passed in the ordinary way. With s5 out of the way, the legislature can then
change the composition of the upper house by a statute passed in the ordinary
way.
Double entrenchment, as the label indicates, doubles the entrenchment so that
both the target provision is entrenched as well as the entrenching provision
itself. An illustration is the following hypothetical provision:
5
Change of composition of upper house
(1)
A law to change the composition of the Upper House must be approved by a
referendum as well as by the legislature itself.
(2)
A law to change this section must be approved by a referendum as well as by the
legislature itself.
Section 5(1) constitutes single entrenchment, while s5(2) imposes, or attempts
to impose, double entrenchment. If a double entrenchment is constitutionally
valid then the legislature still has two ways of changing the composition of the
upper house but each involves a referendum:
(1)
The legislature can pass a law changing the composition of the upper
house and have it passed by a referendum (if it can) in accordance with s5.
(2)
The legislature can do two things:
(i)
Repeal s5 by a statute. Because of the double entrenchment in
s5(2) this law has to be passed by a referendum.
(ii)
With s5 out of the way, change the composition of the upper
house by a statute passed in the ordinary way.
This analysis indicates that a law which is doubly entrenched has three
components:
(1)
It refers to a law about something. The something is the subject. The
provision dealing with the subject is the subject provision. In the example
above the subject is the composition of the upper house and the subject
provision is the reference in s5(1) to "a law to change the composition of the
upper house”.
(2)
It has a procedure for changing that law (the procedural provision). In
the example above the procedural provision is the requirement for approval at
a referendum which is in s5 (1) and (2). Although we call this provision the
procedural provision it can be characterised in either of two ways:
(i)
It is, as we have already described it, a procedural requirement
for passing the law.
(ii)
In the case where the provision stipulates a referendum it involves
a redefinition of the composition of the legislature. The legislature now
consists of four things - the normal components such as the head of state, the
upper house and the lower house, as well as the electorate.
(3)
It has a provision which applies the procedural provision to the law
containing the procedural provision (the reflex provision). In the example
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