Do you consider this change an amendment or clarification of the constitution?

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 By Mr Fitz Huggins

 It’s an amendment, and here’s why.

A genuine clarification resolves ambiguity in language that could reasonably be read multiple ways, without changing the legal outcome. If Section 26(1)(a) had always clearly excluded Commonwealth countries, there would be nothing to clarify  and no need for this bill in the first place. The fact that the government felt compelled to introduce legislation tells you the existing text doesn’t already say what they want it to say.

Look at the actual language of Section 26(1)(a): “allegiance, obedience, or adherence to a foreign power or state.” That’s broad and unqualified. It doesn’t carve out Commonwealth nations. It doesn’t distinguish between Canada and China. The drafters of the 1979 Constitution could have written “non-Commonwealth foreign power” if that’s what they intended  and they didn’t.

The bill itself also reveals this through its structure. A clarification wouldn’t need a retroactive savings clause protecting anyone who previously held Commonwealth allegiance. You only need a savings clause if there’s a real possibility that people violated the provision as written. Section 26A essentially says “even if this was a disqualification before, we’re immunizing everyone retroactively”  that’s not clarifying existing law, that’s changing the legal consequences of past conduct.

The “as from the commencement of this Constitution” language is also telling. That’s not how you clarify  that’s how you retroactively rewrite. A clarification would simply say “for the avoidance of doubt, this provision has always meant X.” Instead, this bill inserts an entirely new definition and an entirely new section that didn’t previously exist.

The government is calling it a clarification because that framing serves their purpose, it makes the change sound less dramatic politically, and more importantly, it may help them argue that a simpler parliamentary procedure is sufficient  constitutional amendment might require.

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