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 Constitution2 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).
State Constitutions can also be amended. See, eg, R D Lumb, "Methods of Alteration 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; Constitution 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.
1
323
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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 SafetyValve 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 AustralianMade 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
1983]
Altering the Constitution: Some Aspects of Section 128
325
substantive policy behind particular proposals for amendment;7 nor have
they been a factor in the practical difficulties of securing the majorities
(Sydney), 1975 (Melbourne), 1976 (Hobart), 1978 (Perth), 1983 (Adelaide).
See, eg R D Lumb, "Reform of the Constitution-The 1973 Session of the
Australian Constitutional Convention" in L Zines (ed) Commentaries on the
Australian Constitution: A Tribute to Geoffrey Sawer (1977) 233; J A
La Nauze, "Federal Conventions-The 1890's and Now" (1973) 45 (No 1)
Aust Q 52; R J Hamer, "Australian Constitutional Convention of 1973" (1973)
45 (No 1) Aust Q 58; J E Richardson, "The Australian Constitutionat Convention, Sydney, 1973" (1973) 45 (No 4) Aust Q 90; J E Richardson, "Reform
of the Constitution: The Referendums and Constitutional Convention" in G
Evans (ed) Labor and the Constitution 1972-1975 (1977) 76, 89-93; C Wells,
"Second Plenary Session of the Australian Constitutional Convention 1975"
(1975) 49 ALJ 602; C Wells, "Third Plenary Session" (1976) 50 ALJ 611;
C Saunders, "Fourth Plenary Session" (1978) 52 ALJ 598; J C Finemore,
"Lessons from the Australian Constitutional Convention" in R Mathews
(ed), Making Federalism Work (1976) 58; K W Ryan and W D Hewitt,
The Australian Constitutional Convention (1977) (Occasional Paper No 6Centre for Federal Fiscal Relations-ANU); R J Ellicott, "The Australian
Constitutional Convention" (1977) 58 Parliamentarian 89; R Doyle, "The
Australian Constitutional Convention, 1973-79" (1980) 61 Parliamentarian
153; C Saunders, "Australian Constitutional Convention" (1982) 13 Melb
UL Rev 628; D Blackwood, P Ford and A Schick, A Short Historical Survey
of the Activities of the Australian Constitutional Convention 1973-1978
(1983); Note, "A Major Constitutional Report" (1983) 57 ALJ 127; R D
Lumb, "The Judiciary, the Interpretation of the Constitution and the
Australian Constitutional Convention" (1983) 57 ALJ 229, 231-234. See
generally, C Howard, Australia's Constitution (1978) 155-160; R R Garran,
supra n 6(ii), 209-214.
(vi) Other forums have been Parliamentary Committees and non government
organisations. See, eg, "The Constitutional Qualifications of Members of
Parliament" (Report by the Senate Standing Committee on Constitutional
and Legal Affairs) (1981); National Conference for a Democratic Constitution (held in Exhibition Hall, Melbourne 23-25 Sept 1977); "Changing
the System: Political and Constitutional Reform: Some Options and
Difficulties" (Ausil: Pol Stud Ass Monograph No 25) (1981). See generally,
Change, which is a journal published by the Campaign for Constitutional
Change. The NSW Law Foundation has a project to review the Constitution.
For details, see, [1981] Reform 127; Note, 'The Remaking of the Australian
Constitution" (1982) 56 ALJ 1.
----
7 As to particular referendum proposals, see, eg, L D Anning, ''The Referendum on
the Alteration of the Commonwealth Constitution, April1910: The Western Australian
Campaign and Result" (BA hons thesis Uni WA 1972); E J Prince, ''Towards National
Railway Planning by the Commonwealth Government: Defence Considerations and
the Constitl.Jitional Referenda of 1911 and 1913" (1976) 22 Aust J Pol & Hist 62;
C Joyner, Holman Versus Hughes: Extension of Australian Commonwealth Powers
(1961); A Wildavsky, ''The 1926 Referendum: Parties, Pressure Groups and
Personalities" (un.pub research paper Dept of Govt Syd Uni 1955); D Goldsworthy,
"Playford, the LCL and the 'Powers' Referendum Issue 1942-4" (1966) 12 Aust J
Pol & Hist 400; W J Walters, supra n 6(iii) 47-55; R Cranston, "Federalism and the
Australian Referenda of the Forties" (1970) 3 Qld Hist Rev 23; K Tennant, Evatt:
Politics and Justice 159-162 (1970); L C Webb, Communism and Democracy in
Australia: A Survey of the 1951 Referendum (1954); C H Sheldon, "Publ~ Opinion
and High Courts: Communist Party Cases in Four Constitutional Systems" (1967) 20
West Pol Q 341, 353-356; K Tennant, supra, 282-286; I Fitchett, "Menzies and His
Myths: The Inside Story of Menzies' Early Years as Prime Minister" National Times
(11-16 April 1977) 26, 30, 32; J Rydon, "Prices and Incomes Referendum 1973: the
Pattern of Failure" (1974) 9 Politiell 22; J E Richardson, "Reform of the Constitution", supra n 6(v), 80-84; J Rydon, "Constitutional Change and Referendums"
(1977) 12 Politics 96; C Saunders, "Changing the Constitution; the Three Referendum
Amendments of 1977" (1977) 51 ALJ 508; C Saunders, ''The Interchange of Powers
Proposal" (1978) 52 ALJ 187 (Pt 1), 254 (Pt 2). For more general assessments, see,
eg, Isaac Isaacs, Australian Democracy and Our Constitutional System (1939); J G
Latham, "Changing the Constitution" (1953) 1 Syd L Rev 14~ B M Snedden, ''The
Australian Constitution: The Need for Review" (1965) 9 Local Govt Admin 36; P D
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necessary to comply with s 128 requirements. 8 Whether s 128 should itself
be altered9 to provide some other amendment procedure with a view to
procuring a greater number of changes to the text of the Constitution,l0 is a
matter of politics rather than s 128's ambit and interpretation.U But in
Durack and R D Wilson, "Do We Need a New Constitution for the Commonwealth?"
(1967) 41 ALJ 231; Change The Rules!, supra n 4; C Howard, The Constitution,
Power and Politics (1980); D Jaensch, "Remaking the Australian Constitution" (1981)
58 (No 7) Current Affairs Bull 14; R Else Mitchell, "Australian Processes for
Constitutional Amendment" in R L Mathews (ed), Public Policies in Two Federal
Countries: Canada and Australia (1982) 83, 85-87. See generally, C Howard, supra
n 6(v), 129-153; L F Crisp, Australian National Government (5th ed 1983) 40-57;
C Howard, "What Should Be Done About Our Constitution"? (1977) Oracle [Monash
Uni Law Students Magazine] 55-64; J McMillan, G Evans and H Storey, Australia's
Constitution: Time For Change? (1983).
8 Generally as to referenda and referenda procedure see, eg, H B Higgins, "The
Rigid Constitution" (1905) 20 Pol Sci Q 203; R S Parker, "The People and the
Constitution" in Federalism in Australia (1949) 135; P H Partridge, "The Politics of
Federalism" in G Sawer (ed), Federalism: An Australian Jubilee Study (1952) 174,
184-187; W S Livingston, Federalism and Constitutional Change (1956) 110-149;
R Menzies, Central Power in the Australian Commonwealth (1967) 12-25; M Coper,
"Why a Referendum is Likely to Fail" Sydney Morning Herald (20 September 1973)
7; C J Puplick, "The New South Wales Constitutional League and the 'Double No'
Campaign" (1974) 9 Politics 31; K Woldring, "The Case for voluntary voting in
referendums" (1976) 11 Politics 209; D Aitkin, "The great Oz apathy to Referendums"
National Times (4-9 October 1976) 54; M Goot and T Beed, 'The referenda: pollsters
and predictions" (1977) 12 Politics 86; D Aitkin, "Australia" in D Butler and A
Ranney (eds), Referendums: A Comparative Study of Practice and Theory (1978)
123; R SParker, "The Future of the Constitution" in Future Questions in Australian
Politics 1 (1979 Meredith Memorial Lectures); D Altman, "Obstacles to Constitutional
Change" (1979) 51 (No 1) Aust Q 103; C Howard and C A Saunders, "Constitutional
Amendment and Constitutional Reform in Australia" in Public Policies in Two
Federal Countries, supra n 7, 69. As to the relationship of High Court decisions and
referenda, see, eg, M J Vile, "Judicial Review and Politics in Australia'' (1957) 51
Am Pol Sci Rev 386; C Joyner, "Australian Politics and Constitution Alteration
Referenda" (1958) 2 Midwest J Pol Sci 191. Sir Nininan Stephen, "Opening of
Convention", Official Record of Debates of the Australian Constitutional Convention
(1983) 3-4. See also, D A Bell, "The Referendum: Democracy's Barrier to Racial
Equality" (1978) 54 Washington L Rev 1.
9 As to how this might be achieved see, eg, text below accompanying nn 95-104.
10 It has been suggested that:
[o]ne of the most difficult tasks which the convention[s] [in the 1890's] had to
perform, was to devise a mode of amending the Constitution which would make
that instrument sufficiently rigid to protect the rights of the several States, to
secure deliberation before action, and to discourage a 'habit of mending' which
might become a 'habit of tinkering,' but which should at the same time leave it
flexible enough to recognize that development is as muchi a law of state life as
existence, and to harmonize with the spirit of a people with whom 'majority rule'
is the first principle of government. . . .
W H Moore, supra n 5 (2nd ed) 598. In 1901 it was "observed that the facilities for
altering the Constitution of the Commonwealth are much greater than those for
altering the American Constitution". J Quick and R R Garran, supra n 5, 995. By
1908 it was hoped that Australia had "both ... a rigid and ... a flexible constitution,
which cannot hastily be changed, but yet admits of easy amendment, wherever
alteration or reform is demanded by the deliberate voice of the nation." A V Dicey,
An Introduction to the Study of the Law of the Constitution (7th ed 1908) 535,
quoted by P D Durack and R D Wilson, supra n 7, 242. For an assessment of s 128
as an amendment procedure, see the literature cited in supra nn 7 and 8.
11 The 1891 draft Constitution Bill provided for proposed amendments to be
submitted to State Conventions elected by electors in each State. Official Report of
the National Australasian Convention Debates (1891) 943, 963-964. Section 128 was
1983]
Altering the Constitution: Some Aspects of Section 128
327
giving consideration to new, amended or alternative constitution alteration
procedures it may well be useful to refer to the law and experience in other
countries ;12 for example, the United States,13 Canada,14 India,15 Switzerland,16
Japan17 and Malaysia.18
amended in 1977. The Constitution Alteration (Power of Amendment) 1930, which
proposed to vest in the Commonwealth Parliament a power to amend the Constitution,
the Constitution Alteration (Mode of Altering the Constitution) 1974, which proposed
to permit ten-itorial electors to vote in referendums and to require a majority approval
in only half o:>f the States, and the Reports of the 1929 Royal Commission and 1959
Joint Committee concerning the amendment of s 128 are set forth in Alterations That
Have Been Proposed to the Commonwealth Constitution, supra n 3, 56-58. The
Australian Constitutional Convention is also considering amendments to s 128. See,
eg, Report of Standing Committee B., supra n 5, 5-9; Official Record of Debates, supra
n 8 (on 29 April1983). There has been established in 1983 a Constitutional Amendment Sub-Committee of the Standing Committee of the Australian Constitutional
Convention. For other suggestions, see, eg, P D Durack and[ R D Wilson, supra n 7,
243; C Howard, supra n 7, 150-151; R Else-Mitchell, supra n 7, 83, 85.
12 Although "the founders of the Constitution availed themselves to the full of the
opportunities offered by modem literature for a comparison of existing Constitutions"
s 128 is unique. "In no other matter was so much careful attention bestowed upon the
methods of other Constitutions, and on the lessons to be gained from the experience
of the United States and Switzerland." W H Moore, supra n 5, 607, 598 (2nd ed). The
'founders could turn to the discussion of the amendment procesS! in other countries and
Australia in R R Garran, The Coming Commonwealth: An Australian Handbook of
Federal Government (1897) 69-70 (US), 79-80 (Swiss), 103 (German), 182-184. For
modern comparative examples of amendment requirements in other countries, see, eg,
E McWhinney, "Amendment of the Constitution" in R R Bowie and C J Friedrich
(eds) Studies in Federalism (1954) 790. See generally, E McWhinney, ConstitutionMaking: Principles, Process, Practice (1981).
13 Article V of the US Constitution provides two amendment procedures. Proposals
to amend the Constitution can be made by Congress or a convention called by Congress
on the application of State Legislatures. Proposed amendments from either source
must be ratified by State Legislatures or Conventions. See generally, R Hadju and
B Rosenblum, 'The Process of Constitutional Amendment" (1979) 79 Columbia L Rev
106. The Convention method of proposing amendments has never been utilised.
Literature examining questions concerning an Article V Convention is cited in W Van
Alstyne, "The Limited Constitutional Convention-The Recurring Answer" [1979]
Duke U 985. See also, W Dellinger, "Who Controls A Constitutional Convention?A Response" [1979] Duke U 999; W Edel, A Constitutional Convention: Threat or
Challenge (1981). As to questions concerning ratification of amendment proposals, see,
eg, R Ginsburg, "Ratification of the Equal Rights Amendment: A Question of Time"
(1979) 57 Texas L Rev 919; A Baker, "ERA: The Effect of Extending the Time for
Ratification on Attempts to Rescind Prior Ratifications" (1979) 28 Emory U 71.
It has been 114 years since any very broad language was added to the [United
States] Constitution (the ratification [in 1868] of the fourteenth amendment), and
the rough road travelled by both the Equal Rights Amendment and the various
proposed "right to life" amendments suggests that • • • [the US] may never again
add a constitutional provision of similar openness.
F Schauer, "An Essay on Constitutional Language" (1982) 29 UCLA L Rev 797, 801
n 14.
14 Sections 38 to 49 of the Constitution Act, 1982. It has been suggested that
these amending procedures will tum out in practice to be even more conservative
than !the ... method :[used from 1867 to 19811 of request to London, and than
the Australian sec. 128. This is because the new procedures require such a high
degree of consensus in so many legislatures and m a political system where the
national parties are relatively less influential than in Australia and the provincial
variations and differences of interests relatively greater.
G Sawer, Foreward, (1982) 2 (No 3) Canada Today 2, 4. See generally, E McWhinney,
Canada And The Constitution 1979-1982: Patriation And The Charter Of Rights
(1982); Sir Ninian Stephen, "Constitutional Change. In Canada: Lessons And Analogies
From Across The Pacific" (1983) 42 Aust J Pub Admin 173.
15 Article 368 of the Constitution of India. The Supreme Court of India has indicated
that certain aspects of the Constitution might be unamendable. See, eg, C C Aikman,
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Section 128 appears in the Constitution as follows: 19
This Constitution shall not be altered except in the following manner:The proposed law for the alteration thereof must be passed by an
absolute majority of each House of the Parliament, and not less than
two nor more than six months after its passage through both Houses
the proposed law shall be submitted in each State and Territory to the
electors qualified to vote for the election of members of the House of
Representatives.
But if either House passes any such proposed law by an absolute
majority, and the other House rejects or fails to pass it, or passes it
'The Debate on the Amendment of the Indian Constitution" (1978) 9 Vic U
Wellington L Rev 357; D G Morgan, "The Indian 'Essential Features' Case" (1981)
30 Int Comp LQ 307; L I Rudolph and S H Rudolph, "Judicial Review versus
Parliamentary Sovereignty: The Struggle Over Stateness in India" (1981) 29 J Cth
and Comp Pol 231; Minerva Mills v Union of India [1980] 3 SCC 625, AIR 1980
sc 1789.
[W]hat really makes the [Supreme] Court [of India] unique in contemp.orary
annals is the fact that it ... exercises constituent power. In other words, It has
exei1Cised judicial review not only over legislation subordinate to the Constitution, but over amendments to the Constitution itself-and has in fact invalidated
some amendments. In India ... both Parliament and the Supreme Court have
become constituent assemblies in permanent session.
U Baxi, "The Travails of Stare Decisis in India" in A R Blackshield (ed), Legal
Change: Essays in Honour of Julius Stone ( 1983) 34, 37 (footnotes omitted) (emphasis
in original) .
16 Articles 118 to 123 of the Federal Constitution of the Swiss Federation. For the
provisions as at 1901 see, J Quick and R R Garran, supra n 5 at 986, 995. See
generally F 0 Adams, and CD Cunningham, The Swiss Confederation (1889) 76-87;
C Hughes, The Federal Constitution Of Switzerland: Translation and Commentary
(1954). The referendum provision in the 1891 Swiss Constitution was referred to and
partially quoted in Victoria v Commonwealth (1975) 134 CLR 81, 147-8 per Gibbs J.
17 Article 96 of the Constitution of Japan. See generally, H Tanaka and M D H
Smith, The Japanese Legal System: Introductory Cases and Materials (1976); Japan's
Commission on the Constitution, Final Report (1980) (Translated and edited by
J M Maki).
18 Article 159 of the Federal Constitution of Malaysia. See generally, S Jayakumar,
Constitutional Law: Cases from Malaysia and Singapore (2nd ed 1976) 475-476.
19 The drafting history of s 128 can be noted through the "Successive Printed
Versions of a Bill to Constitute the Commonwealth of Australia 1890-1900", the title
date and location of which is in J A La Nauze, The Making of the Australian
Constitution (1972) 289-291. Also the 1891 Constiution Bill is reproduced in Official
Report, supra n 11, 943-964. The 1897 Bill (Adelaide Session of 1897-1898 Convention) is reproduced in Official Report of the National Australasian Convention Debates
(1897) 1221-1243. The 1897 Bill (Sydney Session) is in a bound volume compiled
by Robert Ga:rran, see, J A La Nauze, supra, 289-290 (Bill No 15). The 1898 Bill
(Melbourne Session) is in Official Record of the Debates of the Australian Federal
Convention (1898) Vol 2, 2523-2544. For the alterations by the 1899 Premiers'
Conference see, Sydney Morning Herald 9 February 1899, and The Argus 3 February
1899, which is reproduced in C M H Clark (ed) Select Documents in Australian
History 1851-1900 (1955 rep 1965) 510-516. The 1899 Bill is in H B Higgins, Essays
and Addresses on the Australian Commonwealth Bill (1900) 141-168 and in colonial
referendum legislation, see eg, Australasian Federation Enabling Act 1899 (NSW)
and (Vic). The 1900 Bill as introduced into the House of Commons is in Commonwealth of Australia Constitution Bill: Reprint of the Debates in Parliament, The
Official Correspondence with the Australian Delegates and Other Papers (1900)
118-138. For amendments in the House of Commons, see id, 139-140. On the history
of s 128 see generally, A P Carraway, "A Point Under Section 128", supra n 5, 346-348;
A P Carraway, "The Evolution of Section 128" (1940) 14 ALI 274; G Sawer, supra
n 5, 3-4, 6; J E Richardson, supra n 5, 20-22; J A La Nauze, supra 242-243; W H
Moore, The Commonwealth of Australia: Four Lectures on the Constitution Bill 1897
(1897) 114-117; S Bennett, The Making of the Commonwealth (1971) 206-213;
H Anderson (ed), Tocsin: Radical Arguments Against Federation 1897-1900 (1977) 53.
1983]
Altering the Constitution: Some Aspects of Section 128
329
with any amendment to which the first-mentioned House will not agree,
and if after an interval of three months the first-mentioned House in
the same or the next session again passes the proposed law by an
absolute majority with or without any amendment which has been
made or agreed to by the other House, and such other House rejects
or fails to pass it or passes it with any amendment to which the firstmentioned House will not agree, the Governor-General may submit
the proposed law as last proposed by the first-mentioned House, and
either with or without any amendments subsequently agreed to by both
Houses, to the electors in each State and Territory qualified to vote for
the election of the House of Representatives.
When a proposed law is submitted to the electors the vote shall be
taken in such manner as the Parliament prescribes. But until the
qualification of electors of members of the House of Representatives
becomes uniform throughout the Commonwealth, only one-half the
electors voting for and against the proposed law shall be counted in
any State in which adult suffrage prevails.
And if in a majority of the States a majority of the electors voting
approve the proposed law, and if a majority of all the electors voting
also approve the proposed law, it shall be presented to the GovernorGeneral for the Queen's assent.
No alteration diminishing the proportionate representation of any
State in either House of the Parliament, or the minimum number of
representatives of a State in the House of Representatives, or
increasing, diminishing, or otherwise altering the limits of the State,
or in any manner affecting the provisions of the Constitution in relation
thereto, shall become law unless the majority of the electors voting in
that State approve the proposed law.
In this section, "Territory" means any territory referred to in section
one hundred and twenty-two of this Constitution in respect of which
there is in force a law allowing its representation in the House of
Representatives.
( 1) Does Section 128 provide a power of amendment?
There are no words in s 128 which expressly grant a power to amend
the Constitution. Read literally, s 128 is only a manner and form provision.
That is, s 128 indicates the procedure to be followed, but does not create
or grant a positive power to amend. 20
It has been suggested21 that the reason for the omission of an express
amending power, was that the Founding Fathers in the last decade of the
nineteenth century considered that s 5 of the Colonial Laws Validity Act
1865 (UKF2 provided the power to amend. 23 Therefore all that was
20
Note that the first sentence ends with the word "manner". See generally, G Sawer,
supra n 5, 2-3; W A Wynes, supra n 1, 540; C Howard, supra n 5, 508 n 88. As to
"manner and form" provisions see, G Winterton, "Can the Commonwealth Parliament
Enact 'Manner and Form' Legislation?" (1980) 11 FL Rev 167, 171-172. See also
W A v Wilsmore (1982) 40 ALR 213.
21 G Sawer, supra n 5, 2-3.
22 28 & 29 Vic c 63 s 5 states:
Every Colonial Legislature shall have, and be deemed at all Times to have had,
full Power within its Jurisdiction to establish Courts of Judicature, and to abolish
and reconstitute the same, and to alter the Constitution thereof, and to make
Provision for the Administration of Justice therein; and every Representative
Legislature shall, in respect to the Colony under its Jurisdiction, have, and be
deemed at all Times to have had full Power to make Laws respecting the Consti-
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necessary was to follow the suggestion, implicit in s 5, that there be set
forth in the Constitution a manner and form procedure which proposed
amendments would be required, by s 5, to follow.
It has also been suggested
that after the adoption of the Statute of Westminster 1931 by the
Commonwealth in 1942, the Colonial Laws Validity Act ceased to
apply and accordingly the power to amend the Constitution disappeared. . . .24
However, s 2(1) of the Statute of Westminster 1931 expressly indicates
that the subject matter to which the Colonial Laws Validity Act no longer
applies is "any law made after the commencement of [the Statute of Westminster] by the Parliament of [the Commonwealth of Australia]." 25 Furthermore, s 8 of the Statute of Westminster recognises that the power of
constitutional amendment conferred on the Commonwealth Parliament by
s 5 of the Colonial Laws Validity Act26 does not come within s 2(1) and has
not "ceased to apply" in respect of amendment proposals which adhere to
the procedure specified ins 128.27 Even if this is not so, s 8, at the very least,
confirms that there exists a power to amend the Constitution and that such
a power continues notwithstanding anything in the Statute of Westminster. 28
tution, Powers, and Procedure of such Legislature; provided that such Laws shall
have been passed in such Manner and Form as may from Time to Time be
required by any Act of Parliament, Letters Patent, Order in Council, or Colonial
Law for the Time being in force in the said Colony.
23 It is clear that Australian delegates who were in England in 1900 "to press for
the passage of the [Commonwealth of Australia ConstitutionJ Bill without amendment" "had no doubt that the Colonial Laws Validity Act did apply to the
Commonwealth...." J A La Nauze, supra n 19, 250, 258. See also, id 258; E Campbell,
supra n 5, 103 n 3; B K de Garis, "British Influence on the Federation of the Australian
Colonies, 1880-1901" (D Phil Thesis Oxford Uni 1965) 326-327, 339, 390, 391;
de Garis, "The Colonial Office and the Commonwealth Constitution" in A W Martin
(ed) Essays in Australian Federation (1969 rep 1976) 94, 116; Commonwealth of
Australia Constitution Bill: Reprint of Debates, supra n 19, 142. However, Richard
O'Connor (a member of the Committee which drafted the 1897-1898 Constitution
Bills and a Justice of the High Court 1903-1912) considered that the Colonial Laws
Validity Act "would not apply at all to" the Constitution. Official Record of the
Debates of the Australasian Federal Convention: Second Session (1897) 252. Whether
the Australian delegates also considered that s 5 (supra n 22) extended to amendment
of provisions other than those concerning the courts and Parliament requires further
research. It should, however, be noted that s 128 of the Constitutio!li (as s 5 of the
Colonial Laws Validity Act appears to contemplate) uses Parliament in the amendment process.
G Sawer, supra n 5, 3 (footnotes omitted).
"The Colonial Laws Validity Act, 1865, shall not apply to any law made after
the commencement of this Act by the Parliament of a Dominion", s 2(1) of the Statute
of Westminster 1931 (UK), 22 & 23 Geo 5, c 4. An amendment pursuant to s 128 is
not a "law made . . . by the Parliament." "[T]he Houses ofl Parliament, in respect
of alterations of the Constitution, are [merely] originating and drafting bodies •.. ,
and not the principal legislative organ." J Quick and R R Garran, supra n 5, 993. See,
however, infra n 70.
26 A literal reading of s 5 would grant power to amend the Constitution only in
relation to those provisions concerning "Courts of Judicature", the "Administration
of Justice" and "the Constitution, Powers, and Procedure of [the] Legislature." See
supra nn 22 and 23.
27 "Nothing in [the Satute of Westminster] shall be deemed to confer any power to
repeal or alter the Constitution or the Constitution Act of the Commonwealth of
Australia . . . otherwise than in accordance with the laws existing before the
commencement of [the Statute of Westminster]", s 8 of the Statute of Westminster,
supra n 25.
28 That is, s 2(1) of the Statute of Westminster may have effect only in relation to
24
25
1983]
Altering the Constitution: Some Aspects of Section 128
331
The view of the Colonial Laws Validity Act as the source of amending
power and of s 128 as merely a manner and form provision has, however,
been "discarded."29 If such a view was to prevail and if s 5 of the Colonial
Laws Validity Act ceased to apply in Australia,30 the mind would boggle at
the consequences.31 Therefore, a power to amend is implied from the
wording of s 128.32
(2) Does Section 128 reach the Covering Clauses?
Divergent views have been expressed as to whether the covering clauses33
can be repealed or altered pursuant to s 128.34 One factor, which may be
relevant in resolving this debate is the positioning of the Constitution in the
Constitution Act rather than as a schedule to that Act. 35
In the various drafts of the Constitution Bill during the 1890's the
Constitution was inserted in the last Covering Clause.:l6 However, the Bill
s 128 amendments and not s 128 itself. Buts 8 of the Statute of Westminster appears to
deprive s 2(1) of any effect at all in relation to s 128. Professor Campbell states:
So that there should be no question that the Constitution was not affected,
section 8 was inserted. . . . [S]ection [8], it could be argued implies that the
Colonial Laws Validity Act continues to apply to laws for the alteration of the
Constitution under section 128 of the Constitution.
Supra n 5, 99. Professor Campbell also notes that s 8 "does not . . . identify the
repository of the power to repeal or alter the Constitution or the Constitution Act."
Professor Campbell's opinion is that "it can be argued that ... section 8 is requiring
no more than that laws for the alteration of the Constitution be made in the manner
laid down in section 128 of the Constitution...." E Campbell, supra n 5, 99-100. On
s 8, see also R D Lumb, "Fundamental Law" supra n 1, 156-157.
2ll C Howard, supra n 5, 508 n 88.
30 There are three possibilities. Firstly,
on 3 September 1939 because of s 3 of the
Statute of Westminster Adoption Act 1942 (Cth). Secondly, for the reasons
enunciated by Murphy J in China Shipping Co v South Australia (1979) 27 ALR 1,
51-53. Thirdly, by a severance of residual constitutional links, see infra n 130.
31 Eg, amendments pursuant to s 128 from and including s 51(xxiiiA) added in 1946
would not form part of the Constitution. This view was not argued in Federal Council
of the British Medical Assoc in Aust v Commonwealth (1949) 79 CLR 201; General
Practitioners Soc in Aust v Commonwealth (1980) 31 ALR 369 (dealing with
s 51 (xxiiiA); Koowarta v Bjelke-Petersen, supra n 5 (dealing with s 51 (xxvi) amended
in 1967). See generally, G Sawer, supra n 5, 3. Section 27 of the Referendum (Constitution Alteration) Act 1906 provides that the Commonwealth or a State may institute
a High Court challenge to the validity of any referendum.
32 Eg, it is suggested "that s 128 is in negative form, but the power is implied by its
terms." W A Wynes, supra n 1, 540. The nearly universal suggestion is that "the power
of amendment . . . follows from . . . section [1281 by way of necessary positive
implication from its negative terms." G Sawer, supra n 5, 2. "[S]ection 128 creates
its own power of amendment, notwithstanding that it is expressed negatively by the
introductory words" of s 128. J E Richardson, supra n 5, 28. ''The Constitution ...
includeSJ its own power of amendment. It is ins. 128 ..." C Howard, supra n 5, 505.
"No doubt the Act of 1900 contains large powers of moulding the Constitution." AG
(Cth) v Colonial Sugar Refining Co Ltd [19141 AC 237, 256 (PC). However, the
"large powers" may include the sections mentioned in supra n 4(i)-4(v).
33 The "covering clauses" are ss 1-9 of the Commonwealth of Australia Constitution
Act.
34 Several authorities are listed in K Booker and G Winterton, "The Act of
Settlement and the Employment of Aliens" (1981) 12 FL Rev 212, 215 n 22. See
also infra n 52.
35 As to the use of draft Constitution Bills in constitutional interpretation see, eg,
J A Thomson, "Constitutional Interpretation: History and the High Court: A
Bibliographical Survey" (1982) 5 UNSWLJ 309.
36 For the location of the various draft Constitution Bills, see, supra n 19. Constitution Bills drafted by Charles Cameron Kingston (see J A La Nauze, supra n 19, 295)
and Andrew Inglis Clark (see (1958) 32 ALJ 67) did not include the Constitution
in a schedule to the Constitution Bill.
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introduced into the House of Commons on 14 May 1900 was, in thi!!
respect, completely different. 37 Clause 9 of that Bill did not contain the
Constitution, but rather specified that "the Constitution of the Commonwealth shall be as set forth in the schedule to this Act."38
This change may have had its origin in Memorandum C, which was one
of three memoranda drawn up in 1897 by the Colonial Office with advice
from Crown Law Officers.3 \J The preamble of Memorandum C discussed
the form in which the Constitution Bill could be introduced into the United
Kingdom Parliament.40 Should the Constitution be a Schedule to the Bill
or be included within the substantive provisions of the Bill? The Constitution
Bill approved on 23 Apri11897 at the Adelaide Session of the Constitutional
Convention set forth the Constitution as part of the Bill in covering
clause 8.41 There was a notable precedent for this format in the British
North America Act 1867 (UK). 42 On the other hand there existed precedents
for including the Constitution in a schedule to the Bill. This method was
used in the Australian Constitution Acts of 1855 (UK) 43 and 1890 (UK).44
Because the form in which the Commonwealth Constitution Bill was to be
presented to the United Kingdom Parliament might well have affected the
number and extent of changes made to the proposed Constitution, Memorandum C suggested that additional consideration be given to the form of
the Bill.45 The three memoranda were forwarded to George Reid, who was
in London for Queen Victoria's Jubilee celebrations, together with a
personal letter in July 1897 from Joseph Chamberlain, Secretary of State
for the Colonies.46
The question of the form of the Constitution Bill was again raised by
Sir Courtenay Ilbert in a memorandum of 17 November 1899.47 He
considered "that there would be less likelihood of amendments being moved
in [the United Kingdom] Parliament if the first eight clauses comprised the
Act and the Constitution were appended as a 'schedule' " to the Act. 48 This
suggestion was adopted by the Secretary of State for the Colonies.49 The
original format, with the Constitution inserted in clause 9, rather than as a
schedule to the Act, was restored by amendments moved during the committee stage in the House of Commons. 5°
As a result, s 9 of the Commonwealth of Australia Constitution Act
Commonwealth of Australia Constitution Bill: Reprint of Debates, supra n 19, 118.
38Jd, 120. Clause 2 was also altered to state: "The provisions of this Act and of
the Constitution set forth in the schedule to this Act...." ld, 118. See, B K de Garis,
supra n 23, 385.
3 9 As to these three memoranda see de Garis, supra n 23, 97-98.
40 ld, 106-107.
41 Official Report (1897), supra n 19, 1222.
42 30 & 31 Vic c 3 (1867) (UK).
43 18 & 19 Vic c 54 (1855) (UK) (New South Wales Constitution Act) and 18 & 19
Vic c 55 (1855) (UK) (Victorian Constitution Act).
44 53 & 54 Vic c 26 (1890) (UK) (WA Constitution Act).
45 See de Garis, supra n 23, 107.
46 /d, 98.
4 7 Colonial Office [Papers in Public Records Office] 418/6 pages 86-90. Memorandum
of 17 November 1899.
48 J A La Nauze, supra n 19, 251. See also, B K de Garis, supra n 23, 328.
49 See supra nn 37 and 38.
50 The amendments to clauses 2 and 9 are in Commonwealth of Australia Constitution Bill: Reprint of Debates, supra n 19, 139-140. See also, J A La Nauze supra
n 19, 251; B K de Garis, supra n 23, 396.
'
37
1983]
Altering the Constitution: Some Aspects of Section 128
333
contains "The Constitution of the Commonwealth". Section 9 divides that
Constitution into various chapters designating "Chapter VIII" as "Alteration
of the Constitution." Section 128 is the only section in Chapter VIII. It
commences with the words "[t]his Constitution" and in the last two paragraphs the word "Constitution" again appears.
By concentrating on the express terms of s 128, rather than the above
drafting history, a distinction has been drawn between covering clauses of
the Commonwealth of Australia Constitution Act and the sections of the
Constitution contained in s 9. The term "this Constitution" is interpreted
as referring only to the provisions in the ninth section of the Constitution
Act. It is therefore argued that s 128 does not provide the manner and
form nor the power51 to alter the covering clauses. If those clauses are to
be amended, the United Kingdom Parliament must pass legislation.52
Even if these propositions are accepted, it has been suggested that the
covering clauses can be amended or repealed by use of s 128. It is argued
that if "unrestricted" alterations may under s 128 be made to the Constitution,53 then might not "the Constitution ... be altered to vest in the
Commonwealth Parliament power to repeal the Constitution Act ...". If
such an alteration to the Constitution was valid then when the Parliament
exercised that power it would repeal the Constitution Act. 54
There are some difficulties with such an argument. For example, a
"principal objection" is the possibility, that the words "this Constitution",
limit s 128 to clause 9 and presuppose "the continued existence and oper51 This is true even if s 5 of the Colonial Laws Validity Act, rather than s 128, is
viewed as the source of the amendment power; especially if the narrow view of s 5,
supra n 26, is taken.
52 In addition to the authorities listed by K Booker and G Winterton, supra n 34,
see, eg, A C Gain, supra n 5, 221; G Sawer, "Constitutional Law", in G W Paton (ed)
The Commonwealth of Australia: The Development of its Laws and Constitution
(1952) 38, 46; G Sawer, "'Unamendable' parts of Constitution Act pose a patriation
puzzle" The Canberra Times, (21 July 1982) 2; C Howard, supra n 5, 2-3; G Marshall,
Parliamentary Sovereignty and the Commonwealth (1957) 114-115; M H Byers,
"Commentaries" in Labor and The Constitution, supra n 6(v), 68; Conference on
Dominion Legislation and Merchant Shipping Legislation quoted by L Zines, "The
Growth of Australian Nationhood and its effect on the Powers of the Commonwealth"
in L Zines (ed), Commentaries on the Australian Constitution (1977) 1, 29.
53 In this context the question is whether "section 128 authorizes an alteration to
the Constitution to empower the Commonwealth Parliament to repeal the Constitution
Act...." Campbell, supra n 5, 97. There are opinions which would help to provide an
affirmative answer. See, eg, 0 Dixon, "The Power of Altering the Constitution under
Section 128" in Report of the Royal Commission on the Constitution (1929) 365. See
also, Constitution Alteration (Power of Amendment) 1930 which proposed to amend the
Constitution by vesting in the Commonwealth Parliament "full power to alter the
Constitution". See, Alterations That Have Been Proposed, supra n 3, 57. On this 1930
Bill see, Com Pari Deb 1930, Vol 123, 177, 183-184, 186-187 (J H Scullin), 506-511
(J G Latham). It has been argued that such an amendment would fall within para 5
of s 128 and therefore require approval by a majority of electors in each State. A P
Carraway, "A Point Under Section 128", supra n 5. See also, infra nn 102, 103, 104.
54 E Campbell, supra n 5, 97. Professor Campbell notes that
in exercising that power the Parliament would be acting in pursuance of authority
conferred by an Imperial Act. The effect of the repeal, if valid, would be to
terminate the operation of the Constitution Act as the legal source of the
Constitution. The repeal would not . . . obliterate the, Act so completely that
henceforth it was to be treated as never having existed. The repealed Act would
continue to supply the source of authority for the constitutional change by which
its own repeal was brought about. Id (footnote omitted).
See also, R D Lumb and K W Ryan, supra n 5, 401 n 1; China Shipping Co v South
Australia ,supra n 30, 51-53 per Murphy J.
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ation of the [Constitution] Act, so that any alterations made under section
128 become part of the Act itself. " 55 It therefore remains open to speculation
whether the High Court would endorse this method of using s 128 to amend
or repeal the covering clauses.oo
There is a further suggestion as to whys 128 procedure can amend the
covering clauses. It is that by some process of metamorphosis these clauses
are now part of the Constitution and therefore can only be altered by s 128.57
(3) Do the Covering Clauses and Preamble limit section 128?
If the covering clauses and preamble cannot be altered by use of s 128,
do they impose any limitation on the scope of s 128? That is, will an
amendment pursuant to s 128 be invalid if it is inconsistent or conflicts with
the Constitution Act?58 The generally held view is that it will not. 00
In the context of constitutional amendments the most quoted words of
the Preamble are "indissoluble Federal Commonwealth under the Crown."
These words give rise to questions concerning the possibility of achieving
secession/><' a unitary governmental structure61 or a republican form of
government62 pursuant to s 128.
E Campbell, supra n 5, 98.
See, eg, G Sawer, "'Unamendable' parts of Constitution Act", supra n 52.
Professor Campbell considers that, although the question whether s 128 "comprehends
power to alter the Constitution to confer on the Commonwealth Parliament power
to repeal the Constitution Act" "is by no means free from doubt", "there is a strong
case for" an affirmative answer. E Campbell, supra n 5, 100.
57 R D Lumb, Fundamental Law, supra n 1, 158, 160.
58 There are at least three problems. Firstly, what tests are to be used to determine
whether there is an inconsistency? Should they be the same as those used with respect
to s 109? Secondly, can the concept of severance be applied? Thirdly, if the covering
clauses are repealed, would the inconsistent amendment revive? That is, would inconsistency result in an amendment being void ab initio or merely inoperative?
59 See, eg, G Sawer, supra n 5, 5; G Sawer, "Constitutional Law", supra n 52, 46;
G Sawer, "'Unamendable' parts of Constitution Act", supra n 52; G Marshall, supra
n 52, 115-116; C Howard, supra n 5, 5, 509; W A Wynes, supra n 1, 541-542; R D
Lumb and K W Ryan, supra n 5, 402-403; R D Lumb, "Fundamental Law", supra
n 1, 161.
oo See, eg, J Quick and R R Garran, supra n 5, 994 ("strong arguments against ...
constitutionality."); A P Canaway, "Safety-Valve", supra n 5, 112; G Marshall, supra
n 52, 115-116; R D Lumb and K W Ryan, supra n 5, 403; G Sawer, "Secession? 'No
Way' (unless we fight!)" Weekend News, (24 November 1973) 9; H Lunn, "Will Joh
have to go to war?", Australian (10 November 1976) 11. See generally, E D Watt,
"Secession in Western Australia" (1958) 3 University Studies in Hist 43; G G Greenwood, The Future of Australian Federalism: A Commentary on the Working of the
Constitution (2nd ed 1976) 178-180, 327-328.
61 "[C]onstitutional lawyers . . . have generally taken the view that section 128
would support even a wholesale transfer of legislative power from the States to the
Commonwealth ...."E Campbell, supra n 5, 97. See also id, 100. For authorities, see,
id, 103 n 4. See also, A C Gain, supra n 5, 221-225. But it has also been suggested
that "if amendments were passed which were inconsistent with [the] words ••.
'Federal Commonwealth' . . . strong arguments would be available against their
constitutionality." J Quick and R R Garran, supra n 5, 994. See also infra n 65.
62 See, eg, Z Cowen, "The Constitution and the Monarchy" in G Dutton (ed)
Australia and the Monarchy: A Symposium (1966) 44, 60-61; Z Cowen, "The
Constitutional Aspects" in G Dutton (ed) Republican Australia? (1977) 44, 57-59;
D O'Connell, "Monarchy or Republic?" in id, 23, 37-38; C Howard, supra n 7,
107-108; R D Lumb, "Fl.mdamental Law", supra n 1, 161; R D Lumb and K W
Ryan, supra n 5, 403; G Evans, "God Save the Queen-Australia as a Republic"
(Speech delivere<l Sept 1982) (reported in Western Mail 12 March 1983, 30-31.)
See however, J Quick and R R Garran, supra n 5, 994 ("strong arguments . . •
against ... constitutionality."); G Sawer, "The British Connection" (1973) 47 ALJ
113, 114 n 3; W A Wynes, supra n 1, 542; A P Canaway, "Safety-Valve", supra
n 5, 112.
55
56
1983]
Altering the Constitution: Some Aspects of Section 128
335
Several reasons are usually advanced for denying that the preamble in
any way restricts s 128 amendments to the Constitution. First, the words
"indissoluble Federal Commonwealth" can be viewed as "merely historical"
for the purpose of constituting a "recital of the intention" which the Constitution Act in 1900 sought to implement.63 Second, resort can be had to
rules of statutory construction concerning the preamble as an interpretative
aid.M Third, there is no reference in the express words of s 128 to the
preamble; nor is there scope in s 128 to imply such a restriction. Finally,
the concept of federalism is at best vague and without sufficient essential
features to act as a limitation.65
Covering clause 3 also refers to "a Federal Commonwealth". Again the
overwhelming tide of opinion is that this reference to the uniting of the
people into a federation does not guarantee a federal system of government
immunity from s 128.66 Perhaps more problematical is covering clause 5
and the relationship it might have to constitutional amendments, for example,
to s 10967 and the jurisdiction of State courts.68
( 4) 1s section 128 limited by any provisions of the Constitution?
It has been suggested, that it is at least arguable, that where a section of
the Constitution expressly prohibits "any law" from having any effect with
respect to specified subjects a constitutional amendment cannot change that
situation. Examples are ss 41, 99, 100, 105A(5) and 116. The argument
is that amendments pursuant to s 128 originate as a "proposed law", go
through the required parliamentary process and, following a referendum,
receive the Royal assent.00 Are such amendments a law of the Commonoo G Sawer, "Constitutional Law", supra n 52, 46; G Sawer, "'Unamendable' parts.
of Constitution Act", supra n 52; W A Wynes, supra n 1, 542.
M See generally, D C Pearce, Statutory Interpretation in Australia (2nd ed 1981)
50-54. For some references in High Court decisions to the preamble and the covering
clauses, see generally, The Australian Constitution Annotated, supra n 3, 2-7 (19761977 Cumulative Supp 1-3). See~. R D Lumb and K W Ryan, supra n5, 55-60.
65 See, eg, W H Moore, supra n 5, (2nd ed) 603; G Marshall, supra n 52, 115;
C Howard, supra n 5, 509. But see, Melbourne Corp v Commonwealth (1947) 74
CLR 31; Koowarta v Bielke Petersen, supra n 5. "The prohibition agaiDBt 'general
federal laws that substantially burden the States' .•. never has succeeded." P H Lane,
''The Federal Parliament's External Affairs Power: Koowarta's Case" (1982) 56 ALJ
519, 523 n 48. See also, National League of Cities v Usery (1915) 426 US 833; Equal
Employment Opportunity Commission v Wyoming (1983) 51 US Law Week 4219.
See generally, G Sawer, Australian Federalism in the Courts (1967) 1-7, 121-151.
66 See supra n 59.
67 Professor Howard can be read as supporting the view that Covering Clause 5
would not affect an! amendment to s 109 of the CoDBtitution. C Howard, supra n 5,
509.
!68 See generally, L Harvey and J Thomson, "Some Aspects of State and Federal
Jurisdiction under the Australian Constitution" (1979) 5 Mon UL Rev 228. See also,
G Sawer ,"'Unamendable' parts of Constitution Act", supra n 52.
00 C Howard, supra n 5, 508-509. But contra W A Wynes, supra n 1, 542-543. See
also, J Quick and R R Garran, supra n 5, 994 ("No part of the Constitution is
excluded from the possibility of amendment. . . . The power of amendment extends
to every part of the Constitution ...."); G Sawer, supra n 62, 113 ("It is an arguable
view that no Australian constitutional provision is immune from amendment under
s 128 of the Constitution ..•."). See also, AG (Vic) ex rel Black v Commonwealth
(1981) 55 ALJR 155, 174.
336
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wealth within the meaning of "any law" in ss 41, 99, 100, 105A(5) and
116?70 If so, is the amendment invalidated by those sections?71
It might also be noted that several sections of the Constitution, for
example ss 91, 92, 95, 104 and 105A(5), contain a phrase similar to
"notwithstanding anything in this Constitution." At least in respect to
s 105A it has been suggested that such a phrase constitutes an exception to
s 128. The suggestion is that s 105A(5) would invalidate any s 128 amendment to the Constitution which conflicts with any agreement or variation
made pursuant to s 105A. 72 That view has, however, been labelled "wrong"
and "incorrect". 73 Apart from disputing the interpretation of several
passages in the judgments in the Garnishee case, 74 it has been pointed out
that as a matter of ordinary grammar the s 105A(5) words "anything
contained in this Constitution" 75 are addressed to provisions in the Constitution as it stood in 1929 when s 105A became part of the Constitution.
Those words enable s 105A agreements and variations to prevail over the
then existing sections of the Constitution. They are not, however, directed
towards future amendments which are not and cannot be said to be
"contained in this Constitution." 76 Finally, the words "notwithstanding
anything contained in this Constitution" have been interpreted as not being
sufficiently clear to give greater and overriding weight to s 105A and any
other section in which they appear. 77
(5) Are there any other limitations on Section 128?
Can unrestricted alterations to the Constitution be made pursuant to
s 128? There is some support for the view that "there is nothing in the
Constitution Act or in section 128 of the Constitution which imposes limits
on the kind of alterations that may be made to the Constitution." 78 That is,
so long as the manner and form requirements of s 128 are complied with
there are no restrictions as regards what kind of alterations may be made.
For example, a Bill of Rights, binding both the Commonwealth and States,
could, by virtue of s 128, be inserted into the Constitution. 79
70 There is some authority for an affirmative answer. Eg Sankey v Whitlam (1979)
142 CLR 1, 91-93 per Mason J, 105 per Aickin J (Gibbs ACJ at 31 and Stephen J at
7 5 alluding to, but not deciding, the question). Professor Sawer has suggested that in
relation to the Statute of Westminster "it would seem that laws made under section 128
are Acts of Parliament of the Commonwealth.... " G Sawer, supra n 5, 6. But see the
quotation from J Quick and R R Garran, supra n 25.
71 A somewhat analogous situation has arisen under the Indian Constitution. See
supra n 15.
72 E F Mitchell, What Every Australian Ought to Know (1931) 79.
73 A C Gain, supra n 5, 216; W A Wynes, supra n 1, 543.
74 New South Wales v Commonwealth (1932) 46 CLR 155. See generally A C
Gain, supra n 5, 215-218; W A Wynes, supra n 1, 543; Sankey v Whit/am, Supra n 70
at 30, 75, 88, 105-106.
75 Note that ss 91, 92, 95 and 104 do not use the word "contained". In these sections
emphasis would need to be placed on the word "in" to support the argument in the
text accompanying infra n 76.
70 See generally A C Gain, supra n 5, 218-219. But see also Sankey v Whittam,
supra n 70.
77 See generally W A Wynes, supra n 1, 543. But see also Sankey v Whittam, supra
n 70.
78 E Campbell, supra n 5, 96. See also J Quick and R R Garran, supra n 5, 989-990
(but see 994).
7ll For support for this view see J Quick and R R Garran, supra n 5, 990;
Sir Harry Gibbs, "The Constitutional Protection of Human Rights" (Sept 1982) 17
1983]
Altering the Constitution: Some Aspects of Section 128
337
Other opinions while emphasising "the unlimited powers existing under
s 128" do not go as far as to concede that "radical" changes, for example,
"the exclusion of the Crown from any share in the constitutional system",
could be introduced under as 128 alteration. 80
Neither do such opinions necessarily concede that State constitutional
law (including United Kingdom legislation applicable in the States) is
subject to or can be affected by s 128.81 Whether changes to State constitutional law can be effected pursuant to s 128 involves two questions.
First, what is the relationship between s 106 of the Commonwealth Constitution and State Constitutions.82 Secondly, the relationship between ss 106
and 128 must be resolved. 83
Even if ss 106 and 107 draw into themselves all aspects of State constitutional law, there are reasons for not concluding that s 128 can amend or
change such law. In all probability the Founding Fathers did not envisage
the possibility that State Constitutions would or could be subject to amendment by s 128 through the amendment of s 106.84 Furthermore, after
Federation "the States continued their separate constitutional relations
with the Imperial Crown and Parliament, and this separate relationship has
been emphasised by the Statute of Westminster 1931 ". 85 Nevertheless, some
impetus to the ability of s 128 to reach State Constitutions has been found
in the drafting history of s 128.86 It can also be argued that the continuance
Aust L News 10 and (1982) 9 Mon UL Rev 1. See also R M Hope, "Constitutional
Guarantees and Individual Freedoms" (paper presented at First Australian Conve_ntion
of Councils for Civil Liberties, Syd Oct 1968); G Evans, "An Australian B1ll of
Rights?" (1973) 45 (No 1) Aust Q 4, 31-32.
soW A Wynes, supra n 1, 542; A P Carraway, "Safety-Valve", supra n 5, 112;
J Quick and R R Garran, supra n 5, 994.
81 See eg W A Wynes, supra n 1, 542 n 42; D O'Connell, supra n 62, 38. Contra see
eg, J Quick and R R Garran, supra n 5, 990; Carraway, "Safety-Valve", supra n 5,
109-112; A P Canaway, "Evolution of Section 128", supra n 19, 276; G Sawer, supra
n 5, 6-7; G Sawer, supra n 62, 113-114, 116; R D Lumb, "Fundamental Law", supra
n 1, 162-163, 182-183; G Evans, supra n 62. The provisions ins 105A(5) "Every su.ch
agreement and any such variation thereof shall be binding upon ... the States parties
thereto notwithstanding anything contained in . . . the Constitution of the several
States or in any law of the Parliament ... of any State" have been cited as an example
of the use of s 128 "to nullify certain provisions in the State Constitutions" and
therefore the possibility of nullifying State Constitutions "altogether". A P Carraway,
"Safety-Valve", supra n 5, 109. See also, G Sawer, "The Consitutional Crisis of
Australian Federalism" in A Patience and J Scott (eds), Australian Federalism: Future
Tense (1983) 94, 97.
820pposing views are set forth in WA v Wilsmore [19811 WAR 179, 181-183 per
Burt CJ. The view that State constitutions derive their authority from s 106 of the
Commonwealth Constitution has not been endorsed by the High Court. China Shipping
Co v SA, supra n 30, 8 per Barwick CJ. But see, Sir Garfield Barwick, "Book Review"
(1981) 4 UNSWLJ 131, 134.
83 Supra n 81.
84 G Sawer, supra n 62, 113. But see infra n 86.
&5 G Sawer, supra n 5, 5-6 (emphasis in original).
86 Two drafting changes to s 128 may be of significance. First, the heading of
Chapter VIII was changed from "Amendment of the Constitution" to "Alteration of
the Constitution" and the opening line of s 128 changed from "The provisions of this
Constitution shall not be altered ...." to "This Constitution shall not be altered ...."
See Official Record Of Debates (vol 1) (1898), supra n 19, 715-716; G Sawer, supra
n 5, 6. Second, inclusion by the 1899 Premiers Conference, of the words "increasing,
diminishing or otherwise altering the limits of the State, orl in any manner affecting
the provisions of the Constitution in relation thereto". See, Sydney Morning Herald,
(9 February 1899) (reproduced in J E Richardson, supra n 5, 21-22 and in A P
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in 1901 and beyond of a separate constitutional relationship between the
States and the United Kingdom does not necessarily signify that it was
intended to be in any aspect unalterable or permanent.
"Is it then the case that section 128 would authorise any degree of interference with the constitutions of the States?"87 The answer to this question
"is much disputed and without judicial authority, even in the way of dicta".88
Nevertheless, it has been argued that, as a matter of law, amendments to
the Constitution pursuant to s 128 could abolish State Parliaments and
totally nullify the provisions in State Constitutions. 89 Some State constitutional law may have already been nullified by virtue of agreements made
pursuant to the 1929 amendment inserting s 105A(5).90 An unsuccessful
attempt was made in 1974 to alter the Commonwealth Constitution to
specify criteria for electorates within each State for State parliamentary
elections.91 It has also been suggested that s 128 is one method to abolish
appeals from State Courts, involving only matters of State law,92 to the
Judicial Committee of the Privy Council.93 Finally, such direct intervention
in State constitutional law can, for s 128 purposes, be distinguished from
indirect consequences, which result from changing Commonwealth power
or altering existing Commonwealth-State relationships. 9 <l
(6) Can Section 128 be amended by section 128?
There are two questions which require to be answered. First, whether
s 128 can be amended. Second, if so, whether the amendment requires the
approval of only a majority of voters in a majority of States or of a majority
of voters in all the States. As a practical matter in 1977 a majority of voters
in all States approved a proposed law to alter s 128.91'>
Canaway, "A Point Under Section 128", supra n 5, 346); A P Carraway, "Evolution
of Section 128", supra n 19, 276.
G Sawer, supra n 5, 6.
G Sawer, supra n 62, 115. But see The Australian Constitution Annotated, supra
n 3, 454-455 (1976-1977 Cumulative Supp 91-92).
89 A P Canaway, "Safety-Valve", supra n 5, 109-112; A P Carraway, "Evolution of
Section 128", supra n 19, 276; A P Carraway, ''The By-Pass", supra n 5, 394-398. See
also J Quick and R R Garran, supra n 5, 990.
90 Supra n 81.
91 Clause 7 of Constitution Alteration (Democratic Elections) 1974 proposed to
insert a news 106A. See J E Richardson, "Reform of the Constitution", supra n 6(v),
81-83; R D Lumb, "Commentaries" in Labor And The Constitution 1972-1975, supra
n 6(v), 98, 99-100 ("The proposal ... would have wrought a basic change in the
State Constitutions which would not have been ratified according to the processes of
alteration laid down in those [State] Constitutions."); P J Hanks, "Parliamentarians
and the Electorate" in id 166, 169.
92 But probably not when a State law matter is "associated" with a matter attracting
federal jurisdiction. Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd
(1981) 55 ALJR 120; Fencott v Muller (1983) 57 ALJR 317. As to Privy Council
Appeals see generally S Rees, "Appeals from the Supreme Court of NSW to the Privy
Council: The Legislative Basis for Appeal and the Extent to which a Right of Appeal
Remains" [1981] Aust Current L AT27; A R Blackshield, ''The Last of England:
Farewell to their Lordships forever" (1982) 56 Law Institute J 780.
93 Z Cowen, "The Constitutional Aspects", supra n 62, 58-59; G Sawer, supra n 62,
116 ("the s 128 possibilities"). Contra G Sawer, supra n5, 6-7. Other methods to
abolish appeals to the Privy Council have also been suggested. Eg A R Blackshield,
supra n 92, 780, 782-783.
94 Eg s 51 (xxiiiA) (added in 1946); s 51 (xxvi) (altered in 1967).
95 Statistics for the Constitution Alteration (Referendums) 1977 referendum are
in Yearbook: Australia(1978)No62of 1977& 1978 at 73 and Aust Govt Gaz (NoS 100)
87
88
1983]
Altering the Constitution: Some Aspects of Section 128
339
That s 128 can be amended is the view that has most frequently been
espoused.96 It has, however, been suggested that, although there is no direct
discussion of this question in the Convention debates, it is nevertheless
"historically possible that ... section [128] was assumed to be unamendable."97 Support for such a view might be sought in the fact that s 128 is
cast in negative terms and that it is the final provision in the Constitution.98
It has also been contended that the "political compact" between the
Commonwealth and States99 would be contravened if the power of amendment extended to s 128 itself.100
The conclusion that s 128 is amendable can, however, be justified on a
number of grounds.101 First, the semantic arguments. Section 128 is within
covering clause 9 which commences with the major title "The Constitution".
The words ins 128 give no support to an implication which would exclude
s 128 from its opening words by reading them as "This Constitution, other
than this section, shall not be altered except in the following manner".
Second, there is no "manner and form" provision entrenching s 128 itself.
What procedure needs to be followed to amend s 128? This has been
the subject of differing views. On the one hand, it has been argued that
s 128 can be amended by the approval of a majority of voters in a majority
of States.102 An intermediate position is that this is all that is required for
amendments to all of s 128 except to the penultimate paragraph. Amendment of that paragraph would require the approval of a majority of voters
(9 June 1977) 2. The Constitution Alteration (Power of Amendment) 1930 proposal
did not purport to alters 128 but rather intended to insert a news 129. See supra n 53.
The authorities are given in Howard, supra n 5, 508 (n 87).
G Sawer, supra n 5, 4. See also J E Richardson, supra n 5, 27 ("the silent assumption was that [s 128] was beyond amendment by action originating in" s 128).
98 G Sawer, supra n 5, 4.
99 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR
129, 142. For some other references to the Commonwealth Constitution as a "compact"
see eg Qld v Commonwealth, supra n 4(i) 607 per Mason J; Ansett Transport
Industries (Operations) Pty Ltd v Wardley (1980) 54 ALJR 210, 214 per Stephen J;
AG (Vic) ex rel Black v Commonwealth, supra n 69, 169 per Stephen J; Victoria v
Commonwealth (1971) 122 CLR 353, 37(}.371 per Barwick CJ; Sir Ninian Stephen,
supra n 8, 4. The notion that the United States Constitution is a compact arose during
nullification crises as an element of secessionist rhetoric and was finally repudiated
by the 1861-1865 Civil War. See generally A H Kelly and W A Harbison, The
American Constitution: Its Origins And Development (1948) 310-311; D M Potter,
The Impending Crisis 1848-1861 (1976) 479-484; H M Hyman and W M Wiecek,
Equal Justice Under Law: Constitutional Development 1835-1875 (1982) 139-140.
See also K M Stampp, "The Concept of a Perpetual Union" (1978) 65 J Am Hist 5;
Equal Employment Opportunity Commission v Wyoming, supra n 65 at 4231-4232
per Powell J dissenting (citing examples and original documentation of the doctrines
of interposition and nullification).
100 E F Mitchell, supra n 72, 79, 88. Contra W A Wynes, supra n 1, 541. If the
Senate is a States' House, see infra n 114, the States do have a role through the Senate
in the s 128 process. There have been proposals to authorise State Parliaments to
initiate referendums1 to amend the Commonwealth Constitution eg Proceedings Of The
Australian Constitutional Convention (1975) 130-133; Proceedings Of The Australian
Constitutional Convention (1978) 1-li; Agenda Item No A22 at the 1983 Session of
the Australian Constitutional Convention, Official Record of Debates, supra n 8 on
29 April 1983.
1°1 See egG Sawer, supra n 5, 4; W A Wynes, supra n 1, 540-541; C Howard, supra
n 5, 508; C Howard, supra n 6(v), 152-153.
102 See eg J 911;ick and R R Garran, supra n 5, 993; W A Wynes, supra n 1, 540
(but 540 n 36 1s mcorrect); C Howard, supra n 5~ 508; J E Richardson, supra n 5,
29-30 (listing authorities).
96
97
340
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in all States.103 At the other end of the spectrum is the argument that an
amendment to any portion of s 128 comes within the penultimate paragraph
of s 128 and therefore requires the consent of a majority of voters in all
States.10i
(7) Some questions about paragraph 5 of Section 128
The most obvious question to which the penultimate paragraph of s 128
gives rise, is the nature or kind of alterations that come within its scope.
Those that do so, require to be approved by a "majority of the electors
voting in that State" which is affected by the amendment.105
A number of suggestions have been examined in order to ascertain what
alterations to the Con.stitution might be encompassed by paragraph 5. For
example, would an amendment to s 7 in relation to Territorial Senators
diminish the proportionate representation of States in that House of
Parliament?106
Apart from examples which would seem to fall directly within the first
three categories of paragraph 5, there are differences of view concerning
what proposed laws would be encompassed by the last category of that
paragraph-"in any manner affecting the provisions of the Constitution".
Abolition of the Senate or of all States' Senate representation/07 is one
example, and amendment of any portion of s 128 or only paragraph 5,
another.108
It has been considered that "[a]ll the provisions of the Constitution are
potentially within" the scope of that last categoryY~ However, rather than
interpreting this category as applying "to a whole range of constitutional
alterations not specifically directed to the provisions appropriate to" the
first three categories in paragraph 5, a more restrictive approach could be
adopted. This interpretation would apply the words of the last category
only to
those alterations [to the Constitution] which directly affect the
provisions to which [the first three] categories ... relate [and not to
those] constitutional alterations which are directed to other matters,
though consequentially they produce an effect on the provisions to
which the [first] three categories relate.110
103 J Latham, supra n 7, 19; G Sawer, supra n 5, 4-5; R D Lumb, "Fundamental
Law", supra n 1, 162; R D Lumb and K W Ryan, supra n 5, 402.
lOi Report of the Royal Commission on the Constitution 1929, supra n 6(i), 228-229;
A P Canaway, "A Point Under Section 128", supra n 5, 345-348; J E Richardson,
supra n 5, 30-32 (listing authorities, including Richardson).
105 For the history of para 5 see, A P Can,away, "A Point Under Section 128",
supra n 5; J E Richardson, supra n 5 20-22.
106 This has been proposed. See eg Proceedings Of The Constitutional Convention
(1978) xlix; Australian Constitutional Convention 1982, Fourth Report of Standing
Committee D 46-57 (vol1 ), Appendix H (vol2) (1982). See also V Robinson, "Case
Note" (1978) 9 FL Rev 375, 380-381. Merely because s 128 did not prevent Commonwealth Territorial Senators or House of Representatives legislation under s 122 (see
W A v Commonwealth (1975) 134 CLR 201 and Qld v Commonwealth, supra n 4(i))
does not mean that a constitutional amendment to achieve similar objectives would
not fall within paragraph 5 of s 128.
107 See eg J Latham, supra n 7 at 19; R D Lumb and K W Ryan, supra n 5, 401 n 6.
Contra J E Richardson, supra n 5, 36-37.
108 See generally supra nn 102, 103, 104.
109 G Sawer, supra n 5, 5 (emphasis in original).
no J E Richardson, supra n 5, 37.
1983]
Altering the Constitution: Some Aspects of Section 128
341
(8) Disagreements between the Houses and the Role of Governor-General
Section 57 of the Constitution and the second paragraph of s 128 are to
some extent similar.111 For example, both provisions have as their central
purpose the resolution of disagreements between the Houses of the Commonwealth Parliament over proposed laws. Similar phrases, such as
"rejects" and "fails to pass" are in each section.112 There are, however,
differences. Disagreement over a s 128 proposed law is not resolved by a
dissolution of the Commonwealth Parliament or by a joint sitting of the
House of Representatives and the Senate. Rather, voters "as predominate
partners" in the constitutional amendment process are the direct and
primary arbiters of whether the dispute is resolved in favour of approval
of the proposed law.113 Another difference is that the second paragraph of
s 128, unlike s 57, does not require the proposed law to originate in the
House of Representatives. This explicit recognition of Senate prerogatives
in relation to constitutional alteration can be seen as an attribute of the
notion of the Senate as a States' House.114
The Governor-General has two functions under s 128. The first is to
submit a proposed law to State and Territory House of Representatives
electors. If both Houses have passed, by an absolute majority,115 a proposed
law, the first paragraph of s 128 requires that it "shall be submitted" within
the time specified to such electors. Although this appears to be a mandatory
requirement,l16 no express direction is given as to who is to carry out this
task. In contrast, the second paragraph of s 128, expressly provides that
111 See generally J Quick and R R Garran, supra n 5, 992-994; W H Moore, supra
n 5, 599-602 (2nd ed).
112 The view has been expressed that these phrases in ss 57 and 128 have similar
meanings. J E Richardson, supra n 5, 41. See generally, High Court decisions on s 57
noted in R D Lumb and K W Ryan, supra n 5, 236-244. As to whether the House of
Representatives had failed to pass six Constitution Alteration Bills in 1914 see
G Sawer, Australian Federal Politics And Law 1901-1929 (1956) 124-125; R D
Lumb and K W Ryan, supra n 5, 401. Contra H V Evatt, "Amending the Constitution"
(1937) 1 Res Judicatae 264. See also, (1914) 74 Commonwealth Parliamentary
Debates 2420.
113 W H Moore, supra n 5, 600 (2nd ed). "[T]he Houses of Parliament, in respect
of alterations of the Constitution, are originating and drafting bodies merely, and not
the principal legislative organ." J Quick and R R Garran, supra n 5, 993.
114 See eg W H Moore, supra n 5, 600 (2nd ed); W A v Commonwealth, supra
n 106, 227-228 per Barwick CJ (dissenting). However, it has! been suggested that it
is "improbable that the Governor-General would ever submit referendum proposals to
the people merely on the initiative of the Senate"-G Sawer, supra n 112, 125 n 82and that "it is difficult to see how the Senate can insist on its constitutional amendments being considered by the electors if the Lower House dissents." H V Evatt, supra
n 112, 264. See also C Howard, supra n 5, 507 n 85. See generally C Sharman, "The
Australian Senate as a States House" (1977) 12 Politics 64; H V Emy, The Politics
Of Australian Democracy: Fundamentals In Dispute (2nd ed 1978) 192-200.
115 The proposed law "must obtain an absolute majority at whatever is the last stage
of its progress through each House" whether that is the "third reading" or otherwise.
G Sawer, supra n 112, 54.
116 Contrast the word "shall" in the 1st paragraph with "may" in the 2nd paragraph
of s 128. See eg R D Lumb, "Fundamental Law", supr~ n 1 at 162 ("constitution
alteration bill ... must be submitted to the electorate.") However, there have been
nine proposals to alter the Constitution which, although having passed both Houses of
Parliament, have not been submitted to a referendum. J E Richardson, supra n 3, 104
n 13. For the reasons for not submitting to a referendum the Constitution Alteration
(Parliament) 1965 and the Constitution Alteration (Repeal of Section 127) 1965 see
Commonwealth Parliamentary Debates (Senate vol 31) 20-21 (1966). It has been
suggested that '[t]he propriety of [this] non-submission is open to criticism." R D
Lumb and K W Ryan, supra n 5, 401 n 4.
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"the Governor-General may submit" a proposed law to electors. Section 57
also uses the word "may" and in both sections it can be interpreted as giving
the Governor-General a discretion not to act.117
The second of the Governor-General's functions under s 128, after a
proposed law has been approved by the requisite majorities, is in relation
to the Queen's assent. Section 58 of the Constitution provides that upon
presentation to the Governor-General of a proposed law "for the Queen's
assent" there is to be a declaration that the Governor-General "assents in
the Queen's name", "withholds assent", "or reserves the law for the Queen's
pleasure." In stark contrast, s 128 merely provides for the proposed law
to be "presented to the Governor-General for the Queen's assent." The
additional words in s 58, indicating that it is the Governor-General who
assents or reserves, do not appear in s 128. This omission can, however, also
be contrasted with express provisions in State Constitutions which require
amending Bills to be reserved for the Queen's assent.U 8 Nevertheless,
absence of the s 58 words from s 128 might lead to the conclusion that it
is "the Queen's assent,"119 rather than the Governor-General's, which is
necessary. On the other hand, it has been suggested that the Royal assent
procedure in ss 58 to 60, including reservation, recommended amendments
and disallowance, applies to proposed laws to alter the Constitution.120
Even if this suggestion is correct it must be noted that, because s 58 only
applies to "a proposed law passed by both Houses of the Parliament" ss 58
to 60 would not apply to constitutional alterations which emanate through
the second paragraph of s 128.121
(9) Can the United Kingdom Parliament amend the Commonwealth
Constitution?
In the early stages of the 1891 Constitutional Convention Sir Samuel
Griffith exclaimed:
I certainly agree with those who have said that after the establishment
117 If, as Evatt seems to contend, the 1914 Constitution Alteration Bills had failed
to pass, see supra n 112, then the Governor-General exercised his discretion not to
put those Bills to a referendum. See H V Evatt, supra n 112, 264. However, it might
be possible to limit the 1914 example to Senate Bills and not apply it to constitutional
alterations proposed by the House of Representatives. As to the word "may" and the
Governor-General's discretion under s 57 see eg C Howard, "Section 57 of the
Constitution", in Standing Committee D, 3rd Report (Appendix B) 21, 26-27 in
Proceedings Of The Australian Constitutional Convention (1978); G Sawer, Federation
Under Strain: Ausralia 1972-1975 (1977) 59-60; G Winterton, "Sir Ninian: no row
over dissolution", The Age (29 July 1982) 13; G Winterton, "Settling the Powers of
the Governor-General" The Age (26 April 1983) 13; G Sawer, "The Double Dissolution; looking at the documents, past and present", The Canberra Times (9 Feb 1983)
2; P H Lane, "Double Dissolution of Federal Parliament" (1973) 47 AU 290, 294,
295.
118See eg s73(1) of the Constitution Act 1889-1980 (WA). But compare
s 73 (5) id.
119 J Quick and R R Garran, supra n 5, 994 ("The necessity of the Queen's
assent. ... "). See also, s 57 ("presented to the Governor-General for the Queen's
assent."). Contra C Saunders and E Smith, "Conventions Associated with the Commonwealth C~nstitution" in Standing Committee D 4th Report Appendix G 6 ( 1982
vol 2) (s. 74 IS the "only •.. provision in the Commonwealth Constitution which
specifically requires reservation of legislation" for the Queen's assent.).
120 See eg W H Moore, supra n 5, 601 (2nd ed); R D Lumb, "Fundamental Law",
supra n 1, 161; C Howard, supra n 6(v), 131.
121 Supra n 114.
1983]
Altering the Constitution: Some Aspects of Section 128
34~
of a federal constitution in Australia there should be no necessity to
refer to the British Parliament to do anything for Australia, either in
changing a constitution or in anything else. I think the constitution will
be by no means an adequate one for the purpose for which it is to be
designed if we shall have occasion to refer to the Parliament of the
United Kingdom to do anything for us.122
However, by 1901 Quick and Garran were prepared to concede that
there "remain[ed] the possibility of resort to the Imperial Parliament for
an amendment of the Constitution" albeit that "[s]uch a radical and drastic
method ... could only be justified by the gravest considerations of a most
serious emergency."123
Orthodox legal theory is not so confining. It maintains that as the
Constitution is an Act of the United Kingdom Parliament124 it can be altered
by that Parliament,125 especially if there exists the request and consent
envisaged by the Statute of Westminster.126 That orthodox theory has,
however, come under challenge.127 Whether that challenge will be successful
has yet to be determined. Even if it is not, it has also been suggested128 that
the United Kingdom Parliament possesses no power to alter the Constitution. It is argued that s 128 is an abdication to the Commonwealth
Parliament and Australian people of legislative power to amend the
122 Official Report, supra n 11, 490.
123 J Quick and R R Garran, supra
n 5, 991. See also A I Clark, Studies In
Australian Constitutional Law (2nd ed 1905) 292-303; R R Garran, supra n 12, 182-183.
1U For a list of authorities on each side of the debate see J A Thomson, supra n 35,
318 (n31 &33). Seealsosupran2.
125 See eg J Quick and R R Garran, supra n 5, 991; G Evans, "Changing the
System", supra n 4, 158-160; C Howard and G Evans, "Submission", supra n 4, 2.
See generally China Shipping Co v SA, supra n 30 . However, there are other views.
See eg R D Lumb and K W Ryan, supra n 5, 403 ("for all practical purposes\ ..•
there is no other alternative method of amending the Constitution other than that
provided in the Constitution itself."); R D Lumb, "Fundamental Law", supra n 1,
154-155 ("the method of amendment based on the exercise of Imperial Legislative
power disappeared") but see 157-158; James v Commonwealth (1936) 55 CLR 1, 61
(PC) ("The Constitution ... can only be altered by ... s 128".); Sir Ninian Stephen,
supra n 14, 174 ("amendment of the Australian Constitution has always been a purely
Australian process, both in initiation and in execution, requiring only federal legislative
action followed by referendum ..."). See also infra nn 128 & 129.
126 Sees 4 and s 9(3) of the Statute of Westminster 1931, supra n 25. See generally,
G Marshall, supra n 52, 116; R D Lumb, "Fundamental Law", supra n 1 at 157-158;
R D Lumb and K W Ryan, supra n 5 at 403; G Evans, "Changing the System", supra
n 4 at 159 ("there is no requirement that the states participate in any ... requesting
or consenting."); J M Finnis, "The Responsibilities of the United Kingdom Parliament
Under the Australian Constitution" (1983) 9 Adelaide L Rev 91, 92-99, 104 n43.
There is support for the view that the legis!lative power of the United Kingdom
Parliament is "responsive only to prior Australian initiatives" of request and consent.
China Shipping Co v SA, supra n 30, 31-32 per Stephen J. See also Manuel v
AG (1982) 3 WLR 821. As to what could be done by the United Kingdom Parliament following a request and consent, see eg Howard, "Constitutional Amendment",
supra n4, 42-43; C Howard, supra n6(v), 153-155; Canada Act 1982 (UK) ell.
But note E A Driedger, 'The Canadian Charter of Rights and Freedoms" (1982) 14
Ottawa L Rev 366. Cf P W Hogg, "Supremacy of The Canadian Charter of Rights
and Freedoms" (1983) 61 Can BarR 69, 71-76.
127 "The most radical and general argument is that Australian independence under
the Constitution precludes the continuing application of Imperial law...." J Crawford,
Australian Courts Of Law (1982) 174. For the authorities on each side of the debate,
see J A Thomson, supra n 35, 318 (n 31).
128 M H Byers, "Current Constitutional Problems" in C Saunders et al, Current
Const~tutiona? Problems In Australia (1982) 51, 55; M H Byers, "Conventions
Associated With the Commonwealth Constitution" (1982) 56 ALJ 316, 318.
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Constitution by way of a manner and form provision which binds and
fetters the United Kingdom Parliament. 129
Even if these challenges are not successful, the prevailing orthodox view
will be displaced if, and when, there is a severance of residual constitutional
links between Australia and England130 which breaks the legal continuity
between the two countries. Australia will then have a fully autochthonous
Constitution.
(10) An Autochthonous Constitution
A severance of residual constitutional links which relied on the Constitution's provisions131 or British legislation132 or a combination of the two,l33
would not produce a truly autochthonous Australian Constitution. There
would still exist an unbroken stream of authority flowing from the United
Kingdom Parliament's enactment in 1900 of the Constitution.134
Some countries have achieved true autochthony. 135 This is only attained
by a break in legal continuity, by the establishment of a Constitution
in a manner not authorized by the Constitution in force at the time the
new Constitution is established. 136
What is needed is a revolution. The revolution does not have to be violent.
The necessary legal discontinuity can be established even if the revolution
is "entirely peaceful and discernable only in acceptance by courts and
officials of the new Constitution as the operative Constitution. " 137 Indeed,
there are precedents as to how such a peaceful revolution can be initiated
~d cqncluc.led.1,38 '·
129 As to the ability of the United Kingdom Parliament to abdicate legislative power
and bind its successors, see generally G Winterton, 'The British Grundnorm: Parliamentary Supremacy Re-Examined" (1976) 92 LQR 591.
130 As to the severance of residual constitutional links, see eg P Durack, Abolition
Qf Residual Constitutional Links with Britain Other than the Crown, Press Release
37/82, 25 June 1982, [198211 Press Releases by the Attorney-General 135; G Sawer,
"Dealing with residual problems of Australia's imperial tie", The Canberra Times
(7 July 1982) 2; R C Jennings,"The Imperial Connection: Residual Constitutional
Links" in C Saunders, supra n 128, 68.
131 Eg, supra n 53 & 54.
132 Eg, G Evans, "Changing the System", supra n 4, 158-160.
133 Eg, supra n 130.
134 See the remarks of Professor Campbell quoted in supra n 54. "The validity of
the Commonwealth Act containing the Constitution would still depend on its having
been made under the Constitution Act of 1900, as amended, despite the repeal of that
Act as a part of Australian law." Campbell, supra n 5, 101.
135 Eg Ireland and India (see Campbell, supra n 5, 105-109); Pakistan and Rhodesia
(see J M Finnis, "Revolutions and Continuity of Law" in A W B Simpson (ed)
Oxford Essays in Jurisprudence 2nd Series (1973) 44, 52-53, 54 n 22 and G Marshall,
Constitutional Theory (1971) 64-72); United States (see Lumb, "Methods of
Alteration", supra n 1, 1). See generally infra n 136.
136 E Campbell, supra n 5, 101. See generally, C Howard, "Constitutional Amendment", supra n 4, 41-42; G Evans, "Changing the System", supra n 4, 160-161; J M
Finnis, supra n 135; G Marshall, supra n 135, 57-72.
137 E Campbell, supra n 5, 101.
138 See supra n 135. Also see K C Wheare, The Constitutional Structure Of The
Commonwealth (1960) 111-112 quoted in E Campbell, supra n 5, 101-102. See also
S A de Smith, The New Commonwealth and Its Constitution~ (1964) 5-9 ("in the
last resort all that succeeds is success.") (footnote omitted). Professor Sawer has
suggested that
[p]erhaps the best way of dealing with this is to put to the people as a constitutional amendment a declaratory provision stating that the sovereignty of the
United Kingdom parliament ends on a named future date and is replaced by
1983]
Altering the Constitution: Some Aspects of Section 128
345
The establishment of a "Constitution the authority of which does not
depend in any way on its having been made in pursuance of an enactment
of the United Kingdom Parliament" is the autochthonous objective.139
Anything less will not produce a truly Australian Constitution.
Conclusion
A number of questions concerning the scope and interpretation of s 128
remain to be authoritatively answered. Where suggestions and answers have
already been put forward, even to the same question, they have differed.
For those who would embark upon constitutional reformation, the task
must also be to address these questions, suggestions and answers. To do so
will ensure that means as well as ends of constitutional alteration are given
full consideration.
that of the Australian people. But if this is not done, we may yet find the High
Court in a suitable case •.. doing it for us by a sort of judicial UDI, taking effect
on the date of the decision.
G Sawer, "Australia's Courts and their British Connection" The Canberra Times
(26 May 1980) 21 (Supp on High Court 7).
139
E Campbell, supra n 5, 101.