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20. Chapter XX. The Alteration of the Constitution.

THE spirit of federalism requires, that the federal part shall not be at the mercy of the central government. Therefore, in no federal system is the power of constitutional amendment left in the principal organ of that government—the federal legislature—save in the German Empire, where, however, the predominant Chamber—the Bundesrath—both in its constitution and mode of action, is a perpetual memorial of confederatism, and affords ample protection to State rights. There may be, in the constitution itself, an organization of the state behind the government, or “the founders of the polity may have deliberately omitted to provide any means for lawfully changing its bases.” A signal instance of the latter course is to be found in the case of the Dominion of Canada, where the fundamental provisions of the British North America Act, 1867, are alterable only by the Imperial Parliament.

In Australia, it was as necessary, as elsewhere, to establish the federal system upon a basis, which should not be disturbed by the legislature. But it was no less an object of the founders of the Commonwealth to enlarge the power of self-government. The existing colonies had the power of amending their own Constitutions, the Commonwealth must have the power of amending the Commonwealth Constitution. One of the most difficult tasks, which the Convention had to perform, was to devise a mode of amending


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the Constitution, which should 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 much a law of state life as existence, and to harmonize with the spirit of a people, with whom “majority rule” is the first (and sometimes the only) principle of government, and who have grown up under a political system, which knows little more of the distinction between constituent and legislative power than the British Constitution itself.

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. The compromise ultimately adopted is interesting, both from what it adopts, and from what it rejects, of these models.note

The opening words of section 128—“This Constitution shall not be altered except in the following manner”— make it clear, that there is no alternative method of amendment, such as might otherwise perhaps have been considered to belong to The Parliament under the Colonial Laws Validity Act, 1865, and establish the provisions of the section as mandatory and not merely directory.

The principles of Parliamentary government, of democracy, and of federalism, which run through the Constitution, are all recognized in section 128. The tradition of Parliamentary Government and of Ministerial responsibility leaves the sole initiation of amendments with either House


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of The Parliament, and neither the States Legislatures, as in the United States, nor the electors, as in Switzerland, have any direct means of setting the machinery to work. The proposed law for the alteration of the Constitution must be passed by an absolute majority of each House of Parliament, a provision common to the Constitution Acts of the several colonies, and distinguishing measures of constitutional amendment in that one respect from ordinary legislation. In providing merely for an absolute majority throughout this clause and in section 57, the Constitution avoids the reproach of the “excessively artificial majorities” required for each stage in the amendment of the Constitution of the United States: experience shows that the two-thirds majority in each House of Congress, and the concurrence of three-fourths of the States Legislatures, can rarely be obtained. But not even the concurrence of the two Houses is essential in the Commonwealth. In Switzerland, where one Chamber of the Federal Assembly demands a revision of the Constitution and the other will not agree thereto, the question of revision or not is submitted to the electors, and if a majority declares for revision, the Chambers of the Legislature have to set themselves to the task. In Australia, if one House rejects a proposed amendment passed twice by the other with an interval of three months in the same or the next session, the Governor-General may submit the amendment to the electors for their approval. The means provided by section 128, for dealing with differences between the Houses on amendments of the Constitution, are much simpler than those, in section 57, relating to ordinary legislation. The reason is that ordinary legislation is essentially a Parliamentary function, and the reference to the people is made, only as a last resort, after the failure of all other means of reconcilement. Constitutional amendment, on the other hand, is a power enjoyed by the people in the ordinary course, and not merely as the arbiter between the Houses. It was the people of the Colonies who adopted the Constitution— it is the people who should amend. If they share the


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power with The Houses of the Parliament, it is as predominant partners. Another distinction between sections 57 and 128 must be noticed. Section 57 applies only to measures originating in the House and rejected by the Senate, a fact which, it has been observed, is significant of the parts which they are respectively expected to play in legislation. But the alteration of the federal bargain is a matter in which the House of the States may well move: accordingly, the “deadlock” provision of section 128 applies to proposed laws originating in either House and rejected by the other.

When a proposed law has passed the two Houses, it has to be submitted in each State to the Electors, qualified to vote for the election of Members of the House of Representatives, not less than two nor more than six months after its passage—times fixed to afford sufficient time for the electors to inform themselves of the issue, and to prevent undue delay.

It has been seen, that the Senate, as well as the House, is unitary or national in action, in matters of constitutional amendment, as well as in matters of ordinary legislation. The federal principle received its recognition, as in the Swiss Constitution, in the provisions relating to submission to the electors—“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 Governor-General for the Queen's assent.” There is to be a national majority and a federal majority—a majority of the electors of the Commonwealth who have recorded their votes, and a majority of the States acting by their electors.

In determining the national majority, provision is made for the fact that, so long as the electoral qualification is governed by the laws of the States, and even after a federal franchise is established by the Commonwealth Parliament under the saving of section 41, the proportion of electors to population in States, which have adopted Woman's suffrage, will be about double the proportion


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in other States. Accordingly, it is provided that, “until the qualification of the 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.”

Section 128, so far as we have considered it, provides facilities for amendment not to be found in any other federal constitution. But this facility has to be paid for by the reservation of certain matters, for which an additional consent is required. By Article V. of the Constitution of the United States, “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” As in the amendment of the Commonwealth Constitution, the States have conceded more to the national principle than have the States in America, the Constitution reserves more matters for the special approval of the electors of the State concerned. It provides, that “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.”

There is no definition of an “alteration of the Constitution,” but it is reasonable to conclude, that the term “alteration” was used in preference to the more familiar “amendment,” in order to denote the widest power of change, including the unlimited power of addition to the instrument. Broadly, the powers of the Commonwealth, as organized behind the Parliament, may be compared with the powers of constitutional amendment possessed by the representative legislatures of the colonies. All constitutional alteration, like all ordinary legislation, must be for the Commonwealth,” and no alteration of the Constitution may be repugnant to any Imperial Act in operation in


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the Commonwealth, unless, expressly, or by implication, power over such Act has been given by the Imperial Parliament.

One Imperial Act, operating in the Commonwealth, over which the Commonwealth has no power, is the Commonwealth of Australia Constitution Act itself, from the beginning to the introductory words of section ix.: “The Constitution of the Commonwealth shall be as follows.” Some of these sections are spent, but others remain in force. The Commonwealth is established in virtue of this part of the Act, and it would appear to be dissoluble only by Imperial Act—so far as the preamble may throw light on the Act, it supports this view. The name of the Commonwealth, and the operation of the Constitution, and the laws of the Commonwealth throughout the Commonwealth, are also fixed. “States” and “Original States” are defined, and in as much as the Act speaks of union in a “Federal Commonwealth,” some doubt may be entertained, whether anything may be done which destroys the federal character. But the descriptive “Federal Commonwealth” is too vague, it is submitted, to be available as a limitation of power; and, indeed, the Constitution itself, by section 111 and chapter vi., provides means whereby the dual system may be virtually extinguished, by dealings between the Parliament and all the States, without any resort to the provisions of section 128.

No part of “The Constitution” is withdrawn from the power of the Commonwealth. Indeed, there is no doubt, that the whole Constitution could be repealed under section 128, and that without any provision being made to substitute anything for it. A few years ago, the Home Rule proposals of Mr. Gladstone gave great interest to the effect of surrenders of power by a sovereign body.note It seems an irresistible conclusion, that, as Professor Dicey (Law of the Constitution, 5th edition, p. 65) says, “The impossibility


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of placing a limit on the exercise of sovereignty does not in any way prohibit, either logically, or in matter of fact, the abdication of sovereignty.”

The special provision, protecting the representation and the territory of the States, presents some difficulties. Might not the clause itself be repealed by the ordinary process of constitutional alteration, thus leaving the road open for a further alteration, diminishing the representation or the territory? To prevent such a course, from which—if we might adopt the principles applicable to the Articles of Companies and other Associations—the character of the Constitution, as a compact, would not protect it, are added the words, “or in any other manner affecting the provisions of the Constitution relating thereto,” the effect of which appears to be to put the clause itself under the protection, which is afforded by requiring the assent of the electors of all the States affected.

It is to be observed, that the last clause of section 128 relates only to alterations of the Constitution. It is obvious, that the “proportionate representation” of States, in one sense of the term, will be affected by the operation of the Constitution itself. Thus, every admission of a new State with representatives in the Parliament diminishes the proportion of the whole numbers of members returned by any particular State to Senate and House. Again, the natural increase of population will serve to increase the representation of some States in the House, and diminish that of others; so that the “proportionate representation” of a State, whether we regard that term as describing a relation to the whole number, or a relation to the other States, will be affected. But such a result is in accordance with the Constitution, and it is only the mode by which this adjustment is effected (section 24), which is protected by the last clause of section 128.

Similar observations apply to the provisions concerning the limits of States. We have seen, that the Constitution confers several powers of affecting the States' limits. These require the assent, or the action, of the State Parliament,


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and, in one case, the Electors of the State (section 123); and there was some apprehension, that the integrity of States territory might be invaded by an alteration of the Constitution repealing the requirement of the consent of the State. Accordingly, it is provided, that any such alteration of the Constitution is valid, only with the consent of the State to be affected.

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