Chapter 12 - Legislation

Bills to alter the Constitution

Section 128 of the Constitution requires that a bill to alter the Constitution must be passed by an absolute majority of each House of Parliament before it is submitted to the electors in a referendum (but see below for passage by one House only). An absolute majority means a majority of the whole number of members of each House.

The procedures of the Senate reflect this requirement by providing that if a bill proposing an alteration to the Constitution is not carried by an absolute majority of the Senate at the third reading, the bill is forthwith laid aside and may not be revived during the same session (SO 135). An absolute majority is required only for the third reading, and it is possible for a Constitution alteration bill to progress to a third reading without an absolute majority during the earlier stages of its passage. This allows the Senate freedom to consider a Constitution alteration bill at earlier stages while enforcing the constitutional requirement at the stage of the final passage of the bill. (For a discussion of the question of whether this rule conforms with the Constitution, see ASP, 6th ed., pp 508-9.)

Where a Constitution alteration bill which has been passed by the Senate is amended by the House of Representatives, the agreement of the Senate to the amendments must also be by an absolute majority (ruling of President Baker, 11/10/1906, J.220). Unless this rule is applied, a provision in a bill could pass without the agreement of an absolute majority as required by the Constitution. Similarly, a motion not to insist on a Senate amendment to which the House has disagreed must be adopted by an absolute majority to succeed (ruling by President Reid, 12/8/1999, J.1493-5). A motion to insist on an amendment, however, may be carried by a simple majority, as it does not alter the bill as previously passed by the Senate (5/12/1973, J.567).

The requirement for a bill to be laid aside in the absence of an absolute majority on the third reading applies where a bill received from the House of Representatives is agreed to with amendments, and is therefore returned to the House (14/3/1974, J.55).

In order to indicate that a Constitution alteration bill has been passed by an absolute majority, the names of the senators voting for the bill are recorded in the Journals even if no division is called.

Bills to alter the Constitution are subject to another special provision under the procedures of the Senate. A roll call of the Senate must take place immediately before a vote on the third reading of a bill to alter the Constitution (SO 110; for roll calls, see Chapter 11, Voting and Divisions, under Roll call). Where the third readings of several such bills are taken in succession, one roll call suffices. The requirements for a roll call, and for 21 days notice of a roll call, on a Constitution alteration bill have often in the past been suspended by motion on notice.

The Governor-General is not obliged to submit to the electors a bill which has been passed by both Houses. Certain bills so passed in 1915, 1965 and 1983 were not submitted on the advice of the ministry due to political circumstances (for observations on the propriety of this course, see speech by Senator Macklin, SD, 15/12/1983, pp 3920-2).

Section 128 of the Constitution also contains a provision whereby a bill proposing an alteration of the Constitution may be submitted to the electors if only one House has passed the bill and the other House has rejected it, failed to pass it or passed it with amendments unacceptable to the originating House on two occasions with an intervening interval of three months. It is constitutionally possible, therefore, for a proposed alteration to the Constitution to be submitted to the electors after being passed only by the Senate.

In practice, however, with the ministry effectively controlling the House of Representatives and also advising the Governor-General as to the submission to the electors of a proposal passed by only one House, a bill cannot be put to a referendum unless it has been agreed to by the government in the House of Representatives. Thus the Governor-General in 1914 declined to submit to the electors bills passed by the Senate in accordance with section 128 (24/6/1914, J.98). (In the light of the exposition by the High Court of the meaning of failure to pass in Victoria v Commonwealth 1975 7 ALR 1, it is seen that the bills had not actually failed to pass the House, but this was not apparent at the time.) This precedent is contrary to the intention of the provision, which is clearly distinguished from section 57 in providing for either House to bring about a referendum. The constitutional provision under this precedent, however, merely allows a bill which has been proposed by a government in the House of Representatives to be submitted to the electors against the wishes of the Senate.

The second paragraph of section 128 provides that “the Governor-General may submit” to a referendum a proposal passed by one House, whereas a proposal passed by both Houses “shall be submitted” under the first paragraph. This difference in wording does not indicate that the Governor-General is bound by the advice of the ministry, but that the Governor-General may exercise an independent judgment on a proposal passed by one House. That independent judgment is confined to whether the law to be submitted is the law “as last proposed by the first-mentioned House”, and whether the law as submitted is to be “with or without any amendments subsequently agreed to by both Houses”. In other words, the Governor-General was given some discretion in the second paragraph because of the need for some flexibility as to the version of the proposal in dispute which is submitted to the electors.

In 1974 several constitution alteration bills were submitted to the electors after passing in the House of Representatives alone. All of the proposals were defeated in the referendum.

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