Opinion Number. 1873

Subject

ALTERATION OF CONSTITUTIONMEANING OF ‘ABSOLUTE MAJORITY’ OF A HOUSE OF PARLIAMENT IN s 128 OF CONSTITUTION

Key Legislation

CONSTITUTION ss 7, 128: COMMONWEALTH ELECTORAL ACT 1918 s 135(12)

Date

(1)  The question is asked as to the meaning of the expression ‘absolute majority’ (thrice occurring) in section 128 of the Constitution.

(2)  The words appear in the following phrases:

(i) The proposed law … must be passed by an absolute majority of each House of the Parliament;

(ii) … if either House passes any such proposed law by an absolute majority;

(iii) If … the first-mentioned House … again passes the proposed law by an absolute majority.

(3)  The phrase ‘absolute majority’ is not a well-defined technical term, and indeed may have different meanings in different contexts. This is well illustrated by the Oxford English Dictionary which gives the following definition:

‘Absolute Majority’—The number of votes received by one candidate which is more than half the number polled, or than half the number of electors.

A majority of all the votes polled (as in its first meaning above) may clearly be something altogether different from a majority of the total number of electors (as in the second meaning above).

(4)  Where there are more than two candidates for election, in a system of preferential voting, the expression ‘absolute majority’ is frequently used to indicate (as in the first meaning above) that a candidate has, or has not, a majority over all the other candidates combined—i.e. a majority of all the (formal) votes polled. This usage is in accordance with the definition given in the Commonwealth Electoral Act (section 135(12)).

(5)  Where the question however is whether a Bill is to pass, aye or nay, to require an absolute majority must mean something other than a majority of all the Senators voting. For that is only what would be required for an ordinary or ‘simple’ majority, and the word ‘absolute’, on that view, would cease to have any meaning or effect.

(6)  In section 128, therefore, I think it is clear that the expression ‘absolute majority’ must be given the second of the ordinary meanings above—i.e. a majority (i.e. one more than half) of the total number of Senators.

(7)  In some contexts, the number in relation to which an ‘absolute majority’ is to be fixed could well be the total number of persons for the time being eligible to vote. In other words, in some contexts any casual vacancies which happened to exist would be excluded from the total number of which the chamber is constituted by law. But in the context of section 128 I think it is clear that the absolute majority required must be calculated by reference to the total number of Senators specified by law as composing the Senate. The requirement in section 128 is an absolute majority of each House. This is just the same as saying ‘an absolute majority of the Senate and also of the House of Representatives.’ And in the events that have now happened, section 7 of the Constitution (which deals with the composition of the Senate) must be read as enacting that the Senate ‘shall be composed of ten Senators for each State.’ An ‘absolute majority of the Senate’ must therefore I think mean, in present circumstances, at least one more than half of sixty—i.e. 31 or more.

(8)  In short, for the purposes of section 128 I think that both the existence of a casual vacancy and the absence of a Senator or Senators must be disregarded in ascertaining whether or not a proposed law has been passed by an ‘absolute majority’ of the Senate. The number required must be fixed by reference to the total number of Senators of whom the Chamber is by law composed.

[Vol. 39, p. 21]