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Constitution Amendment Notes

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2. Constitution Amendment Amending the Commonwealth Constitution

The Constitution itself incorporates, in s 128, the referendum mechanism by which it may be changed.

* However, achieving reform has proved difficult, with the political and other obstacles often proving insurmountable. Since 1901, 8/44 proposals put to the people have succeeded.
The result is that the Constitution remains almost as it was in 1901, 'constitutionally speaking the frozen continent'. Justice John Toohey of the High Court referred to the argument that written constitution create a "two-track lawmaking system". 1

* Under such a system, "the normal lawmaking path" lies through Parliament, but changes to the Constitution, that is -- to "the judgments previously made in the higher law accents of We the People" -- must go down "a higher lawmaking track".

* In Australia, this means a referendum under s 128. While Toohey claims that popular amendment means judicial enforcement of the constitution serves the popular will, the practicality is that if the model does not work, or 'the people' are reluctant or unable to use it, does it serve the popular will?
A proposed law for the alteration of the Commonwealth Constitution must be (under s 128):

* Involves a number of institutions / groups: both Houses of Parliament, the Governor-General, the electors

* Double majority reflects federal concerns i. passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice; and ii. at a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of the states (i.e. in at least 4/6 states).
Note: there is compulsory voting (s 45 Referendum (Machinery Provisions) Act 1984 (Cth)), pamphlets of no more than 2000 words are sent out, and assent by the G-G is required. Amendment of State Constitutions

Each State Parliament has power to amend the constitution of its State, subject to such binding manner and form requirements as the Parliament itself has been able to impose in the exercise of that power. States in Empire

* States were colonies, within the British Empire

* States had constitutional documents (legislation) from colonial times, continuing post-federation: s 106

* However, Imperial laws affected the powers of the colonies / States. The power to enact a law includes the power to repeal or amend the law. Can previous parliaments govern/bind future parliaments?
It seems Yes at Federal level due to the Constitution.
No at state level, because the Constitutions are pieces of legislation, and traditional Dicean theory stresses parliamentary sovereignty, or the belief in the ability of parliaments to regulate themselves.

* But a higher authority may give a Parliament the power to do so. The source of power to entrench a law must therefore come from a higher source. In the case of the States it came originally from Imperial legislation, and then from the Australia Acts 1986 (Cth).

* The Colonial Laws Validity Act 1865 ('CLVA') ceased to apply to the States upon the commencement of s 2 and 3 of the Australia Acts 1986 (Cth) and the State Parliaments were given full legislative power. s 6 of the Australia Acts 1986 provides

6. Notwithstanding sections 2 and 3(2) above, a law made (THE AMENDING LAW) after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law (ENTRENCHING PROVISION) made by that Parliament, whether made before or after the commencement of this Act. 1 Australian

Constitutional Law and Theory, page 1340.


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