CONSTITUTIONAL AMENDMENT I: How to change the Australian Constitution according to s128 | AUSSIE LAW
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- čas přidán 26. 07. 2024
- The Constitution of Australia, like other rigid constitutions, established the way in which it could be altered. The process of constitutional change in Australia follows section 128 of the Australian Constitution. What are the requisites? What is the participation of the Federal Parliament, of both Houses of Parliament? How does the electorate participate? What is a double majority? Why do we need the majority of the people in a majority of States to alter the Australian Constitution? These and other questions will be answered in today's video!
0:00 - Intro: Written and Unwritten Constitutions
1:12 - Reasons to Amend Rigid Constitutions
3:38 - Section 128: Modes of Alteration
4:25 - Limits to Altering the Constitution
5:56 - Why change the Australian Constitution?
7:07 - Absolute Majority
9:29 - Timeframe for Referendum
10:39 - What happens if the absolute majority fails?
12:45 - Double Majority
14:36 - Royal Assent
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Do you want to learn more about Australian Constitutional Law? Do you want to understand the basic concepts and principles of the Australian Constitution? You've come to the right place! Welcome to AussieLaw, the channel where we explain the facts, concepts, principles, and legal provisions of the Constitution of Australia (and of Australian Public Law in general). I hope you will enjoy our short videos!
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RECOMMENDED READINGS:
- The Annotated Constitution of the Australian Commonwealth (Quick and Garran) : amzn.to/3ewJtjv
- The Constitution of the Commonwealth of Australia Annotated (Lumb, Moens and Trone) : amzn.to/3aHSkxu
- Federal Constitutional Law - A Contemporary View (Joseph and Castan) : amzn.to/3ohX96w
- Hanks' Australian Constitutional Law (Clarke, Keyzer, Stellios) : amzn.to/3g2NpJt
(I earn a small percentage from these qualifying purchases [at no additional cost for you!])
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LINKS:
- The Commonwealth of Australia Constitution Act : www.legislation.gov.au/Detail...
- Referendum (Machinery Provisions) Act 1984 (Cth) : www.legislation.gov.au/Detail...
- Parliamentary Education Office : peo.gov.au/understand-our-par...
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#australianconstitution #constitutionalchange #section128
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0:00 - Intro: Written and Unwritten Constitutions
1:12 - Reasons to Amend Rigid Constitutions
3:38 - Section 128: Modes of Alteration
4:25 - Limits to Altering the Constitution
5:56 - Why change the Australian Constitution?
7:07 - Absolute Majority
9:29 - Timeframe for Referendum
10:39 - What happens if the absolute majority fails?
12:45 - Double Majority
14:36 - Royal Assent
*8:30** it is literally thr only fundamental job. if thr is a vote, the representatives have to turn up and vote.* kings & landowner hold over nonsense. -JC
Very well explained!! Thank you sir
Hey, just wanted to say that I've been searching the whole internet for a good answer about this and after watching this, i can safely say that i found one. This helped so much with my studies so thank you!
can you talk about why the referendum failed in Australia?
I want to add America's bill of rights to our constitution but iv been told ONLY Australian politicians can propose & change the constitution
was there a constitutional amendment made by the Whitlam government in 1973 done without a referendem
Love your lectures! Can you please do a video on the ‘Referendum (Machinery Provisions) Act 1984 and the current proposed amendment before parliament.
Also, can you make comment on the current situation re both houses having to pass the proposed legislation prior to the referendum. Thank you kindly, CJ.
Ah well this is NOT a good interpretation of section 128 , so could the author please go back over section 128 and this time include the most important 3rd paragraph.
In particular the last few words of the third paragraph which are "in which adult suffrage prevails." In order to understand what the word "suffrage " means we need to look at section 41 of the Constitution. Section 41 talks about the right to vote at elections. So what I am pointing out here is there is NO HEAD OF POWER to bring in any form of compulsory voting. So the Compulsory Voting Act 1915 is illegal and void as well as any Commonwealth or State legislation that enforces compulsory registration and voting for any election or referendum , as there is no authority for Parliament to provide any such legislation. Do not forget MANNER and FORM as the guideline for all representatives to follow under the Commonwealth Constitution.
COMPULSORY VOTING FOR FEDERAL REFERENDUMS
"When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes" This gives the power to the Federal Parliament to make laws for the conduct of referendums, including enforcing compulsory voting.
"But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails." When the Constitution was enacted, some States like South Australia permitted women to vote (adult suffrage is the right of ordinary men and women to vote), other states like New South Wales only had male suffrage and did not permit women to vote. Because literally half the population could not vote in some states and could in others, this would skew the results of a referendum to change the constitution. Therefore this paragraph meant states that allowed women to vote would only have half their votes counted in a referendum to equalise them with states that did not allow women to vote.
This provision is now inoperative, because it would only apply until the Commonwealth Parliament created a uniform federal law for voter qualifications. Which the Commonwealth Parliament did in 1903 when it gave women the right to vote in federal elections.
COMPULSORY VOTING FOR ELECTIONS TO THE COMMONWEALTH PARLIAMENT
Sections 7, 8, 9, 10, 24, 29, 30 and 31 states the rules for the election of Senators and Members of the House of Reps. Some of these rules only apply "until the Parliament otherwise provides" (ie makes its own laws on). 51(xxxvi) provides that the Commonwealth Parliament shall have a head of power to make laws on areas that state "until the parliament otherwise provides". Meaning the Commonwealth Parliament has the power to make rules for its own election, including compulsory voting.
The argument that the power of the Parliament to make laws for its own election, does not include the power to compulsory voting was flatly rejected by the High Court. The case is called Judd v McKeon (1926).
COMPULSORY VOTING FOR ELECTIONS TO THE STATE PARLIAMENT
States can make laws on any topic, in any manner they please, so long as it is not been withdrawn from them by the Constitution, inconsistent with an existing law passed by the Commonwealth Parliament or within the exclusive power of the Commonwealth Parliament. This point is confirmed by section 107.
Since there is not an explicit prohibition on compulsory voting in the Constitution, the Parliaments of the States are perfectly free to enforce compulsory voting.
Thanks for citing the judd case as this is a perfect example of poor legal representation aas the key word that clearly was not defined by the High Court was the word "suffrage". Section 41 and section 128 use the word suffrage which means "by right". There is no head of power within the Commonwealth to impose compulsory enrollment and voting Section 51(xxxvi) is bound by the introduction to 51 "subject to this Constitution" and as such there is NO HEAD OF POWER. The Commonwealth Constitution is UK law and UK law as inherited and as all law inherited from the UK is PERMANENT then Division 1 Elections [1275] Edward the First applies binding all of the Parliaments throughout the Empire which clearly states, "And because elections ought to be free, the King commandeth upon great forfeiture, that no man by force of arms nor by malice, or menacing, shall disturb any to make free election." I presented this is in 2003 to the Magistrates court in Dandenong and witnessed a complete breakdown of the administration of justice with a series of events that boggles the mind exposing the corruption within the so called court system here in Australia. In fact the whole of government both Federal and State is corrupt beyond belief so since that case I have been actively and passively reporting to the general public. @@JamesVCTH
@@1darryloflife
- Subject to this Constitution means that a head of power is subject to any explicit prohibition. As an example, s 51(xxi) allows the Commonwealth Parliament to legislate on marriage, but that is subject to the prohibition on religious freedom (s 116). So the Commonwealth parliament could make a law to allow for same sex marriage but could not make a law preventing hindus from getting married.
As there is not an explicit prohibition of compulsory voting, it is absolutely supported by s 51(xxxvi).
- Section 41 says that if a person can vote in state elections, they cannot be prevented from voting in a Commonwealth election. It does not prevent the implementation of compulsory voting.
- In reference to UK law, it is not permanent. How could the Constitution even exist if otherwise (as it repealed the Federal Council of Australasia that existed prior).
In the UK, the Parliament is supreme (unlike Australia). Meaning Parliament can write and unwrite any laws it chooses. When a new law conflicts with an old law, the new law overrides the old law (even if the old law has not been repealed). This is called the doctrine of implied repeal.
The UK Parliament in 1865 passed a law called the Colonial Laws Validity Act, which allowed Australian Parliaments to override UK law. The exception being laws that were specifically applied to Australia. Thus that UK law you cite can be overridden, but the Constitution could not (because the Constitution was specifically applied to Australia).
You raise some relevant points James , so lets pull them apart. Section 51(xxi) only mentions the word "marriage" as a head of power leaving the Parliament to legislate on marriage but does not bring in section 116 as 116 only relates to a restriction on religious observance as a qualification for any office or public trust.
Section 41 also has a restriction as the Commonwealth is prevented from prohibiting any right to vote and section 128 repeats that right via the use of the word suffrage.
The words "until the parliament otherwise provides " is only applicable to the sections of the Constitution which start off with that phrase and not otherwise.
Sections 10 does start off with those words but section 41 does not permit any form of compulsory voting as it is a right, and the English law is permanent as the Constitution itself is a law of the UK. The Imperial Acts Application Act is in fact transcribed law and beyond the power of the Parliaments to amend or repeal and as such the Freedom of Election is a law binding on the States. Sections 106,107 and 108 are to be read together as well as section 5 of the Australia Act. Parliamentary Sovereignty at federation was thrown overboard ,to use the words from the framers of Federation, so the Commonwealth of Australia is under the sovereignty of the UK via clause 2 of the Commonwealth of Australia Constitution Act 1900 UK.
Section 53 of the Australian Constitutions Act 1842 clear prescribe UK law as permanent.
Section 24 of the Australian Courts Act 1828 also bind all those within the administration of justice to the laws of England.
The High Court in 2010 Port of Portland v State of Victoria also confirmed the validity of the Imperial Acts Application Act which consolidates the very clear restriction on any Parliament in Australia providing a law that makes the people of Australia exposed to charges of failing to vote. Australia is the only country in the Commonwealth that forces registration and voting at elections and referendums and there is no permission in law to do such a thing.
And this is only the tip of the iceberg backing what I am saying in this reply. @@JamesVCTH
@@1darryloflife
1. You seem to have missed the entire first part of section 116. “116 Commonwealth not to legislate in respect of religion - The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, AND no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” This clearly states the Commonwealth shall not make any law for prohibiting the free exercise of religion. The prohibition on a religious test for public office is the second half.
2. The right to vote does not entitle a person with a right NOT to vote. The high court rejected that argument based in section 41 in Judd v McKeon (1926). You can claim this interpretation is incorrect but the Courts have upheld this for 98 years. All of the Justices of the High Court in that case agreed, two of whom were delegates to the Convention that helped write the Constitution.
Justice Issacs said “the Constitution in sec 41 speaks of a right to vote ‘right to vote’. But I am equally free from doubt that Parliament, in prescribing a "method of choosing" representatives, may prescribe a compulsory method. It may demand of a citizen his services as soldier or juror or voter. The community organized, being seised of the subject matter of parliamentary elections and finding no express restrictions in the Constitution”
3. The method of choosing senators and members is one of those sections which uses the phrase “until the Parliament otherwise provides”.
4. The Imperial Acts Application Act 1980 is not an imperial act. It’s an Act of the Victorian Parliament that clarifies which imperial laws apply in the state and which do not. It was most recently amended in 2017. If there was a conflict between the IAAA and the Electoral Act 2002, the Electoral Act and any subsequent laws would override it. This is the principle of implied repeal and the Privy Council made this very clear in McCawley v the King (1920).
5. The only laws protected from implied or express repeal are the Australia Act 1986, the Commonwealth of Australia Constitution Act 1900, the Commonwealth Constitution and the Statute of Westminster 1931.
6. The Australian Courts Act 1828 and the Australian Constitutions Act 1842 were repealed by the UK Parliament via the New South Wales Constitution Act 1855 and the Victoria Constitution Act 1855.
7. Again the Colonial Laws Validity Act 1865 gave the power to Australian Parliaments to override UK laws (with the exception being laws that applied explicitly to Australia)