Opinion Number. 1774

Subject

CONSTITUTIONAL AMENDMENTPROPOSED LAWS TO ALTER THE CONSTITUTION PASSED BY SENATE AND HOUSE OF REPRESENTATIVES: OBJECT OF SUBMITTING PROPOSED LAWS TO GOVERNOR-GENERAL: EXERCISE OF GOVERNOR-GENERAL’S POWERS UNDER s 58 OF THE CONSTITUTION: WHETHER s 58 OF THE CONSTITUTION APPLIES IN RELATION TO PROPOSED LAWS TO ALTER THE CONSTITUTION

Key Legislation

CONSTITUTION s 58: CONSTITUTION ALTERATION (POST-WAR RECONSTRUCTION AND DEMOCRATIC RIGHTS) 1944: REFERENDUM (CONSTITUTION ALTERATION) ACT 1906 s 5

Date
Client
The Governor

I have the honour to acknowledge receipt of a letter dated 24th June, 1946, from the Official Secretary to Your Royal Highness transmitting a copy of each of three proposed laws to alter the Constitution which have been passed by the Senate and the House of Representatives of the Commonwealth, and communicating to me Your Royal Highness’s desire that I should peruse the measures and furnish certain advice.1

On 6th April, 1944, the Attorney-General advised His Excellency the then Governor-General, in connexion with the proposed law intituled ‘Constitution Alteration (Post-war Reconstruction and Democratic Rights) 1944’, that the Governor-General’s powers under section 58 of the Constitution arise only upon the presentation of the proposed law to the Governor-General for His Majesty’s assent.2 With that advice I respectfully agree. As indicated by the Official Secretary in his letter of 24th June, the proposed laws referred to in that letter have not yet been, and cannot yet be, presented to Your Royal Highness for His Majesty’s assent, and, in accordance with the opinion which I have expressed above, it is not necessary for me to advise Your Royal Highness at this stage whether Your Royal Highness should, in pursuance of section 58 of the Constitution, recommend any amendments to be made in the proposed laws.

I would respectfully suggest that Your Royal Highness should regard the proposed laws as having been submitted to you at this stage for your information and for your consideration, on the advice of the Federal Executive Council, of the question of the issue of a writ in pursuance of section five of the Referendum (Constitution Alteration) Act 1906–1936.

If and when the proposed laws are presented to Your Royal Highness for His Majesty’s assent, I respectfully suggest that Your Royal Highness should then obtain the advice of the Attorney-General on the question whether the Constitution requires Your Royal Highness to reserve the proposed laws for His Majesty’s pleasure to be made known and also on the question whether Your Royal Highness should recommend, in pursuance of Section 58 of the Constitution, that any amendments should be made in the proposed laws.

Your Royal Highness will observe that, in his advice to His Excellency the then Governor-General previously referred to, the Attorney-General left open the question whether section 58 of the Constitution can apply at all to a proposed law for the alteration of the Constitution.

Your Royal Highness may, however, think fit to invite further advice on this matter if and when the proposed law is presented to Your Royal Highness for His Majesty’s assent.

[Vol. 37, p. 171]

1 Proposed laws to alter the Constitution relating to social services, marketing and industrial employment were the subject of a referendum on 28 September 1946. Constitution Alteration (Social Services) 1946 was carried and inserted s 51(xxiiiA) into the Constitution.

2 Opinion No. 1731.