Constitution Act 1902

This Act may be cited as the Constitution Act 1902.

Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State’s first people and nations.

Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales—

have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and

have made and continue to make a unique and lasting contribution to the identity of the State.

Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales.

In this Act, unless the context or subject-matter otherwise indicates or requires—

Periodic Council election means an election held for the return of 21 Members of the Legislative Council.

The Legislature means His Majesty the King with the advice and consent of the Legislative Council and Legislative Assembly.

For sections 22H, 22I and 32, in relation to ascertaining a quorum for, or determining a question in, a House of Parliament, a Member of Parliament is taken to be present at a meeting of the House if the Member attends the meeting remotely using an audio visual link in accordance with—

the Standing Rules and Orders of the House, or

a resolution or sessional order of the House.

Subsection (2) has effect for a House of Parliament only if the Presiding Officer of the House has declared that—

it will be impracticable for Members of the House to meet in person during a specified period due to a public emergency, including a public health crisis, natural disaster, major accident, civil disturbance or act of terrorism, and

a majority of the Members of the House have requested remote attendance of the House be permitted under this section during the specified period.

A Member is taken to have made a request under subsection (3)(b) if the following person has made the request on the Member’s behalf—

if the Member belongs to a party—the Member’s party leader,

a Member of Parliament nominated by the Member to the Presiding Officer.

For the purposes of this Act, the boundaries of New South Wales shall comprise all that portion of Australia lying between the one hundred and twenty-ninth and one hundred and fifty-fourth degrees of east longitude, reckoning from the meridian of Greenwich and northward of the fortieth degree of south latitude, including all the islands adjacent in the Pacific Ocean within the latitude aforesaid, and also including Lord Howe Island, save and except the territories comprised within the boundaries of South Australia, Victoria, and Queensland, as at present established.

Editorial note.

For the boundary between NSW and Victoria see the proclamation published in Gazette No 22 of 15.2.2006, p 825.

The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever—

Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.

If the Legislative Assembly passes any Bill appropriating revenue or moneys for the ordinary annual services of the Government and the Legislative Council rejects or fails to pass it or returns the Bill to the Legislative Assembly with a message suggesting any amendment to which the Legislative Assembly does not agree, the Legislative Assembly may direct that the Bill with or without any amendment suggested by the Legislative Council, be presented to the Governor for the signification of His Majesty’s pleasure thereon, and shall become an Act of the Legislature upon the Royal Assent being signified thereto, notwithstanding that the Legislative Council has not consented to the Bill.

The Legislative Council shall be taken to have failed to pass any such Bill, if the Bill is not returned to the Legislative Assembly within one month after its transmission to the Legislative Council and the Session continues during such period.

If a Bill which appropriates revenue or moneys for the ordinary annual services of the Government becomes an Act under the provisions of this section, any provision in such Act dealing with any matter other than such appropriation shall be of no effect.

If the Legislative Assembly passes any Bill other than a Bill to which section 5A applies, and the Legislative Council rejects or fails to pass it or passes it with any amendment to which the Legislative Assembly does not agree, and if after an interval of three months the Legislative Assembly in the same Session or in the next Session again passes the Bill with or without any amendment which has been made or agreed to by the Legislative Council, and the Legislative Council rejects or fails to pass it or passes it with any amendment to which the Legislative Assembly does not agree, and if after a free conference between managers there is not agreement between the Legislative Council and the Legislative Assembly, the Governor may convene a joint sitting of the Members of the Legislative Council and the Members of the Legislative Assembly.

The Members present at the joint sitting may deliberate upon the Bill as last proposed by the Legislative Assembly and upon any amendments made by the Legislative Council with which the Legislative Assembly does not agree.

No vote shall be taken at the joint sitting.

After the joint sitting and either after any further communication with the Legislative Council in order to bring about agreement, if possible, between the Legislative Council and the Legislative Assembly, or without any such communication the Legislative Assembly may by resolution direct that the Bill as last proposed by the Legislative Assembly and either with or without any amendment subsequently agreed to by the Legislative Council and the Legislative Assembly, shall, at any time during the life of the Parliament or at the next general election of Members of the Legislative Assembly, be submitted by way of referendum to the electors qualified to vote for the election of Members of the Legislative Assembly.

The referendum shall be held and conducted, if the Constitution Further Amendment (Referendum) Act 1930 or any other Act relating to the manner in which the referendum shall be held and conducted is in force, in accordance with that Act or with any other such Act, but if that Act is not in force and no such other Act is in force the law for the time being in force relating to the holding and conduct of a general election of Members of the Legislative Assembly shall, mutatis mutandis, apply to and in respect of the holding and conduct of the referendum, with such modifications, omissions, and additions as the Governor may by notification published in the Gazette declare to be necessary or convenient for the purposes of such application.

If at the referendum a majority of the electors voting approve the Bill it shall be presented to the Governor for the signification of His Majesty’s pleasure thereon and become an Act of the Legislature upon the Royal Assent being signified thereto, notwithstanding that the Legislative Council has not consented to the Bill.

For the purposes of this section the Legislative Council shall be taken to have failed to pass a Bill if the Bill is not returned to the Legislative Assembly within two months after its transmission to the Legislative Council and the Session continues during such period.

This section shall extend to any Bill whether it is a Bill to which section 7A applies or not.

And in the application of this section to a Bill to which section 7A applies—

the submission of the Bill to the electors by way of referendum in accordance with this section shall be a sufficient compliance with the provisions of section 7A which require the Bill to be submitted to the electors,

the referendum under this section shall, notwithstanding anything contained in section 7A, be held upon a day which shall be appointed by the Governor, and

the day so appointed shall, notwithstanding anything contained in subsection (2), be a day during the life of the Parliament and not sooner than two months after the Legislative Assembly has passed a resolution in accordance with that subsection for the purposes of such referendum.

A joint sitting of the Members of the Legislative Council and the Members of the Legislative Assembly for the purposes of this section may be convened by the Governor by message to both Houses of the Parliament.

At such joint sitting the President of the Legislative Council or in his absence the Speaker of the Legislative Assembly shall preside, and until standing rules and orders governing the procedure at joint sittings have been passed by both Houses and approved by the Governor, the Standing Rules and Orders of the Legislative Council shall so far as practicable apply.

Where a Bill is presented to the Governor for the signification of His Majesty’s pleasure in accordance with section 5A, the words of enactment shall be as follows—

BE it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of New South Wales in Parliament assembled, in accordance with the provisions of section 5A of the Constitution Act 1902, as amended by subsequent Acts, and by the authority of the same, as follows—

Any alteration of a Bill necessary to give effect to this subsection shall not be deemed to be an amendment of the Bill.

Where a Bill is presented to the Governor for the signification of His Majesty’s pleasure in accordance with section 5B, the words of enactment shall be as follows—

BE it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of New South Wales in Parliament assembled, with the approval of the electors, in accordance with the provisions of section 5B of the Constitution Act 1902, as amended by subsequent Acts, and by the authority of the same, as follows—

Any alteration of a Bill necessary to give effect to this subsection shall not be deemed to be an amendment of the Bill.

The Legislature may, by any Act, alter the laws in force for the time being under this Act or otherwise concerning the Legislative Council or Legislative Assembly.

The Legislative Council shall not be abolished or dissolved, nor shall—

its powers be altered,

section 11A, Division 2 of Part 3 (sections 22G, 22H, 22I and 22J excepted), the Sixth Schedule or this section be expressly or impliedly repealed or amended,

any provision with respect to the persons capable of being elected or of sitting and voting as Members of either House of Parliament be enacted, or

any provision with respect to the circumstances in which the seat of a Member of either House of Parliament becomes vacant be enacted,

except in the manner provided by this section.

A Bill for any purpose within subsection (1) shall not be presented to the Governor for His Majesty’s assent until the Bill has been approved by the electors in accordance with this section.

On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be submitted to the electors qualified to vote for the election of Members of the Legislative Assembly.

Such day shall be appointed by the Legislature.

When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.

If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty’s assent.

The provisions of this section do not apply to—

a Bill for the repeal, the amendment from time to time or the re-enactment from time to time with or without modifications of—

any of the provisions of section 15 or 38A, or

any provision for the time being in force so far as it relates to the subject-matter dealt with in any of the provisions referred to in subparagraph (i),

a provision of a Bill, being a provision which would, upon its coming into operation, be a law referred to in section 22A (5),

a provision of a Bill, being a provision with respect to the capacity of a person who holds or accepts an office of profit under the Crown specified in the Bill to be elected or to sit and vote as a Member of either House of Parliament,

a provision with respect to the persons capable of being elected or of sitting and voting as Members of either House of Parliament which applies in the same way to the persons capable of being elected or of sitting and voting as Members of the other House of Parliament, or

a provision with respect to the circumstances in which the seat of a Member of either House of Parliament becomes vacant which applies in the same way to the circumstances in which the seat of a Member of the other House of Parliament becomes vacant.

(Repealed)

In this section a reference to the Legislative Council shall be construed as a reference to the Legislative Council as reconstituted from time to time in accordance with this Act.

A Bill that—

expressly or impliedly repeals or amends section 11B, 26, 27, 28 or 29, Part 9, the Seventh Schedule or this section, or

contains any provision to reduce or extend, or to authorise the reduction or extension of, the duration of any Legislative Assembly or to alter the date required to be named for the taking of the poll in the writs for a general election,

shall not be presented to the Governor for Her Majesty’s assent until the Bill has been approved by the electors in accordance with this section.

On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be submitted to the electors entitled to vote at a general election of Members of the Legislative Assembly.

The day referred to in subsection (2) shall be appointed by the Governor under and in accordance with the Constitution Further Amendment (Referendum) Act 1930 and any Act amending or replacing that Act.

When the Bill is submitted to the electors the vote shall be taken under and in accordance with the Constitution Further Amendment (Referendum) Act 1930 and any Act amending or replacing that Act.

If a majority of the electors voting approve the Bill, it shall be presented to the Governor for Her Majesty’s assent.

Nothing contained in this section affects the operation of section 5B and a Bill to which this section would otherwise apply which has been submitted to the electors under and in accordance with section 5B and has been approved by a majority of the electors voting may be presented to the Governor for Her Majesty’s assent as if this section had not been enacted.

The provisions of this section do not apply to a provision of a Bill, being a provision which would, upon its coming into operation, be a law referred to in section 29 (2).

The provisions of this section do not apply to a provision of a Bill, being a provision that would, upon its coming into operation, be a law that amends section 52 for the purpose of extending the application of Part 9 to additional judicial offices or classes of judicial offices.