Anne Twomey - The Constitution of New South Wales

Anne Twomey

The Constitution of New South Wales

Annandale NSW: The Federation Press, 2004  [January 2005 in the UK]

(with foreword by Hon. Justice Keith Mason)

Pp. xli + 917.               Hardback    £58           ISBN 1 86287 516 2

In his belittling invective, Gough Whitlam dismissed the states as mere British colonies. With a century and a half of self-government, and a population larger than almost one hundred sovereign nations, New South Wales is more than that. Anne Twomey, who is both a legal practitioner and an adjunct member of the Sydney University’s Law Faculty, has produced a massive and intriguing book on the state’s constitution that will undoubtedly become an indispensable classic. One of its major strengths is her recognition that a constitution is more than just a document, a truth that has not always been evident in Canadian debate. In the case of New South Wales, it is certainly more than the single document that forms the book’s appendix, the consolidating act of 1902 made necessary by federation. Most of the chapters conform to predictable headings in this kind of textbook, dealing with subjects such as the legislative power, elections, qualifications of members of parliament, procedure and privilege, taxation, the role of the executive and the judiciary. One unusual chapter, entitled ‘Manner and Form’, examines New South Wales practice with regard to entrenchment, devices used by one parliament to deter its successors from changing key provisions, notably in the constitution itself. The detailed arguments here are probably above the general reader, but it is clear that Twomey has identified an area of potential uncertainty in the practice of government. Two chapters which will have wider appeal relate to the dismantling of direct links with Britain, largely achieved in 1986, and with the implications of the campaign for a republic on the state constitution. Among the possibilities considered under the latter are that New South Wales might sever its links with the Crown or determine to maintain them, independently of, and possibly in conflict with, any action by the Commonwealth. The question might arise, since it is not clear whether abolition of the monarchy at federal level would automatically change the constitutions of the states. However, Twomey is reasonably confident that it is legally safe to campaign for a republic despite the state law which declares it an offence to attempt to ‘depose Our Most Gracious Lady the Queen’. The relevant case law is drawn from England, where in 2003 the republican Guardian newspaper asked the Law Lords to guarantee immunity from prosecution for treason. Their lordships told its editor to stop being silly, which of course is too much to ask of that publication. A final chapter discusses general issues of federalism, and the whole mighty tome concludes with some enigmatic reflections on the theoretical question of secession. Although back in 1900 the federal constitution was wisely silent on this issue, Twomey concludes that unilateral withdrawal ‘would not be legally valid’ but adds realistically that if matters came to such a sad pass, some means would have to be found to carry out an orderly divorce. In short, or more accurately in 900 pages, Twomey has covered pretty well every eventuality, sensibly and comprehensively.