§ 481. “Alteration.”

The British Constitution can be altered by an Act of the British Parliament. In fact it is sometimes hard to distinguish between Acts passed by the British Parliament relating to matters of ordinary legislation, and Acts passed by it relating to the Constitution. The Federal Parliament, however, is not authorized to amend the Constitution of the Commonwealth. That Constitution can only be varied in a special way and after compliance with certain formalities and prerequisites. In like manner the Congress of the United States is deprived of power to amend the American instrument of Government. The disability of a Federal Legislature to alter the Federal Constitution is one of the organic features and a prominent characteristic of every federal system. If the Federal Legislature could change the Constitution it might transform itself from a subordinate law-making body into an organ of sovereignty; it might destroy the federal system altogether, and substitute a consolidated form of government. A Federal Legislature is a mere creature of the Federal Constitution; it is mere instrument or servant of a federal community; it is an agent, not a master. The Constitution is the master of the legislature, and the community itself is the author of the Constitution. In this respect a federal legislature differs from a supreme legislature like that of Great Britain, which is the embodiment and essence of the sovereignty of the British nation. Sovereignty resides in that person, or body, or class of persons in whom is ultimately vested the power to amend a Constitution of Government.

“The test of the federal system lies in the principle that the central Government cannot destroy nor modify the local, nor the local Government the central. Now, this relation between central and local Government is impossible unless both rest upon a common basis, i.e., the co-ordination of these independent Governments as parts of a harmonious political system requires an organization of the sovereign, the State, distinct from and supreme over both.” (Burgess, Political Sc. i. 141.)

In the Constitution of the Commonwealth of course there is no absolute sovereignty, but a quasi-sovereignty which resides in the people of the Commonwealth, who may express their will on constitutional questions through a majority of the electors voting and a majority of the States. No amendment of the Constitution can be made without the concurrence of that double majority—a majority within a majority. These are safeguards necessary not only for the protection of the federal system, but in order to secure maturity of thought in the consideration and settlement of proposals leading to organic changes. These safeguards have been provided, not in order to prevent or indefinitely resist change in any direction, but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible, and inevitable.

A Constitution is a charter of government; it is a deed of trust, containing covenants between the sovereign community and its individual units. Those covenants should not be lightly or inconsiderately altered. At the same time a Constitution which did not contain provision for its amendment with the development, growth, and expansion of the community which it is intended to govern, would be a most inadequate and imperfect deed of partnership. It would be doomed to collapse ignominiously, and without hope

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of reconstruction. It would be bound to break beneath the pressure of national forces which it could not control or resist. A Constitution may be compared to a living organism. It is not in the nature of a living organism to remain monotonously the same from year to year and from age to age. As with individual units, so with nations, change is one of the laws of life. The Constitution of a nation is the outward and visible manifestation of its national life, to the pulsations of which it necessarily responds. The energy within any healthy organic structure must find vent in change. Change assumes various external forms. The power in a progressive community is never quiescent or stationary.

These principles are incontrovertible; but at the same time the tendency to change must be scrutinized to ascertain whether it is proceeding in a safe direction, and if possible to guide the tendency in that direction. Where a community is founded on a political compact it is only fair and reasonable that that compact should be protected, not only against the designs of those who wish to disturb it by introducing revolutionary projects, but also against the risk of thoughtless tinkering and theoretical experiments. The Constitution of the Commonwealth has provided a safety-valve in the shape of a section defining the method by which its amplification and modification may be effected, but its use is shielded with precautions, the wisdom and propriety of which claim favourable consideration from every reflecting mind. The provisions for the amendment of the Constitution may be considered under the following separate headings: (1) alterations which may be made, (2) initiation of alterations, (3) reference of alterations to the electors, (4) presentation of proposed alterations to the Governor-General for the Queen's assent.

ALTERATIONS WHICH MAY BE MADE.—The Constitution can be altered in a certain manner. What is the Constitution? What is an alteration? The Constitution is that part of the Imperial Act comprehended in Clause 9 and divided into chapters, parts, and sections, the sections being numbered from 1 to 128 inclusive. The Schedule also is a part of the Constitution. Clauses 1 to 8 of the Imperial Act are not parts of the Constitution, and cannot be altered except by the Imperial Parliament. Every chapter, part, section, paragraph, and word in Clause IX., except the marginal notes, is within the definition of “the Constitution,” and, subject to certain qualifications, the whole of the Constitution comes within reach of the amending power formulated in the last section of the instrument. Now, an alteration means any change in the shape of amplifications, additions, omissions, or modifications of old matter in the Constitution. Possible alterations may be thus grouped:—

  • (1.) Elision of old matter:
  • (2.) Addition to old matter:
  • (3.) Introduction of new matter:
  • (4.) Substitution of new matter for old matter.

Hence it may be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will consider the modes and conditions of constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be amended either in the direction of strengthening or weakening the Federal Government; strengthening it, by conferring on it new and additional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses; by increasing or diminishing the power of the Senate in reference to Money Bills; by making the Senate subject to dissolution at the same time as the House of Representatives. It is even contended by some daring interpreters that the Constitution could be amended by abolishing the Senate. It could certainly be amended by remodelling the Executive Department, abolishing what is known as Responsible Government, and introducing a new system,

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such as that which prevails in Switzerland, according to which the administration of the public departments is placed in the hands of officers elected by the Federal Legislature. The Constitution could be amended by altering the tenure of the judges, by removing their appointment from the Executive, and authorizing the election of judges by the Parliament or by the people. The Constitution could be amended in its most vital part, the amending power itself, by providing that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative; that proposed alterations may be formulated by the Executive and submitted to the people; that proposed alterations may, with certain constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the necessity of a majority of the States.

Amendments of the Constitution would not necessarily be confined to the machinery, organization, and operation of the Federal Government; they might include changes of functions as well as changes of structure. New powers and functions could be added, or existing powers and functions could be withdrawn.

Nor is the scope of the amending power restricted to the structure and functions of the Federal Government; it extends to the structure and functions of the Governments of the States. Indeed, nearly every extension of powers and functions granted to the Federal Government would involve a consequential contraction of powers and functions in the Governments of the States; and if a constitutional amendment could so alter the powers and functions of the Governments of the States, why should it not be capable of dealing, if necessary, with the Constitutions and political organization of the States? We say “if necessary;” for the necessity may never arise; but the dormant power is there, and may be used in an extraordinary emergency, if the States neglect or refuse to adjust their constitutional arrangements to harmonize with Federal developments and requirements.

Amendments of the Constitution need not be limited even to the functions and organization of Federal Government and of State Government. They might go further, and embrace fundamental laws relating to the rights, privileges, immunities, and duties of the people of the Commonwealth, placing them beyond the domain of Federal legislation and equally outside the sphere of State legislation. The American Constitution contains a Bill of Rights. Neither Congress nor the Legislatures of the States could interfere with or alter one jot or tittle of those fundamental rights. A resort to such constitutional settlements is only justifiable when the ordinary organs of legislation cannot be trusted to protect private rights and individual liberty. In America, of late years especially, there has been a strong disposition to load the State Constitutions with laws which belong properly to the field of ordinary legislation. The reason assigned for this procedure is, that private rights and individual liberty cannot always be safely trusted to the legislatures of the States; that some of those legislatures have at times been so influenced by passion, prejudice, and corruption, or so controlled by combinations of vicious men, that they have disregarded truth and justice. (Per Miller, J., in the Savings and Loan Association v. Topeka, 20 Wall. 663. See authorities on this subject collected in Lefroy's Leg. Power, p. xlvi.) But under normal conditions of society a charter of government should not be encumbered with matters of ordinary legislation. It should deal only with subjects of vital consequence involving the organization, continuity, and government of the nation. The legislative machine should be left free and unfettered to grapple with problems as they arise in the changing circumstances of the country.

Attention has been drawn to the alterations which may be made in the Constitution. These have been suggested, not as probabilities, but as possibilities, in order to illustrate the potentialities of expansion and modification inherent in the Constitution. Dr. Pomeroy's observations on the amending power in the Constitution of the United States will bear application to the similar power in the Constitution of the Commonwealth.

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“The result of this discussion is, that the People of the United States, by virtue of their inherent absolute attributes as a nation, may, by following the order prescribed in the Constitution, adopt any amendments thereto, whether such changes would enlarge or diminish the functions of the general government, whether they would widen or contract the scope of State legislation. Nay, it is possible that the idea of local self-government, which underlies our present civil polity, might be entirely abandoned, and the plan of complete consolidation substituted in its stead; even a monarchy might be reared in the place of the present republic. It is true that the people have placed an almost insurmountable obstacle to such action on their part, for they have required a species of unanimity as a prerequisite to a reconstruction which should destroy the States as distinctive elements in our political organization.” (Pomeroy's Constitutional Law, p. 75.)

RESTRICTIONS ON THE AMENDING POWER.—It is now necessary to draw attention to several restrictions on the amending power, a reference to one of which appears in the above quotation from Dr. Pomeroy. They may be summarized thus: No amendment:

  • (1) Diminishing the proportionate representation of any State in either House of the Parliament (secs. 7, 24);
  • (2) Diminishing the minimum number of representatives of a State in the House of Representatives (sec. 24);
  • (3) Increasing, diminishing, or otherwise altering the limits of a State (sec. 123);
  • (4) Affecting the provisions of the Constitution in relation to the foregoing matters;

may be carried, unless a majority of the electors voting in the State interested approve of the proposed law. Hence an Original State cannot, without its consent, be deprived of equal representation in the Senate, or of the minimum number of five Representatives in the National Chamber. No State, without its consent, can suffer an increase, diminution, or alteration of its limits.

The alteration of the Constitution in these respects is not prohibited altogether, but is made subject to a three-fold assent: not only the assent of (1) the people of the nation, and (2) the peoples of more than half the States, but also the assent of (3) the peoples of States affected. Thus, for instance, an alteration abolishing the principle of equal representation in the Senate, and substituting some other basis of representation, would require the assent of the peoples of all the States whose power in the Senate might be thereby reduced. This is what Dr. Pomeroy refers to when he says that in the United States the people have placed an “almost insurmountable obstacle” to the abolition of equal representation, by requiring “a species of unanimity as a prerequisite to a reconstruction which would destroy the States as distinctive elements in our political organization.” (Pomeroy, Const. Law, p. 75.) This prerequisite is an obstacle, but not an insurmountable obstacle, in the way of national consolidation. When the time arrives for constitutional reconstruction, the people of the Commonwealth, the successors of the original creators and authors of the Constitution, may be able to solve the problem of securing acquiescence in any urgently required reform. If unanimity cannot be secured, there yet remains the possibility of resort to the Imperial Parliament for an amendment of the Constitution, dispensing with the necessity for obtaining the consent of all the States. Such a radical and drastic method of settling a deadlock, unsolvable by the Constitution itself, could only be justified by the gravest considerations of a most serious emergency. Dr. Burgess, referring to a similar provision in the American Constitution, which secures the principle of equal representation in the Senate against amendment by “the sovereignty as organized within the Constitution,” argues that this restriction is confused and unnatural, and could not possibly stand against a determined effort on the part of the sovereign body to overthrow it. “It is a relic of confederation, and ought to be disregarded.” It may be good political science now and in the future that equal representation should prevail, but the amending power—the sovereignty organized in the Constitution—must be the final judge of this. A Constitution which

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undertakes to except anything from the sovereign power as organized in the Constitution “invites the reappearance of a sovereignty back of the Constitution; i.e., invites revolution.” (Burgess, Pol. Sci. ii. 49.)

It must be remembered that these are but bare possibilities and remote contingencies. At the present time and for an apparently indefinite period to come the people of the Commonwealth, in the majority of States, will not feel inclined to interfere with the principles of local liberty, local self-government, State autonomy, and State individuality, which pervade the Constitution. They will recoil from an Imperial policy of consolidation and centralization, which would swallow up, absorb, and obliterate the States. At the same time many profound political thinkers are of opinion that federalism, in which there is one political State, one central government, and several provincial governments, is but a transitory form of government, midway between the condition of confederacy and that of a single sovereignty over a combined population and territory.

“Its natural place is, in States having great territorial extent, inhabited by a population of tolerably high political development, either in class or in mass, but not of entirely homogeneous nationality in different sections. When these ethnical differences shall have been entirely overcome, something like the federal system may, indeed, conceivably remain, but the local governments will become more and more administrative bodies, and less and less law-making bodies. In fact, it looks now as if the whole political world, that part of it in which the centralized form of government obtains as well as that part still subject to the federal form, were tending towards this system of centralized government in legislation and federal government in administration. I do not feel sure that this is not the form of the future, the ultimate, the ideal form, at least for all great States.” (Burgess, Political Sci. ii. p. 6.)

INITIATION OF AMENDMENTS.—The Constitution specifies two methods by which a proposed alteration may be launched. In the first place it may be formulated, and passed on to the electors, by absolute majorities in both Houses of the Federal Parliament. In the second place, if one House twice passes, by an absolute majority, a proposed alteration, to which the other House on each occasion fails to agree, the proposed alteration, with or without any amendments agreed to by both Houses, may be submitted to the electors. This alternative method of originating an amendment was not in the Constitution as drafted by the Federal Convention. It was recommended by the Conference of Premiers, and was afterwards ratified by the people on the occasion of the second referendum. It was designed to facilitate the amending procedure, and to deprive one Federal Chamber of the power to unduly obstruct or delay the submission of a proposed amendment to the people. The various successive stages in the second method are substantially the same as those prescribed by sec. 57 as the earlier stages of a deadlock in ordinary legislation, except that they apply equally to both Houses. They may be outlined, in their order of sequence, thus:—

  • (i.) Amendment proposed by an absolute majority of one House and not agreed to by the other House:
  • (ii.) Interval of three months:
  • (iii.) Amendment again proposed by the first-mentioned House and again not agreed to by the other House:
  • (iv.) Governor-General may submit proposed amendment to the electors in each State.

REFERENCE TO THE ELECTORS.—When a proposed amendment has been passed by the two Federal Houses, or when it has been passed twice by one Federal House, with the interval and in the manner prescribed, the procedure then assumes a form unknown in matters of ordinary legislation. It becomes the duty of the Executive Government to submit the proposed amendment to the popular vote throughout the Commonwealth, and it cannot become law unless it is approved by a majority of the electors voting and by a majority of the States. This means a double majority. In the first place more than half the electors voting must vote “yes;” in the second place, separate majorities

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in more than half the States must vote “yes.” If the proposed law does not secure this double majority it fails.

The preparation of a proposed amendment, and its approval by an absolute majority of members in each of the Houses, or by an absolute majority of members twice in one House, is merely a preliminary act in the amending procedure. The principal element in the process is the submission of the proposal to the electors. This process is a concrete exemplification of the political expedient, formerly known as the Plebiscite, now better known as the Referendum. It is an undoubted recognition of the qualified electors as the custodians of the delegated sovereignty of the Commonwealth. The qualified electors represent the people of the Commonwealth, as a quasi-sovereign State, in quasi-sovereign organization The requirement of the approval of a majority of the electors and a majority of the States is the method imposed by the Constitution for ascertaining the will of the people of the Federal Commonwealth. If a majority of the States had been ignored, the federal element in the structure of the Commonwealth would have been impaired and whittled away. In a unified community it would be sufficient if a majority of the people sanctioned a revision of the Constitution In a federal community, in which the National and State elements co-exist, a modification of the fundamental law, without the approval of both the people and the States, would be unjust and repugnant to the whole scheme of government. (Deploige, Referendum in Switzerland, 1898, 136.)

“The law of the Constitution must be either legally immutable, or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the Constitution.” (Dicey, Law of the Const. p. 134.)

“The principle of that science is that the undoubted majority of the political people of any natural political unity possess the sovereign constituting power, and may as truly act for the whole people in building up as tearing down; more truly, in fact, for in political science the only purpose of tearing down is to secure a better building up of the whole structure.” (Burgess, Political Sci. i. 107.)

The time may come when the national element, the people, may become so strong as to disregard and overshadow the federal element, the States. An amendment of the Constitution may then be projected and carried, abolishing the necessity of the second majority. When that is done the Commonwealth will probably cease to be a Federation and will be converted into a State, national in form and structure and national in organization. It is remarkable that whilst the abolition of equal representation of original States in the Senate, without the consent of those States, is prohibited, there is no prohibition of an amendment sweeping away the requirement that the assent of a majority of States is necessary to the adoption of amendments.

PRESENTATION TO THE GOVERNOR-GENERAL.—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 must be presented to the Governor-General for the Queen's assent. When this section was drawn by the Federal Convention, it was based on the assumption that both Houses would concur in passing the proposed amendment; that if the proposed law were approved by the statutory majority of electors and of States, it would be presented to the Governor-General for the Queen's assent; and that it would then be assented to by the Queen as a branch of the Federal Parliament. The insertion of the provision enabling one House to draft an alteration, and submit it to the people, emphasizes the fact that the Houses of Parliament, in respect of alterations of the Constitution, are originating and drafting bodies merely, and not the principal legislative organ.

An alteration thus launched by one House and then carried through the subsequent stages would assume the special form of a law passed, say, by the House of Representatives, approved by a majority of the people and a majority of the States, and assented to by the Queen. The other branch of the Federal Parliament would be no party to the Legislative Act. No doubt the law would have to be officially authenticated

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in a special manner, certifying compliance with the constitutional requisites, similar to that in which amendments of the American Constitution are verified and promulgated. In that country the practice is that whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted according to the provisions of the Constitution, the Secretary of State forthwith causes the amendment to be published in the official newspapers, with his certificate that it has become valid, to all intents and purposes, as a part of the Constitution of the United States.

The necessity of the Queen's assent is a sufficient guarantee that amendments will not be made inconsistent with the supremacy of the Imperial Parliament. It is not likely that the Crown would interpose its veto to prevent the adoption of amendments respecting which there was no question of Imperial or international policy involved. Questions of local expediency would no doubt be left to the decision of the people and the States of the Commonwealth; whilst questions of constitutionality could, with equal safety, be allowed to be settled by the Federal courts.

LIMITS OF THE AMENDING POWER.—There are no specific limitations upon the scope of the amending power. No part of the Constitution is excluded from the possibility of amendment; though amendments of a certain kind require a “species of unanimity” which makes such amendments very difficult. The power of amendment, therefore, extends to every part of the Constitution—even to sec. 128 itself, which defines the mode of amendment.

If therefore the Commonwealth were a sovereign and independent State, no amendment, duly passed in the prescribed form, would be beyond its powers; the amending power would have no limits. But the Commonwealth is only quasi-sovereign, and the amending power, though above the State Governments and above the Federal Government, is below the Imperial Parliament. The Commonwealth is a dependency of the Empire; and the amending power—the highest legislature of the Commonwealth—is a colonial legislature. It can therefore pass no law which is repugnant to any Act of the British Parliament extending to the Commonwealth, or repugnant to any order or regulation founded upon such Act; and on the other hand no law passed by the amending power will be void on the ground of repugnancy to the law of England unless it is repugnant to the provisions of some such Act, order, or regulation. (Colonial Laws Validity Act, 1865 [28 and 29 Vic. c. 63, secs. 2–3].)

In particular, no law can be passed by the amending power which is repugnant to the Commonwealth of Australia Constitution Act—consisting of the preamble and the covering clauses to which the Constitution itself is annexed. The amending power can amend the Constitution, but the Constitution Act is above its reach. How far the scope of the amending power may be limited by the scope and intention of the Constitution Act, as gathered from the preamble, it is impossible to say; but it is certain that, if amendments were passed which were inconsistent with such words as “indissoluble,” “Federal Commonwealth,” or “under the Crown,” strong arguments would be available against their constitutionality. (See Notes on “Preamble,” supra.)

THE AMERICAN METHOD OF AMENDMENT.—It may be useful to compare the amending procedure provided by this Constitution with that of other federal systems. In the Constitution of the United States, two methods of originating amendments are provided, and there are also two methods of enacting amendments, when so originated. In the first place, Congress itself may, by a two-thirds majority in each House, draft and propose amendments; in the second place the legislatures of two-thirds of the several States may apply to Congress to call a convention for the purpose of proposing amendments On all occasions, up to the present, on which the amending power has been brought into action, the first method only has been employed for the purpose of proposing amendments When amendments are proposed by Congress, or by a constitutional convention, they have to be submitted to the States, and ratified in three-fourths of the States, either by the State legislatures or by State conventions specially elected in each

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State for the purpose. The first method of ratification is the only one which up to the present has been resorted to. From this summary of the American amending procedure it will be observed that the facilities for altering the Constitution of the Commonwealth are much greater than those for altering the American Constitution. In regard to origination, an amendment may be proposed by an absolute majority of one House of the Federal Parliament, whilst a two-thirds majority in each branch of the American Congress is required. In regard to ratification, whilst in the Commonwealth a majority of the people voting and a majority of States is sufficient to carry an amendment, in America it must be passed by the legislatures or by the conventions in three-fourths of the several States.

THE SWISS METHOD OF AMENDMENT.—In the Federal Republic of Switzerland there are several methods by which revisions of the Constitution may be originated and ratified. A total revision of the Constitution may be brought about in three ways: (1) The National Council and the Council of States may agree to an amendment, as in the case of an ordinary federal law. The Constitution, as drawn up by the two Councils, must then be submitted to the popular vote, and if it is approved by a majority of the people and by a majority of the Cantons, it becomes law. (2) If one Chamber votes for a total revision and the other refuses its assent, the question is then submitted to the electors in each Canton, “Do you wish the Constitution to be revised—Yes or No?' If the majority of electors vote “Yes” in support of a revision, the two Chambers are then dissolved, and a new Federal Parliament is elected charged with the work of revising and drafting a new Constitution. When this has been prepared, it is submitted to the popular vote, and if it is approved by a majority of the people and by a majority of the Cantons it becomes law. (3) If 50,000 citizens sign a petition in favour of a total revision of the Constitution, it is the duty of the Executive to submit the question to the electors, “Do you wish the Constitution to be revised—Yes or No?” If a majority of the electors decide in favour of revision, the Federal legislature has to carry out the popular wish, and revise the Constitution for submission to the people. If on such submission it is approved by the required double majority it becomes law.

There are two methods by which a partial revision or a partial amendment of the Swiss Constitution may be brought about. An amendment may be proposed by the two Federal Chambers, as in the ordinary process of legislation. It must then be submitted to and accepted by a majority of the people and by a majority of the Cantons. A demand for the adoption of a new article, or the alteration of an old one, may be made in writing by 50,000 Swiss citizens in the same way as a demand for a total revision. If the Federal legislature agrees with the demand of the petitioners it proceeds to formulate the required amendment and prepare it for submission to the people. If on the other hand it disagrees with the demand the question is submitted to the people, “Are you in favour of a revision of the Constitution—Yes or No?” If a majority of the people decide in favour of a revision it becomes the duty of the Federal Legislature, acting as a Drafting Committee, to prepare the required amendment for submission to the people. It is then submitted to the popular vote, and if it receives the support of the required statutory majority of people and of Cantons, it becomes law. The final referendum is obligatory in every proposal to amend the Constitution. (Deploige, Ref. Switz. pp. 128–131.)