holding the first and every other session of the Legislative Council and Legislative Assembly, and from time to time to vary the same as he may judge advisable, giving sufficient notice thereof: and also to prorogue the Legislative Council and Legislative Assembly from time to time, and to dissolve the Legislative Assembly by Proclamation or otherwise whenever he shall think fit.

4. A session every year

There shall be a session of the Legislative Council and Legislative Assembly once at least in every year, so that a period of 12 months shall not intervene between the last sitting of the said Council and Assembly in one session and the first sitting of the said Council and Assembly in the next session.

5. First calling together of Legislature

The Legislative Council and Legislative Assembly shall be called together for the first time at some period not later than 6 months after the commencement of this Act.

6. Appointment of members of Council 3

Before the first meeting of the Legislative Council and Legislative Assembly the Governor in Council may, in Her Majesty’s name, by instruments under the Public Seal of the Colony, summon to the Legislative Council such persons, to the number of 15, as he shall think fit, and thereafter may from time to time, as vacancies occur, in like manner summon to the Legislative Council such other persons as he shall think fit, and every person so summoned shall thereby become a member of the Legislative Council.

[Section 6 amended: No. 78 of 1984 s. 5.]

7. Tenure of seats in Council

Every member of the Legislative Council shall, subject to the provisions of this Act, hold his seat therein until Part III shall come into operation.

8. Resignation of members of Council 4

Any member of the Legislative Council may resign his seat therein by a letter to the Governor, and upon the receipt of such letter by the Governor the seat of such member shall become vacant.

9. Appointment of President; who may take part in debate 4

The Governor may from time to time, by an instrument under the Public Seal of the Colony, appoint one member of the Legislative Council to be President, and may remove him and appoint another in his stead; and the President may at any time take part in any debate or discussion in the said Council.

[10, 11. Deleted: 57 Vict., No. 14 s. 2.]

12. Convoking of Assembly 5

For the purpose of constituting the Legislative Assembly, the Governor, before the time appointed for the first meeting of the Legislative Council and Legislative Assembly, and thereafter from time to time, as occasion shall require, may in Her Majesty’s name issue writs under the Public Seal of the Colony for the general election of members to serve in the Legislative Assembly.

13. Assembly may proceed to business although full number of members not elected at general election

Upon any general election the Legislative Assembly shall be competent to proceed to the despatch of business, at the time appointed by the Governor for that purpose, notwithstanding that in any of the electoral districts the electors shall have failed to elect a member to serve in the said Assembly.

[Section 13 amended: No. 36 of 2000 s. 22.]

[14. Deleted: 63 Vict., No. 19 s. 2.]

15. Election of Speaker

The members of the Legislative Assembly shall, upon their first assembling after every general election, proceed forthwith to elect one of their number to be Speaker; and in case of his death, resignation, or removal by a vote of the said Assembly, the members shall again elect one of their number to be Speaker. The Speaker so elected shall preside at all meetings of the said Assembly.

[16, 17. Deleted: No. 78 of 1984 s. 6.]

[18‑21. Deleted: 63 Vict., No. 19 s. 2.]

22. Oath or affirmation of allegiance

No member of the Legislative Council or Legislative Assembly shall sit or vote therein until he has taken and subscribed before the Governor, or some person authorised by the Governor in that behalf, an oath or affirmation of office in a form set out in Schedule E.

[Section 22 inserted: No. 15 of 1980 s. 2; amended: No. 24 of 2005 s. 6.]

[23‑30. Deleted: 63 Vict., No. 19 s. 2.]

[31. Deleted: 57 Vict., No. 14 s. 2.]

[32, 33. Deleted: 63 Vict., No. 19 s. 2.]

34. Standing Rules and Orders

The Legislative Council and Legislative Assembly, in their first session, and from time to time afterwards as there shall be occasion, shall each adopt Standing Rules and Orders, joint as well as otherwise, for the regulation and orderly conduct of their proceedings and the despatch of business, and for the manner in which the said Council and Assembly shall be presided over in the absence of the President or the Speaker, and for the mode in which the said Council and Assembly shall confer, correspond, and communicate with each other, and for the passing, intituling, and numbering of Bills, and for the presentation of the same to the Governor for Her Majesty’s assent.

[Section 34 amended: No. 51 of 1987 s. 3.]

35. Salaries of President, Speaker, and officers

The salary of the President of the Legislative Council shall be at least equal to the salary of the Speaker of the Legislative Assembly; and the salaries and allowances of the various officers of the Legislative Council shall be the same as those of the corresponding officers of the Legislative Assembly; and the chief Clerk for the time being of the Legislative Council and of the Legislative Assembly shall respectively be removable from office only in accordance with a vote of the House of which he is an officer.

36. Privileges of both Houses

It shall be lawful for the Legislature of the Colony, by any Act to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Legislative Council and Legislative Assembly, and by the members thereof respectively.

[Section 36 amended: No. 41 of 2004 s. 4.]

Part II — Electoral

[37. Deleted: 57 Vict., No. 14 s. 2.]

38. Electoral laws 5

Except as otherwise provided in this Act, the existing laws relating to the qualification of electors, the mode of election, and all other matters concerning elections, shall be in force, and apply to the election of members to serve in the Legislative Assembly, in the same manner as they are now in force in respect of election to the existing Legislative Council.

The electoral laws existing at the date of the coming into operation of Part III shall, except as otherwise provided in this Act, be in force and apply to the election of members to serve in the Legislative Council for electoral divisions, in the same manner as such laws shall then be in force in respect of election to the Legislative Assembly for electoral districts.

[39. Deleted: 57 Vict., No. 14 s. 2.]

[40. Deleted: 63 Vict., No. 19 s. 2.]

41. Electoral lists 5

The names of electors under this Act shall be inserted in the electoral lists of the electoral districts, and (when Part III shall come into operation) in the electoral lists of the electoral divisions, in which they shall be respectively qualified; and all such lists shall specify the Christian and surnames of all such electors, the nature of the qualification, and the place where they respectively reside; and all such lists shall be signed, delivered, printed, and hung up for public inspection by the persons and in the way prescribed in the Electoral Acts for the time being in force, and shall be subject to such claims and notice from any person whose name shall have been omitted therein, and to such objections and notice as to the names of any persons inserted therein, and to such modes of altering, amending, or continuing any such lists as are, or shall be, in these said several respects provided for in the said Electoral Acts, as nearly as may be consistently with the rights of such new electors.

Provided that it shall be lawful, in order to the convenient holding of the first general election under this Act to the Legislative Assembly, and of the general election, mentioned in Part III, to the Legislative Council, for the Governor in Council to make such arrangements, appoint such persons, and fix such dates and periods, as may to him seem under the circumstances to be required for the doing of any matter or thing necessary to be done under any Electoral Act, notifying the same in the Government Gazette. Any Electoral Act affected by such notice shall be deemed to be varied accordingly, for the purposes of the said elections.

Part III — Elective Council

[42. Deleted: No. 22 of 2015 s. 5.]

43. Certain sections to lapse

On the coming into operation of this Part 6, the first paragraph of section 6, and sections 8, 9 and 30 shall, saving validity of things done, cease to have any operation.

[44, 45. Deleted: 57 Vict., No. 14 s. 2.]

46. Convoking of elected Council

For the purpose of constituting the Legislative Council, the Governor, before the time appointed for the first meeting of the Legislative Council and Legislative Assembly, after this Part shall be in operation, may, in Her Majesty’s name, issue writs under the Public Seal of the Colony for a general election of members to serve in the Legislative Council.

47. Council may proceed to business although full number of vacancies not filled at general election

(1) Upon any general election the Legislative Council shall be competent to proceed to the despatch of business, at the time appointed by the Governor for that purpose, notwithstanding that the electors shall have failed to elect the required number of members to serve in the Legislative Council.

(2) Subsection (1) does not apply if the general election has wholly failed or has been declared to be absolutely void.

[Section 47 inserted: No. 40 of 1987 s. 4; amended: No. 20 of 2021 s. 4.]

[48. Deleted: 57 Vict., No. 14 s. 2.]

49. Election of President 7

The members of the Legislative Council shall, upon their first assembly after the general election, proceed forthwith to elect one of their number to be President; and in case of his death, resignation, or removal by a vote of the Council, the members shall again elect one of their number to be President. The President so elected shall preside at all meetings of the said Council.

Part IIIA — The Governor

[Heading inserted: No. 59 of 1978 s. 5.]

50. Office of Governor

(1) The Queen’s representative in Western Australia is the Governor who shall hold office during Her Majesty’s pleasure.

(2) Abolition of or alteration in the office of Governor shall not be effected by an Act of the Parliament except in accordance with section 73(2).

(3) In this Act and in every other Act a reference to the Governor shall be taken —

(a) to be a reference to the person appointed for the time being by the Queen by Commission under Her Majesty’s Royal Sign Manual to the office of Governor of the State of Western Australia; and

(b) to include any other person appointed by dormant or other Commission under the Royal Sign Manual to administer the Government of the State of Western Australia; and

(c) to also include any other person exercising, by virtue of an appointment by the Governor in accordance with Letters Patent, any powers and authorities of the Governor.

[Section 50 inserted: No. 59 of 1978 s. 5; amended: the Australia Act 1986 (U.K.) s. 14(2) (see WA Act No. 65 of 1985 and also the Australia Act 1986 (Cwlth.) s. 14(2)).]

51. Instructions to Governor

In section 50 the expression Royal Sign Manual means the signature or royal hand of the Sovereign.

[Section 51 inserted: No. 59 of 1978 s. 5; amended: the Australia Act 1986 (U.K.) s. 14(3) (see WA Act No. 65 of 1985 and also the Australia Act 1986 (Cwlth.) s. 14(3)).]

Part IIIB — Local government

[Heading inserted: No. 88 of 1979 s. 3.]

52. Elected local governing bodies

(1) The Legislature shall maintain a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide.

(2) Each elected local governing body shall have such powers as the Legislature may from time to time provide being such powers as the Legislature considers necessary for the better government of the area in respect of which the body is constituted.

[Section 52 inserted: No. 88 of 1979 s. 3.]

53. Certain laws not affected

Section 52 does not affect the operation of any law —

(a) prescribing circumstances in which the offices of members of a local governing body shall become and remain vacant; or

(b) providing for the administration of any area of the State —

(i) to which the system maintained under that section does not for the time being extend; or

(ii) when the offices of all the members of the local governing body for that area are vacant;

(d) conferring any power relating to local government on a person other than a duly constituted local governing body.

[Section 53 inserted: No. 88 of 1979 s. 3.]

Part IV — Judicial

54. Judges continued in the enjoyment of their offices during good behaviour 8

The Commissions of the present Judges of the Supreme Court and of all future Judges thereof shall be, continue, and remain in full force during their good behaviour, notwithstanding the demise of Her Majesty (whom may God long preserve), any law, usage, or practice to the contrary notwithstanding.

55. But they may be removed by the Crown on the address of both Houses

It shall be lawful nevertheless for Her Majesty to remove any such Judge upon the Address of both Houses of the Legislature of the Colony.

[56. Deleted: No. 35 of 1950 s. 4.]

Part V — Legal

57. Existing law saved

All laws, statutes, and ordinances which at the commencement of this Act are in force within the Colony shall until repealed or varied by any Act of the Legislature continue to be of the same force, authority, and effect as if this Act had not been passed, except in so far as the same are repugnant to this Act (in which case they are to that extent hereby amended and repealed as necessary).

58. Courts of justice, commissions, officers, etc.

All Courts of Civil and Criminal Jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, or ministerial, within the Colony at the commencement of this Act shall except in so far as they are abolished, altered, or varied by this or any future Act of the Legislature of the Colony or other competent authority, continue to subsist in the same form and with the same effect as if this Act had not been passed.

59. Custom duties may be imposed not differential

It shall be lawful for the Legislature of the Colony, subject to the provisions of this Act, to impose and levy such duties of Customs as to it may seem fit, on the importation into the Colony of any goods whatsoever, whether the produce of or exported from the United Kingdom or any of the Colonies or Dependencies of the United Kingdom or any Foreign Country. Provided always, that, except as authorised by the Imperial Act known as the Australian Colonies Duties Act 1873, no new duty shall be imposed upon the importation into the Colony of any article the produce or manufacture of or imported from any particular country or place which shall not be equally imposed on the importation into the Colony of the like article the produce or manufacture of or exported from all other countries and places whatsoever.

60. Duties not to be levied on supplies for Governor or troops nor any duties inconsistent with treaties

It shall not be lawful for the Legislature of the Colony to levy any duty upon articles imported bona fide for the supply of the Governor or of Her Majesty’s Land or Sea Forces, nor to levy any duty, impose any prohibition or restriction, or grant any exemption or any drawback or other privilege upon the importation or exportation of any articles, nor to enforce any dues or charges upon shipping contrary to or at variance with any treaty concluded by Her Majesty with any foreign Power.

61. Separation of the Colony

Nothing in this Act contained shall prevent Her Majesty from dividing the Colony of Western Australia as she may from time to time think fit, by separating therefrom any portion thereof, and either erecting the same or any part thereof into a separate Colony or Colonies under such form of Government as she may think fit, or from subdividing any Colony so created, or from re‑uniting to the Colony of Western Australia any part of any Colony so created.

62. After separation, Act to apply to remaining part of Colony

In the event of any such separation or other proceeding as in the last preceding section mentioned, the provisions of this Act shall apply, so far as practicable, to the Colony of Western Australia as for the time being existing.

Part VI — Financial

63. Liability of separated portion of Colony for public debt

Whenever any portion of the Colony is about to be separated therefrom the Lords Commissioners of Her Majesty’s Treasury may if requested by the Governor in Council, on report and accounts furnished by him, declare what portion of the public debt of the Colony has been expended within the territory about to be separated, and the interest and sinking fund, if any, upon the portion of the public debt mentioned in any such declaration shall be a reserved charge payable to the Government of Western Australia by the Government of the separated territory, and due provision for such reserved charge shall be made in any Act regulating the constitution of the separated territory. Provided always, that nothing herein contained, and no declaration or provision as aforesaid, shall in any way prejudice or affect the security of any debentures which may have been issued by the Government of Western Australia before the separation of any such territory.

64. All duties and revenues to form Consolidated Account

All taxes, imposts, rates, and duties, and all territorial, casual, and other revenues of the Crown (including royalties) from whatever source arising within the Colony, over which the Legislature has power of appropriation, shall form one Consolidated Account together with all other moneys lawfully credited to that Account, and that Account shall be appropriated to the Public Service of the Colony in the manner and subject to the charges hereinafter mentioned.

[Section 64 amended: No. 6 of 1993 s. 9 and 11; No. 77 of 2006 s. 4 and 5(1).]

65. Consolidated Account permanently charged with expenses of collection

The Consolidated Account shall be permanently charged with all the costs, charges, and expenses incident to the collection, management, and receipt thereof; such costs, charges, and expenses being subject nevertheless to be reviewed and audited in such manner as is directed by the Audit Act 1881 9, or as may from time to time be directed by any Act of the Legislature.

[Section 65 amended: No. 6 of 1993 s. 11; No. 77 of 2006 s. 4.]

[66, 67. Deleted: No. 34 of 1921 s. 2.]

68. No part of public revenue to be issued except on warrants from Governor

No part of the public revenue of the Colony arising from any of the sources aforesaid shall be issued except in pursuance of warrants under the hand of the Governor directed to the Treasurer.

[69. Deleted: 60 Vict., No. 18 s. 2.]

[70. Deleted: No. 14 of 1905 s. 65.]

[71. Deleted: No. 19 of 2010 s. 13(2).]

72. Consolidated Account to be appropriated by Act of the Legislature: certain charges not affected

After and subject to the charges hereinbefore mentioned, all the Consolidated Account shall be appropriated to such purposes as any Act of the Legislature shall prescribe. Provided that nothing in this Act shall affect the payment of the annual interest or the principal sums mentioned in any outstanding debentures, or of any other charge upon the public revenue, as such interest, principal, or charge becomes due. Nor shall anything in this Act affect any pensions or superannuation allowances which at the commencement of this Act are by law chargeable upon the public revenue of the Colony, but all such pensions and superannuation allowances shall remain and be so chargeable, and shall be paid out of the Consolidated Account, and all rights and benefits which at the commencement of this Act are by law claimable by or accruing to any civil servant of the Government are hereby reserved and maintained. Provided nevertheless, that the power to suspend or remove any civil servant from his office shall be vested in the Governor in Council.

[Section 72 amended: No. 6 of 1993 s. 11; No. 77 of 2006 s. 4.]

Part VII — Miscellaneous

73. Legislature as constituted by this Act empowered to alter any of its provisions

(1) Subject to the succeeding provisions of this section, the Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III provided, and every Bill which shall interfere with the operation of sections 69, 70, 71, or 72, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon 10, 11.

(2) A Bill that —

(a) expressly or impliedly provides for the abolition of or alteration in the office of Governor; or

(b) expressly or impliedly provides for the abolition of the Legislative Council or of the Legislative Assembly; or

(c) expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people; or

(d) expressly or impliedly provides for a reduction in the numbers of the members of the Legislative Council or of the Legislative Assembly; or

(e) expressly or impliedly in any way affects any of the following sections of this Act, namely —

sections 2, 3, 4, 50, 51 and 73,

shall not be presented for assent by or in the name of the Queen unless —

(f) the second and third readings of the Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly, respectively; and

(g) the Bill has also prior to such presentation been approved by the electors in accordance with this section,

and a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.

(3) On a day fixed by the Governor by Order in Council, being a day not sooner than 2 months, and not later than 6 months, after the passage through the Legislative Council and the Legislative Assembly of a Bill of a kind referred to in subsection (2), the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Electoral Act 1907.

(4) When the Bill is submitted to the electors the vote shall be taken in such manner as is fixed by law.

(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for assent by or in the name of the Queen.

(6) Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (2) is presented for assent by or in the name of the Queen.

[Section 73 amended: No. 59 of 1978 s. 6.]

74. Appointment to offices under the Government of the Colony to be vested in the Governor

The appointment to all public offices under the Government of the Colony hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor in Council, with the exception of the appointments of officers liable to retire from office on political grounds, which appointments shall be vested in the Governor alone. Provided always, that this enactment shall not extend to minor appointments which by Act of the Legislature or by order of the Governor in Council may be vested in heads of departments or other officers or persons within the Colony.

74A. Demise of the Crown

The demise of the Sovereign —

(a) has the effect of transferring all the functions, duties, powers, authorities, rights, privileges and dignities belonging to the Crown to the Sovereign’s successor; but

(b) has no other effect in law for any purpose.

[Section 74A inserted: No. 9 of 2017 s. 4.]

75. Interpretation

For the purposes of this Act —

Her Majesty means, when not repugnant to the context, Her Majesty, her heirs and successors.

Governor in Council means the Governor acting with the advice of the Executive Council.

Treasurer means the Treasurer of the Colony for the time being.

Person includes a corporation or association of persons.

Month means calendar month.

[Section 75 amended: No. 59 of 1978 s. 7; No. 22 of 2015 s. 6.]

76. Operation of Act

The foregoing provisions of this Act shall have no force or effect until so much and such parts of the following Acts of the Parliament of the United Kingdom, that is to say: — 13th and 14th Victoria, chapter 59, intituled An Act for the better Government of Her Majesty’s Australian Colonies; 5th and 6th Victoria, chapter 76, intituled An Act for the better Government of New South Wales and Van Dieman’s Land; 7th and 8th Victoria, chapter 74, intituled An Act to explain and amend the Act for the Government of New South Wales and Van Dieman’s Land; as severally relate to the Colony of Western Australia, and are repugnant to this Act, shall have been repealed 12.

77. Act to be proclaimed

This Act shall be proclaimed in Western Australia, by the Governor, within 3 months after he shall have received official information of the Royal Assent thereto, and shall commence and, except as provided in section 42 6, take effect from the date of such proclamation.

[78. Deleted: No. 47 of 2011 s. 20(3).]

[Schedule A and Schedule B deleted: 60 Vict., No. 18 s. 2.]

[Schedule C related to section 70 which was deleted: No. 14 of 1905 s. 65.]

[Schedule D deleted: No. 19 of 2010 s. 13(3).]

Schedule E — Oath and affirmation of office

[s. 22]

[Heading inserted: No. 24 of 2005 s. 7.]

Either —

(a) I, [name], [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will faithfully serve the people of Western Australia as a member of the *Legislative Council/Legislative Assembly.

[*Delete the inapplicable.]

or —

(b) I, [name], [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law and will faithfully serve the people of Western Australia as a member of the *Legislative Council/Legislative Assembly.

[*Delete the inapplicable.]

[Schedule E inserted: No. 24 of 2005 s. 7.]

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Notes

This is a compilation of the Constitution Act 1889 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Short title		Number and year	Assent	Commencement
The Constitution Act 1889 1		1889 (52 Vict. No. 23)	Reserved for Royal Assent 29 Apr 1889. Assented to 15 Aug 1890	Act except for Pt. III: 21 Oct 1890 (see s. 77 and Gazette 23 Oct 1890 p. 790‑1); Pt. III: 18 Oct 1893 (see s. 42 6 and Gazette 18 Jul 1893 p. 727)
The Constitution Act Amendment Act 1893 s. 2		1893 (57 Vict. No. 14)	13 Oct 1893	18 Oct 1893 (see s. 1)
The Constitution Act 1889 Amendment Act 1894 s. 2		1894 (58 Vict. No. 15)	8 Nov 1894	8 Nov 1894
Constitution Act Amendment Act 1896 s. 2		1896 (60 Vict. No. 18)	8 Oct 1896	12 Apr 1897 (see Gazette 12 Apr 1897 p. 683)
Constitution Acts Amendment Act 1899 s. 2		1899 (63 Vict. No. 19)	Reserved for Royal Assent 16 Dec 1899. Assented to 18 May 1900	18 May 1900 (see s. 52 and Gazette 18 May 1900 p. 1686
Constitution Act Amendment Act 1900		1900 (64 Vict. No. 5) (as amended by No. 45 of 1963)	5 Dec 1900	5 Dec 1900
Aborigines Act 1905 s. 65		14 of 1905 (5 Edw. VII No. 14)	Reserved for Royal Assent 23 Dec 1905. Assented to 4 Apr 1906 13	1 Apr 1898 (see s. 65)
Constitution Act Amendment Act 1921		34 of 1921 (12 Geo. V No. 34)	30 Dec 1921	30 Dec 1921
Ministers’ Titles Act 1925 s. 2		8 of 1925 (16 Geo. V No. 8)	24 Sep 1925	24 Sep 1925
Judges’ Salaries and Pensions Act 1950 s. 4		35 of 1950 (14 and 15 Geo. VI No. 35)	16 Dec 1950	16 Dec 1950
*Reprint of The Constitution Act 1889* approved 30 Nov 1964 in Volume 19 of Reprinted Acts** (includes amendments listed above)
Statute Law Revision Act 1970 s. 4		10 of 1970	29 Apr 1970	29 Apr 1970
*Reprint of the Constitution Act 1889* approved 29 Apr 1971** (includes amendments listed above)
Acts Amendment (Constitution) Act 1978 Pt. I		59 of 1978	Reserved for Royal Assent 20 Sep 1978. Assented to 15 Nov 1978	22 Dec 1978 (see Interpretation Act 1918 s. 8 and Gazette 22 Dec 1978 p. 4769-70)
Constitution Act Amendment Act 1979		88 of 1979	11 Dec 1979	11 Dec 1979
Constitution Amendment Act (No. 3) 1980		15 of 1980	15 Oct 1980	15 Oct 1980
*Reprint of the Constitution Act 1889* as approved 30 Apr 1982** (includes amendments listed above)
Acts Amendment and Repeal (Disqualification for Parliament) Act 1984 Pt. IV		78 of 1984	14 Nov 1984	1 Jul 1985 (see s. 2 and Gazette 17 May 1985 p. 1671)
Australia Act 1986 (U.K.) s. 14 (See WA Act No. 65 of 1985 s. 4 and Australia Act 1986 (Cwlth.) s. 14)		1986 c. 2	17 Feb 1986	3 Mar 1986 at 5 a.m. GMT (see Statutory Instruments 1986 No. 319 c. 8)
Acts Amendment (Electoral Reform) Act 1987 Pt. II		40 of 1987	12 Jul 1987	30 Oct 1987 (see s. 2 and Gazette 30 Oct 1987 p. 3977)
Constitution Amendment Act 1987		51 of 1987	30 Oct 1987	30 Oct 1987 (see s. 2)
*Reprint of the Constitution Act 1889* as at 1 Mar 1993** (includes amendments listed above)
Financial Administration Legislation Amendment Act 1993 s. 9 and 11		6 of 1993	27 Aug 1993	1 Jul 1993 (see s. 2(1))
Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 76		10 of 1998	30 Apr 1998	30 Apr 1998 (see s. 2(1))
*Reprint of the Constitution Act 1889* as at 3 Jul 2000** (includes amendments listed above)
Electoral Amendment Act 2000 s. 22		36 of 2000	10 Oct 2000	21 Oct 2000 (see s. 2(1) and Gazette 20 Oct 2000 p. 5899)
Constitution (Parliamentary Privileges) Amendment Act 2004 Pt. 2		41 of 2004	3 Nov 2004	3 Nov 2004 (see s. 2)
Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005 Pt. 3		24 of 2005	2 Dec 2005	1 Jan 2006 (see s. 2 and Gazette 23 Dec 2005 p. 6244)
Financial Legislation Amendment and Repeal Act 2006 s. 4 and 5(1)		77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
*Reprint 6: The Constitution Act 1889* as at 13 Jul 2007** (includes amendments listed above)
Standardisation of Formatting Act 2010 s. 13	19 of 2010	28 Jun 2010	11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Statutes (Repeals and Minor Amendments) Act 2011 s. 20	47 of 2011	25 Oct 2011	26 Oct 2011 (see s. 2(b))
Constitution Amendment (Recognition of Aboriginal People) Act 2015	22 of 2015	17 Sep 2015	17 Sep 2015 (see s. 2)
Constitution Amendment (Demise of the Crown) Act 2017	9 of 2017	25 Oct 2017	s. 1 and 2: 25 Oct 2017 (see s. 2(a)); Act other than s. 1 and 2: 26 Oct 2017 (see s. 2(b))
Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021 Pt. 2	20 of 2021	24 Nov 2021	25 Nov 2021 (see s. 2(b))

Other notes

1 Now known as the Constitution Act 1889; short title amended (see note under s. 1). The Constitution Act 1889 was or is affected by —

An Act to augment Ministerial Salaries. 55 Vict. No. 23 (1892).
(Repealed by 60 Vict. No. 18.)

The Officers of Parliament Act 1893. (56 Vict. No. 17).
(Repealed by 63 Vict. No. 19.)

Constitution Acts Amendment Act 1933. (No. 25 of 1933).
(Amended by Act No. 46 of 1963 s. 10. Repealed by Act No. 57 of 1965.)

Constitution Acts Amendment (Temporary) Act 1934. (No. 3 of 1934).
(Expired on 31 December 1934 (see s. 4). Repealed by Act No. 57 of 1965.)

Judges’ Retirement Act 1937. (No. 8 of 1937).

Constitution Acts Amendment Act 1942. (No. 29 of 1942).
(Amended by Act No. 45 of 1950 and Act No. 46 of 1963 s. 10. Repealed by Act No. 57 of 1965.)

2 I.e.: 13 and 14 Victoria c. 59 (1850) s. 32.

3 Section 6 was originally composed of three paragraphs. The second and third paragraphs were repealed by the Acts Amendment and Repeal (Disqualification for Parliament) Act 1984 s. 4. The first paragraph ceased to operate on 18 October 1893. See s. 43.

4 This provision ceased to operate on 18 October 1893. See s. 43.

5 Now see Electoral Act 1907.

6 Repealed section 42 provided for the postponement of the commencement of Part III. Under that section, Part III commenced 18 Oct 1893 (see Gazette 18 July 1893 p. 727).

7 Now see the Constitution Acts Amendment Act 1899 s. 11.

8 Also see Judges’ Retirement Act 1937 s. 3.

9 Now see Financial Management Act 2006 and Auditor General Act 2006.

10 Australia Act 1986 (U.K.) s. 9(2) and Australia Act 1986 (Cwlth) s. 9(2) (set out in the Schedules to the Australia Acts (Request) Act 1985 (WA)) read as follows:

(2) No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty’s pleasure thereon.

11 Sections 69 and 70 and Schedules B and C have been repealed.

12 See Western Australia Constitution Act 1890 (U.K.) (53 and 54 Vict. c. 26) s. 2 which effected these repeals as from the proclamation of this Act in WA i.e. 21 October 1890. As to the proviso in s. 2 of that Act, now see Australia Act 1986 (U.K.) s. 7‑9. Paragraph (a) of the proviso reads as follows:

(a) The provisions of the Acts of the session held in the 13th and 14th years of Her Majesty, chapter 59, and of the session held in the 5th and 6th years of Her Majesty, chapter 76 (being 2 of the Acts mentioned in the said schedule), which relate to the giving or withholding of Her Majesty’s assent to Bills, ... and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid, and the disallowance of Bills by Her Majesty, shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and by any other legislative body or bodies which may at any time hereafter be substituted for the said Legislative Council and Assembly.

[Note the proviso was amended by the Australian States Constitution Act 1907 (U.K.) (7 Ed. VII c. 7).]

13 The Aborigines Act 1905 commenced on 23 April 1906 (see s. 1 and Gazette 20 Apr 1906 p. 1221, 21 Apr 1906 p. 1261 and 27 Apr 1906 p. 1263). It is not clear why there were 3 Gazettals.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

Governor in Council 75

Her Majesty 75

Month 75

Person 75

Royal Sign Manual 51

Treasurer 75

Compliance with the Constitution Act 1889 is primarily the responsibility of the Parliament, the Executive and the courts.

For Parliamentarians and legislative drafters: before introducing any Bill that touches the composition or powers of the Houses, the office of Governor, or any of the sections listed in s.73(2)(e), obtain written advice from the Solicitor-General confirming whether the absolute-majority and referendum requirements are engaged. If they are, ensure that the second and third readings are passed by an absolute majority of the whole number of members (not merely those present and voting). After passage, allow the Governor to fix a referendum date between two and six months later. Only after a majority of electors approve may the Bill be presented for assent.

For the Executive: all expenditure must be authorised by an appropriation Act or fall within the permanent charges in ss.65 and 72. No warrant should issue under s.68 unless the Treasurer is satisfied that parliamentary authority exists. Appointments under s.74 must follow the distinction between Governor-in-Council and Governor-alone offices; political appointments (ministers, parliamentary secretaries) are made by the Governor alone.

For local government practitioners: any restructure or amalgamation proposal must preserve an elected system. Section 52 does not prevent boundary changes or even the merger of councils, but it does prevent the complete replacement of elected bodies by appointed administrators on a permanent basis without constitutional amendment.

For lawyers advising clients: when challenging government action, consider whether the constitutional validity of the empowering statute itself is open to question under s.73. In Supreme Court proceedings, remember that any elector has standing to enforce s.73; this can be a useful tactical tool in constitutional litigation.

For all public officials: the oath or affirmation in Schedule E is not a mere formality. It is a statutory precondition to sitting or voting. The current form allows a choice between allegiance to the Sovereign and a service-only affirmation; both are constitutionally valid.

Finally, maintain an awareness of the compilation table and the "other notes". Many sections have been repealed or spent; citing a deleted section in court can undermine credibility. Always work from the latest authorised reprint and cross-check the effect of the Australia Acts 1986 on references to the Queen and reservation of Bills.

By treating the Act as a living constitutional document rather than a 19th-century curiosity, practitioners can avoid the procedural invalidity and political embarrassment that have occasionally accompanied non-compliance in other Australian jurisdictions.

Deep Dive

What it does

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