Constitution Act 1934

Constitution Act 1934

An Act to consolidate and amend the Acts of this State relating to the Constitution

[The preamble Substituted by No. 46 of 2016, s. 4, Applied:15 Dec 2016] Whereas by an Act of Council intituled an Act to establish a Parliament in Van Diemen's Land and to grant a Civil List to Her Majesty (known as the Constitutional Act and later as the Constitution Act ) passed in the eighteenth year of the reign of Her Majesty Queen Victoria by the Governor and Legislative Council of the Colony of Van Diemen's Land in pursuance of the provisions of an Imperial Act called the Australian Constitution Act 1850 , it was enacted for the purpose of securing the peace, welfare, and good government of the said Colony, that in place of the said Legislative Council there should be one Legislative Council and one House of Assembly, constituted as therein provided, which should exercise all the powers and functions of the then existing Legislative Council, and that the Governor and Legislative Council and House of Assembly together should be called the Parliament of Van Diemen's Land:
And whereas Her said Majesty Queen Victoria, by Order-in-Council directed that, on and after 1st January 1856, the name of the said Colony should be changed to Tasmania:
And whereas by force of the Commonwealth of Australia Constitution Act 1900 , the said Colony, on the establishment of the said Commonwealth, was constituted and became a State of the Commonwealth of Australia:
And whereas many of the provisions of the Constitution Act have been repealed or replaced, and numerous amendments have been made therein, and it is desirable to make certain other amendments therein, and that the said Act and its amendment should be consolidated in one Act:
And whereas the Parliament, on behalf of all the people of Tasmania, acknowledges the Aboriginal people as Tasmania's First People and the traditional and original owners of Tasmanian lands and waters; recognises the enduring spiritual, social, cultural and economic importance of traditional lands and waters to Tasmanian Aboriginal people; and recognises the unique and lasting contributions that Tasmanian Aboriginal people have made and continue to make to Tasmania:

Be it therefore enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title

This Act may be cited as the Constitution Act 1934 .

2.   

[Section 2 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

3.   Interpretation

[Section 3 Amended by No. 88 of 1954, s. 2 ][Section 3 Amended by No. 41 of 1961, s. 5 and Sched. 4 ][Section 3 Amended by No. 30 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –

Assembly means the House of Assembly of the Parliament of Tasmania;

Council means the Legislative Council of the Parliament of Tasmania;

House means such one of the two Houses of Parliament as the context indicates;

municipality means a municipal area;

Parliament means the Parliament of Tasmania constituted as provided by this Act;

[Section 3 Amended by No. 31 of 1998, s. 4, Applied:27 Jul 1998] Redistribution Tribunal means the Redistribution Tribunal appointed under section 4 of the Legislative Council Electoral Boundaries Act 1995 ;

[Section 3 Amended by No. 51 of 2004, Sched. 8, Applied:16 Feb 2005] State roll has the same meaning as in the Electoral Act 2004 ;

ward means an electoral district within the meaning of the Local Government Act 1993 .

PART II - The Crown

4.   Parliament not dissolved by demise of the Crown

The Legislative Council and House of Assembly of Tasmania in being at any future demise of the Crown shall not be determined or dissolved by such demise, but, subject to the provisions of this Act, shall continue so long as they would have continued respectively but for such demise.

5.   Demise of the Crown not to affect things done before proclamation thereof

Any future demise of the Crown shall not affect anything done in this State before the day whereon the Governor, by his proclamation, has notified such demise, and all things done within this State at any time after such demise, but before the day of the publication of the Gazette containing such proclamation, and which but for this Act might be affected by such demise, shall have the same effect and be of the same force as if no such demise had happened.

6.   Appointments, &c., by the Governor to continue in force notwithstanding demise of the Crown

Every commission, warrant, or other authority for the exercise of any office or employment of any kind or nature within the State issued or exercised by the Governor in Council, or the Governor, or by any other person in the name and on behalf of His Majesty in virtue of his office, or under the authority of any Act of the Imperial Parliament, or of the Parliament of the Commonwealth, or of the Parliament of Tasmania, or of any rules or regulations made thereunder respectively, shall continue in full force notwithstanding any future demise of the Crown until duly revoked or cancelled, and shall be of the same effect as if no such demise had happened; anything contained in an Act of the Imperial Parliament passed in the first year of His late Majesty King William the Fourth, chapter 4, to the contrary notwithstanding.

7.   All process, &c., and engagements with or on behalf of His Majesty, to subsist and continue notwithstanding demise

(1)  No action, suit, or other process or proceeding, civil or criminal, in or to which His Majesty shall be a party, or which shall have been commenced or carried on in His name or by His authority, shall, by reason of His demise, abate, discontinue, or be in any manner affected; but every such action, suit, process, or proceeding shall and may be carried on, enforced, or otherwise completed or acted on in the name of His successor, and as if such demise had not happened.

(2)  All contracts of every kind lawfully entered into by or on behalf of His Majesty with any person, body, or authority, and all benefit and advantage thereof, and all liability in respect thereof, shall respectively attach and belong to the heirs and successors of His Majesty, although they be not expressly named in any such contract.

8.   Deputy-Governor's powers: Provision as to deputy of Lieutenant-Governor or Administrator

(1)  [Section 8 Subsection (1) amended by No. 31 of 1971, s. 2 ]In this section the said letters patent means the letters patent under the great seal of the United Kingdom bearing date 29th October 1900, as amended by the letters patent bearing date 31st August 1920, by the letters patent bearing date 22nd February 1934, and by the letters patent bearing date 25th May 1971, and includes any letters patent to be hereafter issued in amendment of, or in substitution for, the same.

(2)  [Section 8 Subsection (2) amended by No. 31 of 1971, s. 2 ]During the temporary absence of the Governor from the seat of government or from the State or during any illness of the Governor, all the powers and authorities conferred upon or vested in the Governor by any statutory or other law or usage of the State, as well as the powers and authorities conferred upon or vested in the Governor by the said letters patent, shall and may be exercised, performed, and executed by the officer or person appointed by the Governor to be his deputy during such absence or illness, subject nevertheless to any terms or limitations expressed in the instrument appointing such deputy.

(3)  [Section 8 Subsection (3) amended by No. 66 of 2009, Sched. 1, Applied:30 Nov 2009] [Section 8 Subsection (3) amended by No. 31 of 1971, s. 2 ]During any period when the powers and authorities in the said letters patent granted to the Governor are vested in the Lieutenant-Governor or such other person or persons as is or are appointed to administer the Government of the State, the provisions of subsection (2) shall apply to the person appointed to be the deputy of the Lieutenant-Governor, or of such other person or persons appointed to administer the government as aforesaid, during his temporary absence from the seat of government or from the State or during his illness, subject nevertheless to any terms or limitations expressed in the instrument appointing such deputy.

(4)  Any exercise, performance, or execution before the passing of this Act of any of the powers or authorities hereinbefore mentioned shall be and be deemed to have been of the same validity, and shall have and be deemed to have had the same force and effect, as if this Act had been in force at the time of such exercise, performance, or execution.

8A.   Limit on number of Ministers of the Crown

[Section 8A Inserted by No. 82 of 1977, s. 2 ][Section 8A Amended by No. 16 of 1982, s. 4 ][Section 8A Amended by No. 31 of 1998, s. 5, Applied:27 Jul 1998] [Section 8A Amended by No. 30 of 2002, s. 4, Applied:17 Oct 2002] No more than 9, or, where a Secretary to Cabinet has been appointed pursuant to section 8F , no more than 8, persons shall hold office as Ministers of the Crown at any one time.

8B.   Appointment and tenure of office of Ministers of the Crown

[Section 8B Inserted by No. 82 of 1977, s. 2 ]

(1)  No person shall be appointed a Minister of the Crown unless he is a member of the Council or the Assembly, and, subject to the following provisions of this section, a Minister of the Crown ceases to hold office as such on ceasing to be a member of the Council or the Assembly.

(2)  Where a member of the Council, on the expiry of his term of office as such in any year, also holds office as a Minister of the Crown he may continue in the office of Minister of the Crown until the expiration of the period of 7 days following the day of the return of the writs for the periodical election of members of the Council in that year.

(3)  Where, at the dissolution of the Assembly, or on its ceasing to continue, a member thereof holds office as a Minister of the Crown he may continue in the office of Minister of the Crown until the expiration of the period of 7 days following the day of the return of the writs for the ensuing general election.

(4)  If, as provided in subsection (2) or subsection (3) , a person continues in office as a Minister of the Crown until the expiration of the period of 7 days following the day of the return of the writs referred to in either of those sections, he then ceases to hold office as a Minister of the Crown unless, since the return of the writs, he has again been appointed a Minister of the Crown.

8C.   Special provisions as to Attorney-General

[Section 8C Inserted by No. 82 of 1977, s. 2 ]

(1)  [Section 8C Subsection (1) amended by No. 16 of 1982, s. 5 ]Except as provided in this section, no office, power, duty, authority, obligation, or discretion that is by law conferred or imposed upon the Attorney-General shall be allocated to, or exercised or discharged by, any other Minister of the Crown or the Secretary to Cabinet.

(2)  In any case in which he considers it expedient so to do, the Governor may appoint another Minister of the Crown to be Acting Attorney-General for a specified period or until the happening of a specified event, and during the continuance of the appointment that Minister may exercise, perform and discharge all the powers, duties, authorities, obligations, and discretions conferred or imposed by law upon the Attorney-General or appertaining to the office of Attorney-General in as full, complete and effectual manner as if he were the holder of the office of Attorney-General.

8D.   

[Section 8D Repealed by No. 4 of 1990, s. 10 ].  .  .  .  .  .  .  .  

8E.   Minister acting on behalf of another

[Section 8E Inserted by No. 82 of 1977, s. 2 ]Except as provided in section 8C any official document requiring the signature or execution of any particular Minister shall be valid and effectual if it is signed or executed on his behalf by any other Minister.

8F.   Appointment of Secretary to Cabinet

[Section 8F Inserted by No. 16 of 1982, s. 6 ]

(1)  The Governor may, from time to time, appoint a Member of the Council or the Assembly to hold office as Secretary to Cabinet.

(2)  A person shall not be appointed to hold office as Secretary to Cabinet if he is a Minister of the Crown.

(3)  A person shall not be appointed as a Minister of the Crown if he is holding office as Secretary to Cabinet.

8G.   Functions of Secretary to Cabinet

[Section 8G Inserted by No. 16 of 1982, s. 6 ]

(1)  The Secretary to Cabinet shall have and may perform such functions with respect to the affairs of the State as the Premier may, from time to time, determine in respect of him.

(2)  Nothing in this section authorizes the Secretary to Cabinet to perform any functions that may, by the terms (express or implied) of an Act or instrument under an Act, or by or under any other law, only be performed by some other person.

8H.   How Secretary to Cabinet ceases to hold office

[Section 8H Inserted by No. 16 of 1982, s. 6 ]

(1)  [Section 8H Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. I ]A person holding office as Secretary to Cabinet ceases to hold that office –

(a) when he dies;

(b) if he resigns his office as such by writing under his hand addressed to the Governor;

(c) if he is removed from office as such by the Governor;

(d) where the person is a Member of the Council –

(i) on vacating his seat as a Member of the Council, otherwise than by reason of the fact that his term of office as such has expired; or

(ii) if his term of office as such a Member expires – on the expiration of 7 days following the day of the return of the writs for the periodical election of Members of the Council next following the expiry of his term of office as such a Member; or

(e) where the person is a Member of the Assembly –

(i) on vacating his seat as a Member of the Assembly, otherwise than by reason of the fact that the Assembly has been dissolved or has expired by effluxion of time; or

(ii) on the expiration of the period of 7 days following the day of the return of the writs for the general election next following his appointment to hold office as Secretary to Cabinet.

(2)  The Governor may, for any cause which appears to him to be sufficient, remove from office any person who is holding office as Secretary to Cabinet.

PART III - Parliament

Division 1 - Both Houses

9.   Continuation of existing Houses: Continuance in office of Members

(1)  The Legislative Council and House of Assembly as at present constituted shall be continued under, and subject to, the provisions of this Act.

(2)  Subject to the provisions of this Act, all Members of Parliament holding office at the passing of this Act shall continue so to do, and every such Member, or, if he shall sooner vacate his office, the person, if any, who is elected to fill his place, otherwise than at a periodical election, shall retire at the time at which such Member would have retired by effluxion of time if this Act had not been passed.

10.   The Parliament of Tasmania

The Governor and the Legislative Council and House of Assembly shall together constitute the Parliament of Tasmania.

11.   Annual sessions

There shall be a session of Parliament once in every year, so that a period of 12 months shall not intervene between the last sitting in one session and the first sitting in the next session.

12.   Governor to fix times for sittings; Delay in return of writs

(1)  The Governor shall fix the times and places for holding the sessions of Parliament, and may alter or vary the same respectively as he may think fit, giving due notice thereof.

(2)  The Governor, by proclamation, may prorogue Parliament or dissolve the Assembly whenever he shall deem it expedient so to do, but shall not have power to dissolve the Council.

(3)  The Governor shall call Parliament together for the despatch of business after every general election of members of the Assembly, within 90 days after the dissolution of the Assembly, unless the Governor, by proclamation, shall extend the time for so doing by such further period not exceeding 30 days as he may think necessary.

(4)  If any delay occurs in the return of any writ issued for the election of members of either House, and, in consequence of the non-return thereof, the number of Members of such House is not complete on the day for which Parliament is called together as aforesaid, such House may nevertheless proceed to business if duly summoned for that purpose so long as the deficiency in the number of Members thereby occasioned does not exceed 2 in the case of the Council or four in the case of the Assembly.

13.   Special sittings of Parliament

(1)  Where the sittings of both or either of the Houses shall stand adjourned, and, in the opinion of the Governor, it is desirable that Parliament shall be called together for the despatch of business before the expiration of such adjournment, the Governor, by proclamation, may declare that Parliament shall meet on such day, not being less than 6 days after the date of such proclamation, as may be therein specified.

(1A)  [Section 13 Subsection (1A) inserted by No. 11 of 1958, s. 2 ]When Parliament stands prorogued to a certain day and, in the opinion of the Governor, it is desirable that Parliament shall be called together for the despatch of business before the day to which it is prorogued, the Governor may, by proclamation, prorogue Parliament to such earlier date, not being less than 6 days after the date of the proclamation, as may be therein specified, and in such a case Parliament stands prorogued to that date notwithstanding the previous prorogation.

(2)  [Section 13 Subsection (2) amended by No. 54 of 1967, s. 2 ]Every order which shall have been made by either House and appointed for the day to which such House was so adjourned, or for any subsequent day, shall be deemed to have been appointed for the day on which Parliament shall meet in pursuance of a proclamation under subsection (1) , but this provision shall not extend or apply to any such order that shall have been specially appointed by such House for a particular day and declared, notwithstanding any meeting of Parliament, to be so fixed, or to any order made under any Act.

14.   Qualification of Members

[Section 14 Amended by 9 & 10 Geo. VI No. 48, s. 3 ][Section 14 Amended by No. 33 of 1959, s. 2 ][Section 14 Amended by No. 26 of 1963, s. 2 ][Section 14 Amended by No. 68 of 1968, s. 2 ]

(1)  [Section 14 Subsection (1) amended by No. 53 of 2004, Sched. 1, Applied:16 Feb 2005] [Section 14 Subsection (1) substituted by No. 36 of 1983, s. 4 ][Section 14 Subsection (1) amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 14 Subsection (1) amended by No. 17 of 1992, s. 4 ]Every person who, under the provisions of the Electoral Act 2004 , is an elector, or is entitled to have his name placed on the roll for a division for the House in respect of which he is nominated as a candidate for election shall, unless he is disqualified by virtue of this Act or the Electoral Act 2004 , be capable of being elected as a Member of that House if he–

(a) has resided in Tasmania continuously for a period of 5 years at any one time; or

(b) has resided in Tasmania for a period of 2 years immediately preceding his nomination as such a candidate.

(2)  [Section 14 Subsection (2) amended by No. 51 of 2004, Sched. 8, Applied:16 Feb 2005] No person who is of unsound mind shall be capable of being elected as a Member of either House or be entitled to vote at any election of Members thereof.

(3)  No person shall be capable of being a Member of both Houses at the one time.

15.   Resignation

Any Member of either House, by writing under his hand addressed to the Governor, may resign his seat therein, and upon receipt by the Governor of such resignation the seat of such Member shall become vacant.

16.   

[Section 16 Repealed by No. 26 of 1962, s. 3 ].  .  .  .  .  .  .  .  

17.   Houses to make standing orders

(1)  Each House, as occasion may arise, shall prepare and adopt such standing rules and orders as shall appear to it to be best adapted for the orderly conduct of the business of such House; for the mode in which such House shall confer, correspond, and communicate with the other House; for the manner in which Bills shall be introduced, passed, numbered, and intituled in such House; for the proper presentation of Bills to the Governor for His Majesty's assent; and generally for the conduct of all business and proceedings of such House and of both Houses collectively.

(2)  All such rules and orders shall be laid before the Governor by the House making them and, being approved by him, shall become binding and of force.

Division 2 - The Council

18AA.   Application of Division

[Section 18AA Inserted by No. 8 of 1997, s. 4, Applied:01 May 1997] [Section 18AA Substituted by No. 31 of 1998, s. 6, Applied:27 Jul 1998] This Division has effect subject to Part 3 of the Constitution (Legislative Council) Special Provisions Act 1997 until a determination is made by the Redistribution Tribunal under section 29A of the Legislative Council Electoral Boundaries Act 1995 .

18.   Constitution of the Council

[Section 18 Amended by 9 & 10 Geo. VI No. 48, s. 4 ][Section 18 Amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 18 Amended by No. 8 of 1997, s. 5, Applied:01 May 1997] [Section 18 Substituted by No. 31 of 1998, s. 7, Applied:27 Jul 1998]

(1)  The Council is to be constituted of 15 members.

(2)  [Section 18 Subsection (2) amended by No. 53 of 2004, Sched. 1, Applied:16 Feb 2005] Each member of the Council is to be elected, as provided by this Act, in accordance with the Electoral Act 2004 , to represent a Council division.

(3)  There are to be 15 Council divisions, the names and boundaries of which are to be as determined under section 25 of the Legislative Council Electoral Boundaries Act 1995 .

19.   Council elections

(1)  Every Member of the Council, subject to the provisions of this Act, shall hold office for 6 years.

(2)  Periodical elections of Members of the Council shall be held in every year.

(3)  [Section 19 Subsection (3) substituted by 9 & 10 Geo. VI No. 48, s. 5 ][Section 19 Subsection (3) substituted by No. 8 of 1997, s. 6, Applied:01 May 1997] [Section 19 Subsection (3) substituted by No. 31 of 1998, s. 8, Applied:27 Jul 1998] Except as specified in a determination made under section 29A of the Legislative Council Electoral Boundaries Act 1995  –

(a) at every alternate periodical election of members of the Council 2 members are to retire and 2 members are to be elected to fill the vacancies so created; and

(b) at every other periodical election of members of the Council 3 members are to retire and 3 members are to be elected to fill the vacancies so created.

(3A)  [Section 19 Subsection (3A) substituted by 9 & 10 Geo. VI No. 48, s. 5 ][Section 19 Subsection (3A) omitted by No. 8 of 1997, s. 6, Applied:01 May 1997] .  .  .  .  .  .  .  .  

(4)  [Section 19 Subsection (4) amended by No. 12 of 1999, s. 8, Applied:14 Apr 1999] [Section 19 Subsection (4) substituted by 9 & 10 Geo. VI No. 48, s. 5 ][Section 19 Subsection (4) amended by No. 1 of 1953, s. 2 ][Section 19 Subsection (4) amended by No. 54 of 1967, s. 3 ]In the event of a poll being required for any such election the same shall be held on the first Saturday in the month of May, or on such other day (being a Saturday) in the month of May as the Governor may, by proclamation, appoint in that behalf in respect of the periodical elections to be held in any particular year.

(5)  At any such election the retiring Member if otherwise qualified shall be eligible for re-election.

(6)  If the seat of any member of the Council becomes vacant otherwise than by effluxion of time, the person elected to fill such vacancy shall hold office only until the expiration of the period for which the vacating Member was elected.

(7)  [Section 19 Subsection (7) omitted by No. 8 of 1997, s. 6, Applied:01 May 1997] .  .  .  .  .  .  .  .  

20.   Quorum of the Council

(1)  [Section 20 Subsection (1) amended by No. 31 of 1998, s. 9, Applied:27 Jul 1998] The Council shall not be competent to despatch any business unless at least 7 Members thereof, including the President, or the person chosen to preside in his absence, are present.

(2)  All questions shall be decided by the majority of the votes of the Members present, exclusive of the President.

(3)  In the event of an equality of votes the President or such person as aforesaid shall have a casting vote.

21.   Election of President

(1)  Whenever the office of President becomes vacant by the death, resignation, or removal from office of the President, the Council, before proceeding to any other business, shall elect some other Member to be President thereof.

(2)  Whenever the President or the Chairman of Committees of the Council retires by effluxion of time, he shall continue to hold office until the next meeting of Parliament unless he is not re-elected as a Member.

(3)  The election of President shall be notified to the Governor by a deputation of the Council.

(4)  The President if present shall preside at all meetings of the Council, but, in the event of his absence through leave granted to him by the Council or through illness or any other unavoidable cause, the Council may choose some other Member thereof to fill temporarily the office and perform the duties of President during his absence.

Division 3 - The Assembly

22.   Constitution of the Assembly

[Section 22 Amended by No. 89 of 1953, s. 2 ][Section 22 Amended by No. 91 of 1958, s. 2 ][Section 22 Amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 22 Substituted by No. 31 of 1998, s. 10, Applied:27 Jul 1998]

(1)  The Assembly is to be constituted of 25 members.

(2)  [Section 22 Subsection (2) amended by No. 53 of 2004, Sched. 1, Applied:16 Feb 2005] Each member of the Assembly is to be elected, as provided by this Act, in accordance with the Electoral Act 2004 , to represent an Assembly division.

(3)  For the purpose of returning members to serve in the Assembly, the State is to be divided into 5 divisions, each of which is to return 5 members.

(4)  [Section 22 Subsection (4) amended by No. 17 of 2018, s. 4, Applied:28 Sep 2018] The names of the divisions of the Assembly are Bass, Braddon, Clark, Franklin and Lyons.

(5)  The divisions of the Assembly comprise the areas described in Schedule 4 .

23.   Four year Parliaments

[Section 23 Substituted by No. 79 of 1972, s. 2 ]

(1)  The Assembly chosen at the general election held on 22nd April 1972 shall continue for 5 years from the day of the return of the writs for that general election and no longer, unless it is sooner dissolved by the Governor.

(2)  Every subsequent Assembly shall continue for 4 years from the day of the return of the writs for the general election at which the Members thereof were elected and no longer, unless it is sooner dissolved by the Governor.

24.   Election of Speaker

(1)  The Assembly, at its first meeting after a general election, and before proceeding to the despatch of any other business, shall elect one of its Members to be Speaker thereof.

(2)  Whenever the office of Speaker shall become vacant through the death, resignation, or removal from office of the Speaker, the Assembly shall elect some other Member thereof to be Speaker.

(3)  The election of the Speaker shall be notified to the Governor by a deputation of the said House.

(4)  In the event of a dissolution of the Assembly the Speaker and the Chairman of Committees of the Assembly respectively shall hold office until the election held in consequence of such dissolution and, if he is re-elected at such election, until the next meeting of Parliament, but the Speaker shall not preside over any sitting of the Assembly until he has been re-elected as Speaker.

(5)  The Speaker, if present, shall preside at all sittings of the Assembly, but in case of his absence through leave of absence granted to him by the Assembly, or through illness or any other unavoidable cause, the Assembly may choose some other Member to fill temporarily the office, and perform the duties, of Speaker during his absence.

24A.   

[Section 24A Repealed by No. 91 of 1958, s. 3 ].  .  .  .  .  .  .  .  

25.   Quorum of the Assembly

(1)  [Section 25 Subsection (1) amended by No. 31 of 1998, s. 11, Applied:27 Jul 1998] [Section 25 Subsection (1) amended by No. 26 of 1963, s. 4 ]The Assembly shall not be competent to despatch any business unless at least 10 Members thereof, including the Speaker or the person chosen to preside in his absence are present.

(2)  [Section 25 Subsection (2) amended by No. 80 of 1970, s. 2 ]Except as provided in subsection (2A) , all questions shall be decided by a majority of the votes of the Members present, exclusive of the Speaker.

(2A)  [Section 25 Subsection (2A) inserted by No. 80 of 1970, s. 2 ]Notwithstanding subsection (2) , a question relating to –

(a) the rescission of a resolution or vote of the Assembly; or

(b) the suspension of any standing order of the Assembly –

shall, in such cases and on such conditions, if any, as may be prescribed in the standing orders of the Assembly, be decided by such a special majority of the votes of the members thereof as may be prescribed in relation to such a question in those standing orders.

(3)  In the event of an equality of votes, the Speaker or such person as aforesaid shall have a casting vote.

Division 4 - Qualifications of electors

26.   

[Section 26 Amended by 9 & 10 Geo. VI No. 48, s. 6 ][Section 26 Amended by No. 96 of 1963, s. 2 ][Section 26 Subsection (3) added by No. 49 of 1961, s. 2 ][Section 26 Subsection (4) added by No. 96 of 1963, s. 2 ][Section 26 Substituted by No. 8 of 1997, s. 7, Applied:01 May 1997] [Section 26 Repealed by No. 31 of 1998, s. 13, Applied:27 Jul 1998] .  .  .  .  .  .  .  .  

27.   

[Section 27 Subsection (1) amended by No. 33 of 1955, s. 2 ][Section 27 Subsection (1) amended by No. 91 of 1958, s. 4 ][Section 27 Subsection (1) amended by No. 12 of 1985, s. 4 ][Section 27 Subsection (2) substituted by No. 17 of 1992, s. 5 ][Section 27 Repealed by No. 31 of 1998, s. 14, Applied:27 Jul 1998] .  .  .  .  .  .  .  .  

28.   Assembly and Council electors

[Section 28 Substituted by No. 36 of 1983, s. 5 ][Section 28 Subsection (1) amended by No. 88 of 1986, s. 3 and Sched. 1 ][Section 28 Subsection (1) amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 28 Substituted by No. 51 of 2004, Sched. 8, Applied:16 Feb 2005] Subject to the provisions of this Act and the Electoral Act 2004 , every person who is aged 18 years or more and is an Australian citizen is entitled to be enrolled on the State roll as an elector –

(a) for the Assembly division in which the person lives; and

(b) for the Council division in which the person lives –

and, when so enrolled, is qualified to vote at any election of a Member to serve in either of those divisions.

29.   

[Section 29 Substituted by No. 36 of 1983, s. 6 ][Section 29 Subsection (1) amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 29 Subsection (1) amended by No. 88 of 1986, s. 3 and Sched. 1 ][Section 29 Subsection (1) amended by No. 17 of 1992, s. 6 ][Section 29 Subsection (2) amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 29 Subsection (2) amended by No. 17 of 1992, s. 6 ][Section 29 Repealed by No. 51 of 2004, Sched. 8, Applied:16 Feb 2005] .  .  .  .  .  .  .  .  

Division 5 - Disqualification: Vacation of office: Penalty

30.   Oath to be taken by Members

[Section 30 Substituted by No. 8 of 2015, s. 4, Applied:15 May 2015] No Member of either House may act or vote in the House until he or she has either –

(a) after becoming a Member and before the day on which the Promissory Oaths Act 2015 commences, taken before the Governor, or before another person authorised by the Governor to administer it, the oath of allegiance prescribed by the former Promissory Oaths Act 1869 ; or

(b) after becoming a Member and after the day on which the Promissory Oaths Act 2015 commences, taken and subscribed under section 3(1) of that Act the oath of allegiance.

31.   Commonwealth membership

(1)  No Member of either House of the Parliament of the Commonwealth shall be capable of sitting as a Member of either House of this State.

(2)  If a Member of either House of this State becomes a Member of either House of the Parliament of the Commonwealth, his place in the State House shall become vacant upon the day the Returning Officer declares him elected a Member of either House of the Parliament of the Commonwealth.

(3)  If any Minister of the Crown of this State accepts office as a Minister of the Crown under the Commonwealth his office as a Minister of the Crown of this State shall, upon such acceptance, become vacant.

32.   Office of profit

(1)  [Section 32 Subsection (1) amended by No. 26 of 1963, s. 7 ]Except as otherwise expressly provided, if any Member of either House shall accept any pension payable, out of the Public Account, during the pleasure of the Crown or any office of profit or emolument by the appointment of –

(a) the Governor or the Governor in Council; or

(b) a State instrumentality –

his seat shall thereupon become vacant.

(2)  [Section 32 Subsection (2) substituted by No. 26 of 1963, s. 7 ][Section 32 Subsection (2) amended by No. 16 of 1982, s. 7 ]The provisions of subsection (1) do not apply to a person by reason only that he holds the office of Minister of the Crown or Secretary to Cabinet for this State.

(3)  [Section 32 Subsection (3) amended by No. 16 of 1982, s. 7 ]No judge of the Supreme Court, and no person holding any office of profit or emolument to which the provisions of subsection (1) apply, shall be capable of being elected to, or of holding, a seat in either House.

(4)  [Section 32 Subsection (4) added by No. 26 of 1963, s. 7 ]In this section –[Section 32 Subsection (4) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003]

[Section 32 Subsection (4) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] Public Account means the Public Account as defined in the Public Account Act 1986 ;

State instrumentality means a State instrumentality as defined in section 33 (6) .

33.   Contractors

[Section 33 Amended by No. 9 of 1982, s. 7 and Sched. 10 ]

(1)  [Section 33 Subsection (1) amended by No. 26 of 1963, s. 8 ]Subject to this section, any person who shall directly or indirectly himself or by any person whatsoever in trust for him or for his use or benefit or on his account, undertake, execute, hold, or enjoy in the whole or in part, any contract or agreement with the Government of the State shall be incapable of being elected or of sitting or voting as a Member of either House during the time he shall execute, hold, or enjoy any such contract or any part or share thereof or any benefit or emolument arising from the same, and if any Member shall enter into any such contract or agreement or having entered into it shall continue to hold it, his seat shall be vacant.

(2)  [Section 33 Subsection (2) substituted by No. 26 of 1963, s. 8 ] Subsection (1) does not render a person incapable of being elected or of sitting or voting as a Member of either House or render the seat of a Member vacant by reason only of the making, entering into, or acceptance of a contract or agreement by a corporation (not being a prescribed corporation) consisting of more than 30 members where the contract or agreement is made, entered into, or accepted for the general benefit of the corporation.

(2A)  [Section 33 Subsection (2A) inserted by No. 26 of 1963, s. 8 ][Section 33 Subsection (2A) amended by No. 9 of 1982, s. 7 and Sched. 10 ]For the purposes of subsection (2) , a prescribed corporation is a corporation –

(a) in which a Member or other person to whom that subsection relates holds one-fifth or more of –

(i) the total number for the time being of the issued shares of all classes; or

(ii) the total amount of the stock for the time being;

(b) in which the Member or other person is entitled to exercise, or to control the exercise, of one-fifth or more of the total voting rights; or

(c) [Section 33 Subsection (2A) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] that is, by virtue of section 50 of the Corporations Act, related for the purposes of that Act to any corporation to which paragraph (a) or paragraph (b) of this subsection relates.

(2B)  [Section 33 Subsection (2B) inserted by No. 26 of 1963, s. 8 ]For the purposes of subsection (2A) , shares or stock held, or voting rights exercisable, by a member of the family of the Member or other person shall be deemed to be shares or stock held, or voting rights exercisable, by that Member or person.

(3)  [Section 33 Subsection (3) amended by No. 26 of 1963, s. 8 ][Section 33 Subsection (3) amended by No. 54 of 1967, s. 4 ][Section 33 Subsection (3) amended by No. 66 of 1972, s. 2 ][Section 33 Subsection (3) amended by No. 2 of 1981, s. 2 ][Section 33 Subsection (3) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. I ][Section 33 Subsection (3) amended by No. 77 of 1995, s. 3 and Sched. 1 ]The provisions of subsection (1) shall not apply in respect of any contract or agreement –

(a) for the purchase or lease of any land of the Crown under and in pursuance of any Act authorizing the same;

(b) for the sale or surrender of any land resumed or acquired by the Crown for any public purpose under the provisions of any Act if the purchase money or consideration has been determined by arbitration or by a judicial tribunal or has been approved by a resolution of both Houses;

(c) for or in respect of a loan to the Treasurer or any person authorized to borrow on behalf of the State;

(ca) for or in relation to the making of a loan by Tasmania Development and Resources, if the loan is made upon the like conditions and at the same rate of interest (if any) as would be applicable if the loan were made to any other private person;

(cb) for or in relation to the education of a person who is wholly or partly dependent on a Member (including, but without prejudice to the generality of this paragraph) –

(i) the conveyance of such a person to or from a college, school, or other educational establishment;

(ii) the granting or payment to such a person of any allowance in connection with a course of studies; and

(iii) the granting, tenure, or enjoyment of any bursary, scholarship, award, or exhibition –

if the contract or agreement is entered into or made by the Member as a private citizen and upon and subject to the same conditions as would be applicable if it had been entered into or made with any other private person;

(d) for the provision or supply of any prescribed service or the sale or supply, by public auction or public tender, of any goods or the provision for any insurance or indemnity which the State or any State instrumentality on its behalf supplies or undertakes to, for, or for the use of, the public generally if the same –

(i) is entered into by the Member as a private citizen; and

(ii) is subject to the like conditions, and for a consideration of the like amount, or calculated upon a like basis, as would be applicable respectively to such contract or agreement if the same were made by the State or such State instrumentality with any other private person; or

(e) .  .  .  .  .  .  .  .  

(f) [Section 33 Subsection (3) amended by No. 54 of 2016, s. 10, Applied:31 Mar 2017] for or in relation to the making of a loan, before the transfer date within the meaning of the Public Sector Superannuation Reform Act 2016 , by–

(i) .  .  .  .  .  .  .  .  

(ii) [Section 33 Subsection (3) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] the Retirement Benefits Fund Board–

if the loan is made upon the like conditions and at the same rate of interest as would be applicable if the loan were made to any other private person.

(4)  [Section 33 Subsection (4) inserted by No. 26 of 1963, s. 8 ] Subsection (1) does not operate so as to render a person incapable of being elected, or of sitting or voting, as a Member of either House by reason of his having entered into any contract or agreement to which that subsection relates if, but only if –

(a) the contract or agreement was entered into by the Member before the date on which he was nominated for election; and

(b) not later than 6 months after the date of his election as a Member the contract or agreement is effectually terminated or rescinded.

(5)  [Section 33 Subsection (5) inserted by No. 26 of 1963, s. 8 ]For the purposes of this section, a contract or agreement with the Government of the State is a contract or agreement –

(a) that is entered into by or on behalf of the State, or by any Minister of the Crown in his capacity as such, or by any Department; or

(b) that is entered into by or on behalf of a State instrumentality.

(6)  [Section 33 Subsection (6) added by No. 26 of 1963, s. 8 ][Section 33 Subsection (6) amended by No. 54 of 1967, s. 4 ][Section 33 Subsection (6) amended by No. 66 of 1972, s. 2 ][Section 33 Subsection (6) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 33 Subsection (6) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. I ][Section 33 Subsection (6) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 33 Subsection (6) amended by No. 77 of 1995, s. 3 and Sched. 1 ][Section 33 Subsection (6) amended by No. 61 of 1996, s. 15 ]In this section –

agricultural operations includes horticulture, dairy farming, bee keeping, poultry farming, and the use of land as grazing land or pasture land;

[Section 33 Subsection (6) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] corporation means a corporation within the meaning of the Corporations Act;

member of the family, used in relation to a Member or other person, means –

(a) [Section 33 Subsection (6) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the spouse or partner of that Member or person; and

(b) a child or stepchild (whether legitimate or illegitimate) of that Member or person;

[Section 33 Subsection (6) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] partner means the person with whom a person is in a personal relationship, within the meaning of the Relationships Act 2003 ;

prescribed service means –

(a) electricity;

(b) gas;

(c) water;

(d) public transport facilities;

(e) sewerage or drainage facilities;

(f) medical, surgical, dental, or hospital treatment;

(g) professional or technical services in connection with the carrying on of agricultural operations; and

(h) any other service that is declared, by resolution of both Houses, to be a prescribed service for the purposes of this section;

State instrumentality means any person or body of persons (whether incorporated or unincorporated) constituted, established, or appointed under an Act or in the exercise of the prerogative rights of the Crown to administer or control any department, business, or undertaking on behalf of the State, and (without affecting the generality of this definition) includes –

(a) the Hydro-Electric Corporation;

(b) the Transport Commission;

(c) [Section 33 Subsection (6) amended by No. 79 of 1997, Sched. 3, Applied:02 Feb 1998]

(d) the Forestry corporation;

(e) Tasmania Development and Resources;

(f) [Section 33 Subsection (6) amended by No. 8 of 2011, Sched. 1, Applied:01 Jul 2011] Tasmanian Irrigation Pty Ltd (ACN 133 148 384);

(fa)

(fb) [Section 33 Subsection (6) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] [Section 33 Subsection (6) amended by No. 54 of 2016, s. 10, Applied:31 Mar 2017] the Commission within the meaning of the Public Sector Superannuation Reform Act 2016 ;

(g) the Rivers and Water Supply Commission; and

(h) [Section 33 Subsection (6) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] the Hobart Regional Water Authority.

34.   Vacation of office for other causes

[Section 34 Amended by No. 26 of 1963, s. 9 ]If any Member of either House shall –

(a) for one entire session thereof, fail to give his attendance therein without the permission of such House;

(b) take any oath or make any declaration or act of acknowledgment of allegiance or adherence to any foreign prince or power;

(c) do, or concur in, or adopt, any act whereby he may become a subject or citizen of any foreign state or power;

(d) become bankrupt, or take the benefit of any law relating to bankruptcy;

(e) be attainted of treason or be convicted of any crime and is sentenced or subject to be sentenced to imprisonment for any term exceeding one year unless he has received a free pardon in respect thereof; or

(f) become of unsound mind –

his seat in such House shall thereupon become vacant.

35.   Election and return void in certain cases

[Section 35 Substituted by No. 26 of 1963, s. 10 ][Section 35 Amended by No. 7 of 1985, s. 4 and Sched. 1 ][Section 35 Amended by No. 53 of 2004, Sched. 1, Applied:16 Feb 2005] If a person who is, by virtue of the operation of any provision of this Act or of the Electoral Act 2004 , disqualified from or incapable of being elected, or disqualified from or incapable of sitting or voting, as a Member of either House, is elected and returned, his election and return is void.

PART IV - Money Bills: Powers of Houses

36.   Interpretation

[Section 36 Amended by No. 54 of 1986, s. 3 and Sched. 1 ]In this Part –

Appropriation Act means an Act which authorizes the issue and application of any money from the Consolidated Fund to meet –

(a) the cost of the ordinary annual services of the Government;

(b) expenditure on public works or any property required for public purposes; or

(c) the making of a loan authorized by law;

Income Tax Rating Act means an Act which fixes or declares the rate or rates of tax in respect of incomes, to be paid under the provisions of any Act providing for the payment of such tax;

Land Tax Rating Act means an Act which fixes or declares the rate or rates of tax in respect of the taxable value of land, to be paid under the provisions of any Act providing for the payment of such tax.

37.   Money Bills to originate in the Assembly

[Section 37 Amended by No. 54 of 1967, s. 5 ]

(1)  [Section 37 Subsection (1) amended by No. 54 of 1986, s. 3 and Sched. 1 ]A vote, resolution, or Bill for the appropriation of any money, or for the imposition of a tax, rate, duty, or impost, shall originate in the Assembly.

(2)  [Section 37 Subsection (2) amended by No. 54 of 1986, s. 3 and Sched. 1 ]A vote, resolution, or Bill shall not be deemed to be a vote, resolution, or Bill for the appropriation of any money, or for the imposition of a tax, rate, duty, or impost by reason only of its containing provisions –

(a) for the imposition or appropriation of fines or other pecuniary penalties; or

(b) for the demand, or payment, or appropriation of fees for licences, or fees for services thereunder.

38.   Money votes, &c., to be recommended by the Governor

[Section 38 Substituted by No. 80 of 1970, s. 3 ]

(1)  [Section 38 Subsection (1) amended by No. 54 of 1986, s. 3 and Sched. 1 ]The Assembly shall not pass a vote, resolution, or Bill for the appropriation of any money or of any tax, rate, duty, or impost unless the purpose of the appropriation is, in the same session, recommended to the Assembly by the Governor.

(2)  An infringement or non-observance of the provisions of subsection (1) shall not be held to affect the validity of any Act that is assented to by the Governor after the commencement of this section.

39.   Limitation of matters to be dealt with in Appropriation Bills

[Section 39 Amended by No. 54 of 1986, s. 3 and Sched. 1 ]A Bill for an Appropriation Act shall not –

(a) deal with any matter other than the issue, application, and appropriation of money out of the Consolidated Fund; or

(b) authorize such issue, application, or appropriation for a longer period than one year.

40.   Certain provisions in Appropriation Acts inoperative

[Section 40 Amended by No. 54 of 1986, s. 3 and Sched. 1 ]If any provision in an Appropriation Act –

(a) deals with any matter other than the issue, application, and appropriation of money out of the Consolidated Fund; or

(b) authorizes any such issue, application, or appropriation, as last aforesaid for a longer period than one year –

such provision shall be of no effect.

41.   Limitation of matters to be dealt with in Income Tax Rating Acts and Land Tax Rating Acts

[Section 41 Substituted by No. 42 of 1997, s. 14, Applied:01 Jul 1997]

(1)  An Income Tax Rating Act and a Land Tax Rating Act are to deal only with the fixing or declaration of the rate or rates of tax to be paid –

(a) in the case of an Income Tax Rating Act, in respect of incomes; and

(b) in the case of a Land Tax Rating Act, in respect of the taxable value of land.

(2)  An Income Tax Rating Act is to fix or declare the rate or rates of tax for one year only otherwise it is of no effect.

41A.   Powers of the Assembly in respect of its own duration

[Section 41A Inserted by No. 79 of 1972, s. 3 ]The Assembly may not pass any Bill to amend section 23 unless not less than two-thirds of its Members vote for passing the Bill or for a motion on the passing of which the Bill will be deemed to have passed.

42.   Powers of the Council in respect of the amendment of Bills

(1)  [Section 42 Subsection (1) substituted by No. 54 of 1986, s. 3 and Sched. 1 ]The Council may not amend –

(a) a provision of a Bill for an Appropriation Act that authorizes the issue and application of any part of the revenue or other money from the Consolidated Fund to meet the cost of the ordinary annual services of the Government;

(b) a Bill for an Income Tax Rating Act; or

(c) a Bill for a Land Tax Rating Act.

(2)  Except as mentioned in subsection (1) , the Council may amend any vote, resolution, or Bill: Provided, however, that the Council may not, by any amendment to a vote, resolution, or Bill –

(a) insert any provision therein for the appropriation of moneys; or

(b) impose or increase any burden on the people.

43.   Power of the Council to request amendment of Bills which it may not amend

(1)  The Council may, at any stage of a Bill which it may not amend, return such Bill to the Assembly, requesting, by message, the amendment of the Bill in all or any of the following respects, namely:

(a) The deletion of any item or provision;

(b) The amendment of any item or provision;

(c) The insertion of any item or provision.

(2)  The Assembly may, if it thinks fit, make any of such deletions, amendments, or insertions, with or without modifications.

44.   Power of the Council to reject Bills which it may not amend

The Council may reject any vote, resolution, or Bill.

45.   General powers of the Council and the Assembly

Except as otherwise expressly provided in this Part, the Council and the Assembly shall, in all respects, have equal powers.

PART IVA - Local Government

[Part IVA  Inserted by No. 42 of 1988, s. 4 ]

45A.   Elected municipal councils

[Section 45A Inserted by No. 42 of 1988, s. 4 ]

(1)  There shall be in Tasmania a system of local government with municipal councils elected in such manner as Parliament may from time to time provide.

(2)  Each municipality shall have such powers as Parliament may from time to time provide, being such powers as Parliament considers necessary for the welfare and good government of the area in respect of which the municipality is constituted.

45B.   Certain laws not affected

[Section 45B Inserted by No. 42 of 1988, s. 4 ] Section 45A does not affect the operation of any law –

(a) prescribing circumstances in which the offices of members of a municipal council shall become and remain vacant;

(b) providing for the administration of any area of the State –

(i) to which the system referred to in that section does not for the time being extend; or

(ii) when the offices of all the members of the municipal council for that area are vacant; or

(c) conferring any power relating to local government on a person other than a municipal council.

45C.   Municipal areas

[Section 45C Substituted by No. 30 of 1995, s. 3 and Sched. 1 ]Any division of Tasmania into municipal areas is not to be altered without the recommendation of the Local Government Board established under the Local Government Act 1993 .

PART V - General Provisions

46.   Religious freedom

(1)  Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

(2)  No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.

SCHEDULE 1 - Repeals

[Schedule 1 Amended by 25 Geo. V No. 78 ]

Section 2

SCHEDULE 2

[Schedule 2 Substituted by 9 & 10 Geo. V No. 48, s. 8 ][Schedule 2 Substituted by No. 8 of 1997, s. 8, Applied:01 May 1997] [Schedule 2 Repealed by No. 31 of 1998, s. 15, Applied:27 Jul 1998]

SCHEDULE 3

[Schedule 3 Substituted by No. 70 of 1967, s. 2 ][Schedule 3 Substituted by No. 78 of 1980, s. 3 ][Schedule 3 Repealed by No. 8 of 1997, s. 8, Applied:01 May 1997]

SCHEDULE 4 - House of Assembly Divisions

[Schedule 4 Substituted by No. 17 of 1992, s. 7 ][Schedule 4 Substituted by No. 49 of 2000, s. 4, Applied:14 Jul 2000] [Schedule 4 Substituted by No. 4 of 2009, s. 4, Applied:27 Apr 2009] [Schedule 4 Substituted by No. 17 of 2018, s. 5, Applied:28 Sep 2018]

Section 22(5)