Opinion Number. 1461

Subject

Alteration of the Constitution alteration of the constitution: commencement of three month interval before second passage of bill rejected by other house: ‘fails to pass’: ‘passes’: whether minimum interval required to elapse before submission to referendum of proposed law not passed by both Houses: manner of taking vote

Key Legislation

constitution ss 51(xxxix), 57, 128: Referendum (Constitution Alteration) Act 1928 ss 5, 6A

Date

We are asked to advise on a number of questions arising directly or indirectly out of section 128 of the Constitution of the Commonwealth. We have found the first question by far the most difficult, and it is probably the most important. As to this, we have had the advantage of reading two other expressions of opinion dealing with the point at issue. The very fact that they differ, imports that a serious doubt exists and we think that no opinion on the difficult question of interpretation involved can be expressed with complete confidence. We have, nevertheless, reached a definite opinion, but we have thought it desirable in the circumstances to express our views and the reasons for those views somewhat more exhaustively and elaborately than we might otherwise have thought necessary. The questions other than question 1, although we have given no less careful consideration to these, we propose to answer quite shortly.

1. The actual question at issue lies within quite a narrow compass and may be stated thus. Does the interval of three months which is provided for in the second paragraph of section 128 run from the first passing of the proposed law by the House of Representatives, or from the date when the Senate rejects it, or fails to pass it, or passes it with an amendment to which the first mentioned House will not agree? (For the sake of convenience we have followed Sir Robert Garran, and assumed that the originating House is the House of Representatives, and that the other House is the Senate.)

We cannot find in the terms of the paragraph a literal and grammatical meaning which would with perfect clearness and definiteness fix the commencement of the interval of time at the date of the passing of the proposed law by the House of Representatives and so afford in this sense a natural interpretation of the paragraph. On the contrary, we consider that the composition and arrangement of the paragraph support the view that the interval of three months begins on the rejection, failure to pass, or passing with amendments etc., by the second House. If there were no other relevant consideration, we should have arrived without great difficulty at the conclusion that of the two possible meanings, this was the natural and true interpretation. The section appears to refer to a series of events one following upon the other. The first event is the first passing of the Bill by the House of Representatives. The second is the rejection or failure to pass the Bill, or the passing of it with amendments, by the Senate. It seems to us that the section read according to its natural and grammatical construction contemplates that both those two events shall have taken place before the interval of three months begins to run. It is to be noticed that the paragraph consists of two hypothetical clauses. It runs, ‘But if … and if …’ One would thus be inclined to infer that the framers of the section contemplated that the events covered by the first hypothetical clause should be complete before the events covered by the second hypothetical clause commenced. The word ‘again’ we regards as neutral. We think it is natural to express the position that the House of Representatives is to do the same thing twice, but we do not think that any assistance can be derived from that word considered by itself in solving the problem before us.

It is to be noted that Sir John Quick and Sir Robert Garran in their well known book on the Constitution appear to take the above view of section 128 as well as of section 57, which is in almost exactly parallel language. Dealing with section 57, they say,

The Section provides several distinct and successive stages … The first stage is the rejection or failure by the Senate to pass the Bill proposed by the House of Representatives. Then succeeds an interval of three months for consideration, and possibly, compromise. Next, if there is no amicable settlement, the House again passes the Bill with or without amendments.

Again, at page 685, they say,

After the failure of the proposed law to receive the concurrence of both Houses, the interval of three months must be allowed to elapse before any further action can be taken under this section. That interval is required to give time for consideration and conciliation, and to permit of the development and manifestation of public opinion throughout the Commonwealth.

But the paragraph must be read as a whole, and we are of opinion that the literal and grammatical sense is not so clear and unambiguous as to be conclusive if there are to be found in the paragraph sufficiently clear reasons for displacing it in favour of a reading which adopts the date of the passing of the proposed law by the first House as the true date from which the period of three months is to run. Such reasons might be found in evidence that that meaning carried out, while the other did not, the ascertained purposes of the scheme; or that on the one meaning it was possible to give effect to the whole while on the other it was not; or–though this consideration has less force–that there were conveniences of so overwhelming a kind in favour of the one reading as against the other as to make it unreasonable to impute to the provisions in question the interpretation which would impose the inconveniences.

Cogent reasons for this opinion are outlined in our instructions and are emphasized in Sir Robert Garran’s opinion. Their central point is the fact that one of the contingencies provided for in the paragraph is that the Senate may ‘fail to pass’ the Bill, and that, on the interpretation which assigns the commencement of the three months interval to events in the Senate, that commencement would be, in the cases supposed, not at a date readily and precisely ascertainable, but at some time to be ascertained by inference from a course of action or inaction. The difficulty here presented is fortified by arguments drawn from the purposes and objects of the interposition of an interval of time.

The relevance of these considerations is obvious, and their weight must be admitted. We have to consider in the light of established principles of interpretation whether they are sufficiently weighty to establish as the natural and reasonable interpretation the view that the time runs from the first passing by the House of Representatives.

The purpose of a statutory provision is a valuable guide to the interpretation of doubtful expressions when that purpose itself is clear. But in the present case the purpose of the interval of time is part of the matter in dispute. Sir Robert Garran urges that the interval of time is provided to ensure that the second passing is the ‘settled opinion of the House of Representatives.’ It appears to us equally probable that the purpose was that the settled opinion should be formed in the light of all the facts, including what has happened in the Senate. Mr. Latham’s view is that the object evidently aimed at is the reconsideration of the Bill by the second House, and that to fix the interval of time as commencing at the passing by the first House would put it in the power of that House to defeat that object. In resorting to purpose and object in the present case, one therefore appears to be appealing to the doubtful to elucidate the doubtful. The only purpose clearly and unmistakably indicated is the interposition of an interval of time at some stage.

The essence of the suggested practical difficulty is that, where the case is not one of rejection or passing with amendments, the House of Representatives must act upon an opinion formed upon evidence that the necessary interval has elapsed. This opinion may be held by a Court to be unjustified, so that all the subsequent proceedings would be invalid. That is admittedly a grave practical consideration. But it falls short of a legal impossibility, and it is a difficulty with which in other connections the law is familiar. For instance, under the Statutes of Limitations, there are cases in which the Courts, having been satisfied that a certain definite date (e.g. the date of a debt being incurred or a guarantee entered into) was not the time at which the Statute began to run, have held that it began to run at some time ascertained by the consideration of what was reasonable in the circumstances.

Moreover, whatever view one takes of the section, it is necessary (assuming, as of course we do throughout, that the case is not one of rejection or of passing with amendments) before the Governor-General may submit the Bill to a Referendum, that the Senate should twice have ‘failed to pass’ the Bill. Before submission to the electors, it must in any case be definitely ascertained that the Senate has twice ‘failed to pass’ the Bill. The suggested view based on the convenience of certainty, therefore, by no means removes all difficulty. There may still arise a very difficult problem and grave practical inconvenience from uncertainty as to whether the House has ‘failed to pass’ the Bill on the first or the second occasion. It may be suggested that the problem of determining whether by a given date the Senate has failed to pass the Bill is a less difficult problem than fixing the precise moment of time at which the Senate may be said to have failed to pass the Bill. We think that on analysis the two problems compared are not really different from a practical point of view, but are identical. In the second place, what we have written reduces the whole matter, as we think, to one of a comparison of inconveniences, and so greatly weakens the weight of the argument based on convenience. We cannot agree that the expiration of the interval of three months would, in any case, be conclusive of a failure to pass.

  • For the reasons given above, we are of opinion, on the whole, that the more natural interpretation of the section is to treat the interval of three months as running from the date when the Senate has rejected the Bill, or failed to pass it, or passed it with amendments to which the House of Representatives will not agree, and that there is no consideration of convenience which is of sufficient cogency to displace what is, as we think, prima facie the meaning to be given to the enactment. We would repeat, however, that we are fully sensible of the real difficulty involved, and, although we have expressed with definiteness the view which we have finally reached, we have experienced great doubts in the course of our consideration and discussion, and we cannot say that we regard the matter as clear.(1)
  1. We have to a certain extent, we think, dealt by implication with this question in what we have written on the first and main question. The ascertainment of the date in the various contingencies referred to is a question of fact which would have to be decided on the precise circumstances of each particular case. Generally speaking, we think that one or other of two tests should be applied. We should ask either: Has the Senate indicated with reasonable clearness its intention of talking out or indefinitely delaying the Bill?–or–Has a reasonable time elapsed since the sending of the Bill to the Senate without its being dealt with in that Chamber?
  2. The material date is, in our opinion, the date when the Senate passes the Bill with the amendment. The word ‘passes’ is the main verb in the material hypothetical clause, and it is that verb which must, as we think, be taken as fixing the point of time in question, and not the date on which the House of Representatives resolves not to accept the amendment.
  3. We are of opinion that the words ‘not less that two nor more than six months after its passage through both Houses’ in the first paragraph of section 128 do not apply to a Bill which is not passed by both Houses in accordance with the first paragraph, but twice passed by one House, and twice disagreed to by the other in accordance with the provisions in the second paragraph. The two paragraphs appear to us to contain independent and self-sufficient provisions, and we are unable to see any reason for importing into the second paragraph a specific condition as to time, which is mentioned only in the first paragraph.
  4. We think it follows from our negative answer to the fourth question that no minimum interval is required by the Constitution to elapse before the submission to a Referendum of a proposed law not passed by both Houses. We think that the submission may take place so soon as the attitude of the Senate has been defined on the second sending of the Bill to that Chamber from the House of Representatives. Any such minimum interval could only be required by express enactment, and the section contains no such express enactment.
  5. Since our answer to question 4 is in the negative, this question does not arise. It will, however, on any view of the section, unless, of course, the case is one of rejection or passing with amendments, be necessary to ascertain at what date the Senate has for the second time failed to pass the Bill. This problem must arise, and for its solution we can only refer to our answer to question 2 above.
  6. This question is one of some difficulty, and there is a certain ambiguity both in section 128 of the Constitution and in section 5 of the Referendum (Constitution Alteration) Act, as also in the form of writ set out in the schedule to the last-mentioned Act. We think, however, that, when section 128 speaks of a submission to the electors, it contemplates the entire process which begins with the issue of the writ and ends with the close of the poll on the day of voting–or possibly, though we think not, with the return of the writ. It follows from this view that, in cases within the first paragraph of section 128, two months must elapse before the issue of the writ, and the voting must be completed before the expiration of six months. We have already indicated that, in cases covered by the second paragraph of section 128 the time limit is not, as we think, applicable.
  7. Section 6A of the Referendum (Constitution Alteration) Act has, in our opinion, no application to a proposed law which has not been passed by both Houses in accordance with the first paragraph of section 128. The suggestion that section 6A does apply to such a case seems to us to rest entirely on the suggested distinction between the passing of a Bill ‘by’ a House and the passing of a Bill ‘through’ a House. We do not think that any such distinction can be drawn. The words ‘pass’, ‘passing’ and ‘passage’ in Parliamentary parlance cannot, as we think, be taken to refer to anything but the process which ends with the acceptance of the Bill by a House, or to the act of final acceptance by a House. This view is supported, we think, both by general usage and by the reference given in our instructions. It is to be noted that the phrase ‘passage through both Houses’ appears to have been simply copied from the first paragraph of section 128 itself.
  8. This again is a somewhat difficult question, and involves constitutional considerations. Section 128 itself provides that when a proposed law is submitted to the electors, the vote shall be taken in such manner as the Parliament prescribes. The power thus implicitly given to the Parliament coupled with the provisions of section 51(xxxix) in our opinion afford sufficient constitutional warrant for section 6A which is, in our opinion, a prescription by the Parliament of the manner in which the vote is to be taken. It follows that a failure to comply with section 6A, in cases to which it applies, would be fatal to the validity of the proposed amendment of the Constitution even if the latter were carried by the necessary majority of States and electors. Section 6A does, therefore, we think, in cases to which it applies impose by necessary implication conditions in relation to the fixing of the days on which the writ may be issued and the vote taken. That is to say, the date of the issue of the writ and the date of the poll must be so fixed as to enable compliance with the provisions of section 6A. We have already expressed our view that section 6A has no application to cases arising under the second paragraph of section 128. There seems to be no practical reason why it should not so apply, and we presume that cases under the second paragraph of section 128 were simply overlooked by the Parliament which passed the Referendum (Constitutional Alteration) Act. This, however, of course, affords no ground for construing section 6A otherwise than according to its plain grammatical meaning. Legislation could be passed, as was done in 1925, modifying or negativing the application of section 6A to any particular referendum.

[Vol. 25, p. 490]

(1) See Victoria v Commonwealth (1975) 134 CLR 81.

(2) Sir William Harrison Moore. Born 30 April 1867, London, England; died 1 July 1935, Toorak, Victoria. Admitted London Bar 1891. University of Melbourne, Chair of Law 1892–1927; appointed Professor Emeritus 1928. Australian delegate to League of Nations 1928–1930. Appointed CMG 1917; KBE 1925. Author, The Constitution of the Commonwealth of Australia 1902.

(3) Sir Wilfred Kelsham Fullagar. Born 16 November 1892, Malvern, Victoria; died 9 July 1961, East Melburne, Victoria. Australian Imperial Force 1916–1920, 7th Field Artillery Brigade 1918–1919. Admitted Victorian Bar 1922. Appointed KC 1933. Member, Victorian Bar Committee 1928–1945. Vice-President, Law Council of Australia 1940–1945. Appointed Justice of the Supreme Court of Victoria 1945; Justice of the High Court of Australia 1950. Appointed KBE 1955.