undertakes to except anything from the sovereign power as organized in the Constitution "invites the reappearance of a sovereignty back of the Constitution; i.e., invites revolution." (Burgess, Pol. Sci. ii. 49.)

It must be remembered that these are but bare possibilities and remote contingencies. At the present time and for an apparently indefinite period to come the people of the Commonwealth, in the majority of States, will not feel inclined to interfere with the principles of local liberty, local self-government, State autonomy, and State individuality, which pervade the Constitution. They will recoil from an Imperial policy of consolidation and centralization, which would swallow up, absorb, and obliterate the States. At the same time many profound political thinkers are of opinion that federalism, in which there is one political State, one central government, and several provincial governments, is but a transitory form of government, midway between the condition of confederacy and that of a single sovereignty over a combined population and territory.

"Its natural place is, in States having great territorial extent, inhabited by a population of tolerably high political development, either in class or in mass, but not of entirely homogeneous nationality in different sections. When these ethnical differences shall have been entirely overcome, something like the federal system may, indeed, conceivably remain, but the local governments will become more and more administrative bodies, and less and less law-making bodies. In fact, it looks now as if the whole political world, that part of it in which the centralized form of government obtains as well as that part still subject to the federal form, were tending towards this system of centralized government in legislation and federal government in administration. I do not feel sure that this is not the form of the future, the ultimate, the ideal form, at least for all great States." (Burgess, Political Sci. ii. p. 6.)

INITIATION OF AMENDMENTS. - The Constitution specifies two methods by which a proposed alteration may be launched. In the first place it may be formulated, and passed on to the electors, by absolute majorities in both Houses of the Federal Parliament. In the second place, if one House twice passes, by an absolute majority, a proposed alteration, to which the other House on each occasion fails to agree, the proposed alteration, with or without any amendments agreed to by both Houses, may be submitted to the electors. This alternative method of originating an amendment was not in the Constitution as drafted by the Federal Convention. It was recommended by the Conference of Premiers, and was afterwards ratified by the people on the occasion of the second referendum. It was designed to facilitate the amending procedure, and to deprive one Federal Chamber of the power to unduly obstruct or delay the submission of a proposed amendment to the people. The various successive stages in the second method are substantially the same as those prescribed by sec. 57 as the earlier stages of a deadlock in ordinary legislation, except that they apply equally to both Houses. They may be outlined, in their order of sequence, thus:—

(i.) Amendment proposed by an absolute majority of one House and not agreed to by the other House:

(ii.) Interval of three months:

(iii.) Amendment again proposed by the first-mentioned House and again not

agreed to by the other House :

(iv.) Governor-General may submit proposed amendment to the electors in each

State.

REFERENCE TO THE ELECTORS.-When a proposed amendment has been passed by the two Federal Houses, or when it has been passed twice by one Federal House, with the interval and in the manner prescribed, the procedure then assumes a form unknown in matters of ordinary legislation. It becomes the duty of the Executive Government to submit the proposed amendment to the popular vote throughout the Commonwealth, and it cannot become law unless it is approved by a majority of the electors voting and by a majority of the States. This means a double majority. In the first place more than half the electors voting must vote "yes;" in the second place, separate majorities

in more than half the States must vote " yes." If the proposed law does not secure this double majority it fails.

The preparation of a proposed amendment, and its approval by an absolute majority of members in each of the Houses, or by an absolute majority of members twice in one House, is merely a preliminary act in the amending procedure. The principal element in the process is the submission of the proposal to the electors. This process is a concrete exemplification of the political expedient, formerly known as the Plebiscite, now better known as the Referendum. It is an undoubted recognition of the qualified electors as the custodians of the delegated sovereignty of the Commonwealth. The qualified electors represent the people of the Commonwealth, as a quasi-sovereign State, in quasi-sovereign organization The requirement of the approval of a majority of the electors and a majority of the States is the method imposed by the Constitution for ascertaining the will of the people of the Federal Commonwealth. If a majority of the States had been ignored, the federal element in the structure of the Commonwealth would have been impaired and whittled away. In a unified community it would be sufficient if a majority of the people sanctioned a revision of the Constitution In a federal community, in which the National and State elements co-exist, a modification of the fundamental law, without the approval of both the people and the States, would be unjust and repugnant to the whole scheme of government. (Deploige, Referendum in Switzerland, 1898, 136.)

"The law of the Constitution must be either legally immutable, or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the Constitution." (Dicey, Law of the Const. p. 134.)

"The principle of that science is that the undoubted majority of the political people of any natural political unity possess the sovereign constituting power, and may as truly act for the whole people in building up as tearing down; more truly, in fact, for in political science the only purpose of tearing down is to secure a better building up of the whole structure." (Burgess, Political Sci. i. 107.)

The time may come when the national element, the people, may become so strong as to disregard and overshadow the federal element, the States. An amendment of the Constitution may then be projected and carried, abolishing the necessity of the second majority. When that is done the Commonwealth will probably cease to be a Federation and will be converted into a State, national in form and structure and national in organization. It is remarkable that whilst the abolition of equal representation of original States in the Senate, without the consent of those States, is prohibited, there is no prohibition of an amendment sweeping away the requirement that the assent of a majority of States is necessary to the adoption of amendments.

PRESENTATION TO THE GOVERNOR-GENERAL.-If, in a majority of the States, a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it must be presented to the GovernorGeneral for the Queen's assent. When this section was drawn by the Federal Convention, it was based on the assumption that both Houses would concur in passing the proposed amendment; that if the proposed law were approved by the statutory majority of electors and of States, it would be presented to the Governor-General for the Queen's assent; and that it would then be assented to by the Queen as a branch of the Federal Parliament. The insertion of the provision enabling one House to draft an alteration, and submit it to the people, emphasizes the fact that the Houses of Parliament, in respect of alterations of the Constitution, are originating and drafting bodies merely, and not the principal legislative organ.

An alteration thus launched by one House and then carried through the subsequent stages would assume the special form of a law passed, say, by the House of Representatives, approved by a majority of the people and a majority of the States, and assented to by the Queen. The other branch of the Federal Parliament would be no party to the Legislative Act. No doubt the law would have to be officially authenticated

in a special manner, certifying compliance with the constitutional requisites, similar to that in which amendments of the American Constitution are verified and promulgated. In that country the practice is that whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted according to the provisions, of the Constitution, the Secretary of State forthwith causes the amendment to be published in the official newspapers, with his certificate that it has become valid, to all intents and purposes, as a part of the Constitution of the United States.

The necessity of the Queen's assent is a sufficient guarantee that amendments will not be made inconsistent with the supremacy of the Imperial Parliament. It is not likely that the Crown would interpose its veto to prevent the adoption of amendments respecting which there was no question of Imperial or international policy involved. Questions of local expediency would no doubt be left to the decision of the people and the States of the Commonwealth; whilst questions of constitutionality could, with equal safety, be allowed to be settled by the Federal courts.

LIMITS OF THE AMENDING POWER.-There are no specific limitations upon the scope of the amending power. No part of the Constitution is excluded from the possibility of amendment; though amendments of a certain kind require a "species of unanimity" which makes such amendments very difficult. The power of amendment, therefore, extends to every part of the Constitution-even to sec. 128 itself, which defines the mode of amendment.

If therefore the Commonwealth were a sovereign and independent State, no amendment, duly passed in the prescribed form, would be beyond its powers; the amending power would have no limits. But the Commonwealth is only quasi-sovereign, and the amending power, though above the State Governments and above the Federal Government, is below the Imperial Parliament. The Commonwealth is a dependency of the Empire; and the amending power-the highest legislature of the Commonwealth-is a colonial legislature. It can therefore pass no law which is repugnant to any Act of the British Parliament extending to the Commonwealth, or repugnant to any order or regulation founded upon such Act; and on the other hand no law passed by the amending power will be void on the ground of repugnancy to the law of England unless it is repugnant to the provisions of some such Act, order, or regulation. (Colonial Laws Validity Act, 1865 [28 and 29 Vic. c. 63, secs. 2-3].)

In particular, no law can be passed by the amending power which is repugnant to the Commonwealth of Australia Constitution Act-consisting of the preamble and the covering clauses to which the Constitution itself is annexed. The amending power can amend the Constitution, but the Constitution Act is above its reach. How far the scope of the amending power may be limited by the scope and intention of the Constitution Act, as gathered from the preamble, it is impossible to say; but it is certain that, if amendments were passed which were inconsistent with such words as indissoluble," "Federal Commonwealth," or "under the Crown," strong arguments would be available against their constitutionality. (See Notes on Preamble," supra.)

66

THE AMERICAN METHOD OF AMENDMENT.-It may be useful to compare the amending procedure provided by this Constitution with that of other federal systems. In the Constitution of the United States, two methods of originating amendments are provided, and there are also two methods of enacting amendments, when so originated. In the first place, Congress itself may, by a two-thirds majority in each House, draft and propose amendments; in the second place the legislatures of two thirds of the several States may apply to Congress to call a convention for the purpose of proposing amendments On all occasions, up to the present, on which the amending power has been brought into action, the first method only has been employed for the purpose of proposing amendments When amendments are proposed by Congress, or by a constitutional convention, they have to be submitted to the States, and ratified in three-fourths of the States, either by the State legislatures or by State conventions specially elected in each

State for the purpose. The first method of ratification is the only one which up to the present has been resorted to. From this summary of the American amending procedure it will be observed that the facilities for altering the Constitution of the Commonwealth are much greater than those for altering the American Constitution. In regard to origination, an amendment may be proposed by an absolute majority of one House of the Federal Parliament, whilst a two-thirds majority in each branch of the American Congress is required. In regard to ratification, whilst in the Commonwealth a majority of the people voting and a majority of States is sufficient to carry an amendment, in America it must be passed by the legislatures or by the conventions in three-fourths of the several States.

THE SWISS METHOD OF AMENDMENT.-In the Federal Republic of Switzerland there are several methods by which revisions of the Constitution may be originated and ratified. A total revision of the Constitution may be brought about in three ways: (1) The National Council and the Council of States may agree to an amendment, as in the case of an ordinary federal law. The Constitution, as drawn up by the two Councils, must then be submitted to the popular vote, and if it is approved by a majority of the people and by a majority of the Cantons, it becomes law. (2) If one Chamber votes for a total revision and the other refuses its assent, the question is then submitted to the electors in each Canton, "Do you wish the Constitution to be revised-Yes or No?' If the majority of electors vote "Yes" in support of a revision, the two Chambers are then dissolved, and a new Federal Parliament is elected charged with the work of revising and drafting a new Constitution. When this has been prepared, it is submitted to the popular vote, and if it is approved by a majority of the people and by a majority of the Cantons it becomes law. (3) If 50,000 citizens sign a petition in favour of a total revision of the Constitution, it is the duty of the Executive to submit the question to the electors, "Do you wish the Constitution to be revised-Yes or No?" If a majority of the electors decide in favour of revision, the Federal legislature has to carry out the popular wish, and revise the Constitution for submission to the people. If on such submission it is approved by the required double majority it becomes law.

There are two methods by which a partial revision or a partial amendment of the Swiss Constitution may be brought about. An amendment may be proposed by the two Federal Chambers, as in the ordinary process of legislation. It must then be submitted to and accepted by a majority of the people and by a majority of the Cantons. A demand for the adoption of a new article, or the alteration of an old one, may be made in writing by 50,000 Swiss citizens in the same way as a demand for a total revision. If the Federal legislature agrees with the demand of the petitioners it proceeds to formulate the required amendment and prepare it for submission to the people. If on the other hand it disagrees with the demand the question is submitted to the people, "Are you in favour of a revision of the Constitution-Yes or No?" If a majority of the people decide in favour of a revision it becomes the duty of the Federal Legislature, acting as a Drafting Committee, to prepare the required amendment for submission to the people. It is then submitted to the popular vote, and if it receives the support of the required statutory majority of people and of Cantons, it becomes law. The final referendum is obligatory in every proposal to amend the Constitution. (Deploige, Ref. Switz. pp. 128-131.)

INDEX.

[NOTE. The references are to the pages.]