above the reflex provision is s5(2), especially the phrase: "A law to change this
provision must . . . "
Double entrenchment detracts from the sovereignty of a legislature.
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Sovereignty of the legislature means that at any time the legislature can make
any law it likes on any subject that is within constitutional power. Double
entrenchment offends this notion because it permits one legislature to exercise
its sovereign power to fetter its own sovereignty. Double entrenchment would
detract from the sovereignty of the legislature and so destroy some of the
rights of a future majority of citizens. To highlight this point, yesterday’s
majority is given more authority than today’s majority. Such ancestor worship
is antidemocratic. These are the reasons that there is doubt about the inherent
constitutional validity of double entrenchment –
if a legislature is taken to be
sovereign it cannot pass a law that detracts from that sovereignty for itself and
for future legislatures.
Oppression of the Minority
Majority rule in a democracy is no justification for passing legislation that
oppresses the minority by unduly interfering with their rights or denying them
the benefits of civil society. Legislation of this kind is unjustifiable because it is
in fundamental conflict with the foundations of democracy. On the analysis of
John Locke, freedom is the birthright of humans. Humans consent to
government only on the basis that it is democratic because democracy as self
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This analysis of double entrenchment is obviously addressing the situation
where a present legislature by ordinary legislation attempts to restrict the power
of a future legislature. Another way of entrenching a provision is by exercise of
superior power. This can happen when a former colony is given a constitution by
its former coloniser. For example, the Constitution
of the Commonwealth of
Australia is conferred by a statute of its coloniser, the United Kingdom. Section 9
of the Commonwealth of Australia Constitution Act
(1900) sets out Australia’s
Constitution. Section 128 of this Constitution provides a mechanism for amending
the Constitution, including s128 itself, under which the relevant legislation needs
to be approved by an overall majority of voters (the simple majority principle)
but also imposed an additional majority requirement –
the legislation has be
approved by a majority of voters in a majority of States. If imposed as matter of
double entrenchment this additional majority requirement would, as a matter of
logic, be constitutionally invalid. In the case of s128 it was not originally invalid
since at the time the United Kingdom enacted the Constitution
in 1900 Australia
was still a colony of the United Kingdom and the United Kingdom imposed this
entrenchment by virtue of its overriding legislative sovereignty. An imperial
power can give legislative orders to its colonies. Now that Australia is no longer
conceived as a colony, (as provided or confirmed by the Australia Act 1986 (UK)
and its counterparts enacted by the Australian Commonwealth and state
parliaments) that justification no longer pertains.
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