§ 223. “Until the Parliament Otherwise Provides.”

There are no less than twenty-two provisions in the Constitution in which it is enacted that the law of the Constitution shall be to a certain effect “until the Parliament otherwise provides.” By implication this confers on the Parliament authority to provide “otherwise.” Sub-section xxxvi. has been introduced to give the Parliament express power to provide “otherwise.” The result is that the Parliament can alter the Constitution in respect to the following matters:—

  • (1.) GOVERNOR-GENERAL'S SALARY.—May be increased or diminished (sec. 3).
  • (2.) SENATE ELECTORATES.—Each State may be divided into electoral divisions (sec. 7).

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  • (3.) QUEENSLAND SENATORIAL DIVISIONS.—May be abolished (sec. 7).
  • (4.) NUMBER OF SENATORS.—May be increased or diminished, but so that no Original State shall have less than six (sec. 7).
  • (5.) STATE ELECTORAL LAWS.—Regulating the election of senators may be superseded by Federal electoral laws (sec. 10).
  • (6.) QUORUM OF SENATE.—May be increased or reduced (sec. 22).
  • (7.) MODE OF ASCERTAINING QUOTA.—May be altered (sec. 24).
  • (8.) ELECTORAL DIVISIONS.—Federal electoral divisions for House of Representatives may supersede State-made electoral divisions (sec. 29).
  • (9.) QUALIFICATION OF ELECTORS.—Federal law prescribing the qualification of electors may supersede State laws (sec. 30).
  • (10.) STATE ELECTORAL LAWS.—Regulating the election of the members of the House of Representatives may be superseded by Federal electoral laws (sec. 31).
  • (11.) QUALIFICATION OF MEMBERS.—May be altered (sec. 34).
  • (12.) QUORUM OF HOUSE.—May be increased or reduced (sec. 39).
  • (13.) PENALTY FOR SITTING WHEN DISQUALIFIED.—May be altered (sec. 46).
  • (14.) DISPUTED ELECTIONS.—Mode of settling may be altered (sec. 47).
  • (15.) PAYMENT OF MEMBERS.—May be increased or reduced (sec. 48).
  • (16.) NUMBER OF MINISTERS.—May be increased (sec. 65).
  • (17.) SALARIES OF MINISTERS.—May be increased (sec. 66).
  • (18.) APPOINTMENT AND REMOVAL OF NON-POLITICAL OFFICERS.—May be regulated (sec. 67).
  • (19.) CONDITIONS AND RESTRICTIONS ON APPEALS.—May be regulated (sec. 73).
  • (20) APPLICATION OF CUSTOMS AND EXCISE REVENUE.—Ten years after the establishment of Commonwealth the Braddon clause may be repealed or altered (sec. 87).
  • (21.) FINANCIAL ASSISTANCE TO STATES.—Ten years after the establishment of the Commonwealth the Parliament may determine not to grant further financial assistance to States (sec. 96).
  • (22.) AUDIT.—Parliament may make audit laws (sec. 97).

51. (xxxvii.) Matters referred224 to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:

HISTORICAL NOTE.—The genesis of this sub-section is to be found in the scheme for the establishment of a General Federal Assembly first recommended by the Committee of the Privy Council in its Report of 1849. Among the powers purposed to be conferred on the General Assembly was: “9. The enactment of laws affecting all the colonies represented in the General Assembly on any subject not specifically mentioned in this list, and on which it should be desired to legislate by addresses presented to it from the legislatures of all the colonies” (p. 85, supra). Wentworth's Constitutional Committee of 1853 recommended that the General Assembly should have power to legislate “on all other subjects which may be submitted to them by address from the Legislative Council and Assembly of the other colonies.” The select Committee which drafted the Victorian

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Constitution, in its report, dated 9th December, 1853, recommended that provision should be made for occasionally convoking a General Australian Assembly for legislating on such questions of vital inter-colonial interest as might be submitted to it by the Act of any legislature of one of the Australian colonies. The Memorial and Draft Bill, prepared by Wentworth in 1857 for the creation of an Australian Federal Assembly, provided that the Assembly should have power to deal with certain specified subjects “and any other matter which might be submitted to it by the legislatures of the colonies represented therein.”

The same idea was developed, and first received practical expression, in the Federal Council Act of 1885, sec. 15, which assigned to the Council authority, at the request of the legislatures of two or more of the colonies represented therein, to legislate concerning:—

  • (h) Any matter which at the request of the legislatures of the colonies Her Majesty by Order in Council shall think fit to refer to the Council:
  • (i) Such of the following matters as may be referred to the Council by the legislatures of any two or more colonies, that is to say—general defences, quarantine, patents of invention and discovery, copyright, bills of exchange and promissory notes, uniformity of weights and measures, recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony, naturalization of aliens, status of corporations and joint stock companies in other colonies than that in which they have been constituted, and any other matter of general Australasian interest with respect to which the legislatures of the several colonies can legislate within their own limits, and as to which it is deemed desirable that there should be a law of general application: provided that in such cases the Acts of the Council shall extend only to the colonies by whose legislatures the matter shall have been so referred to it, and such other colonies as may afterwards adopt the same.

In the Bill of 1891 the sub-clause was passed substantially as it now stands; and at the Adelaide session in 1897 that draft was followed.

At the Melbourne session Mr. Deakin raised the question whether the sub-clause, though suitable enough for the Federal Council, was sufficient for the purposes of the Commonwealth, and whether it authorized legislation involving expenditure or taxation; and he also raised the question whether a reference once made would be revocable. Dr. Quick suggested that the provision afforded an easy mode of amending the Constitution without consulting the people. Finally, after considerable debate, the sub-clause was agreed to. (Conv. Deb., Melb., pp. 215–25.) It was verbally amended after the fourth report.