CHANGING THE CONSTITUTION Referenda

Constitutional Change There are FIVE ways the Constitution can be altered 1. Referenda 2. Interpretation by the High Court 3. Cooperation between Commonwealth and states - Referral of powers / Unchallenged legislation 4. Use of financial powers 5. Constitutional conventions and commissions

Referenda All constitutions need to provide for their own alteration The Australian Constitution does this in s 128 – the last section of the document. It provides the only means to formally alter the Constitution’s wording

Referenda Section 128 is a lengthy and legalistic section. In short it stipulates that… ► the proposal be passed by both houses (or the same House twice) of parliament (as a normal bill) ► it be put to the people not less that 2 months and not more that 6 months after the passage of the bill

Referenda ► it be passed by a majority of electors and a majority of electors in a majority of the states (the territories are not counted but their electors count towards the majority of electors)

Referenda Since federation 44 referendum questions have been put to the people Only 8 have been successful – this is a very low success rate

8 Successful Referenda Senate elections - altered s. 13 (timing of Senate elections) State Debts - altered s. 105 (expanded C’th power to take over state debts) State Debts - inserted s. 105A (established loan council – all gov’t borrowing to be conducted through loan council) Social Services - inserted s. 51 (xxiiiA) – gave the C’th power to legislate to create welfare eg maternity allowances etc)

8 Successful Referenda Aborigines - altered s. 51 (xxvi) and deleted s. 127 (highest YES vote – 90.8%) – allowed C’th to make laws about Aborigines and to count them in the census Casual Vacancies - altered s. 15 – the 1975 constitutional crisis was, in part, caused by the filling of casual Senate vacancies, this fixed the problem Territorial Votes - altered s. 128 – included territory electors as part of the majority of electors Retirement of Judges - altered s. 72 – set the age of retirement at 70

Evaluation Why is s 128 so unsuccessful? Several factors explain this… ► Institutional factors ► Political factors ► Attitudinal factors

Institutional Factors ► The “Double Majority” is too high a hurdle, especially when combined with compulsory voting in Australia. This factor has caused the failure of 4 referenda ► The question must be YES or NO. Complex issues are more likely to attract a NO vote

Political Factors To succeed almost all sides of the political divide must support the question. That is… ► Government (likely since they will propose the question) ► Opposition (less likely given our adversarial political system) ► States (depends on the proposal). Many Premiers get “political points” standing up to Canberra so its hard to get all 6 Premiers to agree

Attitudinal Factors ► Distrust of politicians ► Distrust of “power grabs” by Canberra – only 3 referenda have extended Commonwealth power ► Questions and issues are complex – many voters can’t understand or can’t be bothered trying to understand them so vote NO THE THREE “NO” VOTES “DISTRUST NO” - distrust of politicians and Canberra “NO OPINION NO” – I don’t care about the issue but I have to vote so I’ll vote NO “SATISFACTION NO” – Conservative “the Constitution has given us a stable government and shouldn’t be tinkered with”.

Characteristics of Successful Referenda ► Support of both Government and Opposition – Aborigines was supported by both sides ► Limited change is proposed – avoids the “distrust” factor in the voter. Retirement of Judges is an example ► Obviously good – Aborigines was seen as a morally worthy thing to do to “make amends” and reduce racism. Territory voters was logical and just ► Obvious benefits to the states or voters – Social Services was a benefit to all voters