Australian Politics and Policy - Senior, 2019a

Western Australia
retains two unconsolidated constitutional enactments: the CA and the Constitution
Acts Amendment Act 1899 (WA).
A little over a century later, the state’s colonial apron strings were loosened
with the passage of the Australia Acts 1986 (Cth and UK). These dual enactments
meant that the British parliament no longer had legislative powers over the states,
repugnant legislative restrictions were removed and the avenue of appeal from the
stateSupremeCourtstothePrivyCouncilwasabolished.
In 2015, the preamble to the CA was amended to ‘acknowledge the Aboriginal
people as the First People of Western Australia and traditional custodians of the
land’, followed by the statement that the WA parliament ‘seeks to effect a reconciliation
with the Aboriginal people of Western Australia’.
Key government institutions
The Australia Acts 1986, although releasing Imperial legislative control, retained the
role of the monarchy in the state governmental structure. The state governor was
‘Her Majesty’s representative’ (section 7[1]) although slight alterations were made
tothegovernor’sofficeanditwassetoutthatadvicetothemonarchwastobe
‘tendered by the Premier’ (section 7[5]).
The governor’s role includes ceremonial as well as constitutional functions,
such as assenting to legislation, proroguing parliament, issuing electoral writs,
chairing the Executive Council (which makes official governmental decisions) and
making governmental appointments. 40 In almost all instances, the WA governor
acts on advice, unless rare circumstances arise to justify the exercise of the
governor’s reserve powers.
The present Assembly contains 59 members with a maximum four-year term,
and the Council has 36 members, drawn from six electorates, with a fixed four-year
term. The premier leads the party with a majority in the Assembly and presides over
ministerial decisions made by the Cabinet. There can be up to 17 state ministerial
positions, and one must be filled by a member of the Council.
The WA parliament has plenary legislative power to make ‘laws for the peace,
order and good government’ of the state, 41 including the ability to enact extraterritorial
laws. While there are some express constitutional limits on its power
through the terms of the Commonwealth Constitution, the High Court of
Australia, since Federation, has also determined that some implied legislative limits
exist. 42 Further, the CA includes restrictive procedures that seek to make it more
40 ‘Letters patent’ 1986.
41 CA, section 2(1).
42 These include intergovernmental immunity (Re Residential Tenancies Tribunal (NSW); ex parte
Defence House Authority (1997) 190 CLR 410) and the implied freedom of political
communication (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; McCloy v
New South Wales (2015) 257 CLR 178).
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