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Altering the Constitution: Some Aspects of Section 128

Published online by Cambridge University Press:  24 January 2025

James A Thomson
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Abstract

Can the formal amendment process embodied in s 128 of the Commonwealth Constitution be utilised to patriate the Constitution, to make Australia a republic, to establish a Bill of Rights, to abolish State Constitutions or Parliaments and to alter s 128 itself or provide a completely new amendment procedure? What is the ambit of s 128? This article considers the history, scope and interpretation of s 128.

Type
Research Article
Information
Federal Law Review , Volume 13 , Issue 4 , December 1983 , pp. 323 - 345
Copyright
Copyright © 1983 The Australian National University

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References

1 State Constitutions can also be amended. See, eg, Lumb, R D, “Methods of Alteration of State Constitutions in the United States and Australia” (1982) 13 FL Rev 1Google Scholar; Lumb, R D, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 FL Rev 148, 163-184Google Scholar; Wynes, WA, Legislative, Executive and Judicial Powers in Australia (5th ed 1976) 534-540Google Scholar. See also, Lumb, R D, The Constitutions of the Australian States (4th ed 1977)Google Scholar.

2 63 & 64 Vic c 12 (1900) The Commonwealth of Australia Constitution Act (UK). The Constitution of the Commonwealth took effect on 1 January 1901 by virtue of ss 3 and 4 of that Act and Queen Victoria's proclamation of 17 September 1900. The proclamation is published in Gazette 1901, p 1 and Commonwealth Statutory Rules 1901-1956 (vol 5) p 5300.

3 For a list of referenda, see, eg, Richardson, J E, Patterns of Australian Federalism (1973) 131-142;Google Scholar Harris, C P, Relationships Between Federal and State Governments inAustralia (1979) 5-8Google Scholar. An analysis of the referenda is in Holmes, J and Sharman, C, The Australian Federal System (1977) 60-100Google Scholar. For other proposals, see, Alterations That Have Been Proposed to the Commonwealth Constitution (published by the Australian Constitutional Convention, Nov 1974). Between 1901 and 1973 “[a] total of seventy bills for the alteration of the Constitution [had] been introduced into Parliament.” J E Richadson, supra, 104. For a list of proposed laws which lapsed or were not submitted to a referendum, see, The Australian Constitution Annotated (A-G's Dept 1980) 453-454; Parlt of Cth Aust (Dept of H of R), Bills Not Passed Into Law and Bills Which Originally Lapsed But Subsequently Passed: Sessions 1901-02 to 1977 (1978) 12-18. See also, Constitution Alteration (Holders of Offices of Profit) 1978,, introduced in Senate on 15 November 1978 and 5 March 1981; Constitution Alteration (Electors' Initiative) 1980, introduced in Senate on 10 September 1980; Constitution Alteration (Fixed Term Parliaments) 1981, introduced in Senate on 11 November 1981 and passed with amendments by Senate on 17 November 1982; Constitution Alteration (Fixed Term Parliaments) 1983; Constitution Alteration (Inter-change of Powers) 1983; Constitution Alteration (Advisory Jurisdiction of High Court) 1983; Constitution Alteration (Removal of Outmoded and Expended Provisions) 1983, introduced in Senate on 12 May 1983; Constitution Alteration (Appropriation Bills) 1983, introduced in Senate on 17 May 1983. For referenda statistics see, A Summary of Commonwealth Election and Referendum Statistics 1901-1975 (published by Australian Electoral Office, 1976) 66-79.

4 There may be methods of constitutional amendment other than s 128:

(i) Sections which remain operative only “until the Parliament otherwise provides” by legislating pursuant to s 51(xxxvi). See, eg, ss 3, 7, 10, 22, 29,30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73, 87, 93, 96, 97. See also s49. “[A] large number of provisions in the Constitution ... leave to the Parliament the power of altering the actual constitutional provisions.” AG (Cth) (ex rel McKinlay) v Commonwealth (1975) 135 CLR 1, 24 per Barwick CJ. See also, Qld v Commonwealth (1977) 139 CLR 585, 592 per Barwick CJ.

(ii) Section 51(xxxvii). See generally, Johnson, G, “The Reference Power in the Australian Constitution” (1973) 9 Melb UL Rev 42Google Scholar.

(iii) Section 51(xxxviii). See generally, Booker, K, “Section 51(:xx:xviii) of the Constitution” (1981) 4 UNSWLI 91Google Scholar; Bennett, A, “Can the Const1tut1on be Amended without a Referendum?” (1982) 56 ALI 358Google Scholar; Winterton, G, “Section 51(xxxviii) of the Constitution and Amendment of the 'Covering Clauses'” (1982) 5 UNSWLI 327Google Scholar.

(iv) Constitutional amendment by United Kingdom legislation. See text below at nn 122-130.

(v) The establishment of an autochthonous Australian Constitution. See text below at nn 131-139.

As to these alternative methods of amendment, see generally, C Howard and G Evans, “Submission to Victorian Delegation to the Constitutional Convention” (unpub 9 Nov 1972 esp at pp 1-4) [Submission No 82(c) to 1973 Session of the Australian Constitutional Convention]; Howard, C, “Constitutional Amendment: Lessons from Past Experience” (1973) 45 (No 1) Aust Q 35, 36-43CrossRefGoogle Scholar; Evans, G, “Changing the System” in S Ence!, D Horne and E Thompson (eds), Change the Rules! Towards a Democratic Constitution (1977) 141, 154-161Google Scholar. See generally, Sampford, C J, “Some Limitations on Constitutional Change” (1979) 12 Melb UL Rev 210Google Scholar.

5 See, eg, Quick, J and Garran, R R, The Annotated Constitution of the Australian Commonwealth (1901 rep 1976) 985-995Google Scholar; Moore, W H, The Constitution of the Commonwealth of Australia (1st ed 1902) 316-323Google Scholar (2nd ed 1910) 597-607; Howard, C, Australian Federal Constitutional Law (1972) 2-3, 5, 505-509Google Scholar; W A Wynes, supra n 1, 540-544; Lumb, RD and Ryan, KW, The Constitution of the Commonwealth of Australia Annotated (3rd ed 1981) 52-53, 400-403Google Scholar; Gain, A C, “Existing Provisions for Altering the Commonwealth Constitution” in G V Portus (ed), Studies in the Australian Constitution (1933) 208Google Scholar; Canaway, AP, “A Point Under Section 128 of the Commonwealth Constitution” (1937) 10 ALI 345Google Scholar; Canaway, A P, “The Safety-Valve of the Commonwealth Constitution” (1938) 12 ALJ 108Google Scholar; Canaway, AP, “The By-Pass to Constitutional Reform” (1940) 13 ALI 394Google Scholar; Sawer, G, “Some Legal Assumptions of Constitutional Change” (1957) 4 UWAL Rev 1, 2-7Google Scholar; Richardson, J E, “In the Matter of Section 128 of the Commonwealth Constitution”, in Standing Committee B Report 18, 41, 44 (1974)Google Scholar in Proceedings of the Australian Constitutional Convention and Standing Committee Reports (1975); E Campbell, “An Australian-Made Constitution for the Commonwealth of Australia”, in Standing Committee D Report 95 (1974) in id; RD Lumb, “Fundamental Law”, supra n 1, 153-163, 182-183; Lumb, R D, Australian Constitutionalism (1983) 130-139Google Scholar. For reference to s 128 in High Court opinions see, The Australian Constitution Annotated, supra n 3, 454-455 (1976-1977 Cumulative Supp (1980) 91-92); Re Pearson, ex parte Sipka (1983) 45 ALR 1, 6, 20, 21; Koowarta v Bielke-Petersen (1982) 39 ALR 417,460 per Mason J. Other literature on the scope of s 128 is cited in subsequent footnotes.

6 The major forums have been:

(i) Report of the Royal Commission on the Constitution (1929). See, eg, Bailey, K H, “The Report of the Royal Commission on the Constitution of the Commonwealth” (1929) 5 Econ Rec 289CrossRefGoogle Scholar reprinted in Prest, W and Mathews, R L (eds), The Development of Australian Fiscal Federalism: Selected Readings (1980) 83-92Google Scholar; J E Richardson, supra n 3, 98-99.

(ii) Conference of Commonwealth and State Ministers on Constitutional Matters held in Melbourne 16 to 28 February 1934: Proceedings and Decisions of Conference with Appendices (Parliamentary Paper no 134 of 1935). See, eg, Garran, R R, Prosper the Commonwealth (1958) 207-208Google Scholar; J E Richardson, supra n 3, 92-94.

(iii) Convention of Representatives of the Commonwealth and State Ministers on Proposed Alteration of the Commonwealth Constitution: Held at Canberra 24 November-2 December 1942 (Record of Proceedings). See, eg, Evatt, H V, Post-War Reconstruction: A Case for Greater Commonwealth Powers (1942)Google Scholar; Broadbent, J E, “Constitutional Amendments in Australia” (1943) 25 J Comp Leg & Int L 1Google Scholar (3rd Series); Walters, W J, “The Opposition and the 'Powers' Referendum, 1944” (1969) 4 Politics 42, 43-45CrossRefGoogle Scholar; Hasluck, P, The Government and the People 1942-1945 (1970) 456-459, 524-540.Google Scholar

(iv) Repor of the Joint Committee on Constitutional Review (1959). See, eg, J E Richardson, supra n 3, 99-100.

(v) Australian Constitutional Convention. Sessions have been held in 1973 (Sydney), 1975 (Melbourne), 1976 (Hobart), 1978 (Perth), 1983 (Adelaide). See, eg Lumb, R D, “Reform of the Constitution-The 1973 Session of the Australian Constitutional Convention” in L Zines (ed) Commentaries on the Australian Constitution: A Tribute to Geoffrey Sawer (1977) 233Google Scholar; J A La Nauze, “Federal Conventions—The 1890's and Now” (1973) 45 (No 1) Aust Q 52; Hamer, R J, “Australian Constitutional Convention of 1973” (1973) 45 (No 1) Aust Q 58CrossRefGoogle Scholar; Richardson, J E, “The Australian Constitutionat Convention, Sydney, 1973” (1973) 45 (No 4) Aust Q 90CrossRefGoogle Scholar; J E Richardson, “Reform of the Constitution: The Referendums and Constitutional Convention” in Evans, G (ed) Labor and the Constitution 1972-1975 (1977) 76, 89-93Google Scholar; Wells, C, “Second Plenary Session of the Australian Constitutional Convention 1975” (1975) 49 ALJ 602Google Scholar; Wells, C, “Third Plenary Session” (1976) 50 AU 611Google Scholar; Saunders, C, “Fourth Plenary Session” (1978) 52 AU 598Google Scholar; J C Finemore, “Lessons from the Australian Constitutional Convention” in R Mathews (ed), Making Federalism Work (1976) 58; KW Ryan and W D Hewitt, The Australian Constitutional Convention (1977) (Occasional Paper No 6-Centre for Federal Fiscal Relations-AND); R J Ellicott, “The Australian Constitutional Convention” (1977) 58 Parliamentarian 89; Doyle, R, “The Australian Constitutional Convention, 1973-79” (1980) 61 Parliamentarian 153Google Scholar; Saunders, C, “Australian Constitutional Convention” (1982) 13 Melb UL Rev 628Google Scholar; D Blackwood, P Ford and A Schick, A Short Historical Survey of the Activities of the Australian Constitutional Convention 1973-1978 (1983); Note, “A Major Constitutional Report” (1983) 57 AU 127; Lumb, RD, “The Judiciary, the Interpretation of the Constitution and the Australian Constitutional Convention” (1983) 57 ALJ 229, 231-234Google Scholar. See generally, Howard, C, Australia's Constitution (1978) 155-160Google Scholar; RR Garran, supra n 6(ii), 209-214.

(vi) Other forums have been Parliamentary Committees and non government organisations. See, eg, “The Constitutional Qualifications of Members of Parliament” (Report by the Senate Standing Committee on Constitutional and Legal Affairs) (1981); National Conference for a Democratic Constitution (held in Exhibition Hall, Melbourne 23-25 Sept 1977); “Changing the System: Political and Constitutional Reform: Some Options and Difficulties” (Aust Pol Stud Ass Monograph No 25) (1981). See generally, Change, which is a journal published by the Campaign for Constitutional Change. The NSW Law Foundation has a project to review the Constitution. For details, see, [1981] Reform 127; Note, “The Remaking of the Australian Constitution” (1982) 56 ALJ 1.

7 As to particular referendum proposals, see, eg, L D Anning, “The Referendum on the Alteration of the Commonwealth Constitution, April 1910: The Western Australian Campaign and Result” (BA hons thesis Uni WA 1972); Prince, E J, “Towards National Railway Planning by the Commonwealth Government: Defence Considerations and the Constituitional Referenda of 1911 and 1913” (1976) 22 Aust J Pol & Hist 62CrossRefGoogle Scholar; Joyner, C, Holman Versus Hughes: Extension of Australian Commonwealth Powers (1961)Google Scholar; A Wildavsky, “The 1926 Referendum: Parties, Pressure Groups and Personalities” (unpub research paper Dept of Govt Syd Uni 1955); D Goldsworthy, “Playford, the LCL and the 'Powers' Referendum Issue 1942-4” (1966) 12 Aust J Pol & Hist 400; W J Walters, supra n 6(iii) 47-55; Cranston, R, “Federalism and the Australian Referenda of the Forties” (1970) 3 Qld Hist Rev 23Google Scholar; Tennant, K, Evatt: Politics and Justice 159-162Google Scholar (1970); L C Webb, Communism and Democracy in Australia: A Survey of the 1951 Referendum (1954); CH Sheldon, “Puhl Opinion and High Courts: Communist Party Cases in Four Constitutional Systems” (1967) 20 West Pol Q 341, 353-356; K Tennant, supra, 282-286; I Fitchett, “Menzies and His Myths: The Inside Story of Menzies' Early Years as Prime Minister” National Times (11-16 April 1977) 26, 30, 32; J Rydon, “Prices and Incomes Referendum 1973: the Pattern of Failure” (1974) 9 Politics, 22; J E Richardson, “Reform of the Constitution”, supra n 6(v), 80-84; J Rydon, “Constitutional Change and Referendums” (1977) 12 Politics 96; C Saunders, “Changing the Constitution; the Three Referendum Amendments of 1977” (1977) 51 ALJ 508; C Saunders, “The Interchange of Powers Proposal” (1978) 52 AU 187 (Pt 1), 254 (Pt 2). For more general assessments, see, eg, Isaac Isaacs, Australian Democracy and Our Constitutional System (1939); J G Latham, ''Changing the Constitution” (1953) 1 Syd L Rev 14; B M Snedden, “The Australian Constitution: The Need for Review” (1965) 9 Local Govt Admin 36; PD Durack and RD Wilson, “Do We Need a New Constitution for the Commonwealth?” (1967) 41 ALI 231; Change The Rules!, supra n 4; C Howard, The Constitution, Power and Politics (1980); D Jaensch, “Remaking the Australian Constitution” (1981) 58 (No 7) Current Affairs Bull 14; Mitchell, R Else, “Australian Processes for Constitutional Amendment” in R L Mathews (ed), Public Policies in Two Federal Countries: Canada and Australia (1982) 83, 85-87Google Scholar. See generally, C Howard, supra n 6(v), 129-153; Crisp, L F, Australian National Government (5th ed 1983) 40-57Google Scholar; Howard, C, “What Should Be Done About Our Constitution"? (1977) Oracle [Monash Uni Law Students Magazine] 55-64Google Scholar; McMillan, J, Evans, G and Storey, H, Australia's Constitution: Time For Change? (1983)Google Scholar.

8 Generally as to referenda and referenda procedure see, eg, Higgins, H B, “The Rigid Constitution” (1905) 20 Pol Sci Q 203CrossRefGoogle Scholar; Parker, R S, “The People and the Constitution” in Federalism in Australia (1949) 135Google Scholar; Partridge, P H, “The Politics of Federalism” in G Sawer (ed), Federalism: An Australian Jubilee Study (1952) 174, 184-187Google Scholar; Livingston, W S, Federalism and Constitutional Change (1956) 110-149CrossRefGoogle Scholar; Menzies, R, Central Power in the Australian Commonwealth (1967) 12-25Google Scholar; Coper, M, “Why a Referendum is Likely to Fail” Sydney Morning Herald (20 September 1973) 7Google Scholar; Puplick, C J, “The New South Wales Constitutional League and the 'Double No' Campaign” (1974) 9 Politics 31CrossRefGoogle Scholar; Woldring, K, “The Case for voluntary voting in referendums” (1976) 11 Politics 209CrossRefGoogle Scholar; Aitkin, D, “The great Oz apathy to Referendums” National Times (4-9 October 1976) 54Google Scholar; Goot, M and Beed, T, “The referenda: pollsters and predictions” (1977) 12 Politics 86CrossRefGoogle Scholar; Aitkin, D, “Australia” in D Butler and A Ranney (eds), Referendums: A Comparative Study of Practice and Theory (1978) 123Google Scholar; RS Parker, “The Future of the Constitution” in Future Questions in Australian Politics 1 (1979 Meredith Memorial Lectures); Altman, D, “Obstacles to Constitutional Change” (1979) 51 (No 1) Aust Q 103CrossRefGoogle Scholar; C Howard and CA Saunders, “Constitutional Amendment and Constitutional Reform in Australia” in Public Policies in Two Federal Countries, supra n 7, 69'. As to the relationship of High Court decisions and referenda, see, eg, Vile, M J, “Judicial Review and Politics in Australia” (1957) 51 Am Pol Sci Rev 386CrossRefGoogle Scholar; Joyner, C, “Australian Politics and Constitution Alteration Referenda” (1958) 2 Midwest J Pol Sci 191CrossRefGoogle Scholar. Sir Nininan, Stephen, “Opening of Convention”, Official Record of Debates of the Australian Constitutional Convention (1983) 3-4Google Scholar. See also, Bell, D A, “The Referendum: Democracy's Barrier to Racial Equality” (1978) 54 Washington L Rev 1Google Scholar.

9 As to how this might be achieved see, eg, text below accompanying nn 95-104.

10 It has been suggested that:

[o]ne of the most difficult tasks which the convention[s] [in the 1890's] had to perform, was to devise a mode of amending the Constitution which would make that instrument sufficiently rigid to protect the rights of the several States, to secure deliberation before action, and to discourage a 'habit of mending' which might become a 'habit of tinkering,' but which should at the same time leave it flexible enough to recognize that development is as muchl a law of state life as existence, and to harmonize with the spirit of a people with whom 'majority rule' is the first principle of government ....

W H Moore, supra n 5 (2nd ed) 598. In 1901 it was “observed that the facilities for altering the Constitution of the Commonwealth are much greater than those for altering the American Constitution”. J Quick and R R Garran, supra n 5, 995. By 1908 it was hoped that Australia had “both ... a rigid and ... a flexible constitution, which cannot hastily be changed, but yet admits of easy amendment, wherever alteration or reform is demanded by the deliberate voice of the nation.” Dicey, A V, An Introduction to the Study of the Law of the Constitution (7th ed 1908) 535Google Scholar, quoted by PD Durack and RD Wilson, supra n 7, 242. For an assessment of s 128 as an amendment procedure, see the literature cited in supra nn 7 and 8.

11 The 1891 draft Constitution Bill provided for proposed amendments to be submitted to State Conventions elected by electors in each State. Official Report of the National Australasian Convention Debates (1891) 943, 963-964. Section 128 was amended in 1977. The Constitution Alteration (Power of Amendment) 1930, which proposed to vest in the Commonwealth Parliament a power to amend the Constitution, the Constitution Alteration (Mode of Altering the Constitution) 1974, which proposed to permit ten-itorial electors to vote in referendums and to require a majority approval in only half 1:>f the States, and the Reports of the 1929 Royal Commission and 1959 Joint Committee concerning the amendment of s 128 are set forth in Alterations That Have Been Proposed to the Commonwealth Constitution, supra n 3, 56-58. The Australian Constitutional Convention is also considering amendments to s 128. See, eg, Report of Standing Committee B., supra n 5, 5-9; Official Record of Debates, supra n 8 (on 29 April 1983). There has been established in 1983 a Constitutional Amendment Sub-Committee of the Standing Committee of the Australian Constitutional Convention. For other suggestions, see, eg, PD Durack and[ RD Wilson, supra n 7, 243; C Howard, supra n 7, 150-151; R Else-Mitchell, supra n 7, 83, 85.

12 Although “the founders of the Constitution availed themselves to the full of the opportunities offered by modern literature for a comparison of existing Constitutions” s 128 is unique. “In no other matter was so much careful attention bestowed upon the methods of other Constitutions, and on the lessons to be gained from the experience of the United States and Switzerland.” W H Moore, supra n 5, 607, 598 (2nd ed). The 'founders could tum to the discussion of the amendment procesS1 in other countries and Australia in Garran, RR, The Coming Commonwealth: An Australian Handbook of Federal Government (1897) 69-70 (US), 79-80 (Swiss), 103 (German), 182-184Google Scholar. For modern comparative examples of amendment requirements in other countries, see, eg, McWhinney, E, “Amendment of the Constitution” in RR Bowie and CJ Friedrich (eds) Studies in Federalism (1954) 790Google Scholar. See generally, McWhinney, E, Constitution Making: Principles, Process, Practice (1981)CrossRefGoogle Scholar.

13 Article V of the US Constitution provides two amendment procedures. Proposals to amend the Constitution can be made by Congress or a convention called by Congress on the application of State Legislatures. Proposed amendments from either source must be ratified by State Legislatures or Conventions. See generally, Hadju, R and Rosenblum, B, 'The Process of Constitutional Amendment” (1979) 79 Columbia L Rev 106Google Scholar. The Convention method of proposing amendments has never been utilised. Literature examining questions concerning an Article V Convention is cited in Alstyne, W Van, “The Limited Constitutional Convention-The Recurring Answer” [1979] Duke LJ 985CrossRefGoogle Scholar. See also, Dellinger, W, “Who Controls A Constitutional Convention? A Response” [1979] Duke LJ 999CrossRefGoogle Scholar; Edel, W, A Constitutional Convention: Threat or Challenge (1981)CrossRefGoogle Scholar. As to questions concerning ratification of amendment proposals, see, eg, Ginsburg, R, “Ratification of the Equal Rights Amendment: A Question of Time” (1979) 57 Texas L Rev 919Google Scholar; Baker, A, “ERA: The Effect of Extending the Time for Ratification on Attempts to Rescind Prior Ratifications” (1979) 28 Emory U 71Google Scholar.

It has been 114 years since any very broad language was added to the [United States] Constitution (the ratification [in 1868] of the fourteenth amendment), and the rough road travelled by both the Equal Rights Amendment and the various proposed “right to life” amendments suggests that . . . [the US] may never again add a constitutional provision of similar openness.

Schauer, F, “An Essay on Constitutional Language” (1982) 29 UCLA L Rev 797, 801Google Scholar n 14.

14 Sections 38 to 49 of the Constitution Act, 1982. It has been suggested that these amending procedures will tum out in practice to be even more conservative than the ... method :[used from 1867 to 19811 of request to London, and thaJJI the Australian sec. 128. This is because the new procedures require such a high degree of consensus in so many legislatures and m a political system where the national parties are relatively less influential than in Australia and the provincial variations and differences of interests relatively greater.

G Sawer, Foreward, (1982) 2 (No 3) Canada Today 2, 4. See generally, McWhinney, E, Canada And The Constitution 1979-1982: Patriation And The Charter Of Rights (1982)CrossRefGoogle Scholar; Sir Ninian, Stephen, “Constitutional Change. In Canada: Lessons And Analogies From Across The Pacific” (1983) 42 Aust J Pub Admin 173Google Scholar.

15 Article 368 of the Constitution of India. The Supreme Court: of India has indicated that certain aspects of the Constitution might be unamendable. See, eg, Aikman, C C, 'The Debate on the Amendment of the Indian Constitution” (1978) 9 Vic U Wellington L Rev 357Google Scholar; Morgan, D G, “The Indian 'Essential Features' Case” (1981) 30 Int Comp LQ 307CrossRefGoogle Scholar; Rudolph, L I and Rudolph, S H, “Judicial Review versus Parliamentary Sovereignty: The Struggle Over Stateness in India” (1981) 29 J Cth and Comp Pol 231Google Scholar; Minerva Mills v Union of India [1980] 3 SCC 625, AIR 1980 SC 1789.

[W]hat really makes the [Supreme] Court [of India] unique in contemp_orary annals is the fact that it ... exercises constituent power. In other words, 1t has exe11Cised judicial review not only over legislation subordinate to the Constitution, but over amendments to the Constitution itself-and has in fact invalidated some amendments. In India ... both Parliament and the Supreme Court have become constituent assemblies in permanent session.

Baxi, U, “The Travails of Stare Decisis in India” in A R Blackshield (ed), Legal Change: Essays in Honour of Julius Stone (1983) 34, 37Google Scholar (footnotes omitted) (emphasis in original) .

16 Articles 118 to 123 of the Federal Constitution of the Swiss Federation. For the provisions as at 1901 see, J Quick and R R Garran, supra n 5 at 986, 995. See generally Adams, F O, and Cunningham, CD, The Swiss Confederation (1889) 76-87CrossRefGoogle Scholar; Hughes, C, The Federal Constitution Of Switzerland: Translation and Commentary (1954)Google Scholar. The referendum provision in the 1891 Swiss Constitution was referred to and partially quoted in Victoria v Commonwealth (1975) 134 CLR 81, 147-8 per Gibbs J.

17 Article 96 of the Constitution of Japan. See generally, Tanaka, H and Smith, M D H, The Japanese Legal System: Introductory Cases and Materials (1976)Google Scholar; Japan's Commission on the Constitution, Final Report (1980) (Translated and edited by J M Maki).

18 Article 159 of the Federal Constitution of Malaysia. See generally, Jayakumar, S, Constitutional Law: Cases from Malaysia and Singapore (2nd ed 1976) 475-476.Google Scholar

19 The drafting history of s 128 can be noted through the “Successive Printed Versions of a Bill to Constitute the Commonwealth of Australia 1890-1900”, the title date and location of which is in Nauze, J A La, The Making of the Australian Constitution (1972) 289-291Google Scholar. Also the 1891 Constiution Bill is reproduced in Official Report, supra n 11, 943-964. The 1897 Bill (Adelaide Session of 1897-1898 Convention) is reproduced in Official Report of the National Australasian Convention Debates (1897) 1221-1243. The 1897 Bill (Sydney Session) is in a bound volume compiled by Robert Ga:rran, see, J A La Nauze, supra, 289-290 (Bill No 15). The 1898 Bill (Melbourne Session) is in Official Record of the Debates of the Australian Federal Convention (1898) Vol 2, 2523-2544. For the alterations by the 1899 Premiers' Conference see, Sydney Morning Herald 9 February 1899, and The Argus 3 February 1899, which is reproduced in Clark, C M H (ed) Select Documents in Australian History 1851-1900 (1955 rep 1965) 510-516Google Scholar. The 1899 Bill is in H B Higgins, Essays and Addresses on the Australian Commonwealth Bill (1900) 141-168 and in colonial referendum legislation, see eg, Australasian Federation Enabling Act 1899 (NSW) and (Vic). The 1900 Bill as introduced into the House of Commons is in Commonwealth of Australia Constitution Bill: Reprint of the Debates in Parliament, The Official Correspondence with the Australian Delegates and Other Papers (1900) 118-138. For amendments in the House of Commons, see id, 139-140. On the history of s 128 see generally, AP Canaway, “A Point Under Section 128”, supra n 5, 346-348; Canaway, A P, “The Evolution of Section 128” (1940) 14 ALI 274Google Scholar; G Sawer, supra n 5, 3-4, 6; J E Richardson, supra n 5, 20-22; J A La Nauze, supra 242-243; Moore, W H, The Commonwealth of Australia: Four Lectures on the Constitution Bill 1897 (1897) 114-117Google Scholar; Bennett, S, The Making of the Commonwealth (1971) 206-213CrossRefGoogle Scholar; Anderson, H (ed), Tocsin: Radical Arguments Against Federation 1897-1900 (1977) 53.Google Scholar

20 Note that the first sentence ends with the word “manner”. See generally, G Sawer, supra n 5, 2-3; W A Wynes, supra n 1, 540; C Howard, supra n 5, 508 n 88. As to “manner and form” provisions see, Winterton, G, “Can the Commonwealth Parliament Enact 'Manner and Form' Legislation?” (1980) 11 FL Rev 167, 171-172Google Scholar. See also WA v Wilsmore (1982) 40 ALR 213.

21 G Sawer, supra n 5, 2-3.

22 28 & 29 Vic c 63 s 5 states:

Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letterg Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony.

23 It is clear that Australian delegates who were in England in 1900 “to press for the passage of the [Commonwealth of Australia ConstitutionJ Bill without amendment” “had no doubt that the Colonial Laws Validity Act did apply to the Commonwealth “JA La Nauze, supra n 19, 250, 258. See also, id 258; E Campbell,supra n 5, 103 n 3; B K de Garis, “British Influence on the Federation of the Australian Colonies, 1880-1901” (D Phil Thesis Oxford Uni 1965) 326-327, 339, 390, 391; Garis, de, “The Colonial Office and the Commonwealth Constitution” in A W Martin (ed) Essays in Australian Federation (1969 rep 1976) 94, 116Google Scholar; Commonwealth of Australia Constitution Bill: Reprint of Debates, supra n 19, 142. However, Richard O'Connor (a member of the Committee which drafted the 1897-1898 Constitution Bills and a Justice of the High Court 1903-1912) considered that the Colonial Laws Validity Act “would not apply at all to” the Constitution. Official Record of the Debates of the Australasian Federal Convention: Second Session (1897) 252. Whether the Australian delegates also considered thats 5 (supra n 22) extended to amendment of provisions other than those concerning the courts and Parliament requires further research. It should, however, be noted that s 128 of the Constitutioll/ (as s 5 of the Colonial Laws Validity Act appears to contemplate) uses Parliament in the amendment process.

24 G Sawer, supra n 5, 3 (footnotes omitted).

25 “The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion”, s 2(1) of the Statute of Westminster 1931 (UK), 22 & 23 Geo 5, c 4. An amendment pursuant to s 128 is not a “law made ... by the Parliament.” “[T]he Houses of Parliament, in respect of alterations of the Constitution, are [merely] originating and drafting bodies, and not the principal legislative organ.” J Quick and R R Garran, supra n 5, 993. See, however, infra n 70.

26 A literal reading of s 5 would grant power to amend the Constitution only in relation to those provisions concerning “Courts of Judicature”, the “Administration of Justice” and “the Constitution, Powers, and Procedure of [thel Legislature.” See supra nn 22 and 23.

27 “Nothing in [the Satute of Westminster] shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia . . . otherwise than in accordance with the laws existing before the commencement of [the Statute of Westminster]”, s 8 of the Statute of Westminster, supra n 25.

28 That is, s 2(1) of the Statute of Westminster may have effect only in relation to s 128 amendments and nots 128 itself. Buts 8 of the Statute of Westminster appears to deprive s 2(1) of any effect at all in relation to s 128. Professor Campbell states:

So that there should be no question that the Constitution was not affected, section 8 was inserted. . . . [S]ection [8], it could be argued implies that the Colonial Laws Validity Act continues to apply to laws for the alteration of the Constitution under section 128 of the Constitution.

Supra n 5, 99. Professor Campbell also notes that s 8 “does not ... identify the repository of the power to repeal or alter the Constitution or the Constitution Act.” Professor Campbell's opinion is that “it can be argued that ... section 8 is requiring no more than that laws for the alteration of the Constitution be made in the manner laid down in section 128 of the Constitution “ECampbell, supra n 5, 99-100. On s 8, see also RD Lumb, “Fundamental Law” supra n 1, 156-157.

29 C Howard, supra n 5, 508 n 88.

30 There are three possibilities. Firstly, on 3 September 1939 because of s 3 of the Statute of Westminster Adoption Act 1942 (Cth). Secondly, for the reasons enunciated by Murphy J in China Shipping Co v South Australia (1979) 27 ALR 1, 51-53. Thirdly, by a severance of residual constitutional links, see infra n 130.

31 Eg, amendments pursuant to s 128 from and including s 51(:xxiiiA) added in 1946 would not form part of the Constitution. This view was not argued in Federal Council of the British Medical Assoc in Aust v Commonwealth (1949) 79 CLR 201; General Practitioners Soc in Aust v Commonwealth (1980) 31 ALR 369 (dealing with s 51(xxiiiA); Koowarta v Bielke-Petersen, supra n 5 (dealing withs 51(xxvi) amended in 1967). See generally, G Sawer, supra n 5, 3. Section 27 of the Referendum (Constitution Alteration) Act 1906 provides that the Commonwealth or a State may institute a High Court challenge to the validity of any referendum.

32 Eg, it is suggested “thats 128 is in negative form, but the power is implied by its terms.” WA Wynes, supra n 1, 540. The nearly universal suggestion is that “the power of amendment ... follows from ... section [1281 by way of necessary positive implication from its negative terms.” G Sawer, supra n 5, 2. “[S]ection 128 creates its own power of amendment, notwithstanding that it is expressed negatively by the introductory words” of s 128. J E Richardson, supra n 5, 28. ''The Constitution ... includesi its own power of amendment. It is ins. 128 “ C Howard, supra n 5, 505. “No doubt the Act of 1900 contains large powers of moulding the Constitution.” AG (Cth) v Colonial Sugar Refining Co Ltd [19141 AC 237, 256 (PC). However, the “large powers” may include the sections mentioned in supra n 4(i)-4(v).

33 The “covering clauses” are ss 1-9 of the Commonwealth of Australia Constitution Act.

34 Several authorities are listed in Booker, K and Winterton, G, “The Act of Settlement and the Employment of Aliens” (1981) 12 FL Rev 212, 215Google Scholar n 22. See also infra n 52.

35 As to the use of draft Constitution Bills in constitutional interpretation see, eg, Thomson, J A, “Constitutional Interpretation: History and the High Court: A Bibliographical Survey” (1982) 5 UNSWLJ 309Google Scholar.

36 For the location of the various draft Constitution Bills, see, supra n 19. Constitution Bills drafted by Charles Cameron Kingston (see J A La Nauze, supra n 19, 295) and Andrew Inglis Clark (see (1958) 32 AU 67) did not include the Constitution in a schedule to the Constitution Bill.

37 Commonwealth of Australia Constitution Bill: Reprint of Debates, supra n 19, 118.

38 Id, 120. Clause 2 was also altered to state: “The provisions of this Act and of the Constitution set forth in the schedule to this Act “ Id1,18. See, B K de Garis, supra n 23, 385.

39 As to these three memoranda see de Garis, supra n 23, 97-98.

40 Id, 106-107.

41 Official Report (1897), supra n 19, 1222.

42 30 & 31 Vic c 3 (1867) (UK).

43 18 & 19 Vic c 54 (1855) (UK) (New South Wales Constitution Act) and 18 & 19 Vic c 55 (1855) (UK) (Victorian Constitution Act).

44 53 & 54 Vic c 26 (1890) (UK) (WA Constitution Act).

45 See de Garis, supra n 23, 107.

46 Id, 98.

47 Colonial Office [Papers in Public Records Office] 418/6 pages 86-90. Memorandum of 17 November 1899.

48 J A La Nauze, supra n 19, 251. See also, B K de Garis, supra n 23, 328.

49 See supra nn 37 and 38.

50 The amendments to clauses 2 and 9 are in Commonwealth of Australia Constitution Bill: Reprint of Debates, supra n 19, 139-140. See also, J A La Nauze supra n 19, 251; BK de Garis, supra n 23, 396.

51 This is true even if s 5 of the Colonial Laws Validity Act, rather than s 128, is viewed as the source of the amendment power; especially if the narrow view of s 5, supra n 26, is taken.

52 In addition to the authorities listed by K Booker and G Winterton, supra n 34, see, eg, A C Gain, supra n 5, 221; Sawer, G, “Constitutional Law”, in G W Paton (ed) The Commonwealth of Australia: The Development of its Laws and Constitution (1952) 38, 46Google Scholar; . Sawer, G, “'Unamendable' parts of Constitution Act pose a patriation puzzle” The Canberra Times, (21 July 1982) 2Google Scholar; C Howard, supra n 5, 2-3; G Marshall, Parliamentary Sovereignty and the Commonwealth (1957) 114-115; M H Byers, “Commentaries” in Labor and The Constitution, supra n 6(v), 68; Conference on Dominion Legislation and Merchant Shipping Legislation quoted by Zines, L, “The Growth of Australian Nationhood and its effect on the Powers of the Commonwealth” in L Zines (ed), Commentaries on the Australian Constitution (1977) 1, 29Google Scholar.

53 In this context the question is whether “section 128 authorizes an alteration to the Constitution to empower the Commonwealth Parliament to repeal the Constitution Act “Campbell, supra n 5, 97. There are opinions which would help to provide an affirmative answer. See, eg, 0 Dixon, “The Power of Altering the Constitution under Section 128” in Report of the Royal Commission on the Constitution (1929) 365. See also, Constitution Alteration (Power of Amendment) 1930 which proposed to amend the Constitution by vesting in the Commonwealth Parliament “full power to alter the Constitution”. See, Alterations That Have Been Proposed, supra n 3, 57. On this 1930 Bill see, Com Parl Deb 1930, Vol 123, 177, 183-184, 186-187 (J H Scullin), 506-511 (J G Latham). It has been argued that such an amendment would fall within para 5 of s 128 and therefore require approval by a majority of electors in each State. A P Canaway, “A Point Under Section 128”, supra n 5. See also, infra nn 102, 103, 104.

54 E Campbell, supra n 5, 97. Professor Campbell notes that

in exercising that power the Parliament would be acting in pursuance of authority conferred by an Imperial Act. The effect of the repeal, if valid, would be to terminate the operation of the Constitution Act as the legal source of the Constitution. The repeal would not . . . obliterate the, Act so completely that henceforth it was to be treated as never having existed. The repealed Act would continue to supply the source of authority for the constitutional change by which its own repeal was brought about. Id (footnote omitted).

See also, RD Lumb and KW Ryan, supra n 5, 401 n 1; China Shipping Co v South Australia ,supra n 30, 51-53 per Murphy J.

55 E Campbell, supra n 5, 98.

56 See, eg, G Sawer, “'Unamendable' parts of Constitution Act”, supra n 52. Professor Campbell considers that, although the question whether s 128 “comprehends power to alter the Constitution to confer on the Commonwealth Parliament power to repeal the Constitution Act” “is by no means free from doubt”, “there is a strong case for” an affirmative answer. E Campbell, supra n 5, 100.

57 RD Lumb, Fundamental Law, supra n 1, 158, 160.

58 There are at least three problems. Firstly, what tests are to be used to determine whether there is an inconsistency? Should they be the same as those used with respect to s 109? Secondly, can the concept of severance be applied? Thirdly, if the covering clauses are repealed, would the inconsistent amendment revive? That is, would inconsistency result in an amendment being void ab initio or merely inoperative?

59 See, eg, G Sawer, supra n 5, 5; G Sawer, “Constitutional Law”, supra n 52, 46; G Sawer, “ 'Unamendable' parts of Constitution Act”, supra n 52; G Marshall, supra n 52, 115-116; C Howard, supra n 5, 5, 509; W A Wynes, supra n 1, 541-542; R D Lumb and K W Ryan, supra n 5, 402-403; R D Lumb, “Fundamental Law”, supra n 1, 161.

60 See, eg, J Quick and R R Garran, supra n 5, 994 (“strong arguments against ... constitutionality.”); A P Canaway, “Safety-Valve”, supra n 5, 112; G Marshall, supra n 52, 115-116; RD Lumb and KW Ryan, supra n 5, 403; G Sawer, 'Secession? 'No Way' (unless we fight!)” Weekend News, (24 November 1973) 9; H Lunn, “Will Joh have to go to war?”, Australian (10 November 19'76) 11. See generally, Watt, E D, “Secession in Western Australia” (1958) 3 University Studies in Hist 43Google Scholar; Green-wood, G G, The Future of Australian Federalism: A Commentary on the Working of the Constitution (2nd ed 1976) 178-180, 327-328Google Scholar.

61 “[C]onstitutional lawyers ... have generally taken the view that section 128 would support even a wholesale transfer of legislative power from the States to the Commonwealth “ECampbell, supra n 5, 91. See also id, 100. For authorities, see, id, 103 n 4. See also, AC Gain, supra n 5, 221-225. But it has also been suggested that “if amendments were passed which were inconsistent with [the] words ... 'Federal Commonwealth' . . . strong arguments would be available against their constitutionality.” J Quick and R R Garran, supra n 5, 994. See also infra n 65.

62 See, eg, Cowen, Z, “The Constitution and the Monarchy” in G Dutton (ed) AustraUa and the Monarchy: A Symposium (1966) 44, 60-61Google Scholar; Cowen, Z, 'The Constitutional Aspects” in G Dutton (ed) Republican Australia? (1977) 44, 51-59Google Scholar; D O'Connell, “Monarchy or Republic?” in id, 23, 37-38; C Howard, supra n 7, 107-108; R D Lumb, “Fundamental Law”, supra n, 1, 161; R D Lumb and K W Ryan, supra n 5, 403; G Evans, “God Save the Queen-Australia as a Republic” (Speech delivered Sept 1982) (reported in Western Mail 12 March 1983, 30--31.) See however, J Quick and R R Garran, supra n 5, 994 (“strong arguments . . . against ... constitutionality.”); Sawer, G, “The British Connection” (1973) 47 AU 113, 114Google Scholar n 3; W A Wynes, supra n 1, 542; A P Canaway, “Safety-Valve”, supran5, 112.

63 G Sawer, “Constitutional Law”, supra n 52, 46; G Sawer, “'Unamendable' parts. of Constitution Act”, supra n 52; WA Wynes, supra n 1, 542.

64 See generally, Pearce, D C, Statutory Interpretation in Australia (2nd ed 1981) 50-54.Google Scholar For some references in High Court decisions to the preamble and the covering clauses, see generally, The Australian Constitution Annotated, supra n 3, 2-7 (1976- 1977 Cumulative Supp 1-3). See also, R D Lumb and K W Ryan, supra n 5, 55-60.

65 See, eg, W H Moore, supra n 5, (2nd ed) 603; G Marshall, supra n 52, 115;C Howard, supra n 5, 509. But see, Melbourne Corp v Commonwealth (1947) 74 CLR 31; Koowarta v Bjelke Petersen, supra n 5. “The prohibition against 'general federal laws that substantially burden the States' ... never has succeeded.” Lane, P H, ℌThe Federal Parliament's External Affairs Power: Koowarta's Case” (1982) 56 ALJ 519, 523Google Scholar n 48. See also, National League of Cities v Usery (1915) 426 US 833; Equal Employment Opportunity Commission v Wyoming (1983) 51 US Law Week 4219. See generally, Sawer, G, Australian Federalism in the Courts (1967) 1-7, 121-151.Google Scholar

66 See supra n 59.

67 Professor Howard can be read as supporting the view that Covering Clause 5 would not affect an amendment to s 109 of the Constitution. C Howard, supra n 5, 509.

68 See generally, Harvey, L and Thomson, J, “Some Aspects of State and Federal Jurisdiction under the Australian Constitution” (1979) 5 Mon UL Rev 228Google Scholar. See also, G Sawer ,” 'Unamendable' parts of Constitution Act”, supra n 52.

69 C Howard, supra n 5, 508-509. But contra W A Wynes, supra n 1, 542-543. See also, J Quick and R R Garran, supra n 5, 994 (“No part of the Constitution is excluded from the possibility of amendment. . . . The power of amendment extends to every part of the Constitution “);G Sawer, supra n 62, 113 (“It is an arguable view that no Australian constitutional provision is immune from amendment under s 128 of the Constitution....”)See also, AG (Vic) ex rel Black v Commonwealth (1981) 55 ALJR 155, 174.

70 There is some authority for an affirmative answer. Eg Sankey v Whit/am (1979) 142 CLR 1, 91-93 per Mason J, 105 per Aickin J (Gibbs ACJ at 31 and Stephen J at 75 alluding to, but not deciding, the question). Professor Sawer has suggested that in relation to the Statute of Westminster “it would seem that laws made under section 128 are Acts of Parliament of the Commonwealth “G Sawer, supra n 5, 6. But see the quotation from J Quick and R R Garran, supra n 25.

71 A somewhat analogous situation has arisen under the Indian Constitution. See supra n 15.

72 E F Mitchell, What Every Australian Ought to Know (1931) 79.

73 AC Gain, supra n 5, 216; WA Wynes, supra n 1, 543.

74 New South Wales v Commonwealth (1932) 46 CLR 155. See generally A C Gain, supra n 5, 215-218; WA Wynes, supra n 1, 543; Sankey v Whit/am, Supra n 70 at 30, 75, 88, 105-106.

75 Note that ss 91, 92, 95 and 104 do not use the word “contained”. In these sections emphasis would need to be placed on the word “in” to support the argument in the text accompanying infra n 76.

70 See generally A C Gain, supra n 5, 218-219. But see also Sankey v Whitlam, supra n 70.

77 See generally WA Wynes, supra n 1, 543. But see also Sankey v Whitlam, supra n 70.

78 E Campbell, supra n 5, 96. See also J Quick and R R Garran, supra n 5, 989-990 (but see 994).

79 For support for this view see J Quick and R R Garran, supra n 5, 990; Sir Harry Gibbs, “The Constitutional Protection of Human Rights” (Sept 1982) 17Aust L News 10 and (1982) 9 Mon UL Rev 1. See also R M Hope, “Constitutional Guarantees and Individual Freedoms” (paper presented at First Australian Convention of Councils for Civil Liberties, Syd Oct 1968); Evans, G, “An Australian Bill of Rights?” (1973) 45 (No 1) Aust Q 4, 31-32CrossRefGoogle Scholar .

80 W A Wynes, supra n 1, 542; A P Canaway, “Safety-Valve”, supra n 5, 112; J Quick and RR Garran, supra n 5, 994.

81 See eg WA Wynes, supra n 1, 542 n 42; D O'Connell, supra n 62, 38. Contra seeeg, J Quick and R R Garran, supra n 5, 990; Canaway, “Safety-Valve”, supra n 5, 109-112; A P Canaway, “Evolution of Section 128”, supra n 19, 276; G Sawer, supra n 5, 6-7; G Sawer, supra n 62, 113-114, 116; R D Lumb, “Fundamental Law”, supra n 1, 162-163, 182-183; G Evans, supra n 62. The provisions ins 105A(5) “Every su_ch agreement and any such variation thereof shall be binding upon ... the States parties thereto notwithstanding anything contained in . . . the Constitution of the several States or in any law of the Parliament ... of any State” have been cited as an example of the use of s 128 “to nullify certain provisions in the State Constitutions” and therefore the possibility of nullifying State Constitutions “altogether”. A P Canaway, “Safety-Valve”, supra n 5, 109. See also, Sawer, G, “The Consitutional Crisis of Australian Federalism” in A Patience and J Scott (eds), Australian Federalism: Future Tense (1983) 94, 97Google Scholar.

82 Opposing views are set forth in WA v Wilsmore [19811 WAR 179, 181-183 per Burt CJ. The view that State constitutions derive their authority from s 106 of the Commonwealth Constitution has not been endorsed by the High Court. China Shipping Co v SA, supra n 30, 8 per Barwick CJ. But see, Sir Garfield, Barwick, “Book Review” (1981) 4 UNSWLJ 131, 134Google Scholar.

83 Supra n 81.

84 G Sawer, supra n 62, 113. But see infra n 86.

85 G Sawer, supra n 5, 5-6 (emphasis in original).

86 Two drafting changes to s 128 may be of significance. First, the heading of Chapter VIII was changed from “Amendment of the Constitution” to “Alteration of the Constitution” and the opening line of s 128 changed from “The provisions of this Constitution shall not be altered...."to “This Constitution shall not be altered “

See Official Record Of Debates (vol 1) (1898), supra n 19, 715-716; G Sawer, supra n 5, 6. Second, inclusion by the 1899 Premiers Conference, of the words “increasing, diminishing or otherwise altering the limits of the State, orl in any manner affecting the provisions of the Constitution in relation thereto”. See, Sydney Morning Herald, (9 February 1899) (reproduced in J E Richardson, supra n 5, 21-22 and in A P Canaway, “A Point Under Section 128”, supra n 5, 346); AP Canaway, “Evolution of Section 128”, supra n 19, 276.

87 G Sawer, supra n 5, 6.

88 G Sawer, supra n 62, 115. But see The Australian Constitution Annotated, supra n 3, 454-455 (1976-1977 Cumulative Supp 91-92).

89 AP Canaway, “Safety-Valve”, supra n 5, 109-112; AP Canaway, “Evolution of Section 128”, supra n 19, 276; AP Canaway, ''The By-Pass”, supra n 5, 394-398. See also J Quick and RR Garran, supra n 5, 990.

90 Supra n 81.

91 Clause 7 of Constitution Alteration (Democratic Elections) 1974 proposed to insert a news 106A. See J E Richardson, “Reform of the Constitution”, supra n 6(v), 81-83; RD Lumb, “Commentaries” in Labor And The Constitution 1972-1975, supra n 6(v), 98, 99-100 (''The proposal ... would have wrought a basic change in the State Constitutions which would not have been ratified according to the processes of alteration laid down in those [State] Constitutions.”); P J Hanks, “Parliamentarians and the Electorate” in id 166, 169.

92 But probably not when a State law matter is “associated” with a matter attracting federal jurisdiction. Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 55 ALJR 120; Fencott v Muller (1983) 57 ALJR 317. As to Privy Council Appeals see generally Rees, S, “Appeals from the Supreme Court of NSW to the Privy Council: The Legislative Basis for Appeal and the Extent to which a Right of Appeal Remains” [1981] Aust Current L AT 27Google Scholar; Blackshield, A R, ℌThe Last of England: Farewell to their Lordships forever” (1982) 56 Law Institute J 780Google Scholar.

93 Z Cowen, “The Constitutional Aspects”, supra n 62, 58-59; G Sawer, supra n 62, 116 (“the s 128 possibilities”). Contra G Sawer, supra n5, 6-7. Other methods to abolish appeals to the Privy Council have also been suggested. Eg A R Blackshield, supra n 92, 780, 782-783.

94 Eg s 51(xxiiiA) (added in 1946); s 51(xxvi) (altered in 1967).

95 Statistics for the Constitution Alteration (Referendums) 1977 referendum are in Yearbook: Australia(1978)No62of 1977& 1978 at 73 and Aust Govt Gaz (No S 100) (9 June 1977) 2. The Constitution Alteration (Power of Amendment) 1930 proposal did not purport to alters 128 but rather intended to insert a news 129. See supra n 53.

96 The authorities are given in Howard, supra n 5, 508 (n 87).

97 G Sawer, supra n 5, 4. See also J E Richardson, supra n 5, 27 (“the silent assumption was that [s 128] was beyond amendment by action originating in” s 128).

98 G Sawer, supra n 5, 4.

99 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 142. For some other references to the Commonwealth Constitution as a “compact” see eg Qld v Commonwealth, supra n 4(i) 607 per Mason J; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 54 ALJR 210, 214 per Stephen J; AG (Vic) ex rel Black v Commonwealth, supra n 69, 169 per Stephen J; Victoria v Commonwealth (1971) 122 CLR 353, 37(}.371 per Barwick CJ; Sir Ninian Stephen, supra n 8, 4. The notion that the United States Constitution is a compact arose during nullification crises as an element of secessionist rhetoric and was finally repudiated by the 1861-1865 Civil War. See generally Kelly, A H and Harbison, W A, The American Constitution: Its Origins And Development (1948) 310-311Google Scholar; Potter, D M, The Impending Crisis 1848-1861 (1976) 479-484Google Scholar; Hyman, H M and Wiecek, W M, Equal Justice Under Law: Constitutional Development 1835-1875 (1982) 139-140Google Scholar. See also Stampp, KM, “The Concept of a Perpetual Union” (1978) 65 J Am Hist 5CrossRefGoogle Scholar; Equal Employment Opportunity Commission v Wyoming, supra n 65 at 4231-4232 per Powell J dissenting (citing examples and original documentation of the doctrines of interposition and nullification).

100 E F Mitchell, supra n 72, 79, 88. Contra W A Wynes, supra n 1, 541. If the Senate is a States' House, see infra n 114, the States do have a role through the Senate in the s 128 process. There have been proposals to authorise State Parliaments to initiate referendums1 to amend the Commonwealth Constitution eg Proceedings Of The Australian Constitutional Convention (1975) 130-133; Proceedings Of The Australian Constitutional Convention (1978) 1-li; Agenda Item No A22 at the 1983 Session of the Australian Constitutional Convention, Official Record of Debates, supra n 8 on 29 April 1983.

101 See eg G Sawer, supra n 5, 4; WA Wynes, supra n 1, 540-541; C Howard, supra n 5, 508; C Howard, supra n 6(v), 152-153.

102 See eg J 911;ick and R R Garran, supra n 5, 993; WA Wynes, supra n 1, 540 (but 540 n 36 1s mcorrect); C Howard, supra n 5 508; J E Richardson, supra n 5, 29-30 (listing authorities).

103 J Latham, supra n 7, 19; G Sawer, supra n 5, 4-5; R D Lumb, “Fundamental Law”, supra n 1, 162; RD Lumb and KW Ryan, supra n 5, 402.

104 Report of the Royal Commission on the Constitution 1929, supra n 6(i), 228-229; A P Canaway, “A Point Under Section 128”, supra n 5, 345-348; J E Richardson, supra n 5, 30-32 (listing authorities, including Richardson).

105 For the history of para 5 see, A P Can,away, “A Point Under Section 128”, supra n 5; J E Richardson, supra n 5 20-22.

106 This has been proposed. See eg Proceedings Of The Constitutional Convention (1978) xlix; Australian Constitutional Convention 1982, Fourth Report of Standing Committee D 46-57 (vol 1 ), Appendix H (vol 2) (1982). See also V Robinson, “Case Note” (1978) 9 FL Rev 375, 380-381. Merely because s 128 did not prevent Commonwealth Territorial Senators or House of Representatives legislation under s 122 (see WA v Commonwealth (1975) 134 CLR 201 and Qld v Commonwealth, supra n 4(i)) does not mean that a constitutional amendment to achieve similar objectives would not fall within paragraph 5 of s 128.

107 See eg J Latham, supra n 7 at 19; RD Lumb and KW Ryan, supra n 5, 401 n 6.Contra J E Richardson, supra n 5, 36-37.

108 See generally supra nn 102, 103, 104.

109 G Sawer, supra n 5, 5 (emphasis in original).

110 J E Richardson, supra n 5, 37.

111 See generally J Quick and R R Garran, supra n 5, 992-994; W H Moore, supra n 5, 599-602 (2nd ed).

112 The view has been expressed that these phrases in ss 57 and 128 have similar meanings. J E Richardson, supra n 5, 41. See generally, High Court decisions on s 57 noted in RD Lumb and KW Ryan, supra n 5, 236-244. As to whether the House of Representatives had failed to pass six Constitution Alteration Bills in 1914 see Sawer, G, Australian Federal Politics And Law 1901-1929 (1956) 124-125Google Scholar; R D Lumb and KW Ryan, supra n 5, 401. Contra H V Evatt, “Amending the Constitution” (1937) 1 Res Judicatae 264. See also, (1914) 74 Commonwealth Parliamentary Debates 2420.

113 W H Moore, supra n 5, 600 (2nd ed). “[T]he Houses of Parliament, in respect of alterations of the Constitution, are originating and drafting bodies merely, and not the principal legislative organ.” J Quick and R R Garran, supra n 5, 993.

114 See eg W H Moore, supra n 5, 600 (2nd ed); WA v Commonwealth, supra n 106, 227-228 per Barwick CJ (dissenting). However, it has! been suggested that it is “improbable that the Governor-General would ever submit referendum proposals to the people merely on the initiative of the Senate”G Sawer, supra n 112, 125 n 82- and that “it is difficult to see how the Senate can insist on its constitutional amendments being considered by the electors if the Lower House dissents.” H V Evatt, supra n 112, 264. See also C Howard, supra n 5, 507 n 85. See generally Sharman, C, “The Australian Senate as a States House” (1977) 12 Politics 64CrossRefGoogle Scholar; Erny, H V, The Politics Of Australian Democracy: Fundamentals In Dispute (2nd ed 1978) 192-200.Google Scholar

115 The proposed law “must obtain an absolute majority at whatever is the last stage of its progress through each House” whether that is the “third reading” or otherwise. G Sawer, supra n 112, 54.

116 Contrast the word “shall” in the 1st paragraph with “may” in the 2nd paragraph of s 128. See eg R D Lumb, “Fundamental Law”, supra n 1 at 162 (“constitution alteration bill ... must be submitted to the electorate.”) However, there have been nine proposals to alter the Constitution which, although having passed both Houses of Parliament, have not been submitted to a referendum. J E Richardson, supra n 3, 104 n 13. For the reasons for not submitting to a referendum the Constitution Alteration (Parliament) 1965 and the Constitution Alteration (Repeal of Section 127) 1965 see Commonwealth Parliamentary Debate& (Senate vol 31) 20-21 (1966). It has been suggested that '[t]he propriety of [this] non-submission is open to criticism.” R D Lumb and KW Ryan, supra n 5, 401 n 4.

117 If, as Evatt seems to contend, the 1914 Constitution Alteration Bills had failed to pass, see supra n 112, then the Governor-General exercised his discretion not to put those Bills to a referendum. See H V Evatt, supra n 112, 264. However, it might be possible to limit the 1914 example to Senate Bills and not apply it to constitutional alterations proposed by the House of Representatives. As to the word “may” and the Governor-General's discretion under s 57 see eg C Howard, “Section 57 of the Constitution”, in Standing Committee D, 3rd Report (Appendix B) 21, 26-27 in Proceedings Of The Australian Constitutional Convention (1978); Sawer, G, Federation Under Strain: Ausralia 1972-1975 (1977) 59-60Google Scholar; G Winterton, “Sir Ninian: no row over dissolution”, The Age (29 July 1982) 13; G Winterton, “Settling the Powers of the Governor-General” The Age (26 April 1983) 13; Sawer, G, “The Double Dissolution; looking at the documents, past and present”, The Canberra Times (9 Feb 1983) 2Google Scholar; Lane, P H, “Double Dissolution of Federal Parliament” (1973) 47 AU 290, 294, 295.Google Scholar

118 See eg s73(1) of the Constitution Act 1889-1980 (WA). But compare s 73 (5) id.

119 J Quick and R R Garran, supra n 5, 994 (“The necessity of the Queen's assent. ... “). See also, s 57 (“presented to the Governor-General for the Queen's assent.”). Contra C Saunders and E Smith, “Conventions Associated with the Commonwealth C nstitution” in Standing Committee D 4th Report Appendix G 6 (1982 vol 2) (s. 74 IS the “only ... provision in the Commonwealth Constitution which specifically requires reservation of legislation” for the Queen's assent.).

120 See eg W H Moore, supra n 5, 601 (2nd ed); R D Lumb, “Fundamental Law”, supra n 1, 161; C Howard, supra n 6(v), 131.

121 Supra n 114.

122 Official Report, supra n 11, 490.

123 J Quick and R R Garran, supra n 5, 991. See also A I Clark, Studies In Australian Constitutional Law (2nd ed 1905) 292-303; RR Garran, supra n 12, 182-183.

124 For a list of authorities on each side of the debate see J A Thomson, supra n 35, 318 (n31 &33). See also supra n 2.

125 See eg J Quick and R R Garran, supra n 5, 991; G Evans, “Changing the System”, supra n 4, 158-160; C Howard and G Evans, “Submission”, supra n 4, 2. See generally China Shipping Co v SA, supra n 30.. However, there are other views. See eg R D Lumb and K W Ryan, supra n 5, 403 (“for all practical purposes ... there is no other alternative method of amending the Constitution other than that provided in the Constitution itself.”); R D Lumb, “Fundamental Law”, supra n 1, 154-155 (“the method of amendment based on the exercise of Imperial Legislative power disappeared”) but see 157-158; James v Commonwealth (1936) 55 CLR 1, 61 (PC) (“The Constitution . . . can only be altered by ... s 128”.); Sir Ninian Stephen, supra n 14, 174 (“amendment of the Australian Constitution has always been a purely Australian process, both in initiation and in execution, requiring only federal legislative action followed by referendum ... “). See also infra nn 128 & 129.

126 Sees 4 ands 9(3) of the Statute of Westminster 1931, supra n 25. See generally, G Marshall, supra n 52, 116; RD Lumb, “Fundamental Law”, supra n 1 at 157-158; RD Lumb and KW Ryan, supra n 5 at 403; G Evans, “Changing the System”, supra n 4 at 159 (“there is no requirement that the states participate in any ... requesting or consenting.”); J M Finnis, “The Responsibilities of the United Kingdom Parliament Under the Australian Constitution” (1983) 9 Adelaide L Rev 91, 92-99, 104 n43. There is support for the view that the legisfative power of the United Kingdom Parliament is “responsive only to prior Australian initiatives” of request and consent. China Shipping Co v SA, supra n 30, 31-32 per Stephen J. See also Manuel v AG (1982) 3 WLR 821. As to what could be done by the United Kingdom Parlia-ment following a request and consent, see eg Howard, “Constitutional Amendment”, supra n4, 42-43; C Howard, supra n6(v), 153-155; Canada Act 1982 (UK) ell. But note E A Driedger, 'The Canadian Charter of Rights and Freedoms” (1982) 14 Ottawa L Rev 366. Cf Hogg, P W, “Supremacy of The Canadian Charter of Rights and Freedoms” (1983) 61 Can Bar R 69, 71-76Google Scholar.

127 “The most radical and general argument is that Australian independence under the Constitution precludes the continuing application of Imperial law “JCrawford, Australian Courts Of Law (1982) 174. For the authorities on each side of the debate, see J A Thomson, supra n 35, 318 (n 31).

128 Byers, M H, “Current Constitutional Problems” in C Saunders et al, Current Consttutional Problems In Australia (1982) 51, 55Google Scholar; Byers, M H, “Conventions Associated with the Commonwealth Constitution” (1982) 56 ALJ 316, 318Google Scholar.

129 As to the ability of the United Kingdom Parliament to abdicate legislative power and bind its successors, see generally Winterton, G, 'The British Grundnorm: Parliamentary Supremacy Re-Examined” (1976) 92 LQR 591Google Scholar.

130 As to the severance of residual constitutional links, see eg P Durack, Abolition of Residual Constitutional Links with Britain Other than the Crown, Press Release 37/82, 25 June 1982, [19821 1 Press Releases by the Attorney-General 135; G Sawer, “Dealing with residual problems of Australia's imperial tie”, The Canberra Times (7 July 1982) 2; R C Jennings,"The Imperial Connection: Residual Constitutional Links” in C Saunders, supra n 128, 68.

131 Eg, supra n 53 & 54.

132 Eg, G Evans, “Changing the System”, supra n 4, 158-160.

133 Eg, supra n 130.

134 See the remarks of Professor Campbell quoted in supra n 54. “The validity of the Commonwealth Act containing the Constitution would still depend on its having been made under the Constitution Act of 1900, as amended, despite the repeal of that Act as a part of Australian law.” Campbell, supra n 5, 101.

135 Eg Ireland and India (see Campbell, supra n 5, 105-109); Pakistan and Rhodesia (see J M Finnis, “Revolutions and Continuity of Law” in A W B Simpson (ed) Oxford Essays in Jurisprudence 2nd Series (1973) 44, 52-53, 54 n 22 and G Marshall, Constitutional Theory (1971) 64-72); United States (see Lumb, “Methods of Alteration”, supra n 1, 1). See generally infra n 136.

l36 E Campbell, supra n 5, 101. See generally, C Howard, “Constitutional Amendment”, supra n 4, 41-42; G Evans, “Changing the System”, supra n 4, 160-161; J M Finnis, supra n 135; G Marshall, supra n 135, 57-72.

137 E Campbell, supra n 5, 101.

138 See supra n 135. Also see K C Wheare, The Constitutional Structure Of The Commonwealth (1960) 111-112 quoted in E Campbell, supra n 5, 101-102. See also S A de Smith, The New Commonwealth and Its Constitutions, (1964) 5-9 (“in the last resort all that succeeds is success.”) (footnote omitted). Professor Sawer has suggested that

[p]erhaps the best way of dealing with this is to put to the people as a constitutional amendment a declaratory provision stating that the sovereignty of the United Kingdom parliament ends on a named future date and is replaced by that of the Australian people. But if this is not done, we may yet find the High Court in a suitable case ... doing it for us by a sort of judicial UDI, taking effect on the date of the decision.

Sawer, G, “Australia's Courts and their British Connection” The Canberra Times (26 May 1980) 21Google Scholar (Supp on High Court 7).

139 E Campbell, supra n 5, 101.