Constitution Amendment (Legislative Council) Act 1932 (1933 No 2) (NSW)

CONSTITUTION AMENDMENT

(LEGISLATIVE COUNCIL) ACT.

Act No. 2, 1933.

An Act to reform the constitution and alter the powers of the Legislative Council; to reduce and limit the number of Members of the Legislative Council; to reconstitute the Legislative Council in accordance with the reformed constitution; to amend the Con- stitution Act, 1902, and certain other Acts; and for purposes connected therewith. [Assented to, 22nd June, 1933.]

BE

BE it enacted by the K i n g ' s Most Excel lent Majesty, lative Council and Legislat ive Assembly of New South by and with the advice and consent of the Legis­	Wales in Pa r l i amen t assembled, with the approva l of the
electors as required by the Const i tut ion Act, 1902, as amended by subsequent Acts , and by the au thor i ty of the same, as follows:—

1 . (1) This Act may be cited as the " C o n s t i t u t i o n

Amendment (Legislat ive Council) Act, 1932," and shall be read and construed with the Const i tut ion Act, 1902, as amended by subsequent Acts .

(2) The Const i tut ion Act, 1902, as so amended, is

in this Act refer red to as the Pr inc ipa l Act.

2 . In this Act, unless the context or subject-matter

otherwise indicates or requires,—

" The appointed day " means the day appointed by the Governor in pursuance of subsection one of section 17A of the Consti tut ion Act, 1902, as inser ted by section three of this Act, as the day on and from which the Legislat ive Council shall

be reconsti tuted.

3 .     (1) The Pr inc ipa l Act is amended by insert ing next

a f te r section seventeen the following new sect ions:—

17A. (1) The Legislat ive Council shall, on and from a day to be appointed by the Governor and notified by proclamat ion published in the Gazette, be reconst i tuted, and shall consist of sixty elected

members .

The day appointed by the Governor in pursuance

of this subsection is in this Act refer red to as " the

appointed d a y . "

(2) Such Members shall be elected at elec­ t ions a t which the electors shall be the Members of the Legislat ive Council and the Members of the Legislat ive Assembly voting as one electoral body and recording their votes a t s i t t ings of the respective

Houses of the Par l iament .

Any vacancy in the seat of a Member shall be filled by a like election.

(3)

(3) Elect ions of Members of the Legislat ive Council shall wherever the election is contested, and more than one seat is to be filled, be according to the principle of p ropor t iona l representa t ion , each voter hav ing one t ransferable vote, and where only one seat is to be filled be according to a preferent ia l sys tem.

(4) The vot ing a t any such election shall be

by secret ballot.
(5) Each voter a t any such election shall be required to indicate the order of his preferences for not less than the prescr ibed number of candi­ dates .

I n this subsection ' ' the prescr ibed number ' ' means a number equal to twice the number of seats which a re to be filled a t the election, and where the number of candidates is less than twice the number of seats to be filled, " t h e prescr ibed n u m b e r " means the to ta l number of candidates .

(6) The elections shall be held and conducted and the votes shall be counted and t r ans fe r red as may be provided by law.

17B. (1) Subject to the disqualifications set out in this Act any person whether male or female,

ma r r i ed or unmar r i ed—

(a)	who is an elector entitled to vote at the election of Members of the Legislat ive Assembly, or a person entit led to become such elector, or a person who on the date upon which His
ment (Legislat ive Council) Act, 1932, is signi­Majes ty ' s Assent to the Const i tu t ion Amend­
fied is a member of the Legislat ive Council ;
and
(b)	who has been for three years at the least res ident wi thin the limits of the Common­
weal th of A u s t r a l i a ; and
(c)	who is a natural-born or naturalized subject of the King ,

shall be capable of being elected as a Member of the Legislat ive Council and of s i t t ing and voting therein .

(2)

(2) No person being a Member of the
Legislat ive Assembly shall be capable of being

elected or of s i t t ing or vot ing as a Member of the

Legislat ive Council.

(3) If af ter being elected as a Member of the Legislative Council any person accepts any office of profit under the Crown, or any pension from the Crown dur ing pleasure or for a t e rm of years , his election shall thereupon become void, and an election shall be held to fill the vacancy.

P rov ided tha t nothing in this subsection shall extend to—

(a)	any person in receipt only of pay, half-pay, or a pension by v i r tue of service in any of His Majes ty ' s defence forces or who accepts any office of profit in any of His Majes ty ' s defence forces; or
(b)	any person who accepts the office of Vice- Pres iden t of the Executive Council or any of the offices enumerated in the Second Schedule hereto, or any office of profit under the Crown created by Act of Pa r l i amen t as an office of the Execut ive Government.

17c. (1) A person shall not be a candidate a t any election of a Member or Members of the Legislat ive Council unless he is nominated for election.

(2) E v e r y nomination of a candidate shall be in wri t ing, and shall be made by means of a nominat ion p a p e r which shall be in or to the effect of such form as may be provided by law.

(3) A nominat ion pape r shall contain the

name of one candidate and one candidate only.

(4) A nomination pape r shall be invalid unless the person nominated therein has consented to the nominat ion in such manne r as may be provided by law.

(5) Each nominat ion paper shall be signed by two and not more than two electors.
No elector shall sign more than one nominat ion
p a p e r for any election, but the contravent ion of

this provision shall not of itself invalidate any

nomination paper .

Each

Each elector signing a nominat ion p a p e r for any
election shall certify thereon tha t he has not p re­
viously signed a nominat ion p a p e r for t ha t election.
If an elector contravenes this subsection by signing
more than one nomination paper he shall be liable
to such penal ty as may be provided by law, and shall
be disqualified from voting and from being a candi­
date at any election of Members of the Legislat ive

Council held within four years after the date of the

contravention.
In this subsection " elector " means a person who
is for the t ime being a Member of the Legislat ive
Council or a Member of the Legislat ive Assembly.

17D. (1) F o r the purposes of the election of the sixty Members who a re to be elected in pursuance of sections 17A, 17B and 17c of this Act for the first con­ st i tut ion of the Legislat ive Council, there shall be four separa te elections a t each of which fifteen Members shall be elected, bu t nominat ions shall be made as if the four elections formed one election, and notwi ths tanding the provisions of subsection five of section 17c of this Act—

(a)	each nomination paper shall be signed by two, and not more than two, e lec tors ;
(b)	no elector shall sign more than two nomina­ tion pape r s , but the contravent ion of this p ro ­ vision shall not of itself inval idate any nomi­
nat ion p a p e r ;
(c)	each elector signing a nomination paper shall cert ify thereon tha t he has not previously

signed more than one nominat ion p a p e r ;

(d) if an elector contravenes this subsection by signing more than two nominat ion pape r s he shall be liable to such penal ty as may be p ro ­ vided by law, and shall be disqualified from vot ing and from being a candidate a t any election of Members of the Legislat ive Coun­ cil held within four yea r s af ter the date of the contravent ion.

I n this subsection " elector " means a person who is for the t ime being a Member of the Legislat ive Council or a Member of the Legislat ive Assembly.

(2)

(2) At the first of the four elections the can­ didates shall consist of those persons who a re duly nominated for election.

At the second of the four elections the candidates
shall consist of those persons who were candidates

a t the first election and were not declared elected at

tha t election.

At the thi rd of the four elections the candidates shall consist of those persons who were candidates at the second election and were not declared elected at that election.

A t the fourth of the four elections the candidates
shall consist of those persons who were candidates

a t the th i rd election and were not declared elected at

tha t election.

17E. (1) If at any election the number of candi­ da tes for election does not exceed the number of persons required to be elected all the candidates shall be declared elected.

(2) If at any election the number of candi­ dates for election is less than the number of persons required to be elected, a fresh election shall be held to fill the vacancies.

(2) The Pr inc ipa l Act is amended by inser t ing after subsection six of section 7A the following new sub­ section :—

(7) In any case in relat ion to which the expression " a s may be provided by l a w " is used in the Constitu­ tion Amendment (Legislative Council) Act, 1932, the law may be made as if this section were not in force,

4 . (1) This section shall commence upon the appointed af ter the appointed day. and may be so made at any t ime ei ther before or

day.

(2) The Pr inc ipa l Act is amended by omit t ing sec­

t ions sixteen and seventeen.

(3) The Pr inc ipa l Act is amended by inser t ing next

af ter section 17B as inser ted by section three of this Act
the following new section:—

17F. (1) Subject to the provisions of subsections three and six of this section, the t e r m of service of a Member of the Legislat ive Council shall expire a t the end of twelve years from its commencement.

(2).

(2) One-fourth of the Members of the Legis­

lative Council shall be elected every three years .

(3) The t e rm of service of the Members elected under section 17D of this Act shall expire as follows:—

(a)	in the case of the fifteen who are elected at the first election under tha t section—at the end of twelve yea r s from the commencement of
such t e r m ;
(b)	in the case of the fifteen who are elected a t the second election under tha t section—at the end of nine yea r s from the commencement
of such t e r m ;
(c)	in the case of the fifteen who are elected at the th i rd election under tha t section—at the end of six yea r s from the commencement of
such t e r m ;
(d)	in the case of the fifteen who are elected at the four th election unde r tha t section—at the end of th ree yea r s from the commencement of
such t e r m ;

(4) A Member of the Council whose te rm of service is about to expire shall, if no t otherwise disqualified, be capable of being re-elected.

(5) An election to fill the seats of Members of the Council whose t e rms of service a re about to expire shall be held dur ing the per iod of six months immediate ly preceding the da te of the expira t ion

of such t e rms of service.

(6) W h e r e the seat of a Member becomes vacant before the expira t ion of his t e r m of service the t e rm of service of the person elected to fill such casual vacancy shall expire a t the da te of the expira t ion of the t e rm of service of the Member whose seat he is elected to fill.

(7) F o r the purposes of this section—

(a) the term of service of a Member elected for the first const i tut ion of the Legislat ive Council shall be taken to commence on the appointed d a y ;

(b)

(b) the term of service of a Member elected to fill a seat which becomes vacant by the expiry of the ho lder ' s t e rm of service shall be taken to commence on such expiry.

(4)    The Pr inc ipa l Act is amended by omit t ing from

subsection one of section th i r teen the words ' ' summoned

o r . "

(5) The Pr inc ipa l Act is amended by omit t ing from

subsection one of section fourteen the words " summoned to the said Council, or elected and re tu rned as a Member to serve in the said Assembly for any electoral distr ict , such summons or " and by inser t ing in lieu thereof the words " elected and re tu rned as a Member to serve in the said Council or the said Assembly, such . "

(6) The Pr inc ipa l Act is amended by omit t ing section twenty and by inser t ing in lieu thereof the following section:—

20. The law for the time being in force re la t ing to the determinat ion of any dispute or question respect ing any election r e tu rn or qualification of a Member of the Legislat ive Assembly, or respect ing any vacancy therein shall, muta t i s mutandis , and subject to such modifications, amendments , and addit ions as may be provided by law, apply to the determinat ion of similar disputes or quest ions respect ing the election, r e tu rn , or qualification of a Member of the Legislat ive Council as reconst i tuted in pursuance of section 17A of this Act, or respect ing any vacancy in the Legislat ive Council as so recon­

st i tuted.

(7) The Pr inc ipa l Act is amended by omit t ing section twenty-one and by inser t ing in lieu thereof the following section:—

21. (1) The Legislat ive Council shall, before

proceeding to the despatch of any other business, choose one of their number to be Pres iden t of the Legislat ive Council, and as often as the office of P res iden t becomes vacant the Legislat ive Council shall again choose one of the i r number to be the Pres iden t .

The

The proceedings of the Legislat ive Council in choosing the Pres iden t shall be conducted in such manne r as may be provided by law.

The Pres iden t shall cease to hold office if he ceases to be a member of the Legislat ive Council. H e may be removed from office by a vote of the Legislat ive Council or he may resign his office by wr i t ing under his hand addressed to the Governor.

(2) Before or dur ing the absence of the Pres iden t , the Legislat ive Council may choose one of thei r number to per form the duties of the Pres iden t dur ing his absence.

(3) The P res iden t or p res id ing Member m a y

take p a r t in any debate or discussion which m a y

ar ise in the Legislat ive Council.

(8) The Pr inc ipa l Act is amended by inser t ing in
subsection two of section twenty-two af ter the word

" P r e s i d e n t " wherever occurring the words " o r the pre­

siding M e m b e r . "
(9) The Const i tut ion (Amendment) Act, 1925, is

hereby repealed.

5 . (1) This section shall commence upon the appointed

day.

(2) The Pr inc ipa l Act is amended by inser t ing next

after section five the following new sect ions:—

5A. (1) If the Legislat ive Assembly passes any Bill app rop r i a t i ng revenue or moneys for the o rd inary

tive Council rejects or fails to pass i t or r e t u r n s the

annual services of the Government and the Legisla­

Bill to the Legislat ive Assembly wi th a message suggest ing any amendment to which the Legislat ive Assembly does not agree, the Legislat ive Assembly may direct t ha t the Bill with or without any amend­ ment suggested by the Legislat ive Council, be pre­ sented to the Governor for the signification of His Majes ty ' s p leasure thereon, and shall become an Act of the Legis la ture upon the Royal Assent being signified thereto , no twi ths tanding tha t the Legis­ lative Council has not consented to the Bill.

(2)

(2) The Legislat ive Council shall be taken to have failed to pass any such Bill, if the Bill is not re turned to the Legislat ive Assembly within one month after its t ransmiss ion to the Legislat ive Council and the Session continues dur ing such period.

(3) If a Bill which appropr i a t e s revenue or moneys for the o rd inary annual services of the Government becomes an Act under the provisions of this section, any provision in such Act deal ing with any ma t t e r other than such appropr ia t ion shall be of no effect.

5B. (1) If the Legislat ive Assembly passes any Bill other than a Bill to which section 5A of this Act applies, and the Legislat ive Council rejects or fails to pass it or passes it with any amendment to which the Legislat ive Assembly does not agree, and if af ter an interval of three months the Legislat ive Assembly in the same Session or in the next Session again passes the Bill wi th or wi thout any amendment which has been made or agreed to by the Legislat ive Council, and the Legislat ive Council rejects or fails to pass it or passes it with any amendment to which the Legislative Assembly does not agree, and if af ter a free conference between managers there is not agreement between the Legislat ive Council and the Legislat ive Assembly, the Governor may convene a joint s i t t ing of the Members of the Legislat ive Council and the Members of the Legislat ive Assembly.

The Members presen t a t the joint s i t t ing may

del iberate upon the Bill as las t proposed by the

made by the Legislat ive Council with which the Legis­ Legislat ive Assembly and upon any amendments lat ive Assembly docs not agree.

No vote shall bo taken at the joint s i t t ing.

(2) Af ter the joint s i t t ing and either af ter any

fur ther communication with the Legislat ive Council in order to bring about agreement , if possible, between the Legislat ive Council and the Legislat ive Assembly, or without any such communication the Legislat ive Assembly may by resolution direct t ha t the Bill as las t proposed by the Legislat ive Assembly

and

and e i ther with or wi thout any amendment subse­ quent ly agreed to by the Legislat ive Council and the Legislat ive Assembly, shall, at any time dur ing the life of the Pa r l i amen t or a t the next general election of Members of the Legislat ive Assembly, be submit ted by way of referendum to the electors qualified to vote for the election of Members of the

Legislat ive Assembly.

The referendum shall be held and conducted as may be provided by law, and if, at any time no such law exists, the law for the t ime being in force re la t ing to the holding and conduct of a general election of Members of the Legislat ive Assembly shall, muta t i s mutandis , apply to and in respect of the holding and conduct of the referendum, with such modifications, omissions, and addi t ions as the Governor may by notification published in the Gazette declare to be necessary or convenient for the purposes of such application.

(3) If a t the re ferendum a major i ty of the electors vot ing approve the Bill it shall be p resen ted to the Governor for the signification of His Majes ty ' s p leasure thereon and become an Act of the Legis la ture upon the Royal Assent being signified thereto , no twi ths tanding tha t the Legislat ive Coun­ cil has not consented to the Bill.

(4) F o r the purposes of this section the Legis­ lative Council shall be taken to have failed to pass a Bill if the Bill is not r e tu rned to the Legis la t ive Assembly within two months af ter i ts t ransmiss ion

to the Legislat ive Council and the Session continues du r ing such period.

(5) This section shall extend to any Bill

whether it is a Bill to which section 7A of this Act
applies or not.

And in the appl icat ion of this section to a Bill to which section 7A of this Act appl ies—

(a) the submission of the Bill to the electors by way of re ferendum in accordance with this section shall be a sufficient compliance wi th the provis ions of section 7A of this Act which requi re the Bill to be submit ted to the e lec tors ;

(b)

(b)	the referendum under this section shall, not­ wi ths tanding anyth ing contained in section 7 A of this Act, be held upon a day which shall be appointed by the Governor in such manner as may be provided by l aw; and
(c)	the day so appointed shall, notwithstanding anyth ing contained in subsection two of this section, be a day dur ing the life of the Pa r l i a ­ ment and not sooner than two months af ter the Legislat ive Assembly has passed a reso­ lution in accordance with tha t subsection for the purposes of such referendum.

(6) A joint s i t t ing of the Members of the Legislat ive Council and the Members of the Legisla­ tive Assembly for the purposes of this section m a y be convened by the Governor by message to both

Houses of the Pa r l i amen t .

At such joint s i t t ing the Pres iden t of the Legisla­ tive Council or in his absence the Speaker of the Legislat ive Assembly shall pres ide, and unti l s tanding rules and orders governing the procedure a t joint s i t t ings have been passed by both Houses and approved by the Governor, the S tanding Rules and Orders of the Legislat ive Council shall so fa r as

pract icable apply.

5c. (1) W h e r e a Bill is presented to the Governor
for the signification of His Majes ty ' s p leasure in

accordance with section 5A of this Act, the words of

enactment shall be as follows:— B E it enacted by the K i n g ' s Most Excellent	Majesty, by and with the advice and consent of
the Legislat ive Assembly of New South Wales in Pa r l i amen t assembled, in accordance with the provisions of section 5A of the Consti tut ion Act, 1902, as amended by subsequent Acts, and by the au thor i ty of the same, as follows:—

Any al terat ion of a Bill necessary to give effect to this subsection shall not be deemed to be an amend­ ment of the Bill.

(2)

(2) W h e r e a Bill is presented to the Governor for the signification of His Majes ty ' s p leasure in accordance with section 5B of this Act, the words of enactment shall be as follows:—

B E it enacted by the K i n g ' s Most Excellent Majesty, by and with the advice and consent of the Legislat ive Assembly of New South Wales in Pa r l i amen t assembled, with the approva l of the electors, in accordance with the provisions of section 5B of the Const i tut ion Act, 1902, a s amended by subsequent Acts , and by the au thor i ty of the same, as follows:—

Any a l tera t ion of a Bill necessary to give effect t o this subsection shall not be deemed to be an amend­ ment of the Bill.

(3) The Pr inc ipa l Act is amended by inser t ing in

P a r t I V next af ter section thi r ty-e ight the	following
new	sect ion:—
38A. (1) Notwi ths tanding anyth ing contained in this Act, any executive councillor who is a Member of the Legislat ive Assembly may a t any t ime, wi th the consent of the Legislat ive Council, sit in the Legislat ive Council for the purpose only of explain­ ing the provis ions of any Bill r e la t ing to or connected wi th any depa r tmen t adminis tered by him, and m a y take p a r t in any debate or discussion in the Legis ­ lat ive Council on such Bill, bu t he shall no t vote in the Legislat ive Council.
more t han one executive councillor under the (2) I t shall not be lawful a t any one t ime for au thor i ty of this section to sit in the Legis la t ive
Council.

(4) The P r inc ipa l Act is amended—

(a)	by omitting from subsection six of section 7A all words following the words " b u t shall not apply to any Bill for " and by inse r t ing in lieu thereof
the following w o r d s : —

" (a) the r epe a l ; or

(b) the amendment from t ime to t i m e ; o r

(c)

(c) the re-enactment from time to time with or without modifications

of any of the following sections of this Act, namely, sections thirteen, fourteen, fifteen, 17is, 17c, eighteen, nineteen, twenty, twenty-one, twenty-two and '.\$.\, or of any provision for the time being in force so far as it relates to the subject-matter dealt with in any of those sections";

(b) by inserting at the end of section 7A the follow- ing new subsection: —

(S) In this section a reference to the Legis- lative Council shall he construed as a reference to the Legislative Council as reconstituted in accordance with this Act.

0 . The Standing Rules and Orders of the Legislative Council in force immediately before the appointed day shall, to the extent to which they are not inconsistent with the provisions of the Prineipal Act, as amended by this Act, continue in force until amended or repealed in accordance with section fifteen of the Principal Act.