Tasmanian Constitution | |
---|---|
Overview | |
Original title | Constitution Act 1934 (Tas), s. 1 |
Jurisdiction | Tasmania |
Ratified | 18 October 1934 |
Date effective | 1 January 1935 |
System | State Government |
Government structure | |
Branches | |
Chambers | |
Executive | See Tasmanian Government |
Judiciary | See Judiciary of Australia |
History | |
Amendments | 71 |
Last amended | Expansion of House of Assembly Act 2022 |
Supersedes | Constitution Act 1855 (Tas) |
The Constitution of Tasmania also known as the Tasmainian Constitution, sets out the rules, customs and laws that provide for the structure of the Government of the Australian State of Tasmania. Like all state constitutions it consists of both unwritten and written elements which include:
The Constitution Act 1934 has been described as the worst of state constitutions by constitutional academic George Williams, most notably for its omission of key institutions such as the Supreme Court and the Governor and lack of effective entrenchments. [1]
Tasmania was first colonised by Europeans as 'Van Diemen's Land' in 1804, [1] named after Anthony van Diemen, Governor-General of the Dutch East Indies, who had sent Abel Tasman to explore the island in 1642. [2] Van Diemen's land was originally apart of the Colony of New South Wales and was governed by a Lieutenant Governor under the command of the Governor of New South Wales. The island was further divided into two administrative regions along the 42nd parallel, with the Lieutenant Governor governing the south at Hobart and a commandant in the north at Port Dalrymple (now George Town). The two regions were not joined under one Lieutenant Governor until 1812. [3]
In 1823 the British Parliament passed the New South Wales Act 1823 (UK) , which separated Van Diemen's land from New South Wales as its own colony. [4] The act also limited the Lieutenant Governor's autocratic powers by creating a Legislative Council to advise him and be responsible for creating new laws. The Council would consist of six members chosen by him, and would be expanded in 1828 to 15 members with the Lieutenant Governor as the presiding officer. [5]
The Legislative Council was expanded to 24 members in 1851 after the British Parliament passed the Australian Constitutions Act 1850 (UK) . 16 members would be elected by the white men of the colony who met the property ownership qualifications, while 8 would remain appointed. It also authorised the Council to write a Constitution for the colony that incorporated the concepts of responsible and representative government. [1]
The Legislative Council passed a constitution in 1854, which received Royal Assent from Queen Victoria in 1855. This new constitution would create a bicameral Parliament, which retained the Legislative Council, with 15 members elected on a rotating 3 year basis. The lower chamber would be called the House of Assembly which would have 30 members elected every 5 years. Both chambers would retain property or educational qualifications in order to vote. The position of Lieutenant Governor was also upgraded to that of a Governor alongside other Australian colonies of equal status. [6]
In 1856 following a successful petition by the Legislative Council to the Queen, the Colony was renamed from Van Diemen's Land to Tasmania. [1] Later that year, William Champ was elected as Tasmania's first Premier, following the Colony's first elections under the 1855 Constitution. [7]
From 1856 until 1899, property qualifications for voters were slowly reduced until they were abolished in 1900 for the House of Assembly alongside education qualifications. [8] Tasmania was the last colony in Australia to introduce universal white male franchise, though Tasmania did not explicitly prohibit Aboriginal men from voting. [9] In 1903, Tasmania amended its constitution to introduce universal female suffrage, though they did not gain the right to stand for the State Parliament until 1921. [8]
In response to Justice Boothby declaring several South Australian laws void for being repugnant to the law of the United Kingdom, the British Parliament passed the Colonial Laws Validity Act 1865 to validate the laws passed by all of its colonial legislatures. [10] What this meant is that the Tasmanian Parliament could pass laws that were inconsistent with most British laws. The exception to this were laws that explicitly applied to the colonies. [11]
In the lead up to federation, Tasmania held its first statewide referendum on the question of union with the other colonies, alongside simultaneous referendums in New South Wales, South Australia and Victoria in 1898. While 81% of eligible Tasmanians voted yes, only 71,595 (51%) of those eligible in New South Walesdid. [12] As the enabling legislation in New South Wales required at least 80,000 of those eligible in that state to approve, the Constitution bill had to be amended to make it more favourable to New South Wales voters. The newly amended bill was resubmitted to the colonies for approval in 1899-1900 (this time including Queensland and Western Australia). [13] This time Tasmania approved the bill with an even greater majority of 94%. [12]
When the Federal Constitution was enacted on New Year's Day 1901, the Colony of Tasmania became a State of the Commonwealth of Australia. Sections 106, 107 and 108 of the Federal Constitution preserved the State's laws, the Tasmanian Parliament's broad plenary lawmaking powers and its Colonial Constitution became a State Constitution. Though this is qualified by section 109 which states that when the law of the State and the law of the Commonwealth are inconsistent, the Commonwealth law shall prevail to the extent of the inconsistency. [11]
The Federal Constitution also withdraws the power of Tasmania to:
among other minor and implied restrictions. [11]
By the 1930s, the Tasmanian Parliament had created a number of different statutes on constitutional topics that were located outside the Constitution Act 1855. This included electoral qualifications, membership of the houses, rules on appropriations, public salaries and appointments, the status and demise of the crown, and the conduct of elections. This led to growing calls within the Tasmanian Parliament to consolidate some of these elements within a new constitution, which the McPhee Government did in 1934. Aside from consolidating some of Tasmania's constitutional statutes, very few new features were included. An example of this is section 46 which proclaims religious freedom and equality, and prevents ant religious test for holding public office, however this does not prevent the Parliament of Tasmania from overriding this provision. [1]
The Commonwealth had freed itself from colonial restraints and secured its independence from the United Kingdom by adopting the Statute of Westminster 1931 (UK) through passing the Statute of Westminster Adoption Act 1942 (Cth). This statute ended any power of the British Parliament to make laws for Australia at the federal level without their consent, prevented federal laws (those passed after 1939) from being declared void due to inconsistency with British laws and gave the Federal Parliament to repeal or amend any British law that applied to Australia at the federal level. [11] However due to an oversight, this did not apply to Australian States. Meaning that until 1986, Tasmania remained a dependency of the British Crown while the Federal layer was effectively entirely independent from the United Kingdom. This odd situation meant that the British Government was responsible for advising the Monarch who would be the Governor of Tasmania and when certain proposed laws had to bypass the Governor to be given Royal Assent by the Monarch directly, the British Government could advise the Monarch to refuse assent to Tasmanian laws. [14]
The reason this arrangement persisted for so long was that the States continued to claim that they were co-sovereign and coequal to the Commonwealth Government. This claim would continue to be denied by successive Commonwealth Governments who viewed themselves as the sole possessors of Australian sovereignty. Thus any change to the constitutional arrangements of the states to secure their independence from the United Kingdom could be an opportunity for the Commonwealth to assert its dominance over the states. Meaning that the States had greater trust in the United Kingdom to be responsible for its affairs than the Commonwealth Government. [14]
The Commonwealth and the States finally agreed to a deal that would not comprise the constitutional integrity of the states. [14] Each state passed a statute that requested both the British and Commonwealth Parliaments to legislate in a way that removed colonial era links between their state and the UK. The Tasmanian Parliament passed the Australia Acts (Request) Act 1985 (Tas), which was followed by the Australia Act 1986 (Cth) and Australia Act 1986 (UK). [11] [15] and Commonwealth statutes were almost identical and made a number of changes for Tasmania:
The preamble gives a short explanation of Tasmania's constitutional history, as well as an acknowledgement of Tasmanian Aboriginals as the island's indigenous people.
This part deals with the short title of the Constitution Act and also provides definitions for key terms used later on.
This part deals with the Crown in right of Tasmania. The term 'the Crown' can mean different things depending on the context, but this context it means the executive government of Tasmania. [16] Sections 4 to 7 deal with the continuity of government in the event of the death of the Monarch.
Section 8 deals with the appointment of an Administrator or Deputy Lieutenant Governor to act in the place of the Lieutenant Governor or Governor. This means that the Government of Tasmania can continue to be administered in the absence, death or incapacity of the Governor or Lieutenant Governor. Section 8(1) recognises the continuing legal force of the Letters Patent, which constitutes the office of Governor and Lieutenant Governor, as well as the Executive Council
Sections 8A to 8I deal with the appointment of ministers, the Attorney General (who is also a minister) and the Cabinet Secretary (who is not a minister).
This division deals with issues relating to both houses, specifically dealing with:
This division creates the Legislative Council as the upper chamber. Section 18 states that it shall have 15 members, each elected from a single member electorates called Council divisions. This makes it the only Parliament in Australia that uses single member electorates for its upper chamber. Section 19 states the members of the council shall serve for a term of 6 years.
Sections 20 and 21 deal with the quorum required to proceed with the business of the Council (which is 7) and the election of the President, who presides over the Council.
This division creates the House of Assembly as the lower chamber. According to constitutional convention, this chamber is where a party or coalition must form a majority in order to control the executive government. By convention, the Premier is usually a member of the Assembly, but historically this has not always been the case. [17]
Sections 22 and 23 detail that the House of Assembly comprises 35 members elected for a four year term. For the purposes of electing the Assembly, the State is divided into 5 multi-member electorates, which each return 7 members each. It is the only State Parliament in Australia that has multi-member electorates for its lower chamber called Assembly divisions. The Australian Capital Territory Legislative Assembly also uses multi member electorates but it is a territory, unicameral and is not technically labelled a Parliament. The boundaries of the five assembly districts are the same as Tasmania's five federal electorates for the House of Representatives in the Commonwealth Parliament. [18]
Sections 24 and 25 deal with the quorum required to conduct the business of the Assembly (which is 14) and the election of the Speaker to preside over the Assembly.
This division provides some of the qualifications in order to vote for Parliament, although it also recognises there may be further requirements in the Electoral Act 2004. The qualifications include being at least 18 and an Australian citizen. It also provides that someone may only vote for the Council and Assembly division they live in.
This division primarily deals with circumstances in which someone shall be disqualified from being a member of Parliament. The following conditions mean that a person shall be incapable holding of office as a Parliamentarian if they:
Section 30 also details the oath required to become a Parliamentarian.
This part provides for how money bills shall be enacted by the Parliament. Money bills are proposed laws that allow for the expenditure of money and the imposition of taxes. Sections 37 and 38 provide that money bills shall only be initiated by the Assembly on the recommendation of the Governor. This power of the Governor is exercised on the advice of Ministers, so effectively this means that Money Bills can only be implemented with the consent of the executive government.
Sections 39 and 40 provide that bills that spend money shall only contain provisions for that purpose. Section 41 provides that bills adjusting land or income taxes shall only deal with land or income taxes. Section 42 limits the powers of the Council to amend Money bills, however it can suggest amendments to the Assembly (which the Assembly may reject).
This part provides for a system of elected councils to act as the local governments of Tasmania.
Almost the entire Constitution Act is unentrenched, meaning the Tasmanian Parliament may amend it with a simple majority of both houses. The sole exception is section 41A which prevents the Tasmanian Parliament from amending section 23, to extend or reduce the term of Parliament without a 2/3rds majority in either house. However this section is not doubly entrenched in order to be effective, thus the Parliament could repeal section 41A with a simple majority to get around the 2/3rds majority requirement in order to amend section 23. [1]
The Statute of Westminster 1931 is an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Dominions and the Crown.
The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an act of the Parliament of Australia, the other an act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling Acts passed by the parliaments of every Australian state. The Acts came into effect simultaneously, on 3 March 1986.
Each Australian state has a governor to represent Australia's monarch within it. The governors are the nominal chief executives of the states, performing the same constitutional and ceremonial functions at the state level as does the governor-general of Australia at the national or federal level. In practice, with notable exceptions the governors are generally required by convention to act on the advice of the state premiers or the other members of a state's cabinet.
The Tasmanian Legislative Council is the upper house of the Parliament of Tasmania in Australia. It is one of the two chambers of the Parliament, the other being the House of Assembly. Both houses sit in Parliament House in the state capital, Hobart. Members of the Legislative Council are often referred to as MLCs.
The Parliament of Tasmania is the bicameral legislature of the Australian state of Tasmania. It follows a Westminster-derived parliamentary system and consists of the governor of Tasmania, the Tasmanian House of Assembly, and Tasmanian Legislative Council. Since 1841, both Houses have met in Parliament House, Hobart. The Parliament of Tasmania first met in 1856.
Parliament House, Hobart, located on Salamanca Place in Hobart, Tasmania, Australia, is the meeting place of the Parliament of Tasmania. The building was originally designed as a customs house but changed use in 1841 when Tasmania achieved self-government. The building served both purposes from 1841 to 1904, when the customs offices were relocated.
The states and territories are the second level of government of Australia. The states are administrative divisions that are self-governing polities that are partly sovereign, having ceded some sovereign rights to the federal government. They have their own constitutions, legislatures, executive governments, judiciaries and law enforcement agencies that administer and deliver public policies and programs. Territories can be autonomous and administer local policies and programs much like the states in practice, but are still legally subordinate to the federal government.
The monarchy of Australia is a key component of Australia's form of government, embodied by the Australian sovereign and head of state. The Australian monarchy is a constitutional one, modelled on the Westminster system of parliamentary government, while incorporating features unique to the constitution of Australia.
The Constitution of Australia is the supreme law of Australia. It is a written constitution that sets down the political structure of Australia as a federation under a constitutional monarchy governed with a parliamentary system and outlines the structure and powers of the Commonwealth of Australia's three constituent parts: the executive, legislature, and judiciary.
The Constitutional history of Australia is the history of Australia's foundational legal principles. Australia's legal origins as a nation state began in the colonial era, with the reception of English law and the lack of any regard to existing Indigenous legal structures. As the colonies expanded, Australia gradually began to achieve de facto independence. Over the years as a result the foundations of the Australian legal system gradually began to shift. This culminated in the Australia Act, an act formally ending legal ties with the UK.
The Colony of Tasmania was a British colony that existed on the island of Tasmania from 1856 until 1901, when it federated together with the five other Australian colonies to form the Commonwealth of Australia. The possibility of the colony was established when the Parliament of the United Kingdom passed the Australian Constitutions Act in 1850, granting the right of legislative power to each of the six Australian colonies. The Legislative Council of Van Diemen's Land drafted a new constitution which they passed in 1854, and it was given royal assent by Queen Victoria in 1855. Later in that year the Privy Council approved the colony changing its name from "Van Diemen's Land" to "Tasmania", and in 1856, the newly elected bicameral parliament of Tasmania sat for the first time, establishing Tasmania as a self-governing colony of the British Empire. Tasmania was often referred to as one of the "most British" colonies of the Empire.
A dominion was any of several largely self-governing countries of the British Empire. Progressing from colonies, their degrees of self-governance increased unevenly over the late 19th century through the 1930s, and some vestiges of empire lasted in some areas into the late 20th century. With the evolution of the British Empire into the Commonwealth of Nations, the dominions became independent states, either as commonwealth republics or commonwealth realms.
The royal prerogative is a body of customary authority, privilege, and immunity recognized in common law as belonging to the sovereign, and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.
The principles of the current Constitution of South Australia, also known as the South Australian Constitution, which includes the rules and procedures for the government of the State of South Australia, are set out in the Constitution Act 1934. Its long title is "An Act to provide for the Constitution of the State; and for other purposes".
Section 58 of the Constitution Act, 1867 is a provision of the Constitution of Canada creating the office of provincial lieutenant governors, and providing for appointment by the Governor General of Canada.
Section 25 of the Constitution Act, 1867 is a repealed provision of the Constitution of Canada relating to the appointment of the first members of the Senate of Canada in 1867.
Section 127 of the Constitution Act, 1867 was a provision of the Constitution of Canada relating to the appointment of the first senators in the Senate of Canada. It outlined how members of the existing provincial Legislative Councils could be appointed to the Senate.
Section 128 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the oath of allegiance for members of the Senate and the House of Commons of Canada, as well as members of the provincial legislative assemblies. The section also requires members of the Senate to make a declaration of qualification. The texts of the oath and the declaration of qualification are set out in the Fifth Schedule of the Act. The section also applied to members of the provincial legislative councils, but since they have all been abolished, it no longer has any application in that regard.
Section 56 of the Constitution Act, 1867 is a provision of the Constitution of Canada which previously set out the power of the British government to disallow laws passed by the Parliament of Canada. This power was only used once and no longer exists. The British government gave up the power as a result of the Balfour Declaration, which recognised Canada and the other British Dominions as equals of the United Kingdom.
Section 90 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to provincial appropriation and taxation bills, the recommendation for money votes in provincial legislative assemblies, and the federal government's power of disallowance and reservation with respect to provincial laws.
{{cite book}}
: |website=
ignored (help)