Constitution Act 1889

The Constitution Act 1889 directly and indirectly affects every resident, every business, every public official and every court in Western Australia. At the highest level it binds the Parliament itself: neither House may validly pass a Bill altering protected constitutional provisions without complying with the absolute-majority and referendum requirements of s.73(2). The Governor, as the Queen's representative (s.50), is both empowered and constrained; the office cannot be abolished or altered except in the entrenched manner. Judges of the Supreme Court enjoy statutory tenure during good behaviour (s.54), removable only on parliamentary address (s.55), giving them constitutional independence from the executive.

Members of the Legislative Council and Legislative Assembly are affected by the oath or affirmation requirement (s.22 and Schedule E, as updated by the Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005), the privilege provisions (s.36, expanded by the Constitution (Parliamentary Privileges) Amendment Act 2004), and the salary and standing orders rules (ss.34-35). Electors are given a direct constitutional role in approving fundamental change (s.73(3)-(5)); any of them may bring Supreme Court proceedings to enforce that role (s.73(6)).

Local government bodies derive their constitutional status from Part IIIB. Section 52 obliges the Legislature to "maintain a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide". Section 53 ensures that this does not disturb laws dealing with vacancies, administration of uncovered areas, or the conferral of local government powers on other persons.

Civil servants appointed before 1890 had their pensions and superannuation rights preserved by s.72. The Treasurer (defined in s.75) and all officers issuing or receiving public money are bound by the Consolidated Account rules (ss.64-65, 68, 72). The judiciary, when interpreting statutes, must read them subject to the saved laws and non-repugnancy clause in s.57.

Finally, the Act affects the Commonwealth dimension. Because Western Australia is an "Original State", the State Parliament's legislative power operates concurrently with Commonwealth power under the Australian Constitution, but the Constitution Act 1889 remains the source of the State's internal governmental structure. The Australia Acts 1986 (UK and Cth) terminated residual Imperial legislative power and altered references to the Queen and Governor (see amendments to ss.50-51), yet the State Act continues to function.

The Act creates few direct individual rights in the modern human-rights sense, but it establishes several structural rights and duties of constitutional significance.

Parliamentary privilege is expressly contemplated: s.36 empowers the Legislature 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". This has been done by the Parliamentary Privileges Act 1891 (as amended), but the constitutional foundation remains in the 1889 Act.

Judicial independence is protected by ss.54-55. Judges' commissions continue during good behaviour notwithstanding the demise of the Sovereign, and removal is possible only upon an address of both Houses. This mirrors the Act of Settlement 1701 model and is reinforced by the Judges' Retirement Act 1937 (noted in the compilation table).

Financial accountability is entrenched through the Consolidated Account provisions. All revenues must form one account (s.64), collection costs are permanently charged (s.65), no money may issue except on Governor's warrant (s.68), and appropriation must be by Act (s.72). These are classic "no taxation or expenditure without parliamentary approval" rules.

The right of electors to approve fundamental constitutional change is perhaps the most significant modern right. Section 73(2)-(6) creates a justiciable entitlement: any qualified voter may seek Supreme Court relief before or after a Bill is presented for assent. This is a rare example of direct constitutional standing conferred by a State constitution.

For members, the duty to take the oath or affirmation before sitting or voting (s.22) is absolute. The Schedule E form, updated in 2005, offers a choice between an allegiance-plus-service oath and a service-only affirmation, reflecting contemporary secular and multicultural realities.

Local government bodies have a constitutional right to exist in elected form (s.52), although the precise powers are left to ordinary legislation. The Legislature's duty to "maintain" the system prevents wholesale abolition without constitutional amendment.

The Governor's duty to act on ministerial advice is not spelled out in the 1889 Act but is implicit in the responsible-government conventions that the Act presupposed and which were later confirmed by the Australia Acts.

The Constitution Act 1889 is largely silent on criminal penalties; it is a constitutive rather than a regulatory statute. Enforcement occurs through political, parliamentary and judicial mechanisms rather than fines or imprisonment.

Breach of the s.22 oath requirement renders a member unable to sit or vote; any purported vote would be invalid. The Houses themselves police this through their standing orders and, ultimately, by expulsion or contempt proceedings authorised under the privileges power (s.36).

Contravention of the s.73 entrenchment provisions produces a dramatic sanction: "a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act" (s.73(2)). The Supreme Court may declare, enjoin or otherwise remedy any threatened or actual breach at the suit of any qualified elector (s.73(6)). This is a statutory codification of justiciability that removes any lingering doubt that might have existed under pure constitutional convention.

Financial irregularities under ss.64, 68 and 72 would be policed through the Financial Management Act 2006 and Auditor General Act 2006 (which replaced the Audit Act 1881 referenced in s.65). The Auditor General can report to Parliament, and unauthorised expenditure can be the subject of disallowance or censure motions. In extreme cases, misappropriation of public money remains a criminal offence under the Criminal Code (WA), but the constitutional provisions supply the normative framework that makes such conduct unlawful.

Removal of a judge under s.55 requires a parliamentary address; the process is political rather than judicial. No monetary penalty is attached, but the constitutional gravity is high.

The Act itself contains no general offence-creating provisions. Compliance is secured by the invalidity of non-compliant acts, parliamentary accountability, and the political cost of breaching constitutional norms.

The Constitution Act 1889 sits at the apex of Western Australian law but below the Commonwealth Constitution and the Australia Acts 1986. Section 57 saves all pre-1890 laws unless repugnant to the Act itself, and s.58 continues all courts and officers. These savings clauses have allowed the gradual accretion of statute law around the constitutional skeleton.

The Electoral Act 1907 is the most frequently referenced companion statute. Sections 38 and 41 of the Constitution Act apply the electoral laws to both Houses, while the referendum procedure in s.73(3)-(4) is conducted "according to the provisions of the Electoral Act 1907". The 2021 Constitutional and Electoral Legislation Amendment (Electoral Equality) Act further adjusted Council elections but did so consistently with the entrenched framework.

Financial legislation interacts through the Consolidated Account. The Financial Management Act 2006 and Treasurer's Advance Authorisation Act operate within the s.72 appropriation requirement; s.64 was amended by the 2006 Act to update terminology from "Consolidated Revenue Fund" to "Consolidated Account".

The Australia Acts 1986 fundamentally altered the constitutional setting. They terminated the power of the UK Parliament to legislate for Western Australia, removed the need to reserve Bills (noted in the footnotes to s.73), and amended references to the Queen and Governor in ss.50-51. The State Act was amended by WA Act No. 65 of 1985 to request and consent to those changes.

Commonwealth laws prevail under s.109 of the Australian Constitution where inconsistency arises, but the State Constitution continues to define the internal distribution of State power. The Native Title Act 1993 (Cth) and the Aboriginal Heritage Act 1972 (WA) interact with the preamble's recognition of Aboriginal people, although the preamble itself is not an operative provision creating justiciable rights.

The Interpretation Act 1984 (WA) supplies default rules for the Constitution Act (e.g. "month" means calendar month per s.75), while the Parliamentary Privileges Act 1891 particularises the power granted by s.36.

The most significant recent amendments reflect evolving democratic, symbolic and federal realities.

The Constitution Amendment (Recognition of Aboriginal People) Act 2015 inserted the current preamble paragraph acknowledging Aboriginal people as the First People and traditional custodians and expressing the Parliament's desire for reconciliation. This was a symbolic but constitutionally notable step, aligning Western Australia with similar preambular recognitions in other Australian jurisdictions. It did not create enforceable rights but altered the interpretive context in which the Act is read.

The Constitution Amendment (Demise of the Crown) Act 2017 inserted s.74A, providing that the death of the Sovereign merely transfers all Crown functions to the successor without otherwise affecting the law. This modernises the medieval doctrine of demise and removes any doubt about continuity of government, reflecting the experience of the long reign of Queen Elizabeth II and the impending succession.

The Constitutional and Electoral Legislation Amendment (Electoral Equality) Act 2021 amended s.47 to clarify that the Legislative Council may proceed to business even if not all vacancies are filled, except where the entire election has wholly failed or been declared void. This was a practical response to concerns about electoral administration and vacancies, ensuring the upper house cannot be paralysed by administrative failure.

Earlier but still relevant was the 1978 Acts Amendment (Constitution) Act which inserted Part IIIA (Governor), entrenched key sections, and added the referendum requirement now in s.73(2). That reform was driven by a desire to prevent unilateral abolition of the upper house or radical restructuring without popular consent, following debates in the 1970s about unicameralism.

The 1979 insertion of Part IIIB (local government) constitutionalised a system that had previously rested on ordinary legislation, protecting it from executive whim and reflecting the growing importance of local democracy.

These changes illustrate a gradual shift from a 19th-century colonial grant of power to a 21st-century State constitution that balances parliamentary supremacy with popular sovereignty on fundamental issues.

Because the Act contains an express justiciability clause in s.73(6), litigation has tended to focus on the amendment power. In Attorney-General (WA) v Marquet (2002) 217 CLR 545 the High Court considered whether the Acts Amendment (Electoral Reform) Act 1987 had validly altered the composition of the Legislative Council. Although the case turned primarily on the Electoral Distribution Act 1947, the Court examined the relationship between State constitutional provisions and the manner-and-form requirements inherited from Imperial law. The decision affirmed that entrenched State provisions can validly limit future parliaments.

Controversy has also surrounded the scope of "alteration" under s.73. Legal academics have debated whether a Bill that indirectly affects the composition of the Houses (for example by changing electoral boundaries in a way that radically alters the balance of power) triggers the referendum requirement. The Act's language in s.73(2)(c) and (d) speaks of composition "other than members chosen directly by the people" and "reduction in the numbers", suggesting a relatively narrow trigger, yet the Supreme Court has not delivered a definitive ruling on the outer limits.

The judicial tenure provisions in ss.54-55 have never been used to remove a Western Australian Supreme Court judge, but the parallel Commonwealth experience in the Murphy affair of the 1980s is sometimes cited as illustrating the high political threshold required. No equivalent Western Australian controversy has arisen, reinforcing the stability of the arrangements.

Local government constitutionalisation in 1979 has generated periodic litigation about whether particular reforms (for example, forced amalgamations) impermissibly undermine the "system of local governing bodies" that s.52 requires the Legislature to maintain. Courts have generally given the Legislature a wide margin, reading s.53 as preserving flexibility.

The 2015 preamble change sparked debate about whether symbolic recognition could have unintended legal consequences. The Government of the day emphasised that the preamble is not an operative provision, consistent with High Court authority on preambles generally.

Overall, Western Australia's constitutional litigation has been sparse compared with other jurisdictions, reflecting both the stability of its institutions and the relatively narrow justiciable hooks the Act contains.

Most practitioners assume the Constitution Act 1889 is a static historical document; in reality it is a living statute whose text is riddled with spent or repealed provisions that still appear in the official compilation. Deleting a section does not always remove its historical effect on transitional arrangements, and footnotes referring to Imperial repeals (especially the Western Australia Constitution Act 1890 (UK)) must be read alongside the Australia Acts 1986.

The entrenchment in s.73(2) is broader than many realise. It protects not only the existence of the two Houses but the principle that they be "composed of members ... chosen directly by the people". Any attempt to introduce indirect election or significant appointment mechanisms would trigger the referendum requirement. The list of protected sections in the table to s.73(2)(e) is exhaustive; sections outside that list (for example, the financial provisions in Part VI) can be amended by absolute majority alone, but the absolute-majority requirement of s.73(1) still applies to any change in the "constitution" of either House.

Section 73(6) creates a rare statutory cause of action allowing any elector to seek an injunction before Royal assent. This is a powerful litigation weapon that has not yet been fully tested; a well-timed Supreme Court application could derail a controversial constitutional Bill before it reaches the Governor.

The interaction between s.50(2) and s.73(2) means that any Bill purporting to abolish the office of Governor must satisfy both the absolute-majority and referendum hurdles. This effectively prevents the adoption of a republican model at State level without a popular vote, even if the Commonwealth were to become a republic.

Finally, the savings clause in s.57 is not merely transitional. It continues to operate so that any pre-1890 Imperial or colonial law not expressly repealed remains in force unless repugnant to the 1889 Act. Hidden among these may be obscure limitations on legislative power that are rarely considered but could surface in niche litigation.

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.