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Published online by Cambridge University Press: 24 January 2025
An Australian lawyer seeking to identify the basic differences between the Australian and American constitutional systems is immediately struck by certain features of the latter system. The differences in that system flow from the break between the American colonies and England embodied in the Declaration of Independence of 1776 and are reflected in the changes to the individual State Constitutions which were made after the Revolution.
The major changes which were made to those Constitutions over a period of time were basic and fundamental: the replacement of the gründnorm of British parliamentary supremacy with the principle that sovereignty is derived from the people and, as a concomitant, the establishment of a Bill of Rights; the replacement of a British appointed Governor by a locally elected Governor; the incorporation of the doctrine of separation of powers pursuant to which the Governor as chief executive officer was not to be a member of the legislature and had no power to dissolve it. Finally, basic changes were made to the methods of constitutional alteration.
The research for this article was carried out during a period of leave spent by the author at the University of California, Berkeley, in 1981.
1 See generally A L Sturm, Methods of State Constitutional Reform (Ann Arbor, 1954) 4; W F Dodd, The Revision and Amendment of State Constitutions (Baltimore, 1910) Ch 1; J A Jamieson, A Treatise on Constitutional Conventions (4th ed Chicago, 1887) Ch IV, 99 ff.
2 W F Dodd, op cit n 1, 10.
3 AL Sturm, op cit n 1,5
4 Ibid 6.
5 The only exception is Delaware where legislative amendments to the State Constitution are not required to be submitted to the people.
6 AL Sturm, op cit n 1, 19.
7 [1920] AC 691 (PC).
8 The actual power of making the Constitution “indigenous” must be derived from the original Imperial Act or Order-in-Council conferring a Constitution on the Colony. See Mccawley v R (1918) 26 CLR 9, 60 ff, for a discussion of the manner in which the Queensland Constitution was transmuted from an Imperial to a local source.
9 Trethowan v Attorney-General for New South Wales (1931) 44 CLR 394 (HC); [1932] AC 526 (PC); Clayton v Heffron (1960) 105 CLR 214.
10 See also R v Commissioner for Transport; ex parte Cobb and Co Ltd [1963] QdR 546.
11 Western Australia v Wilsmore (1981) 33 ALR 13 (WA Supreme Court). See also (1982) 40 ALR 213.
12 Constitution Amendment Act 1977 (Qld); Constitution Amendment Act 1975 (SA); Constitution (Amendment) Act 1979 (NSW); Acts Amendment (Constitution) Act 1978 (WA).
13 Lumb, RD, The Constitutions of the Australian States (4th ed 1977) 102-3.Google Scholar
14 Al., Sturm, op cit n 1, 3.
15 Mccawley v R (1918) 26 CLR 9, 52 per Isaacs and Rich JJ.
16 See Ministers of the Crown Act 1923 (Tas).
17 See Legislative Assembly Act 1867-1978 (Qld).
18 Even by a humble Dog Act! See [19201 AC 691, 704.
19 Much of the information for the following analysis has been taken from A L Sturm, Methods of State Constitutional Reform (Ann Arbor, 1954) Chs III, IV, and V. It is the classic text on the subject. See also W F Dodd,. The Revision and Amendment of State Constitutions (Baltimore, 1910); W B Graves, Major Problems in State Constitutional Revision (Chicago, 1960). Useful summaries and statistics are to be found in The Book of the States (Council of State Governments, Chicago), a biennial publication. See in particular The Book of the States (1980-1981) XXIII, 1 ff; The Book of the States (1968-1969) XVII, 15-18.
20 The statistics covering the last decade are to be found in The Book of the States (1980-1981) XXIII, 3.
21 AL Sturm, op cit n 19, 38-39.
22 Livermore v Waite (1894) 36 Pac Rep 424. The effect of this decision has since been overriden by constitutional amendment.
23 California Constitution, Article IV s 1.
24 For a general discussion of the initiative, see AL Sturm, op cit n 19, Ch IV; Sturm, A L, “The Procedure of State Constitutional Change-with Special Emphasis on the South and Florida” (1977) 5 Florida State University Law Review 569, 578 ff;Google Scholar Hahn, G and Morton, S C, “Initiative and Referendum-Do they Encourage or Impair Better Government” (1977) 5 Florida State University Law Review 926Google Scholar. For discussion of the California structure see Crouch, WW, McHenry, DE, Bollens, JC and Scott, S, California Government and Politics (4th ed 1967) Ch 5Google Scholar; WW Crouch, The Initiative and Referendum in California (Los Angeles, 1950); Greenberg, D S, “The Scope of the Initiative and Referendum in California” (1966) 54 California Law Review 1717CrossRefGoogle Scholar
25 For a discussion of the “referendum”, see Crouch, W W and Bollens, J C, Your California Governments in Action (2nd ed Berkeley, 1960) 111 ff.CrossRefGoogle Scholar
26 A number of State Constitutions prescribe the referendum (vote of the people) not only for constitutional amendments but also for legislative action on important matters such as the issue of new bonds. See W B Graves, op cit n 19, 232-234.
27 On the question of the popular vote on convention proposals see A L Sturm, op cit n 19, 104-105. Sturm comments that “the procedure of securing the approval of the electorate has become almost universal practice ... “.
28 See generally D Butler and A Ranney, Referendums: a Comparative Study of Practice and Theory (Washington, 1978) Ch IV.
29 Greenberg, D S, “The Scope of the Initiative and Referendum in California” (1966) 54 California Law Review 1717CrossRefGoogle Scholar; Hyink, B L, Brown, S and Thacker, E W, Politics and Government in California (2nd ed New York, 1961) Ch 5, 90.Google Scholar
30 Graham, H, “The Direct Initiative Process” (1979) 27 UCLA Law Review 433, 437-8.Google Scholar
31 Ibid 436.
32 Sturm, A L, “The Procedures of State Constitutional Change-with Special Emphasis On the South and Florida” (1977) 5 Florida State University Law Review 578 ff.Google Scholar
33 Only a handful of States have adopted the indirect method. It was abolished by constitutional amendment in California in the 1960's, apparently because of infrequent use.
34 California Constitution, Article XIIl(A). See Herber, B P, “Recent Fiscal Trends in the American Public Sector” (Centre for Research on Federal Financial Relations, ANU Reprint Series No 37, 1980) 2.Google Scholar
35 California Constitution, Article XIII(B); BP Herber, op cit 2.
36 The Book of the States (1980-1981) XXIII, 2, 4.
37 D Butler and A Ranney, op cit n 28, 85.
38 See generally A L Sturm, Methods of State Constitutional Reform (Ann Arbor, 1954) Ch V; Graves, W B, Major Problems in State Constitutional Revision (Chicago, 1960) 32 ff.Google Scholar
39 It has been held by several State courts that even though there is no specific clause in a State Constitution empowering the calling of a convention, approval is implied from the principle of the sovereignty of the people which is recognised in the Bill of Rights articles of those Constitutions. The sovereignty of the people comprises a right (subject always to the United States Constitution) to alter or reform the structure of government when it becomes necessary. See In re Constitutional Convention (1935) 55 RI 56.
40 The Book of the States (1980-1981) XXIII, 9-10.
41 Ibid 10.
42 In some States there is a compulsory requirement for the submission of the question of calling a constitutional convention to the electors at periodic intervals.
43 Only a few States require this type of vote. Its effect is that if electors vote for candidates at the election but do not vote on the constitutional proposal, then such abstention amounts to a negative vote.
44 See generally “State Constitutional Conventions: Limitations on their Powers” (1969) 55 Iowa Law Review 244; Levine, H D, “Limited Federal Constitutional Conventions: Implications of the State Experience” (1973-4) 11 Harvard Journal on Legislation 127, 131 ff.Google Scholar (There is much controversy as to whether a limited convention is possible at the federal level.)
45 The Book of the States (1980-1981) XXIH, 10.
46 Ibid 7-9. See also W B Graves, op cit n 38, 86 ff.
47 For details see Quick, J and Garran, R R, The Annotated Constitution of the Australian Commonwealth (1901) 163-5.Google Scholar
48 Lumb, R D, “Reform of the Constitution: the 1973 Session of the Australian Constitutional Convention” in L Zines (ed), Commentaries on the Australian Constitution (1977) ,233.Google Scholar
49 Press Release by Attorney-General 37/1982 (25 June 1982).
50 Cf W F Dodd, op cit n 19, 291: “measures of fundamental importance-of a real constitutional character-should ... in every case be subject to a popular vote”.
51 While Dixon J has maintained that an alternative constituent power (ie alternative to s 5 of the Colonial Laws Validity Act) is derived from the peace, welfare (or order) and good government section of a State Constitution Act (see in particular the majority judgment of the Court in Clayton v Heffron (1960) 105 CLR 214, 252), other judges have disagreed. See West Lakes Ltd v The State of South Australia (1980) 25 SASR 389, 422 per Matheson J. If s 5 of the Colonial Laws Validity Act were repealed for the Australian States, a constituent power would need to be derived from the peace welfare and good government sections. Such a constituent power would then form the basis for the exercise of legislative power in relation to the structure of the legislature, the executive and the judiciary, and in relation to specific matters that are dealt with in the Constitution Acts.
52 [1919] AC 935. The case concerned legislation of a Canadian Province establishing an (indirect) initiative. The reasoning adopted by the Privy Council would be applicable to the Australian States. Cf R v Nat Bell Liquors [1922] 2 AC 128, and see also Hogg, PW, Constitutional Law of Canada (Toronto, 1977) 220-222.Google Scholar
53 See Lumb, R D, “Fundamental Law and the Processes of Constitutiona1 Change in Australia” (1978) 9 FL Rev 148, 174 ff.Google Scholar
54 As was decided in Trethowan's case (1931) 44 CLR 394 (HC); [1932] AC 526 (PC).
55 This was the opinion of a number of the judges of the Court of Appeal of Manitoba in the case In re The Initiative and Referendum Act (1916) 27 Manitoba Law Reports 1. See especially Howell CJM at 6-7.