CONSTITUTIONAL AMENDMENT WHETHER BILL TO ALTER CONSTITUTION FOR A LIMITED TERM CAN CONTAIN PROVISION FOR THE HOLDING OF ANOTHER REFERENDUM ON CONTINUANCE AT THE EXPIRATION OF THAT TERM
CONSTITUTION s 128
I have been asked to advise whether provision could be made in the Constitution Alteration Bill,(1) about to be introduced into the Parliament, for the holding, at the expiration of five years from the cessation of hostilities, of a referendum on the question whether the additional powers being sought by the Bill are to be conferred permanently.
In my view the answer to this question is No.
Section 128 of the Constitution opens with the words ‘This Constitution shall not be altered except in the following manner’–words which, as Sir Harrison Moore says in Commonwealth of Australia Second Edition, at pp. 598–9:
... make it clear that there is no alternative method of amendment such as might otherwise perhaps have been considered to belong to the Parliament under the Colonial Laws Validity Act 1865, and establish the provisions of the section as mandatory and not merely directory.
The manner which is laid down in that section is the passage of a Bill by both Houses of the Parliament, or, under certain circumstances, by one House, followed by a vote by the people on the question whether the Bill should be approved. Section 128 provides that this vote must be taken within certain fixed times, namely not less than two nor more than six months after the passage of the Bill through Parliament. These times have been fixed, as Sir Harrison Moore says:
... to afford sufficient time for the electors to inform themselves of the issue and to prevent undue delay.
In my view the passage of a Bill through Parliament, and its submission to the people within certain fixed times, are integral parts of the method laid down for the alteration of the Constitution, and full compliance therewith is necessary to ensure the validity of the measure.
The insertion in the measure about to be introduced into Parliament of provision for the holding of a referendum at the expiration of five years after the cessation of hostilities would not, in my view, be consistent with section 128. Further, if such a provision were inserted in the Bill and the people at such a referendum purported to approve of the proposed alteration of the Constitution, the approval would be legally ineffective inasmuch as the vote of the people would not have been taken within the fixed times laid down by section 128.
[Vol. 36, p. 30]
(1) The Constitution Alteration (Post-war Reconstruction and Democratic Rights) 1944 which, after its passage through the Commonwealth Parliament pursuant to s 128 of the Constitution, was defeated at a referendum held on 19 August 1944.