Altering the Constitution: Some Aspects of Section 128
| Author | James A Thomson |
| Published date | 01 December 1983 |
| Date | 01 December 1983 |
| DOI | http://doi.org/10.1177/0067205X8301300403 |
| Subject Matter | Article |
ALTERING THE CONSTITUTION:
SOME
ASPECTS
OF
SECTION 128
BY
JAMES A
THOMSON*
Can the formal amendment process embodied in s 128
of
the
Commonwealth Constitution be utilised to patriate the Constitution,
to make Australia a republic, to establish a Bill
of
Rights, to abolish
State Constitutions or Parliaments and to
alters
128 itself or provide
a completely new amendment procedure? What
is
the ambit
of
s 128?
This article considers the history, scope and interpretation
of
s 128.
Introduction
Despite the number of proposals to amend the Commonwealth1 Consti-
tution2 which have been put to a referendum,3 there remain unresolved
issues concerning the scope and interpretation of s 128.4 Several of these
* BA, LLB
(Hons)
(WA),
LLM, SJD
(Harv).
1 State Constitutions can also be amended. See,
eg,
R D Lumb, "Methods
of
Alter-
ation
of
State Constitutions
in
the United States
and
Australia" (1982)
13
FL
Rev 1;
R D Lumb, "Fundamental Law and the Processes
of
Constitutional Change
in
Australia" (1978) 9
FL
Rev 148, 163-184; W A Wynes, Legislative, Executive and
Judicial Powers
in
Australia
(5th
ed
1976) 534-540. See also, R D Lumb, The
Constitutions
of
the Australian States
(4th
ed
1977).
2
63
& 64 Vic c 12 (1900)
The
Commonwealth
of
Australia Constitution
Act
(UK).
The
Constitution
of
the Commonwealth
took
effect
on
1
January
1901
by
virtue
of
ss 3
and
4
of
that
Act
and
Queen Victoria's proclamation
of
17
September
1900.
The
proclamation is published
in
Gazette 1901, p 1 and Commonwealth
Statutory Rules 1901-1956 (vol
5)
p 5300.
3
For
a list
of
referenda, see,
eg,
J E Richardson, Patterns
of
Australian Federalism
(1973) 131-142; C
PHarris,
Relationships Between Federal and State Governments in
,Australia (1979) 5-8.
An
analysis
of
the
referenda is
in
J Holmes
and
C Sharman,
The Australian Federal System (1977) 60-100.
For
other proposals, see, Alterations
That Have Been Proposed to the Commonwealth Constitution (published by
the
Australian Constitutional Convention, Nov
1974).
Between 1901
and
1973 "[a] total
of
seventy bills for
the
alteration
of
the Constitution [had] been introduced into
Parliament." J E Richadson, supra, 104.
For
a list
of
proposed laws which lapsed
or
were
not
submitted
to
a referendum, see, The Australian Constitution Annotated
(A-G's
Dept
1980) 453-454; Parlt
of
Cth
Aust
(Dept
of
H
of
R),
Bills
Not
Passed
Into Law and Bills Which Originally Lapsed
But
Subsequently Passed: Sessions
1901-02 to 1977 (1978) 12-18. See also, Constitution Alteration (Holders
of
Offices
of
Profit) 1978, introduced in Senate
on
15 November 1978
and
5
March
1981; Consti-
tution Alteration (Electors' Initiative) 1980, introduced
in
Senate
on
10 September
1980; Constitution Alteration (Fixed
Term
Parliaments) 1981, introduced in Senate
on
11
November 1981
and
passed with amendments by Senate
on
17
November 1982;
Constitution Alteration (Fixed
Term
Parliaments) 1983; Constitution Alteration
(Inter-change
of
Powers) 1983; Constitution Alteration (Advisory Jurisdiction
of
High
Court)
1983; Constitution Alteration (Removal
of
Outmoded
and
Expended
Provisions) 1983, introduced in Senate
on
12
May
1983; Constitution Alteration
(Appropriation Bills) 1983, introduced in Senate
on
17
May
1983.
For
referenda
statistics see, A Summary
of
Commonwealth Election and Referendum Statistics
1901-1975 (published
by
Australian Electoral Office, 1976) 66-79.
4 There may be methods
of
constitutional amendment
other
than
s 128:
(i)
Sections which remain operative only "until the Parliament otherwise
provides" by legislating pursuant to s
51
(xxxvi). See, eg, ss 3, 7, 10, 22, 29,
30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73, 87, 93, 96, 97. See also
s49.
"[A]
large number
of
provisions in the Constitution
...
leave
to
the Parliament
the power
of
altering the actual constitutional provisions."
AG
(Cth) (ex rel
McKinlay) v Commonwealth (1975) 135
CLR
1, 24 per Barwick CJ. See
also, Qld v Commonwealth (1977) 139
CLR
585, 592 per Barwick CJ.
(ii) Section 51(xxxvii). See generally, G Johnson,
"The
Reference Power in the
Australian Constitution" (1973) 9 Melb
UL
Rev 42.
323
324 Federal
Law
Review (VoLUME
13
issues have been subject to some discussion,5 particularly when formal
inquiries, commissions and conventions have been instituted to consider
altering the Constitution.6 They are not, however, necessarily related to the
(iii) Section
51
(xxxviii).
See
generally, K Booker, "Section
51
(xxxvii.i)
!Jf
the
Constitution" (1981) 4 UNSWLI 91; A Bennett, "Can the
ConstJt~tJon
be
Amended without a Referendum?" (1982) 56 ALI 358; G Wmterton,
"Section
51
(xxxviii) of the Constitution and Amendment
of
the 'Covering
Clauses'" (1982) 5 UNSWLI 327.
(iv) Constitutional amendment by United Kingdom legislation. See text below
at
nn 122-130.
(v) The establishment
of
an autochthonous Australian Constitution.
See
text
below
at
nn 131-139.
As to these alternative methods of amendment, see generally, C Howard and G Evans,
"Submission to Victorian Delegation to the Constitutional Convention" (unpub 9
Nov 1972 esp
at
pp
1-4) [Submission
No
82(c)
to
1973 Session
of
the Australian
Constitutional Convention]; C Howard, "Constitutional Amendment: Lessons from
Past Experience" (1973) 45 (No 1) Aust Q 35, 36-43; G Evans, "Changing the System"
in S Encel, D Horne and E Thompson (eds), Change the Rules! Towards a Democratic
Constitution (1977) 141, 154-161. See generally, C J Sampford, "Some Limitations
on Constitutional Change" (1979) 12 Melb
UL
Rev 210.
5 See, eg, J Quick and R R Garran, The Annotated Constitution
of
the Australian
Commonwealth (1901 rep 1976) 985-995; W H Moore, The Constitution
of
the
Commonwealth
of
Australia (1st
ed
1902) 316-323 (2nd ed 1910) 597-607; C Howard,
Australian Federal Constitutional Law (1972) 2-3, 5, 505-509; W A Wynes, supra
n
1,
540-544; R D Lumb and K W Ryan, The Constitution
of
the Commonwealth
of
Australia
Annotated
(3rd ed 1981) 52-53, 400-403; A C Gain, "Existing Provisions
for Altering the Commonwealth Constitution" in G V Portus
(ed),
Studies in the
Australian Constitution (1933) 208; A P Carraway,
"A
Point Under Section 128
of
the Commonwealth Constitution" (1937) 10 ALI 345; A P Carraway, "The Safety-
Valve
of
the Commonwealth Constitution" (1938) 12 ALJ 108; A P Carraway, "The
By-Pass to Constitutional Reform" (1940)
13
ALI
394; G Sawer, "Some Legal
Assumptions of Constitutional Change" (1957) 4 UWAL Rev
1,
2-7; J E Richardson,
"In the Matter of Section 128
of
the Commonwealth Constitution",
in
Standing
Committee B Report 18, 41, 44 (1974) in Proceedings
of
the Australian Constitutional
Convention and Standing Committee Reports (1975); E Campbell,
"An
Australian-
Made Constitution for the Commonwealth
of
Australia", in Standing! Committee D
Report 95 (1974) in id; R D Lumb, "Fundamental Law", supra n
1,
153-163, 182-183;
R D Lumb, Australian Constitutionalism (1983) 130-139.
For
reference
to
s
128
in
High Court opinions see, The Australian Constitution Annotated, supra n 3, 454-455
(1976-1977 Cumulative Supp (1980) 91-92);
Re
Pearson,
ex
parte Sipka (1983) 45
ALR
1,
6, 20, 21; Koowarta v Bjelke-Petersen (1982)
39
ALR
417, 460 per Mason J.
Other literature
on
the scope of s
128
is
cited in subsequent footnotes.
6 The major forums have been:
(i) Report
of
the Royal Commission
on
the Constitution (1929). See, eg, K H
Bailey, "The Report
of
the Royal Commission on the Constitution of the
Commonwealth" (1929) 5 Econ Rec 289 reprinted
in
W Prest and R L
Mathews (eds), The Development
of
Australian Fiscal Federalism: Selected
Readings (1980) 83-92; J E Richardson, supra n 3, 98-99.
(ii) Conference
of
Commonwealth and State Ministers
on
Constitutional Matters
held in Melbourne
16
to
28
February 1934: Proceedings and Decisions
of
Conference with Appendices (Parliamentary Paper no 134
of
1935). See, eg,
R R Garran, Prosper the Commonwealth (1958) 207-208; J E Richardson,
supra n 3, 92-94.
(iii)
Convention of Representatives
of
the Commonwealth and State Ministers
on
Proposed Alteration
of
the Commonwealth Constitution: Held
at
Canberra
24 November-2 December 1942 (Record of Proceedings). See, eg, H V
Evatt, Post-War Reconstruction: A Case for Greater Commonwealth Powers
(1942); J E Broadbent, "Constitutional Amendments in Australia" (1943)
25
J Comp Leg &
Int
L 1 (3rd Series); W J Walters, "The Opposition and
the 'Powers' Referendum, 1944" (1969) 4 Politics 42, 43-45; P Hasluck, The
. Government and the People 1942-1945 (1970) 456-459, 524-540.
(1v)
Repor~
of
the Joint Committee on Constitutional Review (1959). See, eg,
J E Richardson, supra n 3, 99-100.
(v) Australian Constitutional Convention. Sessions have been held in 1973
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