Entrenching clause

An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party.

Once adopted, a properly drafted entrenchment clause makes some portion of a basic law or constitution irrevocable except through the assertion of the right of revolution.

Any amendment to a basic law or constitution which would not satisfy the prerequisites enshrined in a valid entrenched clause would lead to so-called "unconstitutional constitutional law", that is, an amendment to constitutional law text that would appear to be constitutional law by its form, albeit unconstitutional due to the procedure used to enact it or due to the content of its provisions.

Entrenched clauses are, in some cases, justified as protecting the rights of a minority from the dangers of majoritarianism. In other cases, the objective may be to prevent amendments to the basic law or constitution which would pervert the fundamental principles enshrined in it. However, entrenched clauses are often challenged by their opponents as being undemocratic.

Eternity clauses are a type of entrenched clause.

As Australian Parliaments have inherited the British principle of parliamentary sovereignty, they may not entrench themselves by a regular act. Therefore, the entrenchment of the national flag in the Flags Act of 1953 is without force as the entrenchment clause could be removed (through normal legislative amendment) by later parliaments.

The Commonwealth Constitution is entrenched as it may only be amended by referendum; the amendment must gain the support of a majority of Australian voters nationwide, plus a majority of voters in a majority of states. These provisions are specified in section 128. The Imperial Parliament's power to amend it in Australian law was revoked by the Statute of Westminster Adoption Act 1942 and the Australia Act 1986.

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