There are various sections of the Constitution that states the words “until the Parliament otherwise provides”. This may cause confusion to some not familiar with the subsequent enactments, but they are nevertheless consistent with the Constitution. The basis of this confusion is due to the text of the particular provision remaining completely unaltered, and this leads some to believe that a current interpretation as held by the courts is unconstitutional. The alteration of the actual text of the Constitution requires a referendum under section 128, but the Parliament is thereby empowered to create legislation “otherwise providing” for the subject matter under section 51(xxxvi).
It is important to note the words “until the Parliament otherwise provides” when it appears in various provisions of the Constitution, and then apply the current interpretation, as most of those sections have in fact already been “otherwise provided” for.
According to The Annotated constitution of the Australian Commonwealth by Quick and Garran, at page 647:
“There are no less than twenty-two provisions in the Constitution in which it is enacted that the law of the Constitution shall be to a certain effect “until the Parliament otherwise provides.” By implication this confers on the Parliament authority to provide “otherwise.” Sub-section xxxvi. has been introduced to give the Parliament express power to provide “otherwise.” The result is that the Parliament can alter the Constitution in respect to the following matters:
(1.) GOVERNOR-GENERAL’S SALARY. —May be increased or diminished (sec. 3).
(2.) SENATE ELECTORATES. – Each State may be divided into electoral divisions (sec. 7).
(3.) QUEENSLAND SENATORIAL DIVISIONS.— May be abolished (sec. 7).
(4.) NUMBER OF SENATORS. —May be increased or diminished, but so that no Original State shall have less than six (sec. 7).
(5.) STATE ELECTORAL LAWS. —Regulating the election of senators may be superseded by Federal electoral laws (sec. 10).
(6.) QUORUM OF SENATE.— May be increased or reduced (sec. 22).
(7.) MODE OF ASCERTAINING QUOTA.— Maybe altered (sec. 24).
(8.) ELECTORAL DIVISIONS. —Federal electoral divisions for House of Repre sentatives may supersede State-made electoral divisions (sec. 29).
(9.) QUALIFICATION OF ELECTORS. —Federal law prescribing the qualification of electors may supersede State laws (sec. 30).
(10.) STATE ELECTORAL LAWS. —Regulating the election of the members of the House of Representatives may be superseded by Federal electoral laws (sec. 31).
(11.) QUALIFICATION OF MEMBERS. —May be altered (sec. 34).
(12.) QUORUM OF HOUSE. —May be increased or reduced (sec. 39).
(13.) PENALTY FOR SITTING WHEN DISQUALIFIED. —May be altered (sec. 46).
(14.) DISPUTED ELECTIONS. —Mode of settling may be altered (sec. 47).
(15.) PAYMENT OF MEMBERS.—May be increased or reduced (sec. 48).
(16.) NUMBER OF MINISTERS. —May be increased (sec. 65).
(17.) SALARIES OF MINISTERS. —May be increased (sec. 66).
(18.) APPOINTMENT AND REMOVAL OF NON-POLITICAL OFFICERS.— May be regu lated (sec. 67).
(19.) CONDITIONS AND RESTRICTIONS ON APPEALS. —May be regulated (sec. 73).
(20) APPLICATION OF CUSTOMS AND EXCISE REVENUE.— Ten years after the establishment of Commonwealth the Braddon clause may be repealed or altered (sec. 87).
(21.) FINANCIAL ASSISTANCE TO STATES. —Ten years after the establishment of the Commonwealth the Parliament may determine not to grant further financial assistance to States (sec. 96).
(22.) AUDlT. —Parliament may make audit laws (sec. 97).”
Page 647 of The Annotated constitution of the Australian Commonwealth by Quick and Garran:
Examples:
Section 22: “Quorum: Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.”
Rod Culleton alleged that the Senate was inquorate when it resolved to refer him to the Court of Disputed Returns. He overlooked the “until the Parliament otherwise provides” in this provision, as the quorum was amended down to one-fifth by the House of Representatives (Quorum) Act 1989. One can also note his misreading of section 47:
“Disputed elections – Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.”
Rod Culleton also tried to substantiate his claims that the Senate was “wrong at law” when it referred him to the Court of Disputed Returns, with a UK precedent Hilary Term [2014] UKSC 3, but again overlooked “until the parliament otherwise provides”. In 1902 the Parliament did “otherwise provide” that the High Court would be the federal Court of Disputed Returns, in Part XVI of the Commonwealth Electoral Act 1902. This is now provided for in Part XXII of the Commonwealth Electoral Act 1918.
See also section 3 Governor-General to be paid in pounds