Fair dinkum this is a hard read: I don\'t know which judge is writing this, but it is in a different voice to the first part of the decision;
731 The history of the referenda cannot be ignored[850]. Kirby J said this in Durham Holdings Pty Ltd v New South Wales[851]:
\"Nevertheless, the rejection by the electors of the Commonwealth (including those in New South Wales) of a proposed amendment to the federal Constitution, which would have prevented or invalidated legislation such as the amending legislation adopted by the New South Wales Parliament in 1990, suggests a reason for special caution when this Court is invited, but twelve years later, effectively to impose on the Constitution of the State a requirement which the electors, given the chance, declined to adopt.\"
732 What happened in the referenda to which I have referred is particularly compelling because of the repetitiveness and ingenuity of the attempts made by the Commonwealth to gain the power which in this case it now says it has always had. The Court should not disregard that history. The people have too often rejected an extension of power to do what the Act seeks to do for that.
To ignore the history would be, not only to treat s 128 of the Constitution as irrelevant, but also for the Court to subvert democratic federalism for which the structure and text of the Constitution provide. As I observed in Sweedman v Transport Accident Commission[852], constitutions, State and federal are not the property of governments of the day.
and;
734 In summary I would regard the speeches for the referenda, the referenda and their results as relevant to the proper construction of the Constitution for these reasons.
735 The speeches in Parliament for the Bills for them, having regard particularly to the experience, eminence, legal qualifications and knowledge of the speakers, throw much light on the founders\' intentions and the understanding of the meaning of the Constitution of informed, legally qualified, politically astute, responsible people.
The meaning of the words of the Constitution may not change following, and as a result of the failure of a referendum, but it is a distortion of reality to treat the failure as other than reinforcing the received meaning of the words which prompted the attempt to change or enlarge them.
Equally, a successful referendum may provide relevant evidence of received meaning immediately before the vote in it. But in addition, unlike in the failed referenda considered in this case, a successful referendum would also indicate the people\'s discontent with that received meaning. True it is that the construction of the Constitution is a matter ultimately for the Court, aided by qualified advocates presenting arguments to it, but even this Court should not be blind to the inescapable fact that the people do have, by virtue of s 128, a special and unique constitutional role to approve or veto a change.
That, they can only do if they have an understanding of what is sought to be changed. For my own part I do not think it legally radical in the special constitutional setting of s 128, to attribute to the people the same understanding of meaning and of power as their elected representatives who legislated for the referenda to effect the changes, and as the failed referenda show, to be content with them. It is no answer as the Commonwealth submissions implied, that s 128 raises a high hurdle for constitutional change. So it does, and intentionally so.
If Parliament cannot persuade the people to change, it is not for this Court to treat the people\'s will as irrelevant by making the change for them. Every one of the 36 proposals which have failed at a referendum has been accompanied by dire warnings of doom to the Commonwealth and the people, yet the nation prospers and grows.
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