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Published online by Cambridge University Press: 24 January 2025
It could hardly be disputed that the fundamental issue in Australian constitutional law and theory is federalism. Federalism is the keystone of the Australian constitutional system, and is the battleground over which most of the great conflicts in Australian constitutional law have been fought. Nor could it plausibly be denied that the absolute basis of Australian federalism is the continued existence of the States. What makes Australia ‘federal’ is the presence of two separate spheres of government, each with its own organs, powers and functions, the Commonwealth and the States. Whatever other features of the Australian constitutional system might safely be dispensed with without endangering the title ‘federal’, there can be little doubt that the abolition of the States would involve the termination of federalism within Australia.
The present article, then, is concerned with an issue which goes to the heart of Australian federalism — the abolition of the States which collectively go to make up the federation itself.
1 Subject, of course, to the possibility f the abolition of the States and their replacement with some other form of federal unit, possibility which is beyond the scope of this article.
2 Thus, this article is not directly conce ed with the constitutionality of more exotic means of achieving the same ends. These “ght conceivably include the use of s 51(38) of the Constitution, or the resort to s 15 of th Australia Act 1986 (UK) for the purpose of effecting a partial repeal of s 8 of the Statute f Westminster, so as to permit the Commonwealth Parliament to itself make the requisi amendments to the Constitution. As to the latter possibility, see Lindell, GJ, “Why is ustralia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Ind pendence” (1986) 16 FL Rev 29, 40;cfGoogle Scholar Craven, G, “The Kirmani Case - Could the Comm nwealth Parliament Amend the Constitution Without a Referendum?” (1986) 11 Syd L Rev 64.Google Scholar
3 Eg Howard, C, Australian Federal Constitutional Law (3rd ed 1985) 585Google Scholar; Harrison Moore, W,The Constitution of the Commonwealth of Australia (1902) 321Google Scholar; Wynes, WA, Legislative, Executive and Judicial Powers in Australia (5th ed 1976) 542Google Scholar;Gain, AC, “Existing Provisions for Altering the Constitution” in G V Portus (ed),Studies in the Australian Constitution (1933) 221-222Google Scholar. This is a difficult issue, as one must first determine whether an inconsistency with the covering clauses would in fact arise, and secondly, whether an alteration to the Constitution which is inconsistent with the covering clauses is therefore void. For a suggestion that an inconsistent alteration would not be void, see Winterton, G,Monarchy to Republic (1986) 126; Commonwealth of Australia,First Report of the Constitutional Commission (1988) 181-187.Google Scholar
4 Eg Detmold, MJ,The Australian Commonwealth (1985) 211Google Scholar; Canaway, AP,The Failure of Federalism in Australia (1930) 211; “In the Matter of Section 128”, opinion of JE Richardson, Appendix A to the Report of Standing Committee B to the Executive Committee, Proceedings of the Australian Constitutional Convention and Standing Committee Reports (1975) 37. Of course, even were the abolition of the States to fall within para 5, it would not follow that an alteration for their abolition could not be made: rather, it would merely be the case that the consent of the electors of a State would be required for that State's abolition.Google Scholar
5 It may be noted that other constitutional difficulties might be posed by any proposal for the abolition of the States. For example, it might be suggested that such a measure would necessitate the amendment of those parts of the Australia Acts which deal with State constitutional features; Lindell, GJ, “Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 FL Rev 29, 40.Google Scholar
6 It should be appreciated that it is most unclear whether the abolition of the States under s 128 would be invalid on either of these bases, with the authorities (including those cited above) taking divergent positions. Thus, in the event that abolition became a 'live' issue, the question of whether a power to 'alter' the Constitution in any event extended so far would be of critical importance.
7 Quick, JGarran, R, The Annotated Constitution of the Australian Commonwealth (1901) 991.Google Scholar
8 The abolition of the States formed part of the Labor Party's platform from 1918 to 1971: Sawer, G “Towards a Federal Structure” in G Evans (ed),Labour and the Constitution 1972- 1975 (1977) 3.Google Scholar
9 Hawke, RJL,The Resolution of Conflict (1979) 18-19.Google Scholar
10 The Age, 26 January 1988.
11 Eg those comprised in the Constitution Alteration (Parliamentary Terms) Bill 1988 (Cth); the Constitution Alteration (Fair Elections) Bill 1988 (Cth); the Constitution Alteration (Local Government) Bill 1988 (Cth); and the Constitution Alteration (Rights and Freedoms) Bill 1988 (Cth), which were defeated in September 1988, after a campaign substantially based on appeals to 'States Rights'.
12 Amendments would be required to ss 7, 8, 9, 10, 11, 12, 13, 14 and 21.
13 Were the Senate to be abolished along with the States, there would also need to be consequential amendments to such provisions as ss I, 53, 56, 57, 58 and 128.
14 Sections 24 and 25 would have to be drastically amended.
15 Amendments would be required toss 41, 44 and 45.
16 Along with other provisions such as ss 90 and 106, to name only two.
17 Amendments would be required toss 73, 74, 75(iv), 77(ii), 77(iii), 78 and 80.
18 Provisions thus affected would include ss 91, 92, 96, 98, 99, 100, IOI, 102, 103, 104, 105 and 105A.
19 Provisions to be removed would thus be ss 106, 107, 108, 109, 110, 111, 112, 113, 114,115, I17, 118, 119 and 120. Section 116 forbids the Commonwealth Parliament to make laws for the observance of religion, and has thus never belonged in a chapter concerning “The States” at all.
20 Sections 121, 122, 123 and 124.
21 Quite apart from other obviously necessary amendments, para 5 of s 128, which requires special State majorities for certain classes of amendments, would have to be removed. This, of course, assumes that s 128 is available for its own amendment, an issue not taken up in this article, but as to which, see Howard, C, Australian Federal Constitutional Law (3rd ed 1985) 569.Google Scholar
22 This would be on the basis that placita were to be regarded as separate provisions, and that all of the individual placita of s 51 faced repeal.
23 With the exception of s 116.
24 Western Australia v Willsmore [1981] WAR 179, 183per Burt CJ. On appeal, the majority of the High Court (but not Murphy J) appear to have accepted this view:Western Australia v Willsmore (1982)149 CLR 79.
25 Id. See alsoSouthern Centre for Theosophy Inc v South Australia (1979) 145 CLR 246;China Ocean Shipping Co vSouth Australia (1979) 145 CLR 172,especially per Barwick C J at 182;Western Australia v Willsmore (1982) 149 CLR 79. Butcf Quick, JGarran, R,The Annotated Constitution of the Australian Commonwealth (1901) 930Google Scholar; and Winterton, G,Monarchy to Republic (1986) 141.Google Scholar
26 Of course, as has been seen, many of the provisions of the Constitution 'recognise' the existence of the States, but this does not alter the fact that “the Australian Constitution had not, as any part of its object, the framing of a government for the States”: Harrison Moore, W,The Constitution of the Commonwealth of Australia (1902) 287.Google Scholar
27 Some such consequential provisions would presumably have to be included, although many matters could subsequently be dealt with by ordinary legislation of the Commonwealth Parliament.
28 It may be noted that the comments of Mason CJ inBoland v Hughes (High Court of Australia, August 1988, unreported decision) would seem to indicate that a proposal for the abolition of the States could at least theoretically be the subject of a single proposed law, and thus of a single referendum question. Moreover, this may well be the position not only in the case of the simple alteration contemplated here, but also in the case of abolition in detail.
29 Supra text at nn 24-26.
30 It may be that the approval of a referendum question simply for the abolition of the States could support the alterations to the Constitution comprised in abolition in detail. This, of course, assumes the prior passage of a constitutional amendment bill in the appropriate form.
31 This was the method put forward by Sir John Latham as a means to practical unification: Latham, JG, “Changing the Constitution” (1953) 1 Syd LR 14, 18.Google Scholar A possible alternative would be to amend s 128 itself so as to confer upon the Commonwealth Parliament the power to make (at least some) constitutional amendments of its own motion: see the opinion of Sir Owen Dixon contained in Appendix F to the Report of the Royal Commission on the Constitution of the Commonwealth (1929) 365. Of course, either of these options would raise constitutional questions of their own.
32 The most illuminating discussion of the amending power is to be found inConvention Debates,Melbourne,1898, i, 715-772.
33 It is certainly not unreasonable to suggest that many delegates, judging from the positions which they took on other sensitive questions, would have been appalled had they thought that s 128 could ever authorise the destruction of the States.
34 For example, Solomon was disturbed by the thought that the Constitution might be amended so as to take from the States their representation in the Senate, a grave blow to be sure, but hardly equivalent to abolition:Convention Debates,Melbourne, 1898, i, 753. Higgins, when campaigning against the adoption of the CommonwealthBill gave as his most dramatic example of the abuse of the amending power its open ended use to force States to hand over subjects of legislative power to the Commonwealth against their will: Higgins, HB,Essays and Addresses on the Australian Commonwealth Bill (1900) 87-88.Google Scholar
35 It has been suggested that the Founding Fathers may have assumed that s 128 was itself unamendable: Sawer, G, “Some Legal Assumptions of Constitutional Change” (1957) 4 U W A LR 1, 4.Google Scholar If this view is correct, it would seem to suggest that the existence of the States, which is clearly assumed by and lies at the heart of the amending procedure contained in s 128, was likewise seen as being beyond the reach of that section.
36 J Quick and R Garran,supra n 7.
37 W Harrison Moore,supra 3, 321.
38 In his evidence before the 1929 Royal Commission on the Constitution, as quoted in A C Gain, supra n 3, 222.
39 W A Wynes,supra n 3, 542.
40 C Howard,supra n 3, 584-585.
41 G Sawer,supra n 35, 4.
42 Coper, M,Encounters with the Australian Constitution (1987)395-397.Google Scholar
43 M J Detmold,supra n 4, 209-211.
44 Other instances of the expression of this view include Canaway, AP, 'The Safety Valve of the Commonwealth Constitution' (1938) 12 A L J 108, 110-12Google Scholar; Evans, G, 'Changing the Structure' in S Encel, D Horne and E Thompson (eds),Change the Rules! Towards a Democratic Constitution (1977) 155. It would also appear to have been the view of the Constitutional Commission:Final Report of the Constitutional Commission (June, 1986), i, 3, 114.Google Scholar
45 Eg Lumb, RD, The Constitution of the Commonwealth of Australia (4th ed 1986) 753Google Scholar; Enright, C,Constitutional Law (1977) 286-288Google Scholar; Lane, PH,An Introduction to the Australian Constitution (1987) 3. Lane would regard the abolition of the States as “scrapping the existing document [ie the Constitution] altogether”, and suggests action by the UK Parliament as the best means of achieving such an object.Google Scholar
46 Eg those of Sir Owen Dixon,supra n 38;J Quick and R Garran,supra n 7.
47 [1914] A C 237.
48 Ibid 256. Great emphasis is placed on this dictum in A P Canaway, 'The Safety Valve of the Commonwealth Constitution',supra n 44, 108-9.
49 British Coal Corporation v R [1935]AC 500, 518; and seeAttorney General (NSW) v Brewery Employees Union (1908) 6 CL R 469, 611-612,per Higgins J.
50 But see the comments of Deane J in Queensland Electricity Commission v Commonwealth (1985) 61 ALR 1, 41, where His Honour seems to assume that a constitutional amendment could be effected under s 128 which made provision for the abolition of the States. However, these comments do appear to be obiter dicta. Likewise, the comments of Mason CJ in Boland v Holland (High Court of Australia, August 1988, unreported decision) are clearly directed towards the essentially procedural question of whether a proposed law under s 128 can deal with more than one alteration to the Constitution, rather than with the issue of the substantive scope of the power of alteration conferred by that section.
51 Eg Queensland Electricity Commission v Commonwealth (1985) 61 ALR 1, 20per Mason CJ;Victoria v Commonwealth (1970) 122 CLR 353, 397per Windeyer J;Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 55 per Latham CJ, 70per Starke J; and see Thomson, JA, “The Australian Constitution: Statute, Fundamental Document or Compact?”(1985)Law Institute Journal 1199.Google Scholar
52 Infra text at 108-109.
53 Art V allows Congress to “propose amendments to this Constitution”. Such amendments “shall be valid to all intents and purposes as part of this Constitution” once ratified by the Legislatures of, or Conventions held in, three-fourths of the States.
54 The reason 'altered' was preferred to 'amended' in s 128 is outlinedinfra text at p 104-105.
55 Eg the abolition of the Senate: see Machen, AW, “Is the Fifteenth Amendment Void?” (1910) 23 Harv L Rev 169, 171.CrossRefGoogle Scholar Examples of the argument that Art V may not be used to abolish the States occur in Skinner, GD, “Intrinsic Limitations on the Power of Constitutional Amendment” (1920) 18 Mich L Rev 213CrossRefGoogle Scholar; Marbury, WL, “Limitations on the Amending Power” (1920) 33 Harv L Rev 223; and in Machen,supra.CrossRefGoogle Scholar
56 A W Machen,supra n 55,170.
57 Eg Texas v White 7 Wall 700, 726: “Without the States in union there could be no such political body as the United States ... the preservation of the States and the maintenance of their governments is as much within the design and care of the Constitution as the preservation and maintenance of the national government . . . The Constitution in all its provisions looks to an indestructible Union of Indestructible States”.
58 Eg,it has been suggested that an implication is to be drawn from the Constitution as a whole that the amending power is not to be used to destroy the States: W L Marbury,supra n 55; G D Skinner,supra n 55.It has also been argued that the States cannot be abolished under Art V on the grounds that such an amendment would not be germane. That is, it would not attach to a subject already provided for by the Constitution; see Orfield, LB,The Amending of the Federal Constitution (1942) 106-107, where this argument is roundly rejected. It has even been argued that to be valid, an amendment must effect an “improvement” in the Constitution: see the argument of counsel inRhode Island v Palmer 253 US 350; 64 L Ed 946, 949 (1920). For a general discussion of possible limits on the amending power, see Orfield,supra 87-109.Google Scholar
59 Although Art V uses the term 'amend' rather than the word 'alter', much of the argument centred around that term is at least partly applicable to the Australian provision. It may be noted at this stage, however, that a power to 'alter' a Constitution may be at least slightly wider than a power to 'amend' such a document: see W Harrison Moore,supra n 3, 320; Canaway, AP, “The Evolution of Section 128 of the Commonwealth Constitution”(1940) 14 ALJ 274, 276.Google Scholar
60 (2nd ed 1971) 106-107. See also Rottschaeffer, H,Handbook of American Constitutional Law (1939)9Google Scholar; Dodd, WF, 'Amending the Federal Constitution'(1921) 30 Yale LJ 330.CrossRefGoogle Scholar
61 LB Orfield,supra n 60, 90-9; see also W F Dodd,supra n 60, 330;Livingstone, WS, Federalism and Constitutional Change (1956)240-241.Google Scholar
62 L B Orfield,supra n 60, 90.
63 Ibid 90-91.
64 Ibid 98-109.
65 Ibid 119-121.
66 Ibid 123-4.
61 Ibid 124.
68 (1920) 253 US 350; 64 L Ed 946,949.
69 Ibid 386.
70 (1922) 258 US 130; 42 S Ct 217.
71 Ibid 136; 511. It may be noted that in both these cases, a wide array of arguments were raised against the validity of the amendments in question.
72 Cases such as US v Sprague (1931) 282 US 716, 51 S Ct 220 andColeman v Miller (1938) 307 US 433, 59 S Ct 972 focus upon the procedure for the invocation of Art V, rather than its scope.
73 (1967) 19 L Ed 2d 228, 231.
74 There is a wide literature on what is often referred to as the Indian 'fundamental features' debate: see eg Aikman, C, “The Debate on the Amendment of the Indian Constitution” (1978) 9 VUWLR 357Google Scholar; Morgan, DG, “The Indian Essential Features Case”(1981) 30 Int and Comp L Q 307.CrossRefGoogle Scholar
75 Namely, amendments making any change in “the representation of States in Parliament” or in “the provisions of this article [ie Art 368]”.
76 See C Aikman,supra n 74, 374-5.
77 For an outline of the series of cases in which this argument has been raised see C Aikman,supra n 74, 366-77.
78 Notably Arts 13-19, which safeguard a wide variety of human rights, and Art 31, which seeks to protect property rights.
79 A I R 1973 S C 1461.
80 The majority judges were Sikri CJ, Jaganmohan Reddy J, Khanna J, Shelat J, Grover J, Hedge J and Mukherjea J.
81 The list in fact varies slightly from judge to judge. This aspect of the decision is discussed in some detail in D G Morgan,supra n 74, 319-322; see also C Aikman,supra n 74, 372.
82 DG Morgan,supra n 74, 317.
83 This approach was particularly evident in the joint judgment of Hedge and Mukherjea JJ.
84 D G Morgan's view is that the reasoning of the majority inKevasananda may best be rationalised as an (in his opinion invalid) attempt to resolve an ambiguity in the term 'amend';supra n 74, 317-19.
85 The majority judges inKevasananda do not necessarily adopt this line of reasoning overtly, but its influence is clear throughout much of their judgments; see especially the judgment of Khanna J at 1860-1862; and see C Aikman,supra n 74,371-372.
86 Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JJ.
87 See especially the judgment of Palekar J commencing on page 1973.
88 Seeeg the joint judgment of Grover and Shelat JJ at 562-3.
89 It is, however, of interest to note in passing that the amending power contained in the Constitution of the Irish Free State was held to be without limitation inState v Lennon [1935] I R 170, though not without the delivery of an impassioned dissent by Kennedy CJ.
90 See eg W Harrison Moore,supra n 3, 320-1; C Howard,supra n 3, 585; WA Wynes,supra n 3, 542;Final Report of the Constitutional Commission, supra n 43, i, 3.114.
91 Although para 5 of s 128 clearly imposes certain special majority requirements in respect of a specified class of amendments. The relevance of the presence of para 5 in the present context is dealt withinfra text at 109-112.
92 It is convenient at this point to note briefly the existence of an issue of some complexity.It is assumed throughout this article that s 128 does substantively confer a power to 'alter' the Constitution. This is the universaly accepted view of the section. However, it must be conceded that as a matter of drafting, s 128 is composed purely as a provision limiting the manner of the exercise of power, rather than a provision conferring power as such. So much follows from the opening words of the section: “This Constitution shall not be followed in the following manner ... “. It might therefore be suggested that s 128 assumes the existence of some other power of alteration (the most likely candidate beings 5 of Colonial Laws Validity Act), and merely provides for the manner in which that power is to be exercised: see G Sawer, supra n 8, 2-3. However, acceptance of this view would quite likely reach the further conclusion that since the Statute of Westminster (s 2 (!)) discontinued the application of the Colonial Laws Validity Act in the Commonwealth sphere, no power to amend the Commonwealth Constitution has existed. As Sawer notes, there can be no doubt that the view that s 128 creates a power of alteration will be accepted. Also as Sawer says, the Convention Debates clearly show that the Founding Fathers believed that a substantive power was being conferred; see supra n 32, 715-722. At all events, this interesting question is not pursued further in this article.
93 Such an argument would resemble some of those raised in connection with Art V of the United States Constitution, and consideredsupra text at nn 51-55.1
94 In general philosophy, the question of 'essence' has been the subject of considerable discussion, receiving the attention of Aristotle, Aquinas, Hume, Locke and Sartre, among others. It is not proposed to enter this complex area, but see Edwards, P (ed), Encyclopaedia of Philosophy (1967)Google Scholar (entry for 'essence'), and John, Locke, An Essay Concerning Human Understanding (5th ed, 1706), ii, book III, ch III.Google Scholar
95 Oxford English Dictionary, I, 255. This matter is taken up in more detailinfra text at 103-104.
96 It has, of course, been put in relation to the word 'amend' in Art V of the United States Constitution: see supra text at nn 53-57.
97 The question of whether the power of alteration in s 128 authorises the making of changes in constitutional arrangements effected elsewhere than in the Commonwealth Constitution is a difficult one, and one which is of importance in the context of the abolition of the States. This is because it might be argued that since the existence of the States stems from their own founding legislation and Constitutions, and not from the Commonwealth Constitution, a purported alteration to the Commonwealth Constitution abolishing the States would be ineffective as an attempt to alter something other than “this Constitution”. The issue is not taken up in this article.
98 Oxford English Dictionary i, 255 (italics added).
99 Webster's Third International Dictionary 63, (italics added).
100 Eg R v Peters (1886) 16 QBD 636, 641. Such guidance, however, is obviously not conclusive.
101 TheAge, 28 January 1988.
102 [1939) I KB 700.
103 Ibid 721.
104 [1956) SASR 46, 53. But see the rather opaque comments of Matthew J in Burton v Vestry of St Giles-in-the-Fields and St George, Bloomsbury [1901) I KB 650,659.
105 There are in fact many cases concerning the alteration of documents, but they are directed to the question of what is sufficient to constitute an alteration, rather than the issue addressed here, namely, what degree of change will be too great to answer that description.
106 18 & 19 Viet c 55.
107 18 & 19 Viet c 54; see also s 73 of the Constitution Act 1889 (WA).
108 Constitution Act 1975 (Vic), s 18.
109 Constitution Act 1934 (SA), s 8. Section 73 of the Constitution Act 1889 (WA) also continues in operation.
110 There are in fact a number of cases recognising the essentially unlimited width of the power conferred by such provisions: see McDonald v Cain (1953) VLR 4ll, per Martin J 429, per O'Bryan J 441; Trethowan v Peden (1930) 31 SR (NSW) 183, per Owen J 241, per Long Innes J 229; Taylor v Attorney-General of Queensland (1917) 23 CLR 457, per Isaacs J 475-6 (accepting that the power in question would per mit the conversion of the Parliament of Queensland from a unicameral into a bicameral legislature); Clayton v Heffron (1960) 105 CLR 214, per Menzies J 270 (accepting a similar proposition in relation to the NSW Parliament); R v Mccawley [1920] AC 691, 708.
111 But see the undeniably obscure comments of O'Connor J in Cooper v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304, 1328; and Lumb suggests that it might not be possible to abolish the Crown, citing Clayton v Heffron: Lumb, R, Australian Constitutionalism (1983) 136.Google Scholar
112 Supra n l10. Interestingly, in Re the Initiative and Referendum Act [1919] AC935, 945, there are dicta of the Privy Council which suggest that the unelaborated power of a Canadian Province to 'amend' its constitution would not extend to the making of certain basic changes. What was concerned there was the validity of an Act allowing the electorate directly to alter the law by referendum, without the mediation of the Provincial Parliament. The Privy Council clearly believed that a power to amend the Provincial Constitution would not go so far.
113 Infra text at 111-112. It may be noted that, quite apart from the matters previously addressed, specific powers of constitutional alteration have been less important in the State than in the Commonwealth context. This is because at State level, alternative sources of authority for constitutional amendment have existed in the form of s 5 of the Colonial Laws Validity Act, and the general provisions empowering State Parliaments to make laws for the peace, order and good government of their territories, each of which might be relied upon to authorise a wide range of constitutional alterations. Indeed, most cases concerning the amendment of State constitutions focus primarily upon s 5 of the Colonial laws Validity Act, rather than on a specific power of constitutional alteration.
114 It is precisely this proposition which is vigorously controverted in Canaway, AP, “The Evolution of Section 128 of the Constitution” (1940) 14 ALJ 274,275.Google Scholar
115 The preamble is not being put forward here as an aid in the process of constitutional interpretation, but merely as being indicative of the basic character of the Constitution. As to the use of the preamble interpreting the Constitution, see Craven, G, “The Constitutionality of the Unilateral Secession of an Australian State” (1985) 15 F L Rev 123, 126-135.Google Scholar
116 W Harrison Moore, supra n 3, 603; G Craven, Secession: The Ultimate States Right (1986) 91-92.
117 This is one of the fundamental orthodoxies of Australian constitutional law: Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89, especially per Barwick CJ at 97, and per Windeyer J at 125; see also Victoria v Commonwealth (1971) 123 CLR 353.
118 G Craven, supra n 116, 75; although Western Australia was subjected to pressure from Whitehall to join the Federation: La Nauze, JA, The Making of the Australian Constitution (1972) 260.Google Scholar
119 supra text at nn 11-20.
120 supra text at nn 12-16.
121 supra text at nn 13-16.
122 supra text at n 12.
123 Lane, supra n 45, remarks that the abolition of the states would involve “scrapping the existing document altogether”.
124 (1947) 74 CLR 31, 82.
125 Ibid 55; see also the judgment of Starke J at 70.
126 Commonwealth v Tasmania (1983) 158 CLR I, 129.
127 (1985) 61 ALR I, 11.
128 A distinction is to be drawn here between the ordinary interpretive process of elucidating the meaning of a given constitutional expression - as here - and the implication into the Constitution of substantive unexpressed terms which oper ate as if they are “embodied in the Constitution as an express over-riding guarantee”: cf Commonwealth v Tasmania (1983) 158 CLR I, 281 per Deane J.
129 This is not to say that an argument might not be put that an implication is to be made into the Constitution, by way of analogy with the Melbourne Corporation doctrine, to the effect that the amending power is not to be used to abolish the States.
130 Orfield treats some of the arguments against according an unrestricted scope to Art V in this way: see LB Orfield, supra n 58, 108.
131 supra text at nn 91-99.
132 In the American context, such an approach is adopted by Orfield, supra n 58, 90-3. Among Australian commentators who apparently have taken a similar view in relation to section 128 are W Harrison Moore, supra n 3, 321; C Howard, supra n 3, 584-5; and Canaway, AP, “The Evolution of Section 128 of the Commonwealth Constitution” 1940 14 ALJ 274.Google Scholar
133 supra text at nn 3-4.
134 supra n 58.
135 See Craven, G (ed), The Convention Debates 1891-1898: Commentaries, Guides and Indices (1986), Guide to Provisions, 385-389.Google Scholar
136 Convention Debates, Melbourne (1898), i, 715-716.
137 Id.
138 See G Craven, supra n 135, 388-389.
139 It may be that a power of “alteration” is wider than a power of 'amendment' (see eg W Harrison Moore, supra n 3, 320), but it does not follow from this that such a power would authorise fundamental change to the Constitution.
140 See eg the comments of Solomon (Convention Debates, Melbourne, 1898, i, 753), and - oddly enough - Higgins (ibid 740). The whole flavour of the Debates is that the existence of the States is a self-evident and immutable given.
141 G Sawer, supra n 35, 4.
142 Eg, the removal of the right of a State or States to equal representation in the Senate could not seriously be said to change the basic character of the Australian Constitution, and so would undoubtedly be an “alteration” within the meaning of s 128.
143 There is nothing in the Convention Debates to suggest that this paragraph was intended to guarantee the very existence of the States, as opposed to certain of their interests.
144 supra text at 104-105.
145 Id.
146 On the basis that statutes should be construed ut res magis va/eat quam pereat. It might, however, be argued that the words in question merely represent an excess of caution.
147 [1935] AC 500,518.
148 (1908) 6 CLR 469, 611-612.
149 The term 'sovereignty' is used here to denote an American concept of 'popular sovereignty': the idea that the people are always free to choose the form of government under which they will live. While this concept was of little relevance in Australia so long as the Constitution was regarded merely as an expression of the will of the sovereign Parliament at Westminster, it will be increasingly important if the view is adopted that the Constitution is now law because it is accepted by the Australian people, as to which see generally G Lindell, supra n 2.
150 Orfield strongly relies on similar arguments in maintaining that the power conferred by Art Vis unlimited: see supra n 58, 121-124. In the Australian context, see eg the comments in J Quick and R Garran, supra n 3, 991-992, and in M Coper, supra n 42, 396.
151 See supra, n 148.
152 See LB Orfield, supra n 58, 138.
153 supra text at nn 72-89.
154 See G Lindell, supra n 2, 41; cfG Craven, supra n 2.
155 supra text at 107-108.
156 See ss 62-66. This is not to deny the prodigious importance of responsible government to Australia's constitutional system, a fact given comprehensive judicial recognition in-·such cases as Amalgamated Society of Engineers v Adelaide Steamship Company (the Engineers case) (1920) 28 CLR 129.
157 Another possibility in this context would presumably be the monarchy, but even its removal would occasion nothing like the dislocation which would attend the abolition of the States see generally, Winterton, G, Monarchy to Republic (1986).Google Scholar