AoS 2, Unit 3 Legal Studies DP 3, 4: The process of change by referendum under Section 128 of the Commonwealth Constitution and factors affecting its likely success The way in which one successful referendum changed the division of law making powers

Ways in which the division of law making powers between Comm and State Parliaments can be changed Describe the three main ways in which the division of law making powers between the Commonwealth and State parliaments can be changed.

Answer Through amending the WORDING of the Commonwealth Constitution by holding a referendum Through a decision of the High Court in a case that involves some interpretation of the Commonwealth Constitution Through the states referring or giving some of their law making powers to the Commonwealth parliament.

Relevance of s. 128 Explain the relevance of s.128.

Answer S. 128 states the process by which the Constitution can be altered (this process is known as a referendum). The result of a successful referendum is that the wording of the Constitution is changed.

Referendum One way of changing the Commonwealth Constitution is through holding a referendum. Explain how this process operates and discuss why it has had only partial success in Australia. 6 marks (VCAA, 2003).

Answer The process of a referendum is as follows: The need or desire for change in the Constitution arises, a Constitution Alteration Bill is drafted, the Bill passes through Federal Parliament, either the Bill is passed by an absolute majority of each house OR passed by an absolute majority in one house twice within two months. The proposed change is put to all electors in the form of a yes/no question (between two and six months of a Bill being passed through parliament). The proposed change must satisfy the double majority provision. This means that a question must receive a yes vote by a majority of voters in a majority of states AND a majority of voters in the whole of Australia. If both of these s. 128 requirements are not satisfied the referendum fails. Should the question satisfy these requirements the Bill receives Royal Assent from the Governor-General and the relevant section of the Constitution is changed. NOTE: A successful referendum is the only way in which the wording of the Constitution can be changed.

Only 8 of 44 referendum proposals have been passed since the Constitution’s inception. Factors affecting the likely success of referendums include: The double majority provision: for a referendum to be successful, the majority of people in Australia and the majority of states (that is, 4 out of 6 states) must vote yes to the proposed change to the Constitution. This is a difficult standard to satisfy and may limit the likely success of a referendum. There may be a lack of bipartisan support from the major political parties for the proposed change. Unless both the Coalition and the ALP support the proposal it is difficult to pass, as each political party will be urging its supporters to vote in a different way, thereby dividing the voting public so that a clear majority is hard to achieve. There may be a lack of voter understanding of the process and the arguments for and against the proposal, as well as confusing surrounding the referendum proposal and this may lead voters to vote ‘no’ in order to maintain the status quo. There may be resistance to change in the community. Voters may be conservative or reluctant to change what they consider to be a working Constitution. The timing of the referendum may limit it’s likely success. Referendums are often held at the same time as a general election to try and minimise costs. However, voters may be concerned with who they will vote into government than the referendum questions before them, taking their focus away from the referendum issue and, given their uncertainty about the issue, they may choose to vote ‘no’ to avoid committing to change that they know very little about.

Exam question ‘In 2002 the Prime Minister publicly considered holding a referendum to change the Commonwealth Constitution. The Opposition indicated that it was worth thinking about.’ Explain how the Constitution can be change by holding a referendum. Comment on two factors that could influence the outcome of a referendum. 6 marks (VCAA 2004).

EXAM QUESTION ‘The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights’. Evaluate the process for changing the Commonwealth Constitution as outlined in s. 128. (VCAA 2009) 4 marks.

Answer Strengths: Protects the Constitution from ad hoc and major changes and from being changed by parliament vote only. The double majority provision protects the rights of the smaller states from being dominated by larger, more populated states. The provision of the double majority also ensures that the majority of voters in Australia agree with the change.

Weaknesses: The process is costly. There may be a lack of voter understanding. If voters have not understood the process or the ramifications of the proposed change they tend to vote conservatively ie. ‘no’ to the proposed change as a result. The timing of the referendum may limit it’s likely success in that a referendum is often held at the same time as an election to minimise costs and as a result people are more interested in the election and less interested in the referendum and therefore may vote no because they are uncertain about the ramifications of the proposed change.

A high scoring response Section 128 of the Constitution refers to the process of changing the words of the constitution. A strength of this process is that it is a complex one. Not only must it be passed by both houses, but it also requires a double majority ( a majority of voters in a majority of states and also a majority of voters in Australia) to be passed. This strict requirement ensures that the Constitution cannot be changed too simply or irrationally. Another strength of the process is that it protects the smaller states. As a double majority requirement needs the majority of voters in a majority of states to vote yes as well as a majority of Australians, it ensures that the large states such as New South Wales do not control whether or not a referendum is successful. Once weakness of the process is that public conservatism means that change in the Constitution is unlikely. Many voters often distrust the process and are far less likely to vote yes. Another weakness is that the timing of the referendum – normally held at the same time as an election – means that voters pay less attention and do not understand it and therefore vote no. Overall the process has weaknesses but its strengths ensure that the most important changes to the Constitution are made.

DP 4: The way in which one successful referendum changed the division of law making powers Explain the way in which one successful referendum changed the division of law making power in Australia.

Answer In 1967, a referendum relating to Aboriginals was passed. Australians voted ‘yes’ to enable the Commonwealth to enact laws for Aborigines and to remove the prohibition against counting Aboriginal people in population counts in the Commonwealth or State. The impact of this referendum was that the wording of the Constitution was changed: Section 51 (xxvi) was changed by deleting the provision that meant that the Commonwealth could not make laws relating to Aboriginals and s. 127 was deleted to delete the provision that prevented Aboriginal people from being counted in the State or Commonwealth population. The impact of this was that there was an increased in the law making power of the Commonwealth Parliament, who now has law making power in the area of Aboriginal affairs and the responsibility for aboriginal affairs is now a concurrent power (law making is shared between the Commonwealth and the states). This allowed the Commonwealth parliament to be involved in an area that had been the responsibility of the States.

Exam question A successful referendum has the ability to change the law-making powers in Australia. However, referendum proposals have had a low success rate since the Commonwealth Constitution was enacted in 1901. a). Suggest two reasons for the low success rate of referendum proposals. 2 marks. b). Using one example of a successful referendum, analyse the impact of referendums on the division of law-making powers. 5 marks.

Can you… Define the following words: Constitutional interpretation? Double majority provision? Referendum? Explain the process of a referendum under s. 128 of the Commonwealth Constitution? Describe the factors affecting the likely success of a referendum? Explain an example of a successful referendum and the impact that it had on the division of law-making powers? Evaluate the strengths and weaknesses of a referendum in changing the wording of the Constitution?

Definitions Constitutional interpretation: the process of the High Court interpreting the meaning of the words and phrases in the Commonwealth Constitution in adjudicating cases that come before the court. Double majority provision: Refers to the situation whereby a proposed referendum question needs to receive a majority of ‘yes’ votes from voters throughout Australia AND a majority of voters in a majority of states voting ‘yes’, for this provision to be satisfied. Referendum is a process by which electors vote to determine whether a proposed change to the Commonwealth Constitution should be allowed.