PROPORTIONAL REPRESENTATION SOCIETY OF AUSTRALIA

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2014-11-17

 

Entrenchment of Electoral Provisions in the Federal, State and Territory Constitutions

 

There are all sorts of political-philosophical and logical arguments about when a Parliament should be able to insert a special provision in its Constitution to protect fundamental features against over-ready amendment but, in Australia, they were largely pre-empted by the Australia Act 1986, enacted by co-operation of the Commonwealth and States using the procedure in Section 51(xxxviii) of the Commonwealth Constitution. It gives the States a general broad legislative power - subject of course to the Commonwealth Constitution - and states in its Section 6:

"6. Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act. "

The High Court of Australia has read this literally and narrowly and has said, when a proposed law seems to be governed by a special "manner and form" requirement for its enactment, the "manner and form" provision is binding IF AND ONLY IF the proposed new law is one about "the constitution, powers or procedure of the Parliament", and in other cases the Parliament can enact laws by simple majorities and the normal doctrine that later laws repeal earlier contrary laws applies, regardless of any apparent special rule for its enactment.  So the provisions, for example, of the New South Wales Constitution Act 1902 about proportional representation for the Legislative Council, equal electorates for the Legislative Assembly, etc, are probably binding because new rules would be about the constitution of the Parliament, but the provisions in the Victorian Constitution Act 1975 about privatization of water supplies and several other matters not connected with the Parliament itself are probably not. 

In Queensland in 1977, while Sir Johannes Bjelke-Petersen was the Premier, the Parliament inserted Section 53 into Queensland's Constitution Act 1867, protecting various sections about the Queen and Governor by a referendum requirement. In so far as they relate to the role of the Queen and the Governor in legislation, those sections are probably effectively protected, as a change would be changing the constitution or powers of the Parliament (of which the Queen and the Governor form a part).

However, Section 53 also purported to protect the then Section 14, which had provided that officers of the Public Service were to be appointed by the Governor (except for minor appointments, the extent of which wasn't defined), and in 1996 the Parliament, while Mr Robert Borbidge was the Premier, repealed that Section 14, and the reference to it in Section 53. Professor Suri Ratnapala of the University of Queensland was reported on the front page of Brisbane's Courier-Mail daily newspaper protesting that it was invalid, but no challenge or test case was taken to the courts, so the repeal became a fait accompli. Based on what the High Court said in Marquet's case, especially the extremely elliptical Paragraph 80 in its judgement, it would probably have rejected any challenge in this particular case.

The entrenchments in the Constitutions of NSW, Victoria, Queensland, Western Australia, South Australia, Tasmania, and the ACT's Proportional Representation (Hare-Clark) Entrenchment Act 1994 are discussed at the sections reached by those hyperlinks.

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