Can section 128 of the Constitution be used to change the first eight clauses of the Constitution?
Commonwealth of Australia Constitution Act, 1900: Original Public Record Copy (1900).
Parliament House Art Collection, Art Services Parliament House
Commonwealth of Australia Constitution Act, 1900: Original Public Record Copy (1900).
Parliament House Art Collection, Art Services Parliament House
Description
This image shows the front page of the original public record copy of the Commonwealth of Australia Constitution Act 1900.
Permission for publication must be sought from Parliament House Art Collection. Contact DPS Art Services, phone: 02 62775034 or 02 62775123
Hi James. Thanks for your question.
In short, yes. The first 8 clauses of the Australian Constitution could be changed through a process called a referendum, which is explained in section 128 of the Constitution. So far, there has never been a referendum about changing these clauses.
The first 8 clauses are often called the 'covering clauses'. Even though they are not numbered sections like the rest of the Constitution, the High Court has treated the covering clauses as part of the Constitution when making decisions. For example, the High Court referred to clause 5 in its ruling on the Franklin Dam Case in 1983.
The covering clauses allowed the 6 British colonies – New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania – to unite to form the Commonwealth of Australia. As the covering clauses deal with the formation of Australia, it is unlikely that any changes would be proposed today.