Constitution Acts Amendment Act 1899

Constitutional composition and tenure

• Legislative Council: now 37 elected members returned and sitting for the whole State (s 5). Retirement at periodic intervals is regulated by s 8, which fixes a 4‑year period beginning on 22 May following a member’s election, and provides that a member elected at a general election shall not sit or vote before the following 22 May (s 8(2)-(3)). These timing rules create a fixed calendrical reference point for Council terms and for when seats become vacant by effluxion of time (s 8).
• Legislative Assembly: currently 59 elected members and single‑member electoral districts (s 18). Duration is four years from first meeting, subject to Governor’s prorogation or dissolution, with special transitional rules affecting expiry dates between specified months (s 21).

Internal House procedure and continuity

• Election and temporary filling of President (Legislative Council) and Speaker (Legislative Assembly) are regulated (ss 11-13, 22-23). Quorum rules are fixed at one‑third of members exclusive of presiding officer, with a casting vote for the President or Speaker in case of equality (ss 14, 24). These provisions determine what constitutes a valid meeting and how tie votes are resolved.

Disqualification, offices and Schedule V

• The Act operates a two‑tier system for office‑related disqualification. Section 34 and Part 1 of Schedule V list offices that render a holder disqualified for membership. Section 36 applies to certain Crown offices and appointments by Commonwealth or other State governments; it requires resignation or cessation before sitting and contains a mechanism for the Governor to exempt offices by Order in Council only after both Houses recommend (ss 36(1)-(6)). Section 37 covers offices and places that must be vacated upon being declared elected where those offices are listed in Part 2 and Part 3 of Schedule V. Schedule V is a large catalogue (divided into judicial/tribunal and other offices and then lists of offices/places and bodies) that has been repeatedly updated. The Act also provides a relief mechanism whereby both Houses may pass a resolution to disregard the holding of a specified office for purposes of s 38, effectively validating a member’s status retrospectively in some cases (s 39).

Protection of parliamentary acts and procedural finality

• Section 40 protects the validity of proceedings against collateral attacks arising from a person’s later found disqualification. Section 39(3) gives explicit parliamentary power to make relief resolutions effective notwithstanding court proceedings under s 41. These provisions allocate a powerful competence to Parliament to determine membership consequences and to preserve legislative action.

Judicial route and standing limits

• The Court of Appeal has statutory jurisdiction to grant declarations on whether an election is void by operation of s 35, whether seats have become vacant under ss 36/38, or whether an office has been vacated under s 37, but standing is limited to persons entitled to vote for the election of a Legislative Assembly member at a general election (s 41(1)). The Court may require security for costs not exceeding $500 when the applicant is not the person in respect of whom a declaration is sought (s 41(2)).

Executive composition and ministerial mechanics

• Principal executive offices are capped at 17 and designated by the Governor in Council (s 43(1)-(2)). One of the 17 must be held by a Legislative Council member (s 43(3)). Before performing functions, appointees must take the oath/affirmation in Schedule VI (s 43(4)). The Act prevents double salary draws for holders who accept two or more of the offices listed (s 44). Parliamentary Secretaries are provided for (s 44A): they are not principal executive offices but are liable to be vacated on political grounds similarly; their allowances are set under the Salaries and Allowances Act 1975 (s 44A(5)).

Modernisation and administrative detail

• Executive Council meetings may be held remotely; remote participation counts as presence for meeting purposes (s 45A(2)-(3)), and the provision applies notwithstanding any Letters Patent relating to the Governor (s 45A(4)). Orders under ss 36 and 42 require publication in the Government Gazette and have specified effective dates (s 36(5)-(6); s 42(3)).

Financial and procedural constraints on litigation

• Certain time bars and security requirements for civil actions under the Act exist: actions to recover forfeitures, penalties or money must be commenced within three months from when the right first arose (s 49), and plaintiffs must pay $200 into court as security for costs before commencing such actions (s 50).

Legislative finance and bicameral limits

• The Act limits the Legislative Council’s role over appropriation and taxation bills: money or taxation bills must originate in the Legislative Assembly, and the Council may not amend Loan Bills or Bills imposing taxation or appropriating revenue for ordinary annual services (s 46(1)-(2), (6)-(8)). The Council may, however, return such Bills with non‑increasing amendment requests (s 46(4)) and otherwise has equal power with the Assembly (s 46(5)).

Schedules as operative lists and updating mechanisms

• Schedule V is central to the operation of Division 3 (ss 34, 36-39). Section 42 enables amendment of Schedule V by Order in Council but only on a recommendation by resolution of both Houses, with different effective dates for additions to Part 1 or 2 or 3 (s 42(1)-(3)). Schedule VI provides the forms of oath/affirmation for ministers, Parliamentary Secretaries and Executive Council members (Schedule VI).

These main concepts set the architecture for who may sit in Parliament, how executive offices are allocated and trimmed, the interplay of legislative and judicial remedies for disputed qualifications, and procedural protections for parliamentary proceedings. The Act contains multiple mechanisms that distribute decision rights among the Governor, Parliament and Court of Appeal and creates timing and publication requirements that can produce windows of legal and political consequence.

The Act’s reach is institutionally broad but sharply targeted in effect. Primary direct addressees are:

• Elected members and candidates. The Act defines qualifications and disqualifications (ss 31-34, 36-38; Schedule V). It governs when members’ seats become vacant (s 8, s 10, s 36(9)-(10), s 38) and when they may sit and vote (s 8(3)). A person who is an undischarged bankrupt or has been convicted on indictment of an offence carrying more than five years’ imprisonment is disqualified (s 32). Members of one House are disqualified from membership of the other House (s 34(2)).

• Public office holders, statutory office holders, and senior public servants. Schedule V and ss 36-37 list numerous offices and categories. Persons holding listed offices either are disqualified outright (Part 1 Schedule V, s 34) or must vacate their office on being declared elected (Part 2 Schedule V, s 37). Section 36 captures Commonwealth and other State Crown offices and those appointed by those governments, requiring prior resignation or otherwise forbidding taking an oath until resignation (s 36(1), (10)); it provides for formal exemptions by Order in Council recommended by both Houses (s 36(2)-(4)). Practically, a wide range of senior public servants, tribunal members, regulators and heads of agencies are affected by the lists in Schedule V.

• Ministers and Parliamentary Secretaries. Section 43 caps principal executive offices at 17 and requires at least one such office to be held by a Legislative Council member (s 43(1)-(3)). Appointees must take the oath in Schedule VI before performing functions (s 43(4)). Parliamentary Secretaries are appointed from members and receive allowances under the Salaries and Allowances Act 1975 (s 44A(1), (4)-(5)). Persons who accept two or more principal executive offices cannot draw more than one salary (s 44).

• Administrative agencies that must record and publish Orders in Council. The Clerk of the Parliaments must keep copies of Orders made under ss 36 and 42 (ss 36(7), 42(4)). The Government Printer/Government Gazette plays a role because publication in the Gazette triggers commencement or delayed effect for Orders (s 36(5)-(6); s 42(3)).

• Electoral administration officers and applicants to courts. Electoral Registrars are obliged to amend or compile rolls on commencement to reflect changed qualifications or districting (s 48). Persons with standing to challenge membership or vacancies are limited to electors entitled to vote for a Legislative Assembly seat in a general election (s 41(1)). Court procedure requires security for costs and plaintiffs in actions under the Act must supply a $200 security for costs into court before commencing (s 50).

• Parliamentary officers and police. Section 51 immunises the President, Speaker, Chairmen of Committees and certain other parliamentary officers, and members of the Police Force, from actions for acts done under standing orders or under the Parliamentary Privileges Act 1891 (as cited) or purportedly under orders or resolutions of a House.

• Third parties with contractual or administrative relations to members. The Act affects bodies whose membership must be vacated on election (Schedule V Part 3). Those boards and committees must manage membership churn when a member stands for or is elected to Parliament.

Diffusely affected groups include voters (through restrictions on where tax or appropriation bills may originate and on Council amendment powers, s 46), and political parties (through ministerial caps, vacancy mechanics and timing provisions affecting when members can take seats and when elections trigger vacancies, ss 8, 21, 36-38).

Who pays and who decides

• Individual candidates and office holders pay costs when required to resign, to forfeit a public post to take a parliamentary seat, or to seek relief. The cash costs in the statute are modest and procedural: security for Court of Appeal proceedings up to $500 (s 41(2)) and $200 security for costs for plaintiffs in actions under the Act (s 50).
• The Governor in Council and Parliament divide decision rights over exempting offices and amending Schedule V. The Governor acts by Order in Council but only on recommendation of both Houses (ss 36(2)-(4), 42(1)-(2)). The Clerk of the Parliaments and the Government Gazette are administrative implementers (ss 36(7), 36(5), 42(4)).

Timing and transition costs

• Timing provisions (for example s 8’s 22 May reference and s 36(9)-(10) 21‑day rule) create windows during which a person must resign or forfeit a seat; such deadlines produce opportunity costs for office holders who must choose between remaining in office and standing for election. The Act assigns the cost of timing compliance to the individual member or office holder while assigning the decision right on exemptions to the combined Houses plus Governor.

In sum, the Act affects elected persons, a broad set of public office holders catalogued in Schedule V, ministers and Parliamentary Secretaries, parliamentary officers, the Clerk of the Parliaments and electoral administrators, with decision rights shared between Parliament and the Governor in Council and modest statutory monetary procedural costs imposed on litigants.

Duties imposed by the Act

• Resignation and cessation duties for certain office holders: Persons holding offices listed in Part 2 of Schedule V or bodies in Part 3 must vacate those offices when declared elected to the Legislature (s 37(3)). Persons to whom s 36 applies (Crown offices in Commonwealth/state service and certain appointments to commissions etc.) must resign or otherwise cease to hold their office before taking the oath or within prescribed timing windows or their seat will become vacant (s 36(9)-(10)).

• Oath/affirmation duty before acting: Ministers and Parliamentary Secretaries must take the oath or affirmation set out in Schedule VI before performing any function of the office (s 43(4), s 44A(6)); members of the Executive Council have a prescribed oath in Schedule VI Division 2 (s 45).

• Publication and administrative record‑keeping: The Governor in Council’s Orders under ss 36 and 42 must be published in the Government Gazette to take effect (s 36(5)-(6); s 42(3)); the Clerk of the Parliaments must keep copies of Orders under ss 36 and 42 (s 36(7); s 42(4)).

• Electoral roll revision duty: Electoral Registrars must immediately amend rolls on commencement of the Act to move electors into newly created Provinces or Districts (s 48).

• Procedural duties in litigation: Plaintiffs seeking civil recovery under the Act must commence actions within three months (s 49) and must first pay $200 into court as security for costs (s 50). Applicants to the Court of Appeal under s 41(1) must follow Rules of Court and, if not the person in respect of whom the declaration is sought, provide security for costs not exceeding $500 (s 41(2)).

Rights created or preserved by the Act

• Right to seek a court declaration: A defined class of persons (those entitled to vote for the election of a Legislative Assembly member at a general election) may apply to the Court of Appeal for declarations on whether elections are void by operation of s 35 or whether seats have become vacant under ss 36/38 or offices vacated under s 37 (s 41(1)). The Court’s jurisdiction is a statutory right allocated to electors.

• Parliamentary relief via resolution: The Legislature may by resolution passed by both Houses direct that a person’s becoming the holder of specified offices at the material time be disregarded for purposes of s 38 (s 39(2)). Such resolutions operate despite prior court proceedings under s 41 and may have retrospective effect (s 39(3)).

• Protection of parliamentary proceedings: Proceedings of either House are not invalidated by the presence of persons who may later be found unqualified under the Electoral Act 1907 s 76A or by disqualification under ss 32 or 34 or by seats becoming vacant (s 40). This is a right of finality for Acts and proceedings.

• Executive appointment rights and constraints: The Governor in Council has the power to designate the 17 principal executive offices (s 43(2)) and to appoint Parliamentary Secretaries (s 44A(1)); but these powers are constrained by statutory limits such as the cap of 17 and the requirement that at least one such office be held by a Legislative Council member (s 43(1), (3)) and by salary rules (s 44).

• Procedural protections and immunities for parliamentary officers: No action lies against the President, Speaker, Chairman of Committees, other officers of either House, or police for actions done under standing orders or purportedly under the Parliamentary Privileges Act 1891 (s 51). This protects the exercise of procedural powers and those who implement them.

Discretion and required approvals

• Governor in Council discretion to amend Schedule V (s 42(1)) and to exempt offices from s 36 (s 36(2)), but the discretion is circumscribed: an Order in Council will be made only if recommended by resolution passed by both Houses (s 36(4), s 42(2)). The dual requirement places a political check on executive discretion.

Timing duties and effective dates

• Several statutory duties have explicit timing consequences: a member elected at a general election cannot sit or vote before 22 May next following day of election (s 8(3)); seats may become vacant at particular future dates if resignation or cessation does not occur (s 36(9), s 36(10)(b)). Orders adding offices to Part 1, Part 2 or Part 3 of Schedule V take effect after 30 days from Gazette publication (s 42(3)(a)); other Orders take effect on publication (s 42(3)(b)). Orders under s 36 take effect on publication, except when revoking an exemption which takes effect 30 days after publication (s 36(5)-(6)).

The Act therefore creates both affirmative duties on office holders to manage resignation and oath‑taking and institutional decision rights for Parliament and the Governor in Council, while conferring rights of judicial review and parliamentary relief that are constrained by standing rules, time bars and security orders.

The Act does not create an extensive penalty regime of fines or imprisonment within its text for breaches of most of its membership or procedural provisions. Enforcement is primarily institutional and remedial; the Act relies on vacatur, disqualification and declaration mechanisms, with a small number of procedural monetary requirements tied to litigation.

Mechanisms of enforcement

• Vacancy and disqualification as primary sanction. The core enforcement tool is removal from Parliament: a person becomes disqualified for membership for bankruptcy or certain indictable convictions (s 32). Section 38 sets out circumstances under which seats are vacated (e.g., loss of qualification under the Electoral Act 1907 s 76A; disqualification by ss 32 or 34; becoming a person to whom ss 36 or 37 applies; taking insolvency relief; being of unsound mind; acquiring foreign allegiance; or failing to attend a session without permission). The outcome is automatic vacatur, subject to s 39 relief.

• Parliamentary relief that can override vacancy. The Legislature may by resolution direct that a person’s appointment to a specified office at the material time be disregarded for purposes of s 38 and such a resolution has effect even if court proceedings have been commenced or a Supreme Court declaration has been made under s 41 (s 39(2)-(3)). This is a remedial instrument that allows Parliament to neutralise a statutory disqualification retrospectively.

• Judicial declarations in the Court of Appeal. Section 41 grants the Court of Appeal jurisdiction to declare whether an election is void by operation of s 35, whether seats have become vacant by operation of ss 36 or 38, or whether an office has been vacated by operation of s 37. Standing is limited to electors entitled to vote for election of a Legislative Assembly member at a general election (s 41(1)). The Court’s declaratory jurisdiction is the judicial mechanism to enforce membership rules.

• Procedural monetary constraints for litigants. For proceedings under s 41, an applicant other than the person in respect of whom the declaration is sought must give security for costs not exceeding $500 as the Court may direct (s 41(2)). For actions to recover forfeitures or penalties under the Act, plaintiffs must pay $200 into court as security for costs (s 50). These amounts are modest but function as gatekeeping costs that restrict opportunistic litigation.

• Time bars. Actions to recover a forfeiture, penalty or sum under the Act must be commenced within three months from when the right first arose (s 49). Time bars narrow windows for enforcement.

• Immunity for parliamentary officers and members of the police. Section 51 provides immunity from suit for parliamentary officers and police acting under standing orders or colourably under provisions relating to parliamentary privilege. That insulates internal parliamentary enforcement activities from certain civil suits.

Practical enforcement consequences and trade‑offs

• The Act privileges institutional resolution of membership disputes by Parliament (s 39) and preserves legislative acts from collateral attack (s 40). That creates a trade‑off between judicial review and parliamentary finality: a Court of Appeal can make declarations under s 41, but Parliament can use s 39 to resolve or ignore disqualification consequences. Section 39(3) expressly says a resolution has effect notwithstanding Supreme Court proceedings and any declaration made by the Supreme Court under s 41. This allocates a strong remedial competence to Parliament.

• The Act reduces the risk that legislative business will be invalidated by post hoc challenges to member qualifications (s 40). That reduces operational risk for legislative acts but makes parliamentary determination of membership outcomes politically consequential.

• The modest monetary securities (s 41(2), s 50) and short limitation period for monetary recovery (s 49) limit private enforcement and shift enforcement toward political and parliamentary remedies.

No direct criminal sanctions are created in the Act for violations of its membership or office vacatur provisions; rather, the compliance consequences are institutional removal, inability to sit, and the procedural costs of litigation. The Act uses timing and publication rules (s 36(5)-(6), s 42(3)) as administrative enforcement levers that set effective dates for changes to the Schedule and exemptions. The Governor in Council’s power to make Orders (ss 36, 42) is conditional on both Houses’ recommendations (ss 36(4), 42(2)), giving Parliament an enforcement and gatekeeping role over exemptions and Schedule amendments.

The Act is explicitly a statutory companion to multiple other Western Australian Acts and to the Constitution Act 1889. Its operation frequently depends on cross‑references and lists of offices anchored in other statutes.

Key interactions evident on the statute face

• Constitution Act 1889. The Act amends and consolidates provisions of the earlier Constitution Act 1889 (Preamble). Section 21 includes a savings reference to the Constitution Act 1889 with respect to the Assembly’s cessation at transition (s 21(2)).

• Electoral Act 1907. The Act repeatedly cross‑references the Electoral Act 1907. Section 33 refers to the Electoral Act 1907 s 149A(2) in preserving the status of holders of offices unless specifically disqualified by ss 34-42. Section 36 and the general Division 3 use the Electoral Act as the primary statute defining electoral qualifications (s 40 refers to Electoral Act 1907 s 76A). Many of the rules about who is disqualified for membership or who may be declared elected are linked to Electoral Act provisions.

• Schedule V and numerous enabling Acts. Schedule V lists specific offices and bodies created under a large number of other Acts (for example, the Auditor General under the Auditor General Act 2006; the Director of Public Prosecutions under the Director of Public Prosecutions Act 1991; tribunal members under their enabling Acts such as the State Administrative Tribunal Act 2004). Schedule V therefore imports external statutory institutions into the Act’s membership framework. Section 42 provides a mechanism for updating Schedule V by Order in Council, subject to a resolution of both Houses (s 42(1)-(3)), thereby creating a statutory interface between the Act and the legislative framework creating or abolishing listed offices.

• Salaries and Allowances Act 1975. Section 44A(5) makes Parliamentary Secretary allowances subject to the Salaries and Allowances Act 1975 s 6. The Act therefore defers to another statute for remuneration detail.

• Defence Act 1903 (Commonwealth). Section 36(8) expressly excludes Citizen Forces or Reserve Forces within the meaning of the Commonwealth Defence Act 1903 from the operation of s 36, creating a specific cross‑jurisdictional carve‑out.

• Government Gazette and administrative law practice. Several provisions depend on publication in the Government Gazette for effect (ss 36(5)-(6), 42(3)). That engages standard administrative practice for commencing subordinate instruments and makes Gazette publication the operational link between executive orders and the Act’s operation.

Tensions and administrative coordination points

• Updating Schedule V and other Acts that create or abolish listed offices. The compilation table shows that Schedule V has been updated over many years (see the extensive compilation table entries). The Act’s s 42 process requires both Houses to pass a resolution recommending an Order in Council before the Governor may amend Schedule V; that creates a requirement for legislative concurrence with executive action and therefore a coordination point between the legislature and departments that propose additions or removals.

• Overlap with Electoral Act procedural rules. The Act defers in places to the Electoral Act for definitions and some operational rules (for example, disqualification under the Electoral Act s 76A and Electoral Act s 149A(2)). Practitioners must consult both statutes: the Constitution Acts Amendment Act 1899 defines the constitutional consequences while the Electoral Act sets out electoral qualification mechanics.

• Parliamentary privilege and immunity acts. Section 51 references “An Act for defining the Privileges, Immunities, and Powers of the Legislative Council and Legislative Assembly of Western Australia, respectively” (historical footnote cites the Parliamentary Privileges Act 1891). The immunity in s 51 interacts with rules and precedents about parliamentary privilege and excludes civil suits for acts done under standing orders.

• Executive Council Letters Patent. Section 45A(4) states that the Executive Council remote‑meeting provision applies despite any Letters Patent relating to the office of Governor. That clause resolves potential conflict with constitutional instruments governing the Governor’s office and establishes a statutory override for meeting methods.

Operational implication

• Because Schedule V ties the Act’s membership consequences to offices created by many other Acts, amendments to those other Acts create a practical need to update Schedule V. Section 42 (Orders in Council on recommendation of both Houses) is the mechanism to align this Act and subordinate statutes. The compilation table demonstrates frequent updates; statutory users must therefore consult up‑to‑date compilations and current versions of both this Act and the statutes listed in Schedule V.

In short, the Act is designed to be read in a web of statutory relations: it sets constitutional membership consequences and provides the procedural mechanisms that interact with the Electoral Act, the Salaries and Allowances Act, the enabling Acts of many offices, and administrative law practices like Gazette publication. Practitioners must therefore treat it as part of a statutory bundle rather than as an isolated instrument.

The compilation table appended to the Act is lengthy and records successive reprints and many amending Acts from 1900 through to the 2020s. The Act as compiled in 2026 incorporates substantial change over time. Key mechanical updates and insertion dates that affect present operation include:

• Reconstitution of chamber sizes and modern insertions. Section 5 (Legislative Council consisting of 37 members) and section 18 (Legislative Assembly consisting of 59 members) were inserted by No. 20 of 2021 (s 6 and s 8 respectively). Those are recent structural changes to representation and are explicitly noted as inserted: s 5 "inserted: No. 20 of 2021 s. 6" and s 18 "inserted: No. 20 of 2021 s. 8."

• Executive Council remote meetings. Section 45A permitting remote participation in Executive Council meetings was inserted by No. 34 of 2020 s 84 (s 45A inserted: No. 34 of 2020 s. 84). This is a modern technological update that overrides Letters Patent where necessary (s 45A(4)).

• Parliamentary Secretaries. Section 44A, defining Parliamentary Secretaries, their appointment and allowance rules, was inserted by No. 38 of 1990 s 4 and has been amended subsequently, including by the Salaries and Allowances Act link (s 44A(5), s 44A(6)).

• Expansion and continued updating of Schedule V. Schedule V has been repeatedly amended over many years; the compilation table shows continuous additions and deletions across the 1990s, 2000s and 2010s into the 2020s. The division into Part 1 (disqualifying offices), Part 2 (offices or places vacated on election) and Part 3 (bodies whose membership is vacated on election) has been maintained and adjusted.

• Judicial procedural changes. The Court of Appeal jurisdiction and associated procedural provisions were inserted or updated in the 1984-2004 period (e.g., s 41 inserted: No. 78 of 1984 s 12; amended No. 45 of 2004 s 37). Section 39 (provision for relief) was inserted No. 78 of 1984 s 12 and amended subsequently (No. 40 of 1987 s 13).

• Salary and appointment adjustments. Section 43 (principal executive offices) has accrued amendments across decades (noted in the margin notes for s 43) to reflect changes in the executive machinery and the return of powers over designation to the Governor in Council. Section 44 (no double salary) remains a stable restriction.

• Compilation and reprint history. The Act has been reprinted numerous times (see reprint notes for 1964, 1967, 1971, 1984, 1989, 1993, 1995, 1999, 2000, 2001, and multiple reprints up to Reprint 21 as at 9 Feb 2018). Reprints incorporate prior amendments and are milestones in the Act’s consolidation.

• Recent statutory insertions and uncommenced provisions. The compilation table records a number of Acts with uncommenced provisions and future commencement dates (for example, State Development Act 2025 provisions with commencement in 2026). The Schedule V entries show amendments up to the mid‑2020s (including Acts of 2024 and 2025), signifying continued updating of the list of disqualifying offices.

The amendment history in the compilation table illustrates a pattern: the Act is periodically modernised to reflect changes in administrative structures (new agencies, commissions, tribunals), electoral reforms, and executive practice (e.g., remote meetings). Practitioners must consult the up‑to‑date compilation or online reprint because Schedule V in particular is a moving target. The Act itself provides the mechanism for updating Schedule V (s 42), but the compilation table and the marginal notes record the legislative provenance of each change.

The compilation supplied contains no case law, and the statute text does not cite judicial decisions. The Act does, however, authorise specific judicial involvement and prescribes procedural conditions for litigating membership disputes.

Statutory litigation routes and limits

• Court of Appeal jurisdiction. Section 41 grants the Court of Appeal power to decide whether by operation of s 35 the election of a person is void, or whether by operation of s 36 or s 38 a seat has become vacant, or whether by operation of s 37 an office has been vacated. The locus standi for such applications is limited to persons entitled to vote for the election of a Legislative Assembly member at a general election (s 41(1)). The Rules of Court apply (s 41(1)) and the applicant must provide security for costs not exceeding $500 when the application is brought by a person other than the subject of the declaration (s 41(2)).

• Interaction with parliamentary relief. Section 39 allows Parliament to pass resolutions to disregard a person’s holding of an office for purposes of s 38. Section 39(3) expressly states resolutions have effect notwithstanding proceedings before the Supreme Court under s 41 and any declaration under that section. This statutory text means that even an adverse judicial declaration can be overridden by a parliamentary resolution.

• Procedural constraints on civil actions. Sections 49 and 50 impose a three‑month limitation period for actions to recover forfeitures, penalties or sums under the Act (s 49), and require plaintiffs to pay $200 into court as security for costs (s 50). Those procedural bars will limit the incidence and practical shape of litigation under the Act.

Absence of reported cases in the compilation

• The provided statutory compilation contains no named cases or judicial decisions, and the Notes and compilation table do not summarise judicial treatments. Therefore this section can only record the Act’s judicial mechanisms and procedural constraints but cannot report any decisions that have interpreted or tested these provisions.

Practical litigation considerations

• Standing and costs. The standing limits in s 41(1) reduce the pool of potential applicants to those electors who voted in a Legislative Assembly general election, narrowing judicial oversight. The cost securities in s 41(2) and s 50 are modest but act as practical gatekeepers to discourage low‑value or vexatious claims.

• Parliamentary override. Because s 39(3) allows Parliament to render relief effective regardless of Supreme Court proceedings or declarations under s 41, litigants face the prospect that a judicial victory as to vacancy or disqualification could be superseded by a parliamentary resolution. This is an important institutional risk that any litigant must evaluate.

• Time bars for recovery actions. The three‑month commencement window in s 49 is short compared to many statutory limitation periods; litigants must act promptly.

Because the compilation contains no cases, practitioners must seek case law elsewhere (not provided in the source) to understand how courts have interpreted the Act’s ambiguities and how judicial practice has developed in relation to s 41 declarations, s 39 relief, and the privileges immunity in s 51.

The Act contains multiple timing, standing and publication requirements and interlocking provisions that are easy to miss and have practical ramifications. The following are concrete traps grounded in the text.

1. 22 May and 21‑day deadlines for Legislative Council members (s 8 and s 36)

• A member elected at a general election shall not sit or vote before 22 May next following the day of his election (s 8(3)). Section 8(2) makes the seat vacant at the expiration of 4 years beginning on 22 May next following the day of election. Section 36(9) uses the same 22 May reference for members of the Legislative Council elected at a general election who hold offices that fall within s 36: their seat becomes vacant on 22 May if they have not, before that date, resigned from or otherwise ceased the office (s 36(9)). For all other elections covered by s 36, subsection 10(b) makes the seat become vacant 21 days after the date on which the person is declared elected if they have not resigned or otherwise ceased to hold the office. Practitioners must carefully calculate these dates; missing the resignation window will produce automatic vacatur.

2. Oath/affirmation before performing functions (ss 43(4), 44A(6), Schedule VI)

• Ministers and Parliamentary Secretaries must take prescribed oaths or affirmations before performing any functions of office (s 43(4), s 44A(6)). Failure to do so may expose the appointee to the consequences of acting without having complied with the prerequisite. The oath forms themselves are in Schedule VI and require compliance with the Oaths, Affidavits and Statutory Declarations Act 2005 for insertion.

3. Orders in Council require both Houses’ recommendation (ss 36(2)-(4), 42(1)-(2))

• The Governor cannot unilaterally amend Schedule V or exempt offices under s 36; the making of the Order must be recommended by a resolution passed by both Houses (ss 36(4), 42(2)). This is a procedural lock that requires political coordination. Expect delays or deadlocks where either House is unwilling to recommend.

4. Parliamentary relief can override judicial pronouncements (s 39(3))

• If Parliament passes a resolution under s 39(2) directing that a person’s holding of a specified office be disregarded for the purposes of s 38, that resolution has effect notwithstanding Supreme Court proceedings and any declaration made under s 41. Litigation aimed at invalidating an election or seeking vacatur can be neutralised by a subsequent resolution of both Houses. Litigants must weigh this political override risk.

5. Standing for Court of Appeal challenges is narrow (s 41(1))

• Only persons entitled to vote for the election of a member of the Legislative Assembly at a general election may apply to the Court of Appeal under s 41(1). Citizens who did not vote, or who are electors in other contexts, lack standing under the Act. This narrow standing is a potential surprise for would‑be challengers.

6. Publication timing affects when Orders take effect (ss 36(5)-(6), 42(3))

• Orders in Council and amendments to Schedule V are effective either on publication in the Government Gazette or after 30 days, depending on the type of order (ss 36(5)-(6), 42(3)). That creates a built‑in delay that can affect whether an office is disqualifying at a particular moment and whether a person’s seat is affected. Check Gazette dates.

7. Guarantees against invalidating proceedings despite unqualified members (s 40)

• Section 40 protects parliamentary proceedings from invalidation by the presence of an unqualified person. That reduces the leverage of procedural challenges aimed at overturning legislation or parliamentary acts and places emphasis on membership remedies rather than collateral annulment of laws.

8. Monetary securities and short limitation period for recovery (ss 49-50)

• Actions to recover forfeitures or penalties under the Act must be commenced within three months (s 49) and require a $200 security for costs (s 50). Those procedural constraints can bar suits if not promptly lodged and funded.

9. Single‑salary rule for holders of multiple principal executive offices (s 44)

• A person accepting two or more principal executive offices cannot receive more than one salary (s 44). That affects ministers who might be appointed to multiple portfolios and has implications for remuneration and political bargaining.

10. Cap on number of principal executive offices and Council representation requirement (s 43(1)-(3))

• Principal executive offices are limited to 17 and at least one must be held by a Legislative Council member. That interacts with coalition negotiations and appointment strategy: a government cannot expand the executive beyond the cap and must maintain Council representation among ministers.

11. The Act references many now‑amended or repealed bodies (Schedule V)

• Schedule V references numerous bodies and Acts, some of which have been repealed or amended. The compilation includes footnotes indicating repeals and renamings. Practitioners must reconcile Schedule V entries with current law and not rely on the Schedule alone without checking amendments listed in the compilation table.

12. Executive Council remote meetings override Letters Patent (s 45A(4))

• Section 45A(4) clarifies that remote meeting provisions operate despite any Letters Patent. Users should not assume archaic constitutional instruments forbid remote participation, but should still observe any other procedural or statutory requirements.

These are taken directly from the Act. Failure to attend to these provisions can result in automatic vacatur, ineligibility to sit, or wasted litigation spend.

This section provides concrete, source‑grounded steps and checklists for the main affected actors: candidates/MPs, public officeholders, ministers and Parliamentary Secretaries, and officers managing Orders or Gazette publication.

For candidates and current or prospective members

• Check disqualification lists and definitions. Before standing, verify whether you are disqualified under s 32 (bankruptcy, certain indictable convictions) or by holding any office listed in Schedule V Part 1 (s 34). Also check whether you hold an office that will require vacation if elected (Schedule V Part 2 or 3 and s 37).
• For persons holding offices captured by s 36: resign in time. If s 36 applies to you (Crown service for Commonwealth/another State; appointments by those governments; or membership of particular commissions appointed by those governments), you must resign or otherwise cease to hold the office before taking the oath (s 36(1), (10)(a)). If you are elected at a general election to the Legislative Council and s 36 applies, your seat will become vacant on 22 May next following the election if you have not resigned before that date (s 36(9)). For non‑general‑election cases, your seat becomes vacant 21 days after declaration if you have not resigned (s 36(10)(b)). Do not assume grace periods beyond those statutory timelines.
• Observe the 22 May rule for Legislative Council membership. A member elected at a general election cannot sit or vote before 22 May (s 8(3)). Plan office‑holding and resignation timing accordingly.
• Take the required oath or affirmation if you are a minister or Parliamentary Secretary. Ministers and Parliamentary Secretaries must take the oath or affirmation in Schedule VI before performing functions (s 43(4), s 44A(6)). Ensure compliance with the Oaths, Affidavits and Statutory Declarations Act 2005 as required by Schedule VI.
• If in doubt, plan for early resignation. Where holding a public office may attach disqualification consequences, the legally safe course is to resign before nomination or election to avoid automatic vacatur.

For public office holders and statutory officeholders

• Review whether your office is in Schedule V. If it is in Part 1, you likely cannot be a member of the Legislature (s 34). If in Part 2 or Part 3, you will need to vacate on election (s 37). Confirm current compilation because Schedule V has been amended frequently.
• Coordinate with employer/government agency on timing of resignation and transitional arrangements. The Act’s timing rules are precise (s 36(9)-(10); s 37(3)). Agencies should have processes to handle imminent candidatures and the statutory consequences for posts that must be vacated.
• If you believe an office should be exempted from s 36, the path is by Order in Council recommended by a resolution of both Houses (s 36(2)-(4)). The practical route is political: secure both Houses’ recommendation, and then the Governor in Council may make the Order. Administrative officers should ensure publication in the Government Gazette and forward copies to the Clerk of the Parliaments (s 36(5)-(7)).

For ministers and Parliamentary Secretaries

• Ensure the cap and Council representation rules are observed. The Government cannot exceed 17 principal executive offices (s 43(1)-(2)) and at least one office must be held by a Legislative Council member (s 43(3)). When planning appointments, ensure this numerical constraint is respected.
• Single‑salary compliance. If a minister holds two or more offices liable to be vacated on political grounds, that person cannot draw more than one salary (s 44). Payroll and remuneration officers must apply the Salaries and Allowances Act 1975 rules and ensure only one salary is paid.
• For Parliamentary Secretaries, verify allowances are determined under the Salaries and Allowances Act 1975 s 6 (s 44A(5)); ensure the instrument of appointment specifies functions (s 44A(3)) and that appointees take the oath (s 44A(6)).

For the Clerk of the Parliaments, Government Gazette and administrative officers

• Maintain records of Orders in Council under ss 36 and 42. The Clerk must keep copies of every Order in Council (ss 36(7), 42(4)). Ensure the Gazette publication date is recorded because effective dates depend on it (ss 36(5)-(6), 42(3)).
• When preparing orders to amend Schedule V or exempt offices, confirm both Houses have passed the recommending resolution because an Order is valid only if so recommended (s 36(4), s 42(2)). Where revocations are made under s 36(3), note the 30‑day delayed effect in s 36(6).

For electoral officers and registrars

• Immediately after commencement or after relevant amendments, revise electoral rolls as required by s 48. The Electoral Registrar must remove and transfer names between rolls when qualifications shift by operation of this Act (s 48(1)-(2)). Where a new Province or District is created, compile and forward rolls as required (s 48(2)).

For litigants and counsel

• Check standing and time bars. Under s 41(1) only persons entitled to vote for the election of a Legislative Assembly member at a general election may apply to the Court of Appeal for declarations as to election voidness or vacancy. For actions to recover forfeitures or penalties under the Act, commence within three months (s 49).
• Prepare to meet security