Key issue
The incoming Government has committed to working towards 2 major constitutional reforms, an Indigenous Voice to Parliament and a Republic referendum. The Australian Constitution was drafted in the 1890s and has only been altered 8 times since it took effect in 1901. There have been relatively frequent calls for various aspects of this foundational document to be updated to address both changing circumstances and its identified or perceived weaknesses.
Despite this, there have been no attempts to alter the Constitution since the unsuccessful republic and preamble referendum in 1999.
This article is intended to prompt consideration of the broader issues of why constitutional change has historically been so difficult, how Parliament might identify and progress constitutional alterations that may be needed, and how the Australian people might be engaged in that process.
Australia’s Constitution
The Constitution
is the founding document and pre-eminent source of law of the Commonwealth of
Australia as it exists today. It is the law against which the administration
and other laws of our nation may be judged. It sets out many
vitally important matters, from the subjects that the Commonwealth
Parliament is empowered to legislate on, to the powers of each branch of
government. While it may seem distant, theoretical or of little practical
relevance to our day to day lives, it can be used to test the validity of
government actions and laws. It even prescribes the grounds for disqualification
for individual members of parliament, as
some have discovered to their detriment since 2017. Beyond these practical
legal issues, the words and status of the Constitution undoubtedly hold
a deeper meaning for many.
Process for amending the Constitution
In light of its importance and its intended
longevity, the framers of the Constitution ensured that it contained a
mechanism for its own alteration should the people of Australia consider that any
change was needed. Section
128 provides that the Constitution may only be changed by a proposed
law that has first been passed by Parliament and is then presented to the
voters of Australia. This is referred to as a referendum.
In order for the proposed law to alter the Constitution it must be
supported by a majority of all eligible voters in Australia as well as by a
majority of eligible voters in a majority of the states. Notably, the framers
of the Constitution intended it to be a living document that could be altered
as needed, and indeed there were 13 proposals for alteration put to the people within
20 years of Federation, although only 2 of those succeeded.
The requirement for this so-called ‘double majority’
of votes has set a very high threshold for any proposed alteration to pass and
has resulted in a fairly
conservative reform mechanism weighted towards maintaining the status quo. According
to John Quick and Robert Garran, participants in the constitutional conventions
and authors of the original Annotated
Constitution of 1901, the ‘double majority’ requirement was introduced
into section 128 by the framers of the Constitution to provide not only a
check against the populations of the larger states being able to control the
future direction of the Constitution, but to force any constitutional changes
to be well considered and discussed. Quick and Garran noted that the mechanism
was intended to provide safeguards and was not intended to prevent or resist
change, only change that might be ‘made in haste or stealth’.
More than one proposal for the alteration of the
Constitution may be put to the electors at any one time, although each proposal
must be passed by Parliament and each must be set out on the ballot paper and
voted on individually at the referendum. The form and arrangements for the
holding of referendums are set out in the Referendum
(Machinery Provisions) Act 1984 (the Referendum Act). These chiefly involve the Australian Electoral
Commission (AEC) taking the proposal or proposals as passed by Parliament
and progressing the arrangements for the vote (similar to the process for an
election), and also including the distribution to each elector of material that
contains the proposed alterations, as well as information for the ‘yes’ and
‘no’ cases. As with elections, voting is compulsory for eligible electors.
The most recent attempts
to reform the Constitution occurred in 1999, when proposals for a
republic model and a new constitutional preamble were put to the people of
Australia. Both proposals failed to achieve the necessary voter support. Before this
the success rate of constitutional referendums in Australia is relatively bleak with a total of 44 proposed constitutional alterations put to the voters at referendums on 17 occasions,
with only 8 succeeding. The successful proposals that altered the Constitution
dealt with:
- Senate Elections, to
enable elections for both Houses to be held concurrently, in 1906
- State Debts, to give
the Commonwealth unrestricted power to take over state debts, in 1910
-
State Debts, to end the
system of per capita payments which have been made by the Commonwealth to the
states since 1910, and to restrict the right of each state to borrow for its
own development by subjecting that borrowing to control by a loan council, in
1928
- Social Services, to
give the Commonwealth power to legislate on a wide range of social services, in
1946
- Aboriginals [sic], to enable
the Commonwealth to enact laws for Aboriginal people and to remove the census prohibition,
in 1967
- Senate Casual Vacancies,
to ensure that a casual vacancy in the Senate is filled by a person of the same
political party, in 1977
-
Referendums –
Territories, to allow electors in territories to vote in constitutional
referendums, in 1977 and
- Retirement of Judges, to
provide for retiring ages for judges of federal courts, in 1977.
The only proposals put to
the people since the last successful changes in 1977 were those in 1984, 1988
and 1999. The lack of any change in our Constitution for over 4
decades now is notable and ‘Governments,
understandably, have become pessimistic about the pursuit of constitutional
change’.
In a recent article,
Professor Anne Twomey argued that our referendum system is inherently
conservative as it is weighted in favour of preserving the status quo and is
vulnerable to negative campaigns. Professor Twomey argued that despite this it
is important that the Constitution be made to serve the needs of the
present day, rather than those of the 1890s when it was drafted, and that we do
not give up on attempting important constitutional reforms. The factors that
Professor Twomey highlighted as being important for a successful referendum
included ‘widespread will for change, the drive and persistence of proponents,
good leadership, sound well-considered proposals and building a broad
cross-party consensus’.
Similarly, a 2018 article
by Paul Kildea references the ‘five pillars’ that the record shows can lead to
referendum success, as identified by George Williams and David Hume in their
2010 book, People power: The history and future of the referendum in
Australia. Those 5 pillars are:
-
bipartisanship
- popular ownership
- popular education
- sound and sensible
proposals and
-
a modern referendum
process.
However, Kildea emphasises the importance of seeing
these factors as being helpful to the success of referendums rather than considering
them to be necessary preconditions for proceeding with a proposal. With
particular reference to the issue of bipartisan support, Kildea argues that the
belief that a referendum will necessarily fail without these preconditions has
become a major and perhaps unnecessary impediment to attempts at reform.
Rather, it may be better to ‘see referendums as part of an ongoing process of
constitutional debate’, a process which may be altered but would not
necessarily be ended by a 'no' vote.
Proposals to amend the Constitution
The new Labor Government
has committed to
progressing work to achieve a constitutionally enshrined Voice to Parliament for
First Nations people ‘as a matter of priority’. For further information, see
the article on 'Indigenous constitutional
recognition and representation' elsewhere
in this Briefing book.
The Labor Party has also committed to
working towards the establishment of a republic with an Australian head of state.
In addition to these 2
reforms, in 2019 the Australian Law Reform Commission (ALRC) summarised (at
p. 55) other substantive constitutional issues which have been raised by
interested parties as possible areas for reform, including:
- section 44 and eligibility requirements for
Parliament
- the electoral system and fixed
parliamentary terms
- the separation of powers and roles of the
executive and judiciary
- human rights protections
- federalism issues, roles, responsibilities
and funding.
Constitutional reform body
There have been calls to
appoint a body with ongoing responsibility for considering constitutional reform
issues. Most recently, the House of Representatives Standing Committee on
Social Policy and Legal Affairs, following a series of hearings and expert submissions, released the Report of its Inquiry into Constitutional Reform and Referendums in December 2021. This inquiry focused on the processes for constitutional reform
and the conduct of referendums, rather than substantive proposals for
constitutional amendment on particular issues. The Committee recommended a range of reforms including
many aimed at raising public awareness and education of the Constitution
and referendums, establishing a Joint Standing Committee on Constitutional
Matters and an Independent Expert Panel to advise it before each referendum,
and various amendments to update the Referendum Act.
In 2019, the ALRC called for a
standing constitutional reform body to be established to engage and inform the
public ‘while also involving the Government in planning and oversight’ (pp. 55–56).
This body could also identify the future reform topics that would then require
further investigation. The ALRC noted
that there has been an increased use in overseas jurisdictions of participatory
mechanisms such as small citizen groups to deliberate on and progress
constitutional reforms (pp. 57–58).
A consistent theme of many
of the papers and reports dealing with constitutional reform has been a concern
that the constitutional mechanisms in place for alteration, when combined with
the institutional and societal frameworks that have developed since Federation,
have resulted in a population that is not particularly invested in the Constitution
or interested in any particular discussions about altering, updating or
improving the Constitution. This appears to be a problem that can only
be remedied with positive actions of some form, be that public discourse,
political leadership, education, institutional design to provide some
stewardship for the potential reforms, or likely a combination of these.
The challenges for the Parliament in coming years will
be 2 fold: both to move forward with specific proposals for constitutional
change, and to consider how to better position our nation to identify and
properly carry through further changes that may be necessary or desired in the
future. Meeting each of these challenges will require at least a focus on
communication and public engagement.
Further reading
George Williams and David Hume, People Power: The History and Future of the Referendum in Australia, (Sydney: University of New South Wales Press, 2010).
Paul Kildea, Getting to 'Yes': Why our Approach to Winning Referendums Needs a Rethink, (AUSPUBLAW, December 2018).
Australian Law Reform Commission (ALRC), The Future of Law Reform– a Suggested Program of Work 2020- 25, (Canberra: ALRC, December 2019).
House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into Constitutional Reform and Referendums, (Canberra: The Committee, December 2021).
Sally McNicol, ‘Indigenous Constitutional Recognition and Representation’, Briefing Book, (Canberra: Parliamentary Library, 2022).
Anne Twomey, 'Changing the Australian Constitution is Not Easy. But We Need to Stop Thinking it’s Impossible', The Conversation, 27 May 2022.