FUNDAMENTAL LAW AND THE PROCESSES OF ...FUNDAMENTAL LAW AND THE PROCESSES OF CONSTITUTIONAL CHANGE...

FUNDAMENTAL LAW AND THE PROCESSES OFCONSTITUTIONAL CHANGE IN AUSTRALIA

By R. D. LUMB*

This article explores the concept of "fundamental law" as itrelates to the Australian legal system. Concentrating in particularon constitutional law and the special place in that body 0/ law 0/the doctrines relating to amendment of the Federal and Stateconstitutions, Dr Lumb examines the source of the power toamend the constitution, the limitations on that power and theaspects of our legal system which may be beyond the power toamend. It attempts to discover those elements of our constitutionalsystems which are so fundamental that they may not be materiallyaltered by any form or process of constitutional alteration.

I INTRODUCTION-RULES OF RECOGNITION AND RULESOF CHANGE

The doctrine of fundamental law has had an affinity with versionsof the natural law in both English and American constitutional history.lThe idea of a higher law having operative sanctions within the framework of the positive legal order has been described in various ways asthe rule of right or natural reason, fundamental law, basic law and,the like. However, in England and the United States such a conceptfollowed different paths. England's hallowed unwritten (at least partially) Constitution with its conventions, statutory enactments andjudicial precepts was subject in the sixteenth century to conflictinginterpretations, with both parliamentarian and royalist pamphleteeringin favour of their causes. With the settlement of 1689 the notion of ahigher law gave way to the doctrine of parliamentary supremacy or,more correctly, the grundnorm or rule of recognition2 of the ultimateauthority of the King-in-Parliament came to be accepted as basicjudicial doctrine.3 It took another two hundred years or more for theformula of King-in-Parliament to be fleshed out in sufficient detail tobe able to identify the interaction between the various elements of thisconstitutional source of legal authority. The royal prerogative hadgradually decreased in compass and the Parliament Act of 19114

* LL.M. (Melb.), D.Phi!. (Oxon.); Reader in Law, University of Queensland.1 Gough, Fundamental Law in English History (1971); Corwin, "The 'Higher

Law' Background of American Constitutional Law" (1928-1929) 42 Harvard LawReview 149; Haines, The Revival of Natural Law Concepts (rep. 1965).

2 The concept of "grundnorm" is central to Kelsen's theory of law andsovereignty: General Theory of Law and the State (1945) 110-114, 131-134,369-373, 395-396. Hart's "rule of recognition" is developed in The Concept of Law(1961) 92 ft.

3 For a recent discussion of the doctrine see Winterton, "The British Grundnorm: Parliamentary Supremacy Re-examined" (1976) 92 L.Q.R. 591.

4 SSe 1,2 as amended by Parliament Act, 1949.

148

1978] Fundamental Law and Constitutional Change 149

recognised the hegemony of the House of Commons, the franchise ofwhich had been progressively widened.5 Thus the ultimate rule as itdeveloped gave recognition to the legislative supremacy of the LowerHouse, the House of C'ommons, although the structure of the electoralsystem was not considered to be part of this fundamental system orset of rules.'6 It can be said that today the grundnorm or rule ofrecognition identifying supreme authority as residing in the Queen-inParliament involves the following set of principles: (a) the primacy ofthe House of Commons, this being complete in relation to money billsas compared with non-money bills (with respect to which the Houseof Lords has a considerable delaying power); (b) the exercise ofexecutive authority of the Crown by Ministers who have the confidenceof the Lower House; and (c) a contraction of the royal prerogativewhich has reduced the participation of the monarch in the legislativeprocess to a formality. Nevertheless in the wider perspective of Queenand Parliament an undefined discretion remains in the areas of thedismissal of the Ministry and the dissolution of Parliament.7

In contrast to the British system, the American system by its verynature was related to a different source of authority.8 The Americancolonists in their struggle against the King-in-Parliament had to workout a constitutional theory which would recognise the legitimacy ofthe local legislative bodies once the shackles of royal instructions andgubernatorial directives had been broken. The establishment of a localcongress representing the peoples of the former colonies and the adoptionof the Declaration of Independence, paved the way for an autochthonous9

constitutional system based on the doctrine of the sovereignty of thepeople but reflected in a federal system in which the component unitshad representation in a strong Upper House. The doctrine of separationof powers was also adopted. Even with these safeguards, the memoriesof what were considered to be acts of tyranny and the passionateconcern for civil liberties led to the adoption of a Bill of Rights whichwould protect the citizens against arbitrary acts of government andwould prevent the legislatures from acting in a manner contrary to thefundamental interests which were given protection. The role of theCourts in safeguarding these interests was also recognised, at leastimplicitly. Behind these fundamental norms stood the amendingprocess, recognised in Article V of the C'onstitution involving ratifi-

5 Commencing with the Reform Act (Representation of the People Act) 1832,the franchise Was extended in 1867, 1884, 1885, 1918 and 1928.

GI.e. the method of electing members (whether by means of first-past-the-post,preferential or some proportional representation method) or the rules relating tothe re-distribution of electoral districts.

7 De Smith, Constitutional and Administrative Law (2nd ed. 1973) 99-109.8 Haines, Revival of Natural Law Concepts (1965) esp. Chs 1, 2, 3, 4, 12.9 The word refers to the existence of a constitution as having an independent

root or as being "home-grown": Wheare, The Constitutional Structure of theCommonwealth (1960) Ch. IV 89 fI. Marshall, Constitutional Theory (1971) 58 fI.

150 Federal Law Review [VOLUME 9

cation o~ constitdtional amendment proposals by the legislatures ofthree quarters of the States or by Conventions in three quarters ofthem. This itself reflects the respect shown to the fundamental structureof the constitutional system which was adopted in the eighteenthcentury.

In Australia the fundamental rule or rules of recognition are anamalgam of interests to be found in the other systems. One strand tobe noted is the development of the colonial system with its beginningsin 1788 nurtured and directed in its early stages by the Colonial Office,and which underwent a metamorphosis through the stages of gubernatorial rule, representative government and finally responsible government in the mid-eighteen-fifties.10 The other strand is the federal"overlay" adopted in the eighteen-nineties by conventions of representatives of the Colonies and subsequently enacted into law by theImperial Parliament. A system based on the principles of responsiblegovernment (drawn from the United Kingdom and the pre-existingcolonial constitutions) and of federalism (drawn from other federalsystems, particularly the United States) was agreed upon.11 As in theUnited States, the Federal Constitution was superimposed on theConstitutions of the individual States and did not replace them. Unlikethe United States, however, no general BIll of Rights was adoptedthough a few specific ri~hts and freedoms were guaranteed.12 The basicrole of the Courts in constitutional interpretation was also recognised.The general amending clause (section 128) provided that, to besuccessful, a constitutional alteration proposal must be approved by amajority of electors throughout Australia and in a majority of States.In contrast, the State C'onstitutions differ among themselves in somebasic respects (for example Upper House powers, resolution of deadlocks). Moreover in respect of their method of amendment, parts onlyof these Constitutions have been entrenched.1 ,a

It can be seen that within the basic principles of the constitutionalsystems to which reference has been made there are two types ofprinciples: the one substantive and related to individual and socialvalues (Bill of Rights), the other institutional and relating to thespecification of the organs of authority and the inter-relationshipbetween them. Both merit the description "fundamental law" but theirareas of operation are of course completely different.14

10 Lumb, The Constitutions of the Australian States (4th ed. 1977) Chs. 1, 2.11 See also Quick and Garran, Annotated Constitution of the Commonwealth

of Australia (1901) 123 fI. for a discussion of the comparative aspect.12 E.g. s. 80 (trial by jury in certain cases), s.92 (freedom of interstate trade),

s. 116 (freedom of religion), s. 117 (rights of residents in states).13 Lumb, The Constitutions of the Australian States (4th ed. 1977) 102-104.14 A similar distinction is made by the Indian Supreme Court in Kesavanda v.

Kerala [1973] S.C.R. Supp. 1 where a majority considered that while the fundamental rights provisions of the Indian Constitution could be amended there werecertain structural principles of the Constitution which were not subject toamendment.


Even when the supreme elements of legal authority within theconstitutional system have been identified, their interaction is by nomeans clear-cut and defined for all times. This is particularly so ofAustralia. Prophecies by some of the founders that problems couldarise out of the interaction between the doctrines of responsiblegovernment and federalism15 were proved correct in 1975. On oneview it is argued16 that the House of Representatives is the bodyvested with the primacy in the legislative framework because (a) itis a democratic body elected by the people of Australia voting inconstituencies established under electoral legislation- which recognisesnumerical equality of voter constituencies as between States (but notbetween constituencies), (b) that the implication to be drawn fromthis in the light of the operation of the doctrine of responsible government is that executive control is vested in a Prime Minister and hisCabinet who are responsible to that House, and (c) that therefore theSenate cannot, or by convention has been deprived of the right to,reject or defer basic money bills for carrying on the services ofgovernment.

Against this view it is asserted17 (a) that the Parliament consists ofco-equal Houses either of which (subject to specific limitations insection 53) has the right to pass or not to pass any bill presented to it;(b) that the Senate being an elected States' House has, unlike theHouse of Lords, both a democratic and regional charter for participating in the legislative process to the fullest degree in relation to bothmoney and non-money bills; and (c) that the Governor-General as theultimate arbiter of disputes between the Houses can exercise a reservepower to resolve a deadlock between the two Houses over a moneybill which is not confined to the procedures laid down by section 57.The Governor-General's action in 1975 has established the validity ofthe latter view as to the interaction of the institutional elements in therules of recognition of the Australian federal system, at least until aconstitutional amendment provides otherwise.18

Because rules of recognition as thus applied may not appear to somegroups of citizens to represent the correct interpretation of the wishesof the founders or to embody a constitutional system relevant to

15 Quick and Garran, Ope cit. 706.16 The arguments are summarized in Howard and Saunders, "The Blocking of

the Budget and the Dismissal of the Government", Ch. 8 in Evans (ed.), Labourand the Constitution, 1972-1975 (1977) 251 fI.

17 Ellicott, ide 288-296.18 However, Howard, "Legal and Constitutional Implications" in Dutton (ed.),

Republican Australia? (1977) 60 at 67 considers that there is scope for legislationdefining the powers of the Governor-General more closely. It is considered, however, that such legislation, if it restricted the powers conferred on the GovernorGeneral by the various sections of the Constitution (e.g. ss. 5, 57, 64) would beunconstitutional.


modern times, those rules must themselves contain rules of change.191

The power of amendment of these basic rules has usually been takenout of the hands of the parliamentary majority operating in theordinary legislative manner and has been made part of a more complexprocedure, often involving the people voting at a referendum. Suchforms of constitutional rigidity are a far cry from the simplisticphilosophy of constitutional change espoused by the Privy Council inMcCawley's case.20

If one compares the methods of constitutional amendment providedfor in the Federal and the State Constitutions one is struck by thecontrast. Under section 128, a constitutional alteration bill afterpassage through the Federal Parliament must be submitted to theelectorate. There is prescribed the requirement of approval by amajority of electors (the popular democracy principle) and the requirement of approval by a majority of electors in a majority of States (thefederalism principle). The latter requirement continues despite aconstitutional amendment proposal in 1974 to dilute it (which wasdefeated) .21 The amendment procedure is all-embracing, at least as tothe other 126 clauses of the Constitution, although there are suggestions that it does not apply to certain fundamental aspects of -thefederal union under the Crown.22 The most minor procedural sectionis therefore invested with the same fundamental value as the mostimportant substantive section.

The State Constitutions, on the other hand, have grown up withpiecemeal amendments, as they were not subject to an all-embracingentrenching section. The existing safeguards at the time of responsiblegovernment were primarily directed to protecting the status andpowers of the Upper House as a guarantor against excesses of theLower House.23 In subsequent years rigid amendment procedures havebeen extended to protect other constitutional values.24 Thus entrenchment can be brought about by simple enactment. The current mores,or as these are interpreted by a transient parliamentary majority, mayby this means be given a fundamental value by the application to themof an amendment procedure which is rigid.

We will now turn our attention to specific aspects of the constitutionalamendment processes in Australia. We will try to discover what, if any,

19 See also Hart, The Concept of Law (1961) 93, on the relationship betweenrules of recognition and rules of change.

20 [1920] A.C. 691, 703-704. Infra p. 169.21 Constitutional Alteration (Mode of Altering the Constitution) Bill 1974

which purported to substitute "one half" for "a majority" of the States in thefo~rth paragraph of s. 128.

22 Marshall, Parliamentary Sovereignty and the Commonwealth (1957) 114-115.23 By requiring, for example, a two-thirds majority for legislation altering the

constitution of the Upper House. .24 Jnfra pp. 172-174,


are the fundamental or ultimate rules which govern these processes,and the manner in which these rules operate, particularly in thesphere of the State Constitutions. We will also examine the interactionbetween Federal and State Constitutions, especially the manner inwhich those strands, which still involve a British connection, may 'be"patriated" to Australia.

II AMENDMENT OF THE FEDERAL CONSTITUTION

(1) An Australian Grundnorm or Rule 0/ Recognition

In order to attempt to discover the basic rules of recognition relatingto constitutional amendment in the Australian constitutional system,one must recognise that the overall pattern is reflected, in a set ofrules25 which" are not integrated into one ultimate norm, althoughsection 128 potentially does provide the means for achieving thatintegration and thus in one sense merits that description.

A distinction must be made between the constitutional basis of thefederal system brought into existence by the Commonwealth of Australia Constitution Act and the basis of the State Constitutions whichare by force of section 106 of the Commonwealth Constitutioncontinued in existence (that is from colonial times) unless altered inaccordance with the amending procedures applicable to those Constitutions. The Constitution Act is an Act of the United KingdomParliament passed in 1900 and proclaimed to come into effect on1 January 1901. The first eight clauses of the Act are known as thecovering clauses, the ninth containing the Constitution itself. TheConstitution itself was the product of the Constitutional Conventionsof the eighteen-nineties; the Second Convention which met in 18971898 consisted of delegates selected or chosen under the provisions ofenabling acts passed in the colonies which provided for the ultimatesubmission of the draft federation bill to the people of the' coloniesvoting at referenda.26 The democratic basis of the draft bill is thereforeindirectly recognised. But autochthony27 was not a concept which hadattained the same status then as in more recent times. Such a Constitution, involving as it did the amendment of pre-existing Imperial andColonial law,28 of necessity could only be approved by an enactmentof the Imperial Parliament. Indeed, the Bill as finally enact~d did notcorrespond exactly with the draft bill, as the Imperial authorities made

25 Cf. Hart, The Concept of Law (1961) 107 "... The rule of recognition existsonly as a complex, but normally concordant, practice of the Courts, officials andprivate persons in identifying the law by reference to certain criteria."

26 Lumb and Ryan, The Constitution of the Commonwealth of AustraliaAnnotated (2nd ed. 1977) 1-6.

27 The meaning of the word is explained in n. 9.28 And therefore the transformation of six individual colonial systems into a

federal system of government.


certain amendments, the most important of which related to appeals tothe Privy Council.29 There is no doubt, therefore, that the ConstitutionAct and the Constitution which it established owed its legal validity toan Act of the Imperial Parliament and that the United Kingdom hadlegal supremacy over the Commonwealth of Australia which was considered to be a self-governing colony. This supremacy or sovereigntywas a continuation (although admittedly in a modified form) of thesovereignty which had been exercised over the colonies of the Australiancontinent since 1788.

A consequence of this legal situation was that the Imperial Parliament could have amended the Constitution Act including the provisionsof the Constitution contained in section 9 even though an "indigenous"amending process was contained in section 128 of the Constitution.Presumably even in the early period of federation, any such power ofamendment would have been exercised only at the request of theCommonwealth Government or as expressed in a resolution of theHouses of the Federal Parliament. Whether the Imperial Parliamentwould have agreed to such a request must be treated as a matter ofpolicy. The historical developments leading to federation involving thedrafting of the Constitution by a popularly elected convention andsubsequent adoption by referenda in the individual colonies might wellhave led to a response that, in the absence of an emergency situation,the established procedure in section 128 should be followed. But atthe theoretical level, it would appear that in terms of the ranking ofthe norms of constitutional amendment and therefore of ascertainingthe primary amending norm within the Australian set of rules ofrecognition, the rule that the Imperial Parliament had ultimate legalauthority over the Australian federal system, even though it was neverexercised in practice, had, for a certain period after 1900, a superiorstatus over the rule embodied in section 128 which located the powerof constitutional change in the Federal Parliament and the electorateorganised on a C'ommonwealth-wide and State basis.

At some point of time, however, in the first fifty years of federation,this hierarchical relationship was reversed: the method of amendmentbased on the exercise of Imperial legislative power disappeared fromthe Australian rules of recognition of constitutional change. Thisdisappearance or elimination, however it is described, was the directresult of the development of dominion status reflected in various actsand events having constitutional significance, for example, the BalfourDeclaration and the Statute of Westminster. At least it could be saidthat the process was complete by the time the Statute was adopted in

29 On the negotiations between the colonial and Imperial authorities on the question of appeal to the Privy Council and the ultimate compromise reached seeQuick and Garran, op. cit. 228 fI,


Australia (1942).30 Sir Kenneth Wheare, writing in 1960, explains thedevelopment in this way:

... Australians might argue that, irrespective of the fact that theAustralian Constitution obtained force of law in 1900, through. itsbeing enacted by the parliament of the United Kingdom, itpossesses force of law today through its acceptance by Australiansfor sixty years or more. To explain why they accepted it wouldbe a complicated matter. But, in the eyes of Australians, theirConstitution was framed by their representatives in a series ofconventions in Australia, it was accepted by their representatives,legalised at Westminster and thereafter provided the frameworkof the system of government for the country. It can be altered byAustralians when they think fit. If, by some means, the C'onstitution could be deprived of its quality of a British Act, Australianswould still regard it as having force of law. If the Constitutionobtained its life in the seed bed at Westminster, and was transplanted to Australia, it has struck root in the Australian soil, and itowes its life now to Australia and not to Britain.31

The development of this local rule of recognition is a complex one.It was assisted by the participation of Dominion representatives in theImperial War Cabinet and in the subsequent Versailles Peace Conference, by the recognition of Dominion equality at the ImperialConference of 1926 which issued in the Balfour Declaration, and bythe passage of the Statute of Westminster in 1931.32 If it had not beenestablished by 1931 it certainly was established by 1942 when theStatute was adopted.33

The main thrust of the Statute was to emphasise the equal relationship between the member countries of the British Commonwealth andtherefore to downgrade the paramount legislative power of the ImperialParliament arising from its authority over the self-governing colonies.34

Consequently, section 2 of the Statute which repealed the ColonialLaws Validity Act in so far as it affected legislation of a Dominion,had a special role to play in eliminating this Imperial hegemony.35Moreover, because Imperial legislation might still be needed to operatein conjunction with Dominion legislation (for example relating to thecession of territory which the Federal Parliament can acquire under

30 Statute of Westminster Adoption Act 1942 (Cth). The adoption was datedback to the outbreak of war (3 September, 1939).

31 Wheare, The Constitutional Structure of the Commonwealth (1960) 108.32 Roberts-Wray, Conlmonwealth and Colonial Law (1966) 252.33 The development of an Australian grundnorm is closely associated with the

development of Australian nationhood: New South Wales v. Commonwealth(1975) 8 A.L.R. 1, 16 (Barwick C.J.), 90 (Mason J.); Bonser v. La Macchia(1969) 122 'C.L.R. 177, 189 (Barwick C.l.).

34 Marshall, Parliamentary Sovereignty and the Commonwealth (1962) Ch. 6,76 fi.

35 Wheare, The Constitutional Structure of the Commonwealth (1960) Ch. 3, 58 fi.


section 122 of the Constitution) it was necessary to include section 4with its request and consent stipulation. Section 4 provides:

No Act of Parliament of the United Kingdom passed after thecommencement of this Act shall extend, or be deemed to extend,to a Dominion as part of the law of that Dominion, unless it isexpressly declared in that Act that that Dominion has requested,and consented to, the enactment thereof.

But the very existence of this section generated fears, particularlyamong the States, that the older alternative method of constitutionalamendment (by British legislation) was being preserved.36 Cbnsequentlysections 8 and 9 were inserted. Section 8 provides:

Nothing in this Act shall be deemed to confer any power" to repealor alter the Constitution or the Constitution Act of the Common- l

wealth of Australia . . . otherwise than in accordance with thelaw existing before the commencement of the Act.

Section 9 is a more complex section. Its main thrust is to indicatethat Commonwealth legislative authority is not authorised in relationto matters within the authority of the States (that is where the Commonwealth does not have exclusive or concurrent legislative power) nor isCommonwealth concurrence required (in the absence of constitutionalpractice to the contrary) in respect of Imperial legislation affectingmatters within the authority of the States. In so far as the individualState constitutional systems comprise Imperial enactments, the sectionhas the effect of protecting such parts from amendment by "requestand consent" legislation on Commonwealth initiative alone.3T

To return to section 8, the words of the section do not in themselvesprohibit the United Kingdom Parliament from legislating to amend theConstitution at the request and consent of the Federal Parliament. Thesection does not stipulate that such amendment can only take placeunder the provisions of section 128 of the Constitution. It merelydenies power to repeal or alter the Constitution Act or Constitutionexcept in accordance with the "law existing before the commencementof this Act". The word "law" in this context is ambiguous. It wouldappear not to refer directly to section 128 itself, for a reference tothat section could have been included by words such as "in accordancewith the procedures laid down in the Constitution". It would appearnot to refer to the formal power of amendment which the ImperialParliament had in 1901 because the very development of Dominionstatus, it has been suggested, had brought about the legal situation, sofar as Australia was concerned, that the power had fallen intodesuetude, and it was not the purpose of the Statute of Westminsterto affirm an alternative method of amendment for the Commonwealth

36Id.62.37Id. 63.


Constitution. Indeed it could be argued that the main effect of section 8was to preserve the status quo in New Zealand where the powers ofconstitutional alteration were less certain.s8 It would seem that thesection encompasses what may be described as an amalgam of statuteand practice which, in the case of Australia, unlike that of Canadaand New Zealand, had disabled the United Kingdom Parliament fromlegislating for an amendment of the C'ommonwealth Constitution indisregard of the procedure laid down in section 128.39 It is no point toargue that the Statute of Westminster envisages request and consentlegislation of the Commonwealth Parliament affecting constitutional,in addition to non-constitutional, matters. For, as Marshall points out:

it would ... be improper for constitutional amendment to beobtained in Britain by any request from the Federal Governmentand Parliament which is not authorised by the procedure laiddown in section 128 of the Commonwealth constitution for carrying through an amendment in Australia. Any request not madein this way would not be a request of the Parliament of theCommonwealth functioning as the constitution requires.4JO

The growth of an exclusively Australian grundnorm or rule ofrecognition of constitutional amendment by way of the procedu,re laiddown in section 128 is a matter of implication to be drawn, as we havesuggested, from a series of acts or events of which the Statute ofWestminster is the most significant. The norm is not an express normbut a principle which underlies the fabric of the Constitution. To thisextent, it raises the question of what judicial reaction might be to thetheoretical question of the enactment by the United Kingdom Parliament of constitutional amendment legislation at the request of theCommonwealth Parliament. T'he dictum in British Coal Corporation v.R.41 that as a matter of strict 'law, the United Kingdom Parliamentcould repeal the Statute is of course based on the presuppositions oflegal supremacy embodied in the British system. It is not embodied inthe Australian federal system which ex hypothesi has matured into alegally separate system of norms of which section 128 is the apex. It issubmitted that an Australian court would, in the face of such legislation, apply principles which recognise the local source of amendment

38 I d. 64. Indeed even without s. 8 of the Statute, the Constitution of the Commonwealth would have remained as "supreme law": Wheare, Ope cit. 68.

39 Such legislation would infringe the principles of national independence andsovereignty which had matured by 1942 (not 1901 as Murphy J. asserts inBistricic v. Rokov (1976) 11 A.L.R. 129, 140). See also n. 33. On the question ofthe operation of the convention before the Statute of Westminster see CopyrightOwners Reproduction Society Ltd v. E.M.I. (Aust.) Pty Ltd (1958) 100 C.L.R.597, 612 per Dixon J.

40 Marshall, Parliamentary Sovereignty and the Commonwealth (1962) 116-117.ct. Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976),who states at page 543 that the 'Constitution can be amended at any time byImperial enactment.

41 [1935] A.C. 500, 520.


in section 128. The principles as such would be a mixture or amalgamof rules extracted from Statute, backed up by practice, but ultimatelyreflected in fundamental principles embodying the doctrines ofDominion legal independence and even more general norms ofsovereignty and independence which have been summed up in themaxim "freedom once conferred cannot be revoked".42

(2) The Covering Clauses and Section 128

If we accept that the Constitution has continuing legal validityseparate from its enactment by the United Kingdom Parliament andtherefore containing its own internal procedure for revision, it is stillnecessary to determine to what extent the covering clauses continueto operate and the manner in which they can be amended. It could besuggested that there are two separate systems of rules, the ConstitutionAct clauses (the covering clauses) and the Constitution itself, and thatthe former is still amendable only by the United Kingdom Parliament.Wynes takes this view when he says:

In virtue of their character of Imperial enactments, the coveringsections of the Constitution are alterable only by the ImperialParliament itself.43

However, it is possible to argue that the Covering Clauses have ~ither

expended their force or that the content of these clauses has becomeabsorbed within the framework of the Constitution itself and istherefore subject to the operation of specific sections of the Constitution or to the operation of section 128 if constitutional amendment isrequired. Let us look at each clause seriatim. I

Section 1 refers to the short title' of the Act. It is possible to arguethat a change in the short title falls within the scope of the incidentalpower (section 51 (xxxix)) as applied to the legislative powerM but adescription of this nature would appear to be fundamental and, if itwere to be changed, as a short title, would need to be submitted to areferendum. This does not prevent alternative methods of descriptionfrom being used on an official level.45

Section 2 embodies an accepted principle of statutory interpretationthat a reference to the reigning monarch extends to heirs and successors. The determination of the royal succession is regulated by thecommon law, the Act of Settlement and the Royal Marriages Act. Anychange in the royal succession would require "request and consent"

42 Ndlwana v. Hofmeyr [1937] A.D. 229, 237. See also Marshall, ConstitutionalTheory (1974) 61.

43 Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976)541. Marshall, Parliamentary Sovereignty and the Commonwealth (1962) 115.Sawer, "The British Connection" (1973) 47 A.L.J. 113, 114 n. 3. But Sawer doesadmit that such legislation should be preceded by action under s. 128.

44 As a matter incidental to the execution of the legislative power (i.e. thenaming of Statutes).

45 As was provided for in s. 4 of the Acts Interpretation Act 1973 (Cth).


action on the part of the Federal Parliament but would not amount toconstitutional amendment.46

The force of section 3 (Proclamation of Commonwealth)47 andsection 4 (commencement of Act) were expended at the time the-Constitution came into effect.

The first part of section 548 represents established practice in thematter of the operation of federal Constitutions. That document beinga fundamental law prevails over inconsistent legislation of the unitsand must be obeyed by the people of the units and enforced by theofficials and in the courts of the units. Even in its absence, the HighCourt would have interpreted the Constitution as having this effect.The second part of section 5 (laws of the Clommonwealth in force onBritish ships of a designated category with one exception)49 recognisesthe "coasting trade" sphere of operation of Commonwealth laws,especially navigation legislation. In so far as the clause refers to "laws"it means that such laws may make provision for their scope ofoperation and exemptions. The powers in the Constitution over overseas trade (section 51 (i)), shipping and navigation' (section 98) andexternal affairs (section 51 (xxxix)) now provide the basis for anextensive sphere of operation (subject to the rules of international lawand comity) of Commonwealth laws in the area of shipping outside the"coasting trade".50

Section 651 is a basic definition section defining the meaning of the"Commonwealth" and distinguishing between original and subsequentlyadmitted States. There is no doubt that the relationship between this

46 Bailey, "The Abdication Legislation in the United Kingdom and in theDominions" (1938) 3 Politica 18. On the questions of royal succession and regencysee Maughan, "The Statute of Westminster" (1939) 13 A.LJ. 152, esp. 160.

47 But see also, Marshall, Parliamentary Sovereignty and the Commonwealth( 1962) 114-115.

48 "This Act, and all laws made by the Parliament of the Commonwealth underthe Constitution, shall be binding on the courts, judges and people of every stateand of every part of the Commonwealth, notwithstanding anything in the laws ofany State..."

49 " ••• The laws of the -Commonwealth shall be in force on all British ships,the Queen's ships of war excepted, whose first port of clearance and whose port ofdestination are in the Commonwealth."

50 Particularly in the light of the wide interpretation given to the externalaffairs power in New South Wales v. Commonwealth (1975) 8 A.L.R. 1. See alsoR. v. Foster; ex parte Eastern and Australian Steamship Co. (1959) 103 C.L.R.256.

51 "'The Commonwealth' shall mean the Commonwealth of Australia asestablished under this Act.'The States' shall mean such of the Colonies of New South Wales, New Zealand,Queensland, Tasmania, Victoria, Western Australia and South Australia includingthe northern territory of South Australia, as for the time being are parts of theCommonwealth, and such colonies or territories as may be admitted into orestablished by the Commonwealth as States; and each of such parts of theCommonwealth shall be called 'a State'.'Original States' shall mean such States as are parts of the Commonwealth at itsestablishment."


and the clauses of the 'Constitution referring to the States, includingChapter VI (New States), is of such a nature that it can be said thatthe content of this section is incorporated into the Constitution itselfand therefore subject to the processes of constitutional amendmentset out in section 128.

Section 752 has the effect of continuing in operation Federal Councilof Australia laws. The second paragraph of the section recognises thatsuch laws may be repealed under federal heads of power contained inthe Constitution.

Finally, section 853 refers to the Colonial Boundaries Act.54 Therehave been suggestions that that Act provides an alternative method foraltering the external boundaries of a State as contrasted with theprocedure laid down in section 123. It is not our purpose to debate thissuggestion except to say that on the view that we adopt section 123provides an exclusive method of boundary alteration and that the effectof clause 8 of the Covering Clauses has been expended.55

It is therefore suggested that the comments of Wynes on the continuing powers of the United Kingdom Parliament are incorrect andthat the covering clauses of the Constitution are so intertwined withthe 'Constitution as a whole or sections of it that they may be regardedas part of its fabric. Therefore in relation to the content of thosesections, which have not ceased to operate or are not subject to specificCommonwealth legislative powers, the processes of section 128 must befollowed if any change affecting them is to be made.

(3) Scope of Section 128

There appears to be general agreement among most commentatorsthat section 128, involving as it does a method of amendment whichreflects the principles of popular democracy and federalism, may todaybe invoked to bring about fundamental changes to the Constitution,including the revision of section 128 itself.5'6 The concept of a funda-

52 "The Federal Council of Australasia Act 1885 is hereby repealed, but so asnot to affect any laws passed by the Federal Council of Australasia and in forceat the establishment of the Commonwealth.Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State' by the Parliament thereof."

53 "After the passing of this Act the Colonial Boundaries Act 1895 shall notapply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of thatAct."

54 58 & 59 Vict. c. 34.55 Lumb and Ryan, The Constitution of the Comnl0nwealth of Australia

Annotated (2nd ed. 1977) 31-32.56 Sawer, "Some Legal Assumptions of Constitutional Change" (1957) IV

Annual Law Review (University of W.A.) 1, 5. Latham, "Changing the Constitution" (1953) 1 Sydney Law Review 14, 19. Canaway, "The By-Pass to Constitutional Reform" (1940) 13 A.L.J. 394, 398; "The Evolution of S. 128 of theConstitution" (1940) 14 A.L.J. 274, 276; Cowen, "The ,Constitutional Aspects" in


mental political compact hovering over the Constitution and imposingits shackles on the content of proposals for amendment is thereforenot a legal principle which can control constitutional amendments.57

Thus, it would be possible under section 128 to achieve radical changessuch as the transformation of the federal system of government into aunitary system,58 the abolition of judicial review of legislative acts, theconversion of the bicameral into a unicameral system, and the replacement of the monarchical system by a republican system.

There is, however, a major problem in relation to this last type ofconstitutional change. The penultimate paragraph of section 128provides:

... if in a majority of the States a majority of the electors votingapprove the proposed law, and if a majority of all the electorsvoting also apPI:ove the proposed law, it shall be presented to theGovernor-General for the Queen's assent.

A bill purporting to abolish the monarchy would as a necessary consequence eliminate the Governor-General as the Queen's representativeand therefore terminate the system of royal assellt to bills. Under section58 the Governor-General may reserve a bill for the Queen's pleasureand under section 59 the Queen may disallow any law within one yearfrom the Governor-General's assent. Assent given to a Bill abolishingthe monarchical system of government would effectively create a newgrundnorm or rule of recognition involving a presidential system or

I system involving assent by a designated officer.59 There is the theoretical, possibility that a royal reserve power would be exercised in relation tosuch a Bill. Such an exercise would fly in the face of parliamentaryand electoral approval but its availability must be recognised.

The final paragraph of section 128 provides:

No alteration diminishing the proportionate representation of anyState in either House of Parliament, or the minimum number ofrepresentatives of a State in the House of Representatives, orincreasing, diminishing, or otherwise altering the limits of the

Dutton (ed.), Republican Australia? (1977) 44, 57-59; O'Connell, ide 23, 37-38;Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976)542 (but with doubts as to the elimination of the Monarchy).

57 Such a doctrine although true in the historical context is not a legal doctrinewhich can be applied by the Court to limit Commonwealth powers: the Engineerscase (1920) 28 C.L.R. 129.

58 Or providing for the secession of one of its parts: Marshall, ParliamentarySovereignty and the Commonwealth (1962) 115-117. It is considered that thewords "indissoluble federal Commonwealth" in the Preamble, while demonstratingthe nature of the political compact into which the Colonies entered, do notgenerate a doctrine of fundamental law superior to the amending procedure laiddown in s. 128.

59 On the assumption that bills passed by the Houses would need to be signedinto law by some official outside those Houses.


State, or in any manner affecting the provisions of the Constitutionin relation thereto, shall become law unless the majority of theelectors voting in that State approve the proposed law.

Under this paragraph, constitutional amendment bills affecting the basicsystem of representation in the Federal Parliament (for example theabolition of the Senate) would require the approval of the electors ineach of the six States. A law directed to reducing the representation ofa particular State would require the assent of the electorate of thatState and a law affecting the boundaries of two or more States wouldrequire the assent of those States. If the States affected were in a groupof four States whose electors had voted for the proposed law theordinary and special requirements would be fulfilled at the same time.If not, the special requirement of the penultimate paragraph must becomplied with. In such a case five or six State electorate approvalswould be necessary depending on the circumstances.

Would the alteration of the fifth paragraph of section 128 itselfrequire the approval of the electors in all States? Wynes considers thatthe alteration of the paragraph would merely require the approval ofthe electors in a majority of States.oo But the analysis of Sawer is morepersuasive:

... the key sentence follows-"ar in any manner affecting theprovisions of the Constitution in relation thereto". Not, it shouldbe observed, "in any manner affecting the sections of the Constitution relating thereto", which might have confined the paragraphto such sections as 7 and 24. The sentence breaks up into "...affecting the provisions of the Constitution" ... "in relation" (tothe representation of the State in the Commonwealth Parliament,or to the State's limits). All the provisions of the Constitution arepotentially within the reference, including section 128 itself. Theonly question then is whether an amendment to section 128 affectingparagraph 5 itself is an amendment "affecting" a "provision of theConstitution in relation" to representation, limits etc. Clearly it isnot unreasonable to answer yes, and the emphatic words "in anymanner" support such a wide construction.61

It remains for us to draw attention to section 106 which provides:

The Constitution of each State of the Commonwealth shall,subject to this C'onstitution, continue as at the establishment ofthe Commonwealth, or as at the admission or establishment ofthe State, as the case may be, until altered in accordance with theConstitution of the State.

This section gives recognition to the fact that the pre-existing Constitutions of the Colonies which became States on the proclamation of theCommonwealth and whose constitutions thereupon became StateConstitutions were to continue, subject to the paramount force of the

60 Wynes, Ope cit. 540.61 "Some Legal Assumptions of Constitutional Change", Ope cit. 4-5.


Commonwealth C'Onstitution, and subject to being altered in accordance with the prescribed manner and form relating to amendment ofthose Constitutions.62 The same requirement applies to the Constitutionof a State subsequently admitted to the Commonwealth.

In so far as the State Constitutions are made subject to the Commonwealth Constitution, a constitutional alteration directed to the contentof those Constitutions or superseding the method of amendment laiddown in those Constitutions would appear to be possible under section128.63 But, as Sawer points out,64 a complication in this respect is thatthe States continued their separate constitutional relations with theImperial Crown and Parliament. He goes on to give an example of theabolition of appeals from State Supreme Courts to the Privy C'ouncil.It could be argued, he says, that "the combined effect of sections 2and 9 of the Statute of Westminster is to exclude legislation on such atopic from the scope of section 128, so far as the Statute of Westminster is concerned". However, he considers that the better view isthat section 128 would authorise legislation inconsistent with ImperialStatutes on any matter of Australian jurisdiction (for example thosepertaining to the States' Constitutions) although he qualifies theseremarks by expressing doubts whether this would apply to any legislation whatsoever.6a

It is my view that the wide view would be accepted by Australiancourts and that section 128 would sanction a constitutional amendmentsevering ties between the States and the United Kingdom. In themselvesthey involve a less drastic revision of the existing constitutional systemcompared with some of the other possible alterations (for exampleabolition of the federal system). Even if some of the ties do not strictlyfall under the rubric of "State Constitutions"66 as that term is used insection 106, they are matters comprised within the Australian constitutional system and as such potentially subject to section 128. Thisquestion will be taken up again later.

III AMENDMENT OF STATE CONSTITUTIONS

(1) Origin and Colonial Laws Validity Act

The powers of constitutional amendment vested in State Parliamentsand the limitations thereon are in marked contrast with the amendmentprocedure to be found in the Commonwealth Constitution. The reason

62 And which are made binding by force of s. 5 of the Colonial Laws ValidityAct.

63 Canaway, "The Evolution of S. 128 of the Commonwealth Constitution"(1940) 14 A.L.J. 274, 276. Ct. Wynes, Ope cit. 542, n. 42.

64 Wynes, Ope cit. 6-7.65 Ibid.66 McCawley v. R. (1918) 26 C.L.R. 9, 51-52. (Isaacs and Rich 11. considered

that a State's judicature (including the appeal to the Privy Council) and executivestructure were part of its Constitution). ct. Higgins 1. in Commonwealth v.Kreglinger & Fernau Ltd and Bardsley (1925) 37 C.L.R. 393, 426.


for this is to be found in their genesis in Imperial Acts of the nineteenthcentury and their continuing subjection to other Imperial Acts whichhave paramount force over local Acts pursuant to section 2 of theColonial Laws Validity Act. Although States of the Commonwealthof Australia, they still remain in a status of legal dependence, as the"autonomy" provisions of the Statute of Westminster were not extendedto them.67

In Attorney-General (N.S.W.) v. Trethowan,68 Dixon J. comparedthe powers of constitutional alteration of the Colonial Parliaments withthose of the British Parliament. Referring to the powers of the NewSouth Wales Parliament which were initially derived from Imperiallegislation he continued:

It is true that these constituent powers were meant to give to theconstitution of New South Wales as much of the flexibility whichin Great Britain arises from the supremacy of Parliament as wasthought compatible with the unity of the Empire, the authorityof the Crown and the ultimate sovereignty of the Imperial Parliament. But this consideration, although generally of importance,affords small help in a question whether the constituent authorityof a legislature in a Dominion suffices to enable it to impose acondition or a restraint upon the exercise of its power. Thedifficulty of the supreme Legislature lessening its own powers doesnot arise from the flexibility of the constitution. On the contraryit may be said that it is precisely the point at which the flexibilityof the British Constitution ceases to be absolute. Because it restsupon the supremacy over the law, some changes which detractfrom that supremacy cannot be made by law effectively. Thenecessary limitations upon the flexibility of the constitution ofNew South Wales result from a consideration of exactly anopposite character. They arise directly or indirectly from thesovereignty of the Imperial Parliament. But in virtue of itssovereignty it was open to the Imperial Parliament itself to give,or to empower the Legislature of New South Wales to give, to theconstitution of that State as much or as little rigidity as might beproper.69

In this respect, the subordination of the State Parliaments to theBritish Parliament has two aspects: an historical aspect involving thegrant of a power of constitutional alteration in the original constitutionacts under which the Australian colonies attained responsible government, and a contemporary aspect involving the derivation of powerfrom continuing Imperial legislation (the Colonial Laws Validity Act).

67 Lumb, The Constitutions of the Australian States (1965) Ch. 5.68 (1931) 44 C.L.R. 394.69 Id. 426-427. The incapacity of the British Parliament to bind itself by manner

and form provisions has of course been questioned in recent writings: see alsoWinterton, "The British Grundnorm: Parliamentary Supremacy Re-examined"(1976) 92 L.Q.R. 591, 596 if. for a summary of views.


The grant of responsible government to the Colonies in 1855-1856was accompanied by grants of the power of constitutional alterationwhich were either expressed in the Imperial Statutes ratifying theConstitution Acts which emanated from the Colonial Legislatures orimplied in the power to make laws for the peace, order and goodgovernment of the Colonies contained in those Acts.70 These Constitution Acts were drafted in the C'olonies pursuant to the enablingprovisions of the Australian Constitutions Act (Number 2) of 1850.In so far as the New South Wales and Victorian Acts were consideredto exceed the legislative power conferred by that Act they wereamended in London and as amended were incorporated as Schedulesto Imperial Acts which gave them the force of law. The Tasmanianand South Australian Acts were given the royal assent and theirhistorical source of validity must therefore be derived from theAustralian Constitutions Act of 1850.71 The Queensland Constitutionwas originally embodied in an Order in Council made pursuant to theprovisions of the New South Wales Constitution Act. The Order inCouncil was replaced by a local Constitution Act in 1867. The WesternAustralian Constitution Act of 1889 exceeded the powers conferredon the local legislature by the Australian Constitutions Act of 1850.It was therefore necessary for it to be ratified by an Act of the ImperialParliament passed in 1890 which empowered the local legislature toalter any provisions of the Act (referred to as the "reserved bill").

There was therefore a dual source of the constituent power whichthe local legislatures held: the express power of constitutional alterationderived from the Imperial legislation and the implied power of constitutional alteration contained in the grant of power to make laws for thepeace, order and good government of the Colonies derived from thelocal enactments.

The doctrine of repugnancy (which, of course, pre-dated the ColonialLaws Validity Act)72 prevented the local legislatures from infringingany conditions attached to the power of constitutional alterationcontained in the Imperial legislation, unless these conditions had beenspecifically repealed. The majority of the Constitution statutes requiredlegislation altering the Constitution of the Houses of the Legislatureto be passed by prescribed majorities and to be reserved for the royalassent.73

70 Lumb, The Constitutions 0/ the Australian States (4th ed. 1977) Chs. 1, 2.71 Indeed, the law-making power of the Tasmanian Parliament is derived from

ss.7 and 14 of that Act while that of the South Australian Parliament is indirectlyderived from those sections.

72 Campbell, "Colonial Legislation and the Law of England" (1965) 2 Tasmanian University Law Review 148.

73 The Queensland Constitution Order in Council incorporated the requirementsof the Australian Constitutions Act 1842, s. 31 imposing a duty on the Governorto abide by Royal Instructions relating to assent, disallowance and reservationof Bills.


Despite the seemingly full grant of power of constitutional alteration,a doctrine of limited colonial legislative capacity was recognized,particularly in the judgments of Boothby J. in the South AustralianSupreme Court.74 The advice of the Law Officers of the Crown on thematters raised by these judgments indicated that there were fundamental principles of English law to which the local legislatures weresubject in addition to Imperial legislation of paramount force. Theenactment of the C'olonial Laws Validity Act in 1865 clarified theposition by providing that repugnancy to Imperial legislation extendingto the Colony or Colonies (but not to the law of England) was to bea ground of invalidity. In the sphere of constitutional legislation, thismeant that conditions attached to the grant of power of constitutionalalteration were to be treated as fundamental law. Section 5 of theColonial Laws Validity Act required any "manner and form" requirement in Imperial legislation or local legislation to be complied withwhile recognizing that the local legislature had full power of enactinglegislation relating to the constitution, powers and procedure of thelegislature. In the light of the later decision in McCawley v. R.,'15 thedoctrine of "fundamental law" was severely restricted. The import ofthat decision appeared to be that unless a manner and form provisionor condition attaching to the original power of constitutional alterationwas itself "entrenched", later inconsistent legislation of a colonial orstate legislature would eliminate that provision or condition.

At the time of federation there were therefore in existence alternativesources of a constitutional amendment power: a combination ofImperial and colonial powers contained in the original acts grantingresponsible government to the Colonies and (specifically) section 5 ofthe Colonial Laws Validity Act.

(2) The position after federation

(i) Imperial ties

The coming of federation did not take the Colonies which were, bythe Commonwealth of Australia Constitution Acts, raised to thedignity of States, outside the operation of the Colonial Laws ValidityAct. Indeed the States as well as the newly established Commonwealthcontinued to be treated as self-governing colonies (or units thereof)and, in respect of the exercise of legislative power, to be subject toparamount Imperial legislation.'16 The unshackling of the Commonwealth from these fetters through the constitutional development ofprinciples of Dominion autonomy culminating in the Statute ofWestminster was not accompanied by a similar divestment of the Stateshackles. However, section 11 of the Statute provided that, "notwith-

74 Blackmore, The South Australian Constitution (1894) 64 ff.75 [1920] A.C. 691.76 But see the judgment of Murphy J. in Bistricic v. Rokov (1976) 11 A.L.R.

129, 139-140. '


standing anything in the Interpretation Act, 1889, the expression'Colony' shall not, in any Act of the Parliament of the United Kingdompassed after the commencement of this Act, include a Dominion orany Province or State forming part of a Dominion','. The consequenceis, as Mason J. pointed out it:1 Bistricic v. RokoV71 that legislation ofthe United Kingdom passed after the Statute of Westminster andapplying to British possessions would not apply to the States unlessthey were expressly mentioned. Indeed it is also clear that a conventionhas been generated by these developments under which legislation ofthe United Kingdom Parliament (including legislation modernizingnineteenth century legislation) would not be expressed to include theStates without their request and consent.'8 This does not of courseaffect the continued operation' of nineteenth century United Kingdomlegislation of paramount force (including as a "fundamental" statutethe Colonial Laws Validity Act).

(ii) Repeal of Imperial legislation by State legislation

It was pointed out earlier that the Constitution Acts of several ofthe Colonies were included as schedules to Imperial Statutes whichratified them and also conferred a power of constitutional alteration.The majority of the Legislatures have taken advantage of this powerand have placed their constitutions on an indigenous basis. Thus theQueensland Constitution Act of 1867 repealed the provisions of the1859 Order-in-C'ouncil and the New South Wales Constitution Act of1902 repealed the provisions of the 1855 Act. It was not until 1975that Victoria consolidated all the provisions of the 1855-1856 legislation. Both South Australia and Tasmania in 1934 consolidated theirlegislation. However, in the case of Tasmania, the power of law-making(including the power of constitutional alteration) is still dependent ona section of the Australian Constitutions Act of 185079 while inWestern Australia the power of constitutional alteration is derived froma combination of the 1890 Imperial Act and the local Constitution Actof 1889 which it ratifies.so

In Attorney-General (N.S.W.) v. Trethowan81 Dixon J. explainedthe relationship between Imperial and local powers of constitutionalalteration. Section 4 of the New South Wales Constitution Statute(conferring a power of constitutional alteration) was required becausethe Constitution Act was part of an Imperial Statute.

'77 (1976) 11 A.L.R. 129, 132. CfO' Jacobs J. at 135: amending or modernizinglaws may apply.

'78 Ukley v. Ukley [1977] V.R. 121, 129-130.'7'9 The law-making powers conferred on the Australian colonial Parliaments by

the Australian Constitutions Act 1850 are vested in the South Australian Legislature by s. 5 of the Constitution Act of that State.

80 Western Australia Constitution Act (Imp.) 1890, s.5, The Constitution Act1889, s. 2 (W.A.).

81 (1931) 44 C.L.R. 394.


Accordingly, by section 4 of the Constitution Statute the ImperialParliament expressly enacted that it should be lawful for thelegislature of New South Wales to make laws altering or repealingthe said reserved Bill in the same manner as any other laws forthe good government of the Colony.

He went on to state that the enactment of the Constitution Act in1902 was an exercise of this power: "the express power to repeal 'thesaid reserved Bill' implied that a constitution might be enacted in itsplace". "When this was done the express power contained in section 4of the Constitution Statute was exhausted."82 In the later case ofClayton v. HefJron83 in the joint judgment of Dixon C'.J., McTiernan,Taylor and Windeyer JJ. there is a further reference to the source ofvalidity of the Constitution Act of 1902:

It seems obvious that the combined effect of section 4 of theConstitution Statute and section 1 of the Constitution Act [thereserved bill] was to confer upon the Legislature of New SouthWales a full constituent power. It does not appear to matterwhether you say that the power conferred by section 4 of theConstitution Statute to repeal the Constitution Act implies apower to replace it or to say that the two provisions (section 4 ofthe Statute and section 1 of the Act) combined to show that thepower to make laws for the peace, welfare and good governmentof the colony of New South Wales comprised a power to enact aconstitution. The authority thus conferred is that exercised inadopting section 5 of the Constitution Act 1902 and it formedan ample foundation for that enactment.84

The immediate power to enact constitution deadlocks provisions whichwere under consideration in that case was therefore to be derived fromthe power to make laws for the peace, welfare and good government ofthe State, as that section conferred a constituent as well as an ordinarylegislative power. Likewise, in McCawley v. R.,85 the Privy Councilemphasised the wide scope of the similar provisions of the QueenslandConstitution Act (section 2) as conferring a power of constitutionalalteration.

(iii) The State Constitution Acts as Fundamental Law

In Cooper v. Commissioner of Income Tax for the State of Queensland,86 the High Court adopted an interpretation of the status of StateConstitutions which elevated them to a superior position viz-a-viz

82Id.428.83 (1960) 105 C.L.R. 214.MId. 252.85 [1920] A.C. 691, 712. However Isaacs J. in Taylor v. Attorney-General for

Queensland (1917) 23 C.L.R. 457, 475-476, and Griffith C.J. in Cooper v. Commissioner 0/ Income Tax (Qld.) (1907) 4 C.L.R. 1304, 1314, considered that thepower of constitutional alteration conferred by the Queensland Order in Councilof 1859 still survived.

86 (1907) 4 C.L.R. 1304.


ordinary legislation. It was held that provisions of the QueenslandConstitution Act could not be amended by ordinary legislation withoutthe provisions being at first specifically amended. Griffith C.J. said:

The distinction between what are called in jurisprudence "fundamental laws" and other laws is, no doubt, unfamiliar to Englishlawyers. Nor under the Constitution of England is there any suchdistinction. The Parliament of the United Kingdom is supreme,and can make any laws it thinks fit, and the question whether a lawonce passed is beyond the competency of the legislature or notcannot arise. If, therefore, a later is inconsistent with an earlierlaw, the later must prevail. But in States governed by a writtenConstitution this doctrine has no application.87

Ho\vever, in McCawley v. R.,88 this doctrine of "fundamental law"was rejected by the Privy Council. Instead, the Privy Council accepteda principle of interpretation which reduced the status of State Constitution Acts to that of ordinary legislation. The doctrine espoused inMcCawley's case was simple: later inconsistent legislation prevailedover earlier legislation whether constitutional or otherwise. No expressrepeal of a provision of a State Constitution Act was necessary for itto bOe superseded by a later Act however humble the subject-matter ofthe later Act might be. The only qualification recognized was inrespect of those provisions of the C'onstitution protected by mannerand form provisions operating under the proviso to section 5 of theColonial Laws Validity Act.89 The effect of the decision was to treatthe State Constitutions as flexible and uncontrolled except in thosespecial cases where a manner and form requirement had been laiddown for constitutional amendment.

(iv) Section 5 0/ the Colonial Laws Validity Act

Section 5 of the Colonial Laws Validity Act enables, a State Parliament to impose binding manner and form provisions in relation toconstitutional change. In so far as the doctrine of Imperial legislativesupremacy is embodied in section 2 of the Act, section 5 constitutes afundamental law within the umbrella of which State Parliaments mustoperate.

Section 5 applies to legislation respecting the "constitution, powersand procedure of the legislature".90 A broad reading of this phrase

871d. 1313-1314.88 [1920] A.C. 691.,89 Id. 714.00 The relevant portion of s. 5 is as follows: ". 0 • Every Representative Legis-

lature shall, in respect to the Colony under its jurisdiction, have, and be deemedat all times to have had, full power to make laws respecting the constitution,powers and procedure of such Legislature; provided that such laws shall havebeen passed in such manner and form as may from time to time be required byany Act of Parliament, Letters Patent, Order in Council, or C'olonfal Law for thetime being in force in the said Colony." The operation of the section is discussedin Lumb, The Constitutions of the Australian States (4th ed. 1977) 98 ff.


would lead one to say that it would cover the following types oflegislation: legislation regulating the duration of the legislature, itsnature, composition and membership, the relationship between theHouses of the legislature, the procedure of the legislature, privilegesand immunities of the Houses, and requirements as to the passage ofBills. It has been specifically recognized that the power is wide enoughto enable the abolition of an Upper House (Legislative Council)91 andthe introduction of the electorate (the referendum procedure) into thelegislative process.D!

While enabling a State Parliament to enact legislation altering theConstitution, powers and procedure of the legislature, section 5 imposesa restraint on the exercise of such a power. Manner and form requirements laid down in existing law determine whether Imperial or Statelaw must be complied with. Such manner and form provisions maytake the form of specified procedures within the Houses of the Parliament, (for example an absolute or two thirds majority for the passage ofbills) ,93 reservation of bills for the royal assent94 and the requirementof the submission of a bill to the electorate voting at a referendum.ls

However, in order to protect such a manner and form provisionfrom legislative repeal in the ordinary manner, the provision itselfmust be protected by a similar manner and form requirement. This hasbecome known as "double entrenchment".96 Otherwise, following thedoctrine in McCawley's case an unprotected manner and form provision could be repealed by inconsistent legislation passed in theordinary way.

(v) "Peace, order and good government"

We have already referred to the amplitude of power contained inthe law-making powers of the State Constitution Acts which areusually formulated as a power to make laws "for the peace, welfare(or order) and good government of the State". It appears that theconstituent or constitutional alteration elements of this power aremore comprehensive than those conferred by section 5 of the ColonialLaws Validity Act.

In Clayton v. HefJron97 the majority drew a distinction between adeadlock provision operating in the context of a disagreement betweenthe two Houses over a particular bill and provisions coming within the

91 Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 457. Claytonv. Heffron (1960) 105 C.L.R. 214.

92 Trethowan v. Attorney-General for New South Wales (1931) 44 C.L.R. 394(H.C.); [1932] A.C. 526 (P.C.).

93 Lumb, Ope cit. 102-103.'94 Id. 101-102.95Id. 103-104.96Id. 111-112.97 (1960) 105 C.L.R. 214.

~ 1978] Fundamental Law and Constitutional Change 171

I "constitution, powers and procedure of the legislature". Referring tosection 5 of the C'olonial Laws Validity Act the court said:

... some doubt may perhaps exist as to the substance of section5B falling within the words "respecting the constitution powersand procedure of such legislature", although the same doubt doesnot appear to have been felt by members of the court in Taylor v.Attorney-General for Queensland. The reason for the doubt is thatsection 5B leaves the legislature as it is and yet makes specialprovision on occasion for one House with the approval of theelectors at a referendum exercising a full legislative power,including indeed a legislative constituent power without, theconsent of the other House. It may be said that to do so goesbeyond the literal meaning of the words "constitution, powers andprocedure of such legislature". Be that as it may, section 5 of theConstitution Act 1902-1956 appears on consideration to containa sufficient power not only to change the bicameral system into aunicameral system but also to enable the resolution of disagreements between the two Houses by submitting an Act passed by theAssembly for the approval of the electors in substitution for theassent of the Council and moreover to include in the applicationof that legislative process Bills for the abolition of the LegislativeCouncil and Bills otherwise falling within the description dealtwith by section 7A.98

The reasoning in the passage is open to criticism. A liberal interpretation of "constitution, powers and procedure of [such] legislature"would lead to a conclusion that deadlock provisions involving a procedure to be followed within and outside the legislative houses over abill comes squarely within the phraseology of the section. But theimportance of the passage cited is to be found in the court's relianceon the "peace, order and good government" section of the StateConstitution Act as the basic source of constituent power and thereforeas the basic rule of recognition validating constitutional change andthe procedures by which such changes may be carried out.

In the exercise of a constituent or constitutional alteration power aState Parliament may impose binding manner and form requirements.In this respect, the doctrine of "fundamental law" will be reflected inthe State's constitutional system when the constituent power is used toachieve the entrenchment of existing or subsequently adopted rules ofthe system.99

Recourse to the "peace, order and good government" source in orderto entrench parts of a State's constitutional system becomes importantwhen the alternative source in section 5 of the 'Colonial Laws Validity

98 Id. 249...250.99 In this respect the doctrine of fundamental law applied by courts in systems

outside the Colonial Laws Validity Act may be referred to: Bribery Commissionerv. Ranasinghe [1965J A.C. 172, Harris v. Donges [1952] 1 T.L.R. 1245.


Act does not cover the proposed legislation. This is reflected in twopieces of "entrenching" legislation recently passed by State Parliaments:the Constitution Act Amendment Act 1975 (Number 5) of SouthAustralia and the Constitution Act Amendment Act 1977 ofQueensland.

The Queensland amendments are intended to entrench the positionand powers of the Governor of the State.1 Section 3 provides as follows:

( 1) The Parliament of Queensland consists of the Queen and theLegislative Assembly...

(2) Every Bill, after its passage through the Legislative Assembly,shall be presented to the Governor for assent by or in thename of the Queen and shall be of no effect unless it hasbeen duly assented to by or in the name of the Queen.

Section 4 of the Act provides:

( 1) The Queen's representative in Queensland is the Governorwho shall hold office during Her Majesty's pleasure.

(2) Abolition of or alteration in the office of Governor shall notbe effected by an Act of the Parliament except in accordancewith section 53.

Section 7 of the Act adds a new section (section 53) which providesthat a bill providing for the abolition of or alteration in the office ofGovernor or that expressly or impliedly in any way affects the sectionsof the Act relating to his office or powers shall not be presented forassent in the name of the Queen unless the bill is presented to theelectors at a referendum and approved by them. In that event "it shallbe presented to the Governor for reservation thereof for the signification of the Queen's pleasure". It should be pointed out that amongthe powers of the Governor preserved from ordinary legislative repealis the power to appQint and dismiss ministers of the Crown in theexercise of which, subject to any royal instructions, "he shall not besubject to direction by any person whosoever nor be limited as to hissources of advice".2

There is some doubt as to whether these provisions can have operativeeffect under section 5 of the Colonial Laws Validity Act or whethersupport for their validity- is to be derived exclusively from the peace,

1 For a discussion of political reasons for the legislation see O'Connell,"Monarchy or Republic" in Dutton (ed.), Republican Australia? (1977) 23, 32.The position of the Governor was not fully incorporated into the QueenslandConstitution Act of 1867, remaining dependent to a large extent on Letters Patentand Royal Instructions.

2 Section 6 adding new section 14. This section has the effect of making expresswhat was formerly implied, that is, the right to exercise a "reserve" power ofappointment and dismissal of Ministers, taking advice on this matter from sourcesoutside the Premier or his Cabinet. In this respect it amounts to quite a "radical"transformation of existing practice.


welfare and good government clause in the Constitution Act. In Taylorv. Attorney-General for Queensland,3 Isaacs J., in referring to the word"legislature" a~ used in section 5 of the Colonial Laws Validity Act said:

. . . the word "legislature" in this connection is not intended toinclude the Crown. That word is undoubtedly sometimes used toinclude the Crown, which is the first branch of it. But it is alsofrequently used even by Parliament itself to denote the law-makingauthority other than the Crown.4

The view adopted by Isaacs J. was based on the assumption that:

When power is given to a colonial legislature to alter the constitution of the legislature, that must be read subject to thefundamental conception that, consistently with the very natureof our constitution as an Empire, the Crown is not included inthe ambit of such a power.s

If this view is correct, a bill purporting to abolish the office ofGovernor,'6 or to alter his powers, would not be comprehended withinthe terms "constitution, powers and procedure of the legislature". Itwould therefore be necessary to rely for its entrenching force on the"peace, welfare and good government" clause (section 2 of the Queensland Constitution Act). As a category of constitutional legislation itwould at least, partially, fall under the rubric of "The Executive".

The South Australian legislation7 is intended to entrench certainprinciples relating to electoral redistribution. T'o this end, the amendments provide for the submission to a referendum of a bill whichoffends against these principles. They comprise the principles (1) thatthe State is to be divided into electoral districts returning the samenumber of members of the House of, Assembly; (2) that in a redistribution the number of electors must not vary from the electoralquota by more than the permissible tolerance (10 per cent); (3) thatredistributions must take place at a certain frequency; (4) that anelectoral redistribution is to be made by a Commission which isindependent of political influence or control.s

It can be argued that principles of electoral redistribution are notcomprised within the category of legislation relating to the constitution,powers and procedure of the legislature but are laws affecting electoralmatters or electoral districts. Indeed ,this characterisation is suggestedby section 1 of the Australian States Constitution Act of 1907 which

3 (1917) 23 C.L.R. 457.4Id.473.SId. 474.6 Whether, in any case, it is within Constitutional capacity of a State Parliament

to abolish the office of Governor will be discussed later. Infra p. 175 fI.7 Constitution Act Amendment Act 1975 (S.A.).8 Section 7 inserting new section 88. The Act also provides for an appeal from an

order of the Commission to the Supreme Court on questions of law. Its validitywas upheld in Gilbertson v. State of South Australia (1977) 14 A.L.R. 429.


requires reservation, inter alia, of Bills altering the constitution of thelegislature of the State or either House thereof. For the purposes ofthis section a Bill is not characterised in this manner by reasons only ofthe fact that it

(a) creates, alters or affects any province, district or town [ordivision thereof] which returns one or more members toeither House of the Legislature;

(b) fixes or alters the number of members to be elected for anysuch province, district or town [or division thereof];

(c) increases or decre~ses the total number of elective membersof either House of the Legislature; or

(d) concerns" the election of the elective members of the Legislature, or either House thereof, or the qualifications ofelectors or elective members.9

If the subject-matter of the South Australian legislation is characterised in this manner its source of validity would be derived from theconstituent power in the South Australian Constitution Act. Viewedin this light the application of entrenching provisions has the effect ofraising the subject-matter of the amendment to the status of "fundamental law" within the sphere of State Constitutions so as to requiresubsequent am~ndment legislation to comply with the manner andform laid down if the validity of such legislation is to be upheld.

(3) Limitations or possible limitations on the constitutional amendmentpowers of State Parliaments

There exist various limitations or possible limitations on the powerof State Parliaments to amend their constitutions.

(i) Repugnancy to British legislation

It has already been pointed out that State legislation which isrepugnant to British legislation extending to the States either expresslyor by necessary implication is, to the extent of the repugnancy, invalid.10

Section 2 may therefore be treated as a fundamental law in the highest"layer" of laws of the State's constitutional system. Since the passageof the Statute of Westminster (and probably extending further back)it can be confidently stated that the British Parliament would not applya British Statute to a State without its consent. Consequently Mason J.appears to be correct in stating in Bistricic v. RokoV11 that UnitedKingdom legislation (even if it involves amendments of paramount

9 Section 1 (2).10 For differing interpretations of the term "repugnancy" in s. 2, see Union

Steamship Co. of New Zealand Ltd v. The Commonwealth (1925) 36 C.L.R. 130,148 (Isaacs J.). Attorney-General for Queensland v. Attorney-General for theCommonwealth (1915) 20 C.L.R. 148, 178.

11 (1976) 11 A.L.R. 129, 132.


Acts passed in the nineteenth century) would only apply to the Statesif so expressed to apply.

There appear to be three other Acts besides the Colonial LawsValidity Act which affect the C'onstitutions of the States. They are theAustralian States Constitution Act which require reservation of certainclasses of bills for the royal assent, portions of the Australian Constitutions Act of 1842 which relate to reservation and assent which, interalia, impose a duty on State Governors to observe any Royal Instructions on the matter,12 and the Judicial Committee Acts enabling appealsto be taken from State Supreme Courts to the Privy Counci1.13

(ii) Basic elements: Crown and Crown prerogatives, representative andresponsible government, duty not to abdicate authority, impermissible

fetters

( a) Crown and Crown prerogatives

In several c~ses reference has been made to the principle that a StateParliament cannot abolish the monarchical element, that is, the Crown.This would prevent a republican-type constitution being adopted for aState. In Taylor v. Attorney-General for Queensland Isaacs J. said:

When power is given to a colonial legislature to alter the Constitution of the legislature, that must be read subject to thefundamental conception that, consistently with the very nature ofour constitution as an Empire, the Crown is not included in theambit of such a power.14

The British Empire has, of course, given way to the British Commonwealth and now to the Commonwealth, a loose collection ofnations with different political systems (including republican systems).15Despite these changes, the Commonwealth of Australia together withthe States forms a monarchical federal system of government and eachState Constitution16 recognizes the existence of the Monarch and theVice-regal representative, the Monarch being the "fount" of thesystem.

In Re Initiative and Referendum Act,17 the Privy Council held thatlegislation of a Canadian Province which allowed the Lieutenant-

:12 Australian Constitutions Act 1842, ss.31, 32, 33, 40. Taylor v. AttorneyGeneral for Queensland (1917) 23 C.L.R. 457, 475 (Isaacs J.). Re Scully (1937) 32Tas.L.R. 3, 40-44 (Clark J.). Much of the content of these provisions is nowcovered by the Australian States Constitution Act 1907.

13 On the assumption that this falls under the rubric of "State constitutions".Supra n. 66.

14 (1917) 23 C.L.R. 457, 474. see also Clayton v. Heffron (1960) 105 C.L.R.251. Re Scully (1937) 32 Tas.L.R. 3, 40 ff.

16 Roberts-Wray, Commonwealth and Colonial Law (1966) 22.16 Usually in the form of a combination of the local Constitution Act and

Letters Patent establishing the office of Governor. On the nature of Letters Patentsee Roberts-Wray, Ope cit. 143-146.

17 [1919] A.C. 935.


Governor to be by-passed in the passage of legislation was invalid. TheCrown is treated as an essential element in the legislative process(although in the opinion of Isaacs J. not part of the legislature) .18 Theroyal prerogative of assent to bills is therefore part of the system withinwhich a State legislature operates. It would appear therefore thatlegislation of a State which purported to abolish the Crown, that is, toeliminate the Monarch either from the legislative process or from theconstitutional system (that is by substituting another Chief Executiveexercising powers of dissolution and the appointment and dismissalof Ministers) would fall foul of this basic limitation. Such a prohibitionwould extend to legislation abolishing the position of Governor as theQueen's representative or cutting the "umbilical" link (established bythe Constitution Act, Letters Patent, or Royal Instructions) betweenthe two. The Governor, as the Vice-regal representative, exercises(subject to any prerogatives which have not been delegated, inheritedor conferred) the royal prerogatives in the State constitutional arena.19

But can a State legislature abolish or restrict the prerogatives of theCrown while leaving the office intact? On this question some of thecommentators are ambivalent. For example, Keith20 in one place seemsto favour the view that legislation with respect to the prerogativewould be within the constitutional power of the State or ProvincialParliament. "The act of altering the post of Governor and its dutiescan hardly be said to be beyond the power of a Colony to legislate forpeace, order and good government."21 But later comments indicate thatthere may exist inhibitions on a State Parliament controlling themanner in which a Governor exercises royal authority.22

Certainly Nadan v. The King23 appeared to be an authority insupport of the proposition that a State or Provincial Legislature cannot, without the legislative authority of the British Parliament, expressor implied, abolish a Crown prerogative.24 The departure from this

18 Taylor v. Attorney-General for Queensland (1917) 23 C.L.R. 473.19 In Toy v. Musgrove [1891] A.C. 272 it was held by the Victorian Full Court

that the Governor of the State of Victoria was not a Viceroy and did not exerciseall the prerogative powers of the Monarch. However, for practical purposes todaythere are few prerogatives which are not exerciseable by a State Governor, theonly significant ones being the prerogative of honours and the prerogative ofincorporation by royal charter. Other limitations relating to reservation of billsare imposed, as we have seen, by statute.

20 Keith, Responsible Government in the Dominions (1912) I, 361 ff.21Id.365. In the second edition (1927) Keith expresses the limitations in this

way: "The true limitation on the autonomy of Parliament is that it cannot by itsaction alter vitally the status of the territory for which it legislates" (at 312).

22Id. 368. "Colonial" in this context would appear to include all those legalsystems which have not achieved full autonomy. See also Zines, "The Growth ofAustralian Nationhood and its effect on the Powers of the Commonwealth" inZines (ed.), Commentaries on the Australian Constitution (1977) esp. 10-15, andthe authorities cited 1herein.

23 [1926] A.C. 482.24 Zines, Ope cit. 12.


ground of decision in the later cases of British Coal Corporation v.The King25 and Attorney-General for Ontario v. Attorney-General forCanada26 must be viewed in the light of the changes which the Statuteof Westminster had brought about with respect to the powers ofa Dominion Parliament. The doctrines of repugnancy and extraterritoriality could not prevent a Dominion Parliament, acting withina head of power allocated to it by its constituent instrument, fromabolishing a Crown prerogative falling within the subject-matter of thatpower.

But it would appear that a State Legislature would not have such apower unless granted expressly or by necessary intendment within~ theterms of a constituent power,27 and it could be argued that the "peace,order and good government" clause is not specific enough to supportlegislation abolishing or restricting the major28 royal prerogatives.29

(b) Representative and responsible Government: duty not to abdicateauthority

Another limitation referred to in the cases is that a State Parliamentcannot abolish the representative element in the legislative structure.In Taylor v. Attorney-General for Queensland,30 several judges suggested that such a change would be beyond power. Isaacs J. said:

I read the words "constitution of such legislature" as includingthe change from a unicameral to a bicameral system, or thereverse. Probably the "representative" character of the legislationis a basic condition of the power relied on, and is preserved bythe word "such", but, that being maintained, I can see no reasonfor cutting down the plain natural meaning of the words in question so as to exclude the power of a self-governing community tosay that for State purposes one House is sufficient as its organ oflegislation.31

Closely associated with this limitation is the doctrine that a StateParliament cannot abdicate its power by transferring its power of

25 [1935] A.C. 500.26 [1947] A.C. 127.27 Derived from the Imperial Parliament: British Coal Corporation v. R. [1935]

A.C. 500, 519.28 The major prerogatives are those relating to the exercise of powers affecting

the parliamentary system (dissolution etc.) while the minor prerogatives are thoseestablishing exceptions in favour of the Crown to general rules applying to thecommunity (such as preference for Crown debts). The minor prerogatives aresubject to statutory repeal: Roberts-Wray, Ope cit. 379, 557-559. But see Keith,Responsible Government in the Dominions (2nd ed. 1927) 310, for a criticismof the distinction.

29 Of course a Dominion legislature may enact such legislation under a "peace,welfare and good government" head of power. Croft v. Dunphy [1933] A.C. 156,163. See also Zines, Ope cit. 12, 41.

, 30 (1917) 23 C.L.R. 457, 474, 478, 481.3lId. 474. See also Re Scully (1937) 32 Tas.L.R. 1,42.


law-making to a new body.32 The two doctrines are inter-relatedhistorically. The growth of the Australian Colonial system from aposition of Crown control, through a legislative system based on arestricted franchise, to one based on a gener~.l suffrage where the LowerHouse could "make" and "unmake" governments, was a developmentleading to an extensive (but not complete) regime of colonial autonomy.It would be contrary to the principles underlying the system for the"clock to be turned back" by dispensing with the representativeelement. For this would be to use the constitutional alteration powerto create a new legislative body which was not envisaged within theoriginal rules of change.

This limitation would operate in different ways. It certainly wouldprevent the abolition of the Lower House, but not the Upper House,33although this House might be elected on a similar suffrage to thatpertaining to the Lower House. It would prevent the Lower Housefrom being by-passed in any deadlock procedure on bills including thesubstitution of a plebiscite or referendum procedure for the legislativewill of the Lower HOllse.34 It would also, in the light of Commonwealth Aluminium Corporation Ltd. v. Attorney-General for Queensland35 prevent a non-representative element outside the legislativestructure from being incorporated into that structure to amend thecontent of particular acts, even though the procedure might be subjectto approval by the Lower House.36

The parameters of the system of representative government are notexactly defined. Proportional representation, preferential voting and"first-past-the-post" electoral systems are within its ambit. Electoraldistricts of varying sizes may be established, probably subject to someoverall limitation as to disparities.37

It would appear also to be implicit in the fundamental rule of"representative government" that the system of responsible government

32 In Re Initiative and Referendum Act [1919] A.C. 935, 945: "It does Dotfollow that it can create and endow with its own capacity a new legislative powernot created by the Act to which it owes its existence." Commonwealth AluminiumCorporation Limited v. Attorney-General for Queensland [1976] Qd.R. 231,236-237 (Wanstall J.).

33 Taylor v. A ttorney-General for Queensland (1917) 23 C.L.R. 457. Claytonv. Heffron (1960) 105 C.L.R. 214.

M Supra D. 32.35 [1976] Qd.R. 231.36 In the instant case the argument (which was rejected by the majority) was

that a provision in an Act sanctioning a developmental agreement between aCompany and the State of Queensland to the effect that the agreement could onlybe varied by an agreement between the responsible Minister and the Company(which variation was subject to veto by the Legislative Assembly) could notprevent a later Parliament from legislating to amend the agreement in theordinary manner. It would appear that implicit in the judgment of Wanstall J. wasthe principle that to incorporate a private company into the legislative processwould be an abdication of authority: [1976] Qd.R. 231, 236-237.

37 But the requirements for frequency of redistributions operating in the Commonwealth sphere by force of s.24 of the Commonwealth Constitution (see

1978] Fun,damental Law and Constitutional Change 179

cannot be eliminated by creating a system whereby the Ministers ofthe Crown are chosen from outside Parliament or are not required totake seats in Parliament within a reasonable period of time after theirappointment.S8 If this were done the system of representative government would become a hollow shell with the Lower House operating ina shadowy arena with no direct control over Ministers except in relationto the passage or rejection of bills. The doctrine of responsible government has mainly a conventional basis but is recognized implicitly inthe reference in the Constitution Acts to "the officers liable to retirefrom office on political grounds"39 which ensures that the appointmentof a Ministry conforms to the electors' choice of the members of theLower House.

(c) Impermissible fetters

Finally, we may point to another type of constitutional alterationwhich would appear to infringe the principle which we have beendiscussing: the imposition of excessively rigid fetters in relation to theconstitutional alteration process. If, for example, a State Parliamentattempted to insert into its Constitution a provision to the effect thatno future Act altering the Constitution of the Upper House shouldbecome law unless it received the approval of say 80 per cent of theelectorate, such a provision would be subject to judicial disallowance onthe ground it was attempting to deprive the legislature of a power ofconstitutional change.-tO Involved therefore in the concept is that whilethe representative legislature may impose manner and form requirements that cut down on its freedom of action to legislate in theordinary manner, it cannot deny to itself a power to change the existingprovisions. Provisions which make change impossible or at least, froma practical view, impose overrigid fetters, would probably not beregarded as legislation for the "peace, order and good government ofthe State".41

Attorney-General of Australia (ex parte McKinlay) v. Commonwealth of Australia(1975) 7 A.L.R. 593) would not apply in the State sphere. However sec thejudgement of McTiernan and Jacobs JJ. at 615 on the meaning of the phrase"representative democracy".

as While this requirement is embodied in two of the Constitution Acts (VictorianConstitution Act, s. 51 South Australian Constitution Act, 8. 66) it rests on convention in the other states. The principle might be formulated in this way: if aconstitutional amendment bill were passed allowing Ministers to hold officewithout obtaining a seat in Parliament or requiring them to obtain a seat withina reasonable period of time, such a bill would be subject to challenge as infringinga basic principle of the Constitution (State). '

39 Lumb, The Constitutions of the Australian States (4th ed. 1977) 68.40 Friedmann, "Trethowan's Case, Parliamentary Sovereignty and the Limits of

Legal Change" (1950) 24 A.L.J. 103, 105-106.41 This is associated with the doctrine that a State Parliament cannot abdicate

its authority. By imposing an impracticable requirement, the power of amendmentis effectively taken aWllY frQtt;l the State Parliament which is endowed with a fulllaw-makini authority.


(iii) Entrenching ordinary legislation

Another 'question to which reference may be made is whether anentrenchment procedure can be laid down in relation to legislation ofa non-constitutional nature. To take the example of a Dog Act,42 can aState Parliament prescribe that such an Act can only be amended ifthe amending Act is approved by the electorate at a referendum? Willsuch a "manner and form" requirement be binding on a later Parliament? The legislation would be characterized as legislation outside thecategory of legislation relating to the "constitution, powers andprocedure of such legislature" and therefore the manner and formrequirement would not be) given force and effect by the proviso tosection 5 of the Colonial Laws Validity Act. The South EasternDrainage Board case43 did not, however, deal with powers relating tothe structure of the legislature. If such an issue had -been involved, theCourt would have had to answer the question whether manner andform reqyirements could be imposed in relation to ordinary legislationunder the "peace, order and good government" source of power.Clayton v. HefJron44 suggests that this source may validate mannerand form pro.visions in relation to constitutional legislation fallingoutside section 5 while the judgment of Hoare J. in the Coma/co case45

supports the view that this source is available with respect to ordinary(mining) legislation. One way of avoiding reliance on this source andof bringing the manner and form provision within the scope of section5 of the Colonial Laws Validity Act is to argue that a manner andform provision attached to ordinary legislation will by a principle of"embracement" throw its mantle around a later act not passed in theprescribed manner and form and thus bring it within the characterisation of legislation relating to the procedure of the legislature.46 Butthis appears to be an artificial way of dealing with the problem.

There does not appear to be any principle which prevents the "peace,order and good government" source of power from being -used toentrench legislation whether it deals with fundamental values (forexample a Bill of Rights) or lowly subject-matter (such as a DogAct).

(4) ."Patriating" the Imperial elements 01 the State Constitutions

It is now proposed to examine the methods by which the resid~alsovereignty and legislation of the United Kingdom Parliament can

42 The example is referred to in the judgment of the Privy Council in McCawleyv. R. [1920] A.C. 691, 704.

43 (1939) 62 C.L.R. 603.44 (1960) 105 C.L.R. 214, 250.45 [1976] Qd.R. 231.46 This is the method of classification adopted by Hoare J. in the Comalco

case: [1976] Qd.~. 231, 248.


be terminated and repealed and "autochthonous" State Constitutionsestablished.

(i) Repeal by the Commonwealth or United Kingdom Parliaments at theinitiative oj the Commonwealth Government and Parliament alone

In respect of those parts of the States' constitutional system whichconsist of Imperial legislation views have been expressed that the externalaffairs power of the Commonwealth (section 51 (xxix) of the Commonwealth Constitution) provides a basis for Commonwealth legislationamending or -repealing such legislation. Likewise, it has been suggestedthat Imperial ties such as the relationship between the Monarch and theState Governors also fall within the scope of the power. The argumentis that the external affairs power encompasses not only the subjectmatter Qf treaties and extra-territorial matters but also all matterspertaining to the relationship between Australia (and its componentunits) and other countries (including the United Kingdom and itsinstitutions) .47 Thus it could be argued, the appeal to the Privy Council(both the "prerogative" and the appeal as "of right") is a matter whichwould fall within section 51 (xxix) and which could be abolished bylegislation enacted pursuant to that head of power.

However, the slight authority which exists suggests that the appealto the Privy Council from State Courts {in matters of State jurisdiction) and other matters involving a British connection are notextra-territorial matters or essentially "external relations" questionsbut are part of the fabric of the States' judicial system.48 On this viewthe external affairs power would not touch on such matters or othermatters falling within the States' constitutional system and which arepreserved from alteration by the Commonwealth Parliament bysection 106.

Another suggestion is that Imperial legislation relating to the Statescan be repealed by the Commonwealth Parliament under the finalparagraph Qf section 2(2) of the Statute of Westminster. But thecontext of this section analyzed in the light of sections 8 and 9 of theStatute indicates that the phrase "part of the law of the Dominion"refers only to such legislation as falls within the sphere of authority ofthe central legislature of the Dominion.49

Alternatively it is suggested that the Commonwealth could irrespectiveof the wishes of the States request and consent to the enactment bythe British Parliament of legislation repealing the sl:lrviving Imperial

47 R. v. Sharkey (1949) 79 C.L.R. 121, 149 (Dixon J.); Commonwealth v.State of Queensland (1975) 7 A.L.R. 351, 381-382 (Murphy J.). See also Sawer,"The British Connection" (1973) 47 A.L.I. 113, 115-116.

48 Commonwealth v. State 0/ Queensland (1975) 7 A.L.R. 351, 361-362 (GibbsJ.); McCawley v. R. (1918) 26 C.L.R. 9, 51-52 per Isaacs and Rich JJ.

49 Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976)76-77.


Acts. Again the phrase "part of the law of the Dominion" suggests thatthe request and consent must be in relation to laws within the sphereof Commonwealth exclusive or concurrent areas of powerOO andsection 9(2) supports, although it is true not conclusivelY,sl thisinterpretation.

(ii) Repeal by the United Kingdom Parliament at the initiative of theBritish Government and Parliament alone

Another proposal is that the United Kingdom authorities coulddecide to abolish appeals to the Privy Council from the court~ of allthe self-governing parts of the Commonwealth [of Nations] and couldexpressly include the States within the operation of such legislation.The restraints imposed by section 4 of the Statute of Westminsterwould not operate here as the Statute does not impose a request andconsent procedure in relation to Imperial legislation affecting theStates. Never~heless convention dictates that the United Kingdomauthorities should not act without such request and consent.52

(iii) Repeal by the Commonwealth Parliament at the initiative 0/ theState Parliaments

Another proposal is that the Commonwealth Parliament acting atthe request or with the concurrence of the Parliaments of all the Statesdirectly concerned could repeal such Imperial legislation under section51(xxxviii) of the Commonwealth Constitution. That placitum refers to

The exercise within the Commonwealth, at the request or withthe concurrence of the Parliaments of all the States directlyconcerned, of any power which can at the establishment of thisConstitution be exercised only by the Parliament of the UnitedKingdom or by the Federal Council of Australasia.

The meaning of these words is obscure58 but it is suggested that thephrase "within the Commonwealth" contemplates legislation of anature which does not encompass repeal of legislation originallyenacted for all the Colonies forming part of the British Empire,although it would encompass surviving Imperial Acts applying specifically to the States or to individual States.54

(iv) Repeal by Constitutional amendment under section 128 of theCommonwealth Constitution

It has already been argued that section 128 would enable the contentof State Constitutions (including paramount Imperial legislation) to I

00 Ukley v. Ukley [1977] V.R. 121, 129-130. Wynes, Ope cit. 77-78.61 Supra n. 55.52 Ukley v. Ukley [1977] V.R. 121, 129-130.53 For a discussion of this placitum see Nettheim, "The Power to Abolish

Appeals to the Privy Council" (1965) 39 A.LJ. 39, 44 ff; Lumb and Ryan, Ope cit.,190-191; O'Connell, Ope cit. 38.

M Lumb and Ryan, Ope cit. 190-191.


be dealt with by constitutional amendment. Although not directly partof the Commonwealth Constitution the State Constitutions are "continued" in force until altered in accordance with those Constitutions.55

A constitutional alteration proposal under section 128 which affectedall or part of a State Constitution would, of course, involve an amendment (by implication) of section 106 in that it would be proposing analteration which was not in accordance with the manner and form laiddown in the State Constitution, but in accordance with the mannerand form laiddown in section 128.

While not prohibited by section 128, such a method does not appearto be an appropriate method of dealing with a State C'onstitutionalmatter in that it would impinge on the existing "autonomy" of theState Constitutions. The clear objective of section 106 is to preservethe State Constitutions and their alteration processes as having a sourcewithin the State systems. That relationship would be impaired bywholesale or piecemeal amendments under section 128.

Of course, if the method to be discussed below was unsuccessful, thesection 128 method could then be adopted as a "second best".

(v) Repeal by the United Kingdom Parliament at the initiative of theState Parliaments and the Commonwealth Parliament

It is submitted that the ideal method of "patriating" the State Constitutions would be by way of a joint request made by the States withCommonwealth concurrence to Westminster for legislation by theUnited Kingdom Parliament. Such action might take the form of"request and consent" statutes or resolutions of both Houses of theState Parliaments and Commonwealth Parliament. Although thesubject-matter would deal with matters outside Commonwealth exclusiveand concurrent power, the participation of the Commonwealth wouldbe necessary as the subject-matter of the request would relate tomatters covered by the Commonwealth Constitution (for examplesection 106) and would have an impact on the constitutional arrangements established by the Statute of Westminster.56

Would the request and consent of all six States be necessary beforeWestminster would take action? The answer to this question is speculative. Arguing from the analogy of section 51 (xxviii) a six-Statesrequest would be necessary as all States are "directly concerned" inany new arrangements affecting United Kingdom-State relations. On

55 Contrast the views of Dixon C.J., McTiernan, Taylor and Windeyer JJ. inClayton v. Heffron (1960) 105 C.L.R. 214,251, emphasizing the continuation ofthe legislative power of the States pursuant to SSe 106 and 107 of the Commonwealth Constitution with the views of Barwick C.J. (New South Wales v.Commonwealth (1975) 8 A.L.R. 1, 15) and Murphy J. (Bistricic v. Rokov (1976)11 A.L.R. 129, 139) suggesting that the State Constitutions receive this authorityfrom s. 106. See also O'Connell, Ope cit. 38.

56 See the view of Bailey mentioned in the Working Paper on Legislative PowersNew South Wales Law Reform Commission (1972) 157. Dixon, "The Statute ofWestminster, 1931" (1936) 10 A.L.J. Supp. 96, 100.

184 Federal Law Review [VOLUME 9\

the other hand, it is possible that the United Kingdom Parliament:would regard the federal principle embodied in section 128 as theappropriate analogy: on this basis a request from a majority of the ~

States (and the Commonwealth) would be a sufficient ground for the:United Kingdom Parliament to legislate.

The request and consent legislation could take one of two forms. Itmight request the enactment of a Statute of Westminster AmendmentAct or of an Australian States Constitution Act. In either form thesurviving Imperial powers would be patriated to an "indigenous source.If the second method was followed, it would be a matter to decidewhether each State Constitution Act would be embodied in the UnitedKingdom Act (with a suitably framed clause similar to section 8 of theStatute of Westminster to the effect that a power of alteration orrepeal must be exercised in the manner and form laid down in eachConstitution Act) or whether authority would be given to eachState Legislature to adopt a Constitution. In this event, it wouldbe necessary to specify some approval procedure for the adoptionof the State Constitutions such as framing by a ConstitutionalConvention, subsequent enactment by the State Parliament andsubmission to the electorate at a referendum, or enactment by theState Parliament (preceded by a constitutional drafting process) andapproval at a referendum. If this were not done the political parties ina majority in the existing State Parliaments could mould the newConstitutions in a manner favourable to their policies.

While complete "autochthony"S7 could not be achieved for the newor revised State Constitutions, they would be patriated to an Australiancontext and no further recourse to the United Kingdom Parliamentwould be necessary. Current limitations on the amending power wouldthen be absorbed within the State constitutional framework and thearticulation of constitutional doctrines relating to amendment would beelaborated by the Courts without the complications of the Imperialinheritance. A new grundnorm or rule of recognition would in time beestablished and the State Constitutions woul4 take their place as partof a total Australian system and preserved by section 106 of theCommonwealth Constitution. The present disparity in the "rules ofchange" would be unified into one system. However, withi~ this systeman order of superiority and subordination would still exist: at thelower level the State Constitutions and their amendment procedures(whether rigid or flexible) and at the higher level the C'ommonwealthConstitution with the amendment procedure embodied in section 128based on majoritarian and federal principles.58

57 See Marshall, Constitutional Theory (1974) 58 ff. for different criteria of"autochthony". (

58 Perhaps the federalist principle would be more fully implemented if analternative initiation procedure were provided: a request by a majority of StateParliaments.

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