# Constitution Act 1902

The Constitution of New South Wales is composed of both unwritten and written elements that set out the structure of Government in the State of New South Wales. While the most important parts are codified in the Constitution Act 1902, major parts of the broader constitution can also be found in:
* important constitutional statutes, such as the Parliamentary Electorates and Elections Act 1912 or the Supreme Court Act 1970
* the common law
* constitutional conventions,
* the Australian Constitution,
* the Australia Acts,
* any remaining applicable British legislation, such as the Bill of Rights 1689.
The Constitution Act 1902 sets out many of the basic principles of the Government of New South Wales, and provides for an executive, legislative and judicial branch. However, unlike the Federal Constitution, the courts have found this does not mean there is a formal separation of powers at the state level. It can also be amended through ordinary Acts of Parliament, however some sections can only be amended through a referendum of NSW voters.

## History

In 1853 the New South Wales Legislative Council, then a unicameral body, with a hybrid of appointed and elected members, passed the New South Wales Constitution Bill in 1853, also referred to as 17 Vic. No 41, which was reserved for the Queen's assent, which the Queen did not give. Instead the Imperial Parliament at Westminster passed what is referred to as the Constitution Statute 1855 (Imp) which included a modified bill as schedule. It was this modified bill to which the Queen assented. The 1902 Act repealed all or part of eight previous Acts.
| Act | Reference | Extent |
| New Constitution Act 1853 No 41a | 17 Vic. No. 41. | unrepealed portion |
| Civil List Increase Act 1857 No 14a | 20 Vic. No. 18 | The whole |
| Triennial Parliaments Act 1874 No 2a | 37 Vic. No. 7 | The whole |
| Executive Councillors (Functions Substitution) Act No 27a | 44 Vic. No. 6 | The whole |
| Constitution Act Amendment Act of 1884 No 3a | 47 Vic. No. 5 | The whole |
| Constitution Act Amendment Act of 1890 No 1a | 54 Vic. No. 1 | The whole |
| Governor's Salary Act 1901 No 40 | Act No 40, 1901 | Section 2, subsection (4) |

## Document structure and text

The Act originally consisted of six parts, to which an additional five parts have since been added.
* Part 1 Preliminary.
* Part 2 Powers of the Legislature.
* Part 2A The Governor, added in 1987.
* Part 3 The Legislative Council and Legislative Assembly.
* Part 4 The Executive.
* Part 4A Parliamentary Secretaries, added in 1975.
* Part 5 The Consolidated Fund.
* Part 6 Officers and staff.
* Part 7 Administrative arrangements, added in 1984.
* Part 8 Local government, added in 1986.
* Part 9 The judiciary, added in 1992.
* Part 10 Public ownership of Sydney Water Corporation and Hunter Water Corporation, added in 2023.

## Alterations to the Constitution
### By parliament

The Act as made in 1902 was an Act of the New South Wales Parliament. In contrast to the Constitution of Australia it was not approved by a referendum and did not contain any provision requiring a referendum to alter it. In 1929 the parliament passed an amendment to the Constitution Act which inserted section 7A, requiring a referendum before the Legislative Council could be abolished. In 1930 Labor MLCs put forward two bills, one to repeal section 7A, the other to abolish the Council. Believing that a referendum was necessary before the bills could become law, the Legislative Council permitted the bills to pass without a division on 10 December. The validity of section 7A and the inability to repeal the section without a referendum were upheld by the Supreme Court on 23 December 1930, a majority of the High Court on 16 March 1931, and the Judicial Committee of the Privy Council on 31 May 1932.
As of December 2024, the Constitution Act 1902 has been amended through Parliament by the following Acts:
* Act
* Parliamentary Elections Act 1906
* Parliamentary Representatives Allowance Act 1912
* Parliamentary Representatives Allowance Act 1912
* Parliamentary Electorates and Elections Act 1912
* Parliamentary Representatives Allowance and Ministers' Salaries (Amendment) Act 1920
* Parliamentary Allowances and Salaries Act 1922
* Parliamentary Allowances and Salaries Act 1925
* Constitution (Amendment) Act 1925
* Audit (Amendment) Act 1929
* Constitution (Legislative Council) Amendment Act 1929
* Parliamentary Allowances and Salaries Act 1930
* Parliamentary Allowances and Salaries Act 1932
* Constitution Amendment (Legislative Council) Act, 1932
* Demise of the Crown (Amendment) Act 1936
* Parliamentary Allowances and Salaries Act 1938
* Parliamentary Allowances and Salaries Act 1947
* Constitution Amendment (Legislative Council Members Allowances) Act 1948
* Parliamentary Allowances and Salaries Act 1951
* Parliamentary Allowances and Salaries Act 1956
* Parliamentary Allowances and Salaries Act 1959
* Constitution (Amendment) Act 1962
* Parliamentary Allowances and Salaries (Amendment) Act 1963
* Decimal Currency Act 1965
* Parliamentary Allowances and Salaries (Amendment) Act 1966
* Constitution (Amendment) Act 1968
* Parliamentary Allowances and Salaries (Amendment) Act 1971
* Reprints Act 1972
* Parliamentary Allowances and Salaries (Amendment) Act 1974
* Parliamentary Allowances and Salaries (Amendment) Act 1975
* Parliamentary Remuneration Tribunal Act 1975
* Constitution and Other Acts (Amendment) Act 1975
* Constitution (Ministers of the Crown) Amendment Act 1976
* Constitution (Amendment) Act 1978
* Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978
* Constitution (Amendment) Act 1979
* Constitution (Public Service) Amendment Act 1979
* Constitution (Amendment) Act 1980
* Constitution (Legislative Assembly) Amendment Act 1981
* Constitution (Disclosures by Members) Amendment Act 1981
* Constitution (Consolidated Fund) Amendment Act 1982
* Miscellaneous Acts (Public Finance and Audit) Repeal and Amendment Act 1983
* Constitution (Enrolment of Acts) Amendment Act 1984
* Statute Law (Miscellaneous Amendments) Act 1984
* Statute Law (Miscellaneous Provisions) Act 1986
* Constitution (Amendment) Act 1986
* Constitution (Local Government) Amendment Act 1986
* Statute Law (Miscellaneous Provisions) Act (No 1) 1987
* Constitution (Amendment) Act 1987
* Constitution (Parliamentary Secretaries) Amendment Act 1988
* Constitution (Governor's Salary) Amendment Act 1988
* Constitution (Legislative Assembly) Amendment Act 1990
* Constitution and Parliamentary Electorates and Elections (Amendment) Act 1990
* Statute Law (Miscellaneous Provisions) Act 1991
* Constitution (Legislative Council) Amendment Act 1991
* Constitution (Legislative Council) Further Amendment Act 1991
* Constitution (Amendment) Act 1992
* Constitution (Fixed Term Parliaments) Amendment Act 1993
* Constitution (Entrenchment) Amendment Act 1992
* Public Sector Management Amendment Act 1995
* Industrial Relations Act 1996
* Constitution and Parliamentary Electorates and Elections Amendment Act 1997
* Statute Law (Miscellaneous Provisions) Act 1999
* Crimes Legislation Amendment (Sentencing) Act 1999
* Constitution Amendment Act 2000
* Constitution Amendment (Governor's Salary) Act 2003
* Courts Legislation Amendment Act 2005
* Constitution Amendment (Pledge of Loyalty) Act 2006
* Constitution Amendment (Governor) Act 2006
* Statute Law (Miscellaneous Provisions) Act 2007
* Constitution Amendment (Speaker) Act 2007
* Miscellaneous Acts (Local Court) Amendment Act 2007
* Statute Law (Miscellaneous Provisions) Act (No 2) 2008
* Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009
* Parliamentary Remuneration Amendment (Salary Packaging) Act 2009
* Constitution Amendment (Lieutenant-Governor) Act 2009
* Constitution Amendment (Recognition of Aboriginal People) Act 2010
* Constitution Amendment (Prorogation of Parliament) Act 2011
* Constitution Amendment (Restoration of Oaths of Allegiance) Act 2012
* Government Sector Employment Act 2013
* Statute Law (Miscellaneous Provisions) Act 2014
* Constitution Amendment (Parliamentary Presiding Officers) Act 2014
* Government Sector Employment Legislation Amendment Act 2016
* Crown Land Legislation Amendment Act 2017
* Electoral Act 2017
* COVID-19 Legislation Amendment (Emergency Measures) Act 2020
* COVID-19 Legislation Amendment (Stronger Communities and Health) Act 2021
* COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022
* Constitution Amendment (Virtual Attendance) Act 2022
* Constitution Amendment (Appointment of Lieutenant-Governor and Administrator) Act 2022
* Integrity Legislation Amendment Act 2022
* Constitution Amendment (Sydney Water and Hunter Water) Act 2023
* Constitution Amendment (Executive Council) Act 2024
* Government Sector Employment and Other Legislation Amendment Act 2024

### Referendums

There have been 18 referendums in New South Wales, 8 of which concerned proposals to amend the New South Wales Constitution, half of which concerned the Legislative Council. The list does not include referendums that did not involve changes to the NSW constitution, such as the 1898 and 1899 referendums on the proposed constitution of Australia, the 1903 referendum on the number of Members of the Legislative Assembly and the 5 referendums on the sale of alcohol.
Results of referendums :
| Year | # | Name | Yes | No |
| 1933 | 4 | Reform the Legislative Council | 51.47 | 48.53 |
| 1961 | 7 | Abolish the Legislative Council | 42.42 | 57.58 |
| 1978 | 11 | Election of Legislative Council | 84.81 | 15.19 |
| 1981 | 12 | 4 year terms | 69.04 | 30.96 |
| 1981 | 13 | Disclosure of pecuniary interests | 86.01 | 13.99 |
| 1991 | 14 | Reduce size of Legislative Council | 57.73 | 42.27 |
| 1995 | 15 | Fixed terms of parliament | 75.48 | 24.52 |
| 1995 | 16 | Judicial independence | 65.90 | 34.10 |

## Effect of the Constitution of Australia

The Constitution of Australia sets up the Commonwealth of Australia as a federation, with limited specific powers conferred on the Federal Parliament. The relationship between the states and the Commonwealth are dealt with in chapter V, including section 109 which provides that state laws are invalid to the extent of any inconsistency with federal laws. For the first two decades, the High Court preserved much of the financial and political independence of the states by adopting the reserved state powers and the implied inter-governmental immunities doctrine. These doctrines protected both the Commonwealth and the states from legislative or executive actions which "would fetter, control, or interfere with, the free exercise" of the legislative or executive power of the other. These doctrines were subsequently rejected by the court in the 1920 Engineers' Case after the composition of the court changed.
The High Court has held that the structure and text of the Constitution of Australia is such that the it protects the independence of the State Supreme Courts and a state parliament cannot assign powers that are incompatible with that independence, nor prevent State Supreme Courts from issuing prerogative relief for jurisdictional error.