State Constitutions in Australia
Introduction
The Australian States each possess their own constitutional arrangements, consisting not of a single document but of a complex of Imperial Acts, colonial statutes, and State legislation that together form the constitutional law of the State. The State Constitutions predate the Commonwealth Constitution and continue in operation under Chapter V of the Commonwealth Constitution (ss 106–120), which preserves the Constitutions of the original States “as at the establishment of the Commonwealth” and confirms the continuing powers of the State Parliaments. Unlike the Commonwealth Constitution, which is a rigid instrument amendable only by referendum, the State Constitutions are largely flexible, subject only to certain “manner and form” requirements that entrench particular provisions.
The Reception of English Law
The legal foundation of the Australian colonies was the reception of English law. Under the doctrine of settled colonies (or terra nullius), Australia was considered to be “unsettled” at the time of colonisation, and English law was therefore received automatically. In Cooper v Stuart (1889) 14 App Cas 286, the Privy Council held that New South Wales was a “settled” colony and that English law applied “so far as it was applicable to the circumstances of the colony.” The Australian Courts Act 1828 (Imp) fixed the reception date for New South Wales and Van Diemen’s Land as 25 July 1828, from which date all English statutes of general application in force on that date became part of the law of the colonies. Other colonies had different reception dates: South Australia (28 December 1836), Victoria (1 July 1851, by separation from New South Wales), Queensland (1 December 1859, by separation from New South Wales), and Western Australia (1 June 1829).
The Colonial Laws Validity Act 1865 (Imp) confirmed that colonial legislatures could enact laws repugnant to English common law but not to English statutes that expressly applied to the colony. This Act provided the legal foundation for the development of independent colonial legal systems. The Australia Acts 1986 finally terminated the power of the United Kingdom Parliament to legislate for the States and confirmed the complete legislative independence of the State Parliaments.
The Plenary Power of State Parliaments
The State Parliaments possess plenary legislative power — that is, they may enact laws on any subject, subject only to limitations imposed by the Commonwealth Constitution and their own State Constitutions. In Union Steamship Co of Australia v King (1988) 166 CLR 1, the High Court confirmed that the grant of power to State Parliaments to make laws “for the peace, welfare, and good government” of the State confers plenary authority, not limited by any notion of what is truly for the “peace, welfare, and good government” of the State. The Court held that such words are a “formula of great generality” that does not import any limitation on the substantive content of legislation.
Manner and Form Requirements
While the State Parliaments have plenary power, their Constitutions may be entrenched by manner and form requirements — procedural restrictions on amendment that require special legislative procedures, such as a referendum or an absolute majority in both Houses. The leading authority is Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, in which the High Court held that a State Parliament may bind its successors by imposing manner and form requirements for the amendment of certain constitutional provisions, provided those requirements are themselves validly enacted. The Court held that s 7A of the Constitution Act 1902 (NSW), which required a referendum for the abolition of the Legislative Council, was binding on future Parliaments. The Australia Acts 1986 now provide that State legislation dealing with the “constitution, powers, or procedure” of the State Parliament is subject to manner and form requirements.
The Westminster System
The State Constitutions establish Westminster-style systems of responsible government, modelled on the British system. Each State has a Governor as the representative of the Crown, appointed by the King on the advice of the State Premier. The Governor exercises formal executive powers, including assenting to bills, appointing Ministers, and dissolving the Legislative Assembly, generally on the advice of the Premier and Cabinet. The Premier is the head of the State government, commanding a majority in the lower house. Ministers are drawn from Parliament and are collectively responsible to the lower house.
The Bicameral System
At Federation, all six States had bicameral Parliaments, with a Legislative Assembly (the lower house) and a Legislative Council (the upper house). Queensland abolished its Legislative Council in 1922, becoming the only State with a unicameral Parliament. The remaining States retain their Legislative Councils, with varying compositions and electoral systems. The Legislative Councils of New South Wales, Victoria, South Australia, and Tasmania are now directly elected by proportional representation, while Western Australia’s Legislative Council is elected from multi-member regions. The Legislative Councils serve as houses of review, scrutinising legislation passed by the Legislative Assembly. Most no longer possess the power to block supply bills, a reform prompted by the 1975 constitutional crisis.
State Courts Under the State Constitutions
Each State Constitution establishes a Supreme Court with inherent jurisdiction over all matters arising within the State. The State Supreme Courts also exercise federal jurisdiction under Chapter III of the Commonwealth Constitution, making them part of the integrated Australian court system. The State Constitutions guarantee the independence of the judiciary through provisions relating to judicial tenure, remuneration, and removal. Section 72 of the Commonwealth Constitution, which governs the appointment and removal of Commonwealth judges, does not apply to State judges, but State Constitutions generally provide for security of tenure until a fixed retirement age, and for removal only on the ground of proved misbehaviour or incapacity.
The Kable Doctrine
In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, the High Court held that the Commonwealth Constitution impliedly limits State legislative power over State courts. Because State courts can be invested with federal jurisdiction under Chapter III, they must retain their character as independent and impartial tribunals. A State law that requires a State court to act in a manner inconsistent with this character — for example, by ordering the detention of a particular person without trial — will be invalid. The Kable doctrine has been applied in several subsequent cases, including Fardon v Attorney-General (Qld) (2004) 223 CLR 575 (upholding preventive detention legislation) and South Australia v Totani (2010) 242 CLR 1 (invalidating a provision requiring courts to make control orders against members of declared organisations). The doctrine represents a significant constitutional limitation on State legislative power, derived from the requirement that State courts maintain their institutional integrity as repositories of federal judicial power.
Deadlock Provisions and the Abolition of Upper Houses
Each State Constitution contains provisions for resolving deadlocks between the two houses of Parliament. These provisions typically allow the Premier to request the Governor to convene a joint sitting or to appoint additional members to the Legislative Council to break the deadlock. In Queensland, which abolished its Legislative Council in 1922, the Parliament is unicameral, and legislation is passed by the Legislative Assembly alone. The abolition of the Queensland Legislative Council was achieved by the Constitution Amendment Act 1922 (Qld), following a referendum in which the people voted in favour of abolition. This remains the only abolition of a State upper house in Australia, though there have been periodic proposals for abolition or reform in other States.