Are the proposed amendments unconstitutional?
Section 1 of chapter 1 of the Commonwealth Constitution provides that: The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called “The Parliament,” or “The Parliament of the Commonwealth.” It is arguable that the Flags Amendment Bill 1996 is unconstitutional because it seeks to invest legislative power in the people – who are not recognised as part of the legislative arm of the Commonwealth in the Constitution.(17) Given a plaintiff with the requisite standing, the legislation could be challenged in the High Court. It is also arguable that the proposed legislation is not unconstitutional on the basis that it is not an attempt to constitute a new legislative body comprising the Queen, the Senate, the House of Representatives and the electors but is only a limited delegation of legislative power by the Parliament to this alternative legislature.
