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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