Constitutional Referenda in Australia


Research Paper 2 1999-2000

Scott Bennett
Politics and Public Administration Group

Sean Brennan
Law and Bills Digest Group
24 August 1999

Contents


Major Issues
Introduction
Amending the Constitution

The Constitutional Provisions
The YES and NO Cases
The Ballot Paper

Constitutional Facts and Figures

The 42 Constitutional Referenda

Constitutional Aspects of s. 128

Section 128 in Overview
Initiating a Referendum
Initiation by Commonwealth Bill
The Deadlock Provision
The Question Put
Other Jurisdictions
Ratifying a Referendum Proposal
The Consequences of a Successful Referendum

The Impact of Constitutional Amendment-the Eight Successes

Amendment 1: 1906 Senate elections
Amendment 2: 1910 State Debts
Amendment 3: 1928 State Debts
Amendment 4: 1946 Social Services
Amendment 5: 1967 Aborigines
Amendment 6: 1977 Casual Vacancies
Amendment 7: 1977 Territorial Votes
Amendment 8: 1977 Retirement of Judges

Accounting for Constitutional Referenda Failures

The Provisions of s. 128 and the Referendum Legislation
Voter Attitudes: Ignorance? Conservatism? Discriminating Judgment?
Party Attitudes: the Battle for the Constitution
The Labor Urge to Reform the Constitution
Liberal Protection of the Constitution
Party Attitudes: Tactical Difficulties
The Short-Term View
Exaggerated Claims
Avoiding Voter 'Confusion'
Trying to Do Too Much
Other Political Factors
Political Context
State Activity
Extra-Parliamentary Activity

Other Ways by which Constitutional Arrangements are Changed

Judicial Review
Intergovernmental Negotiations
Other Possibilities

Conclusion

Preamble
The Republic

Endnotes
Table 1: Constitutional Referenda 1906-1988
Table 2: Number of Referenda Per Polling Day
Table 3: State Voting
Table 4: Number of States in Favour
Table 5: YES Votes
Appendix 1: s. 128 of the Commonwealth Constitution
Appendix 2: Commonwealth plebiscites

Major Issues

In November 1999 Australian voters will participate in two referenda on the questions of whether Australia should become a republic and whether a new preamble should be added to the Commonwealth Constitution. Voters will have received a government-sponsored booklet spelling out the proposed changes to the words of the Constitution, and including 2000-word arguments on the YES and NO cases. These will be the 43rd and 44th constitutional referenda since the first in 1906. Over the years, eight amendments have been made: single changes in 1906, 1910, 1928, 1946 and 1967; and three changes in 1977. On five occasions a national majority has been gained, though not a majority of States, causing the proposed alteration to fail.

Section 128, the constitutional provision which provides for referenda emerged from the Convention negotiations of the 1890s as a classical political compromise. In drawing up mechanisms for initiating referenda proposals and ratifying the outcomes, s. 128 gave something to the Commonwealth and to the States, to both the executive and (purportedly) the legislature, and to the people as well as the politicians. This paper canvasses some of the ambiguities created by this particular form of compromise wording, and some prominent proposals for its reform. It also acknowledges that s. 128 takes its place amongst a range of other methods by which constitutional arrangements in Australia can be altered, notably through intergovernmental negotiations and judicial review by the High Court.

There have been a number of significant amendments of the Constitution using s. 128. The 1910 and 1928 cases provided a means for the Commonwealth to ease the burden of State debts, with the latter also providing constitutional backing for the Financial Agreement and the Loan Council. Many Australians have benefited from the social services amendment of 1946, while Australia's indigenous population regards the Aborigines referendum of 1967 as a major landmark in their relationship with the Australian political system. The issue of the replacement of Senators was one of the major points of political contention during 1974-5 and two years later an amendment attempted to remedy this problem. In the same year, residents of Australia's Territories gained the vote in constitutional referenda.

Although constitutional referenda are important occasions of political activity, remarkably little research has been undertaken on Australians' voting behaviour at such times. However, referenda have been much written about and commented upon and this paper discusses some of the views that have been propounded about Australia's voting record in them.

Many critics of our constitutional referenda have been concerned by what they see as the relatively poor record of constitutional change in this country. Some believe that achievement of the 'double majority' is too difficult, while others criticise official support for the handing out of NO cases. There is a common claim concerning voter ignorance and conservatism which is said to account for so many negative votes.

By contrast, others suggest that voters are well aware of what is involved, citing different patterns to the returns as evidence. Amendments perceived to weaken the federal system have generally been given short shrift, whereas attempts to repair the perennially-flawed finance chapter have been received sympathetically. Proposed changes to the Senate are likely to be repelled but matters dealing with Australian society are usually considered closely. It has been claimed that such varying outcomes are a reminder that voters go to a referendum polling place possessing some consciousness of Australian history and politics which influences the way they vote. Other evidence for this has been the fact that particular results have often indicated a voter awareness of what was involved-the vastly different results in the two instances in 1967 for instance. Australian voters have been cautious, and conservative at times, but they have shown their willingness to accept change when persuaded that such change is sensible or right.

Whatever one's view of constitutional referenda, there seems general agreement among commentators that the major parties have treated the electorate with a great deal of disdain in the years since the first referendum in 1906. Not the least of the criticisms of the parties has been the inconsistency in their stance on constitutional amendment. Most notably this has involved supporting issues while in government, which are then opposed when submitted by their opponents.

But the parties have erred in more fundamental ways. They have often tried to do too much at one time, they have sometimes been less than earnest in putting YES cases, and they have sometimes ignored the political times which have made some questions unlikely to be accepted. They have also been unable to avoid opportunistic, short-term responses that have put the embarrassment of their opponents ahead of a careful consideration of the issues under discussion. The parties have also overlooked strong community views on particular questions, and they have often antagonised the Premiers, who have participated in quite a number of NO campaigns.

Overall, then, the history of Australian constitutional referenda has been one of controversy, with many observers criticising the voters, but others directing their criticism at the parties. While the history of referenda in Australia provides some useful perspectives on party and voter behaviour, it offers limited predictive power for the outcome of the referenda to be held in November 1999. Because of the unique combination of issues and circumstances wrapped up in the republic issue, these attempts to change the Constitution will pose fresh questions for the analysis of referenda in Australia.

Introduction

During October-November 1999 public attention will be focussed on the Commonwealth Constitution, as voters consider the questions of Australia becoming a republic, and of adding a new preamble. The process by which the Constitution is amended is complex and probably little-understood by the general community. This paper details the process, and discusses some of the constitutional questions that have arisen since the first amendment in 1906. The paper also looks at some of the statistical aspects of the 42 constitutional referenda that have been held, and investigates the impact of the eight changes that have been made to our Constitution. The debate on the factors that explain referendum successes and failures forms a substantial part of the paper.

Amending the Constitution

The Constitutional Provisions

A proposal to amend the Australian Constitution must first take the form of a Bill submitted to the Commonwealth Parliament. Between two and six months after it leaves the Parliament, the proposal 'shall be submitted' in a referendum to the voters in the various States and Territories.

For an amendment to be ratified, the so-called 'double majority' is required. There must be a majority of voters saying YES in a majority of the States (i.e. at least four of the six), but there must also be a nation-wide affirmative vote. Territory votes are included in the national total, but not in any State figure (Appendix 1).

Issues put to the people in the style of a referendum, but not affecting the Constitution, are usually called plebiscites. Three national plebiscites have been held (Appendix 2). Most Australian referenda and plebiscites have been conducted at the State level.

The YES and NO Cases

Parliament prescribes the manner in which referendum votes are taken. In most referenda since the Referendum (Constitution Alteration) Act 1912 (No. 2), each elector has received a pamphlet containing arguments in favour of, or against, any proposal upon which s(he) is voting. Normally, these arguments must be no more than two thousand words in length, and must be authorised by a majority of those parliamentary members who voted for or against the proposed law. When more than one referendum is held on the same day, a particular argument may be more than two thousand words, provided the average of YES or NO arguments is not greater than two thousand words.(1)

In some cases, NO arguments are not produced. In 1967, for instance, arguments for and against the Nexus alteration were produced, but only a YES argument in relation to the Aborigines amendment. The Referendum (Machinery Provisions) Act 1984 (s. 11) states that such arguments as are produced must be submitted to each voter, 'not later than 14 days before the voting day for the referendum'.

Typically, the NO cases are argued by informal groups of individuals often combining their efforts with the Opposition, while the YES cases are usually led by the sponsoring government. A marked departure from this norm will be seen in the pending republic referendum. Unusually, the cases will be managed by two advertising campaign committees appointed by the government, with the YES committee chaired by Malcolm Turnbull of the Australian Republican Movement, and the NO committee by Kerry Jones of Australians for a Constitutional Monarchy. The Government's role will be limited to ensuring that each committee's proposals meet the 'basic standards' set for 'the activities to be covered by the public funding', as well as accounting for the use of the funds. The two publicly-funded committees, therefore, will be 'responsible for the conduct of the campaign'.(2) Governments and Oppositions have not previously been prepared to hand over so much control to others.

The Ballot Paper

From the first ballot in 1906, the style of question was strictly uniform, voters being asked 'Do you approve of a proposed law for the alteration of the Constitution entitled [here the title of the proposed law was inserted]'. Examples from down the years included:

Do you approve of the proposed law for the alteration of the constitution entitled 'Constitution Alteration (Powers to deal with Communists and Communism) 1951'? [1951]

Do you approve of the proposed law for the alteration of the constitution entitled 'An Act to alter the Constitution so that the Number of Members of the House of Representatives may be increased without necessarily increasing the Number of Senators'? [1967]

Do you approve of the proposed law for the alteration of the constitution entitled 'An Act to alter the Constitution so as to enable the Australian Parliament to Control Prices'? [1973]

For the 1974 referenda, a slight change was made to the wording, so that the style of ballot paper was as follows:

Proposed law entitled-

'An Act to alter the Constitution so as to ensure that Senate Elections are held at the same time as House of Representatives Elections'

Do you approve the proposed law? [1974]

For the most recent efforts in 1988, the wording changed again:

A proposed law: To alter the Constitution to recognise local government.

Do you approve the proposed alteration? [1988]

Constitutional Facts and Figures

The 42 Constitutional Referenda

An amendment ratified by referendum becomes an integral part of our Constitution. Although some referenda have had more than one part-such as the single 1944 Powers referendum which had fourteen parts-we commonly think of there being 42 separate attempts (Table 1).(3)

Table 1: Constitutional Referenda 1906-1988

Year

Proposal

Government submitting

States approving

YES votes

(per cent)

1906

Senate elections

Protectionist

6

82.7

1910

Finance

Fusion

3 (Qld, WA, Tas)

49.0

 

State debts

Fusion

5 (all except NSW)

54.9

1911

Legislative powers

ALP

1 (WA)

39.4

 

Monopolies

ALP

1 (WA)

39.9

1913

Trade & commerce

ALP

3 (Qld, WA, SA)

49.4

 

Corporations

ALP

3 (Qld, WA, SA)

49.3

 

Industrial matters

ALP

3 (Qld, WA, SA)

49.3

 

Railway disputes

ALP

3 (Qld, WA, SA)

49.1

 

Trusts

ALP

3 (Qld, WA, SA)

49.8

 

Monopolies

ALP

3 (Qld, WA, SA)

49.3

1919

Legislative powers

Nationalist

3 (Vic, Qld, WA)

49.7

 

Monopolies

Nationalist

3 (Vic, Qld, WA)

48.6

1926

Industry and Commerce

Nat-CP

2 (NSW, Qld)

43.5

 

Essential services

Nat-CP

2 (NSW, Qld)

42.8

1928

State debts

Nat-CP

6

74.3

1937

Aviation

UAP

2 (Vic, Qld)

53.6

 

Marketing

UAP

0

36.3

1944

Post war reconstruction and democratic rights

ALP

2 (WA, SA)

46.0

1946

Social services

ALP

6

54.4

 

Marketing of primary products

ALP

3 (NSW, Vic, WA)

50.6

 

Industrial employment

ALP

3 (NSW, Vic, WA)

50.3

1948

Rents and prices

ALP

0

40.7

1951

Communists

Lib-CP

3 (Qld, WA, Tas)

49.4

1967

Nexus

Lib-CP

1 (NSW)

40.3

 

Aborigines

Lib-CP

6

90.8

1973

Prices

ALP

0

43.8

 

Incomes

ALP

0

34.4

1974

Simultaneous elections

ALP

1 (NSW)

48.3

 

Amendment

ALP

1 (NSW)

48.0

 

Democratic elections

ALP

1 (NSW)

47.3

 

Local government

ALP

1 (NSW)

46.8

1977

Simultaneous elections

Lib-NP

3 (NSW, Vic, SA)

62.2

 

Casual vacancies

Lib-NP

6

73.3

 

Territorial votes

Lib-NP

6

77.7

 

Retirement of judges

Lib-NP

6

80.1

1984

Simultaneous elections

ALP

2 (NSW, Vic)

50.6

 

Interchange of powers

ALP

0

47.1

1988

Parliamentary terms

ALP

0

32.9

 

Fair elections

ALP

0

37.6

 

Local government

ALP

0

33.6

 

Rights and freedoms

ALP

0

30.8

Note: Amendments to Constitution in bold.

Source: Brian Galligan and J. R. Nethercote (eds), The Constitutional Commission and the 1988 Referendums, Centre for Research on Federal Financial Relations and Royal Australian Institute of Public Administration, Canberra, 1989, p. 137. For the details and arguments for and against each change, as well as voting figures for each State, see House of Representatives Standing Committee on Legal and Constitutional Affairs, Constitutional Change. Select sources on constitutional change in Australia 1901-1997, Canberra, February 1997.

As can be seen in Table 1, there have been eight amendments to the Constitution: single changes in 1906, 1910, 1928, 1946, and 1967, and three changes in 1977.

Referenda have been held on 18 separate occasions. On five of these, voters have had to vote on just a single question. On the other 13 occasions, multiple referenda have been held, with the six questions in 1913 being the largest number considered on the same day (Table 2):

Table 2: Number of Referenda Per Polling Day

Number of referenda

Years

1

1906, 1928, 1944, 1948, 1951

2

1910, 1911, 1919, 1926, 1937, 1967, 1973, 1984

3

1946

4

1974, 1977, 1988

5

-

6

1913

Four of the 22 referenda held at the same time as a Commonwealth election were passed (1906, 1910, 1928, 1946); four of the 20 held at times other than a Commonwealth election were passed.

There have been markedly different results in the State voting returns in the 42 referenda (Table 3):

Table 3: State Voting

 

YES

NO

WA

23

19

Qld

21

21

NSW

18

24

SA

16

26

Vic

15

27

Tas

10

32

Table 3 does not reveal the changes in State voting patterns that have occurred since 1906:

New South Wales produced the lowest YES rate up to 1919 (1 YES vote - 12 NO votes), but has been the only State to return a majority of YES votes since 1946 (14 - 9).

Victoria has had a very consistent performance. In the first 21 referenda the State voted 8 - 13, and in the next 21 referenda the vote has been 7 - 14.

Queensland was very supportive of amendment attempts between 1906 and 1967 (18 - 8), but since 1973 has been disinclined to alter the Constitution (3 - 13).

Western Australia's story is similar to that of Queensland. Between 1906 and 1967 the State's tally was 20 - 6 (13 - 0 during 1906-19), but this State has also returned a 3 - 13 figure since 1973.

South Australia's record was even up to 1946 (11 - 11), but its voters have been strongly opposed to constitutional change since (5 - 15).

Tasmania was 3 - 0 after the first three referenda, but since then has voted 7 - 32, making it the State least inclined to support such referenda.

Seven of the eight successful referenda have carried in each State; on nine occasions there have been no YES majorities in any State (Table 4):

Table 4: Number of States in Favour

Number of States in favour of an amendment

Total

0

9*

1

7

2

5

3

13

4

0

5

1

6

7

* 1937, 1948, 1973 (2), 1984, 1988 (4)

Six of the successful referenda have carried comfortably. The 1910 State Debts (54.9 per cent) and the 1946 Social Services amendment (54.4 per cent) had the narrowest margins. 1910 State Debts was the only amendment not to be carried in all States. Five of the questions that received 50 per cent of the total vote or better, failed to get a majority of States in favour. In nine other cases the national YES vote was in the range of 49.0 to 49.8 per cent (Table 5):

Table 5: YES Votes

YES votes (%)

Number of referenda

Comments

60+

7

Aborigines (1967) 90.8 per cent-highest YES figure

Simultaneous Elections (1977) 62.2 per cent-failed to get majority of States

55-59

-

 

50-54

6

Air Navigation (1937) 53.6 per cent

Primary Produce Marketing (1946) 50.6 per cent

Industrial Employment (1946) 50.3 per cent

Simultaneous Elections (1984) 50.6 per cent

-all failed to get majority of States

45-49 per cent

16

 

40-44 per cent

5

 

Under 40 per cent

8

Rights and Freedoms (1988) 30.8 per cent-lowest YES figure

Constitutional Aspects of s. 128

Section 128 in Overview

Before examining the elements of s. 128 dealing with the initiation and the ratification of proposals to alter the Constitution, three general comments about the provision are appropriate. Section 128 is durable-it has been amended only once in 98 years, to allow Territory voters to participate in referenda. Despite containing a number of textual ambiguities it has been subjected to negligible judicial attention. Finally, as the ensuing analysis suggests, it gives something to both the Commonwealth and the States, the Executive and (if only nominally) the Legislature, and the people as well as the politicians.

To take each of the last-mentioned points in turn, the Commonwealth Parliament has a monopoly on initiating referenda, through passage of a Bill to alter the Constitution. State legislatures cannot formally initiate constitutional change, in contrast for example with the United States and Canada. On the other hand, the 'double majority' requirement endows States of smaller population with a disproportionate capacity to thwart Commonwealth Government plans. Thus s. 128 is centralist on referendum initiation and federalist on referendum ratification. In its fifth paragraph (arguably never activated),(4) it offers States additional protections by raising the bar even higher for certain referenda directed at States. An amendment which changes the boundaries of a State, diminishes its representation in either House or alters constitutional provisions relating to the States must secure a majority in any State so affected.

Secondly, the 'deadlock provision' in s. 128 (see below) purports to give the Senate something it lacks under an otherwise similar provision in section 57, that is an equal status with the House of Representatives (in forcing a question onto the ballot paper). In substance, however, it appears that the Executive exercises its dominance over Parliament in this as in most other respects and that a referendum will not occur without government agreement (see below).

Thirdly, while the Government controls the use of s. 128, control of the result rests in the hands of the people voting at a referendum. This element of participatory democracy in changing the Constitution was only introduced late in the drafting process of the 1890s, replacing a more indirect method based on an American model of electing delegates to State conventions.

Initiating a Referendum

Initiation by Commonwealth Bill

The first obvious feature of s. 128 is that a proposed alteration to the Constitution begins life as a Commonwealth Bill. Ordinarily it must pass by absolute majority(5) through each House of Parliament. As noted above, this puts effective control of the agenda for constitutional amendment in the hands of the Commonwealth Government of the day. Some commentators have suggested that this monopoly generates an automatic suspicion of centralism which helps explain the low strike rate for constitutional referenda, and that were moves made to 'federalise' and/or 'democratise' the initiation of referenda, it may improve the chances of success.(6)

The Constitutional Commission appointed by the Hawke Government examined the issue of referendum initiation. By majority it recommended against popular initiation along Swiss lines (e.g. a requisite number of signatures requesting a referendum), but agreed that a referendum should be held when, within the space of 12 months, the Parliaments of at least half the States proposed a constitutional alteration in identical terms (where those States represent at least 50 per cent of the national population).(7) Similarly, after rejecting the proposal once at its Melbourne (1975) session, the Australian Constitutional Convention resolved to support State-initiated referenda at the session held in Brisbane in 1985.(8)

The Deadlock Provision

The second notable feature of referendum initiation under s. 128 is the 'deadlock provision'. This provides that if one House initiates and passes a proposed constitutional alteration once, and then again after a three month interval, and on both occasions the other House rejects it or fails to pass it, then the Governor-General may submit the proposed law to the electors. This deadlock provision strongly resembles the words of section 57 (dealing with the impasse between Houses leading to a double dissolution and if necessary a joint sitting).(9) The major difference is that s. 128 appears to put the Senate on an equal footing with the House of Representatives where constitutional alterations are concerned, while the deadlock provision over ordinary legislation in section 57 benefits only the House of Representatives (and thus the Executive). As we will see this may be more textual illusion than political fact.

In 1914 the Senate passed several Bills in accordance with s.128 but the Governor-General declined to submit them to the people.(10) The precedent is ambiguous, because on present day understandings it is unlikely that sufficient time had elapsed to establish a second 'failure to pass'. Most commentators, however, regard the outcome as consistent with the constitutional convention that the Governor-General acts only on the advice of the Ministry.(11) Thus it appears the principle of responsible government overrules any textual differences between sections 57 and 128, to the dismay of some,(12) and that only Bills supported by the Government of the day will proceed to referendum.

The Constitutional Commission recommended in 1988 that the Government's effective veto over Senate use of the deadlock provision be removed,(13) but this contrasted with the recommendation of its own Advisory Committee on Executive Government(14) and the earlier Australian Constitutional Convention at its Brisbane session in 1985. Putting a referendum question to the people in the teeth of Government opposition would in any case suggest an adventurous disregard for the track record of constitutional amendment. Even an unexpected success apparently could be stymied by last-minute Executive manoeuvring-the Constitutional Commission suggested that a Government might advise the Governor-General to withhold Royal Assent from the proposed alteration.(15)

The Question Put

Related to the deadlock issue is the question of what exactly is put to the people when a referendum is initiated. Section 128 refers to a 'proposed law' for the alteration of the Constitution. Does this mean that Parliament must present on the ballot paper a positive proposition of law and not, for example, an array of legal alternatives for the people to choose from? The Constitutional Commission thought this more likely than not, and in any case recommended against the presentation of options, requiring proponents instead to make up their own minds first before sending the people to the polls. However, in line with its recommendation that no Executive veto apply to Senate or State initiated proposals, the Commission had no objection to a de facto 'preferendum'. If the States came up with one proposal and either or both Houses of the Commonwealth Parliament came up with a different one on the same subject matter, voters could express a YES or NO vote on each. If more than one proposal achieved the double majority, the proposed alteration attracting the highest vote would prevail and the other proposed alteration(s) would be invalid, to the extent they were inconsistent with the winning proposal.(16)

Other Jurisdictions

On a comparative note, ordinary Canadians and Americans have no direct say over changes to their federal Constitutions. Initiating constitutional change in the United States occurs either when a two-thirds majority is secured in both Houses of Congress or when two-thirds of State legislatures request that Congress call a national constitutional convention. In Canada, since 'patriation' of the Constitution in 1982,(17) proposals for change may be initiated by either the Senate or the House of Commons at the federal level or by provincial legislatures.(18)

Ratifying a Referendum Proposal

If a referendum Bill passes both Houses of the Commonwealth Parliament, s. 128 says that it shall be submitted to the public within two to six months. That is not yet the point of no return, however, as it appears (despite the word 'shall') that there is no obligation on the Governor-General to issue the referendum writ.(19) Certainly Governments in 1965 and again in 1983 relied on this view in advising the Governor-General not to issue a writ despite the passage of Bills through both Houses.(20)

If the deadlock provision is invoked, the Governor-General 'may' submit the Bill to the electors, but it appears that any discretion implied by that word is nullified by the principle that he or she must act on the advice of the Ministry. In summary, the position is the same as for referendum Bills passing both Houses: the Government advises the Governor-General whether or not to issue the writ for a referendum.

Section 128 next requires that referenda ordinarily secure what is known as the 'double majority'-a majority of the national vote in a majority of states. Canadian academic Peter Russell regards the second limb as a badge of federalism;(21) Quick and Garran saw it not only as protecting the federal system but as also encouraging careful reflection, 'to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible, and inevitable'.(22) Others have seen it as a major impediment to necessary reform (see below). Gough Whitlam sought to reduce the requirement from a majority of States to at least half the States at the 1974 referendum but secured a majority in only one State and a national vote of 48.0 per cent. The Constitutional Commission, the Australian Constitutional Convention and the 1959 Report of the Joint Parliamentary Committee on Constitutional Review all recommended the same dilution of the double majority requirement.

In the United States, constitutional amendments must be ratified by three-quarters of State legislatures or by special conventions in three-quarters of the States. Since 1982, Canada applies different rules for ratification depending on which tier of government is affected. Many proposals require passage through both houses of the federal parliament plus at least seven out of 10 provincial legislatures where they represent 50 per cent or more of the Canadian people.

The Constitutional Commission expressed no enthusiasm for either scheme, declaring

the continent should not be 'unfrozen' by taking the ratification of proposals for constitutional alteration out of the hands of the people.(23)

It made one exception, by recommending that the Commonwealth Parliament be empowered to legislate in the ordinary way to remove spent or outmoded provisions from the Constitution. Two checks were proposed-a requirement for unanimous consent from the State Parliaments, and the capacity of the High Court to review whether provisions are properly categorised as spent.(24)

The Consequences of a Successful Referendum

The Constitution has little to say about Bills which secure the elusive double majority at a referendum. Section 128 requires they be presented to the Governor-General for assent. There is, however, no 's. 129' to answer some questions about the legal consequences of suddenly changing the text of the Commonwealth's foundational document.(25) As yet, the High Court has also said little about the implications of successfully changing the words of the Constitution.

The recent Hindmarsh Bridge decision(26) by the High Court highlighted some of the legal complexities which amendment by referendum can attract. The Constitution originally granted the Commonwealth Parliament the power to make special laws it deemed necessary for dealing with people of any race other than the Aboriginal race in any State.(27) Convention debates suggest there was a clear intent to authorise racially discriminatory laws. In 1967 90.8 per cent of the electorate voted to remove the words quoted above in italics. The alteration was underpinned by a strong anti-discrimination ethic. The Hindmarsh Bridge case raised amongst other things the question whether the 'races' power (as amended) authorised a Commonwealth law which removed legal protections designed to benefit Aboriginal people.

Ordinary statutes are frequently amended over time from quite different political standpoints, and the courts must make sense of the intention of the Act as a whole. Judicial interpretation becomes more complex, however, when the statute in question is the fundamental law of the polity. A constitution purports to provide a coherent blueprint for governance and define powers which will underpin the validity of perhaps hundreds of subsequent statutes. In teasing out the implications of the 1967 referendum, the litigants in the Hindmarsh Bridge case posed a number of questions which illustrate the ambiguous and potent consequences of s. 128.

How does the Court divine the 'intent' of the electorate at a referendum? Should it try to? Can resort be had to the official YES and NO cases? What about other historical material surrounding the referendum? If international standards and community values at the time the amendment was passed were radically different to those operating in the 1890s, can that be taken into account when interpreting the constitutional provision? Can a constitutional amendment, by deleting a few words, turn a provision on its head-effectively converting a detrimental power into a purely beneficial one, generally or in relation to a racial group nominated in a referendum proposal? The Court fractured four ways in coming to a 5:1 decision on the key issue in the case,(28) and not all of the judges addressed the questions set out above. Justice Kirby wrote:

Because there have been so few amendments to the Australian Constitution, it has not hitherto been necessary to develop a theory of the approach to be taken to the meaning of the text where a provision is altered.(29)

The disparate reasoning in the Hindmarsh Bridge decision means that such a theory remains to be written.

The Impact of Constitutional Amendment-the Eight Successes

What impact have the eight alterations had upon Australian society? Despite the lack of enthusiasm of many commentators-according to former Commonwealth Ombudsman, Professor Jack Richardson, s. 128 has 'failed to achieve much purpose'(30)-it is possible to detect important national consequences that have flowed from the passage of at least six of the eight.

Amendment 1: 1906 Senate elections

This amendment altered s. 13 of the Constitution.(31)

The Constitution (s. 13) provided for Senate terms to begin on 1 January. By 1906 it was felt to be unlikely that Senate terms would generally coincide with House of Representatives terms, and that a change would be beneficial. The proposed amendment provided for Senate terms to begin on 1 July. Odgers noted that the main reason for the change was to enable simultaneous elections to be held in March.(32) The amendment was uncontroversial, dealing with the mechanical matter of how to rotate Senate terms, and R. G. Menzies later observed that, 'as the average voter ... does not care how frequently a Senator rotates, the amendment was carried'.(33) All States were in favour, with a YES vote of 82.7 per cent being registered.

Ironically, although the amendment has not hindered the holding of simultaneous elections, it has had one unintended consequence. Because two-thirds of Commonwealth elections have been held in the months of September-December, there have been numerous instances of incoming Senators being required to wait many months before taking their seats. Those elected on 3 October 1998, for instance, were required to wait 270 days before doing so.

Amendment 2: 1910 State Debts

This amendment altered s. 105 of the Constitution.

Ensuring the future financial good health of the States was a matter of great importance to the Constitution-writers, and they worked hard to produce a workable Finance and Trade chapter (ch. IV). Two important sections were s. 87, which required the return of surplus tariff funds to the States, and s. 105, which provided for the Commonwealth to take over State debts that existed at the time of Federation. By the end of the first decade it was clear that ch. IV had serious flaws, and in 1910 attempts were made to amend these two sections of the Constitution. The State Debts proposal dealt with a perceived need to expand the operation of s. 105 to allow the Commonwealth to take over State debts whenever they were incurred.

This amendment was carried by a YES vote of 54.9 per cent, with only New South Wales in opposition. According to a history of the Loan Council, this indicated that the nation had 'decisively favoured a scheme on the basis of s. 105 to relieve the States of some of their financial burden'.(34) Although it was over a decade before the power was used, this amendment was important in giving greater potential flexibility to ch. IV of the Constitution.(35)

Amendment 3: 1928 State Debts

This amendment inserted s. 105A into the Constitution.

The financial relations between Commonwealth and States worsened during the 1920s. A financial settlement between the governments in 1910 had introduced what were called per capita grants, whereby each State received annual grants from the Commonwealth of 1.25 per head of its population. By the mid-1920s, inflation had made serious inroads into this sum but no new formula had been found.

In 1927 the Commonwealth and States signed the Financial Agreement. Apart from establishing a new grants regime, this provided for Commonwealth assistance in State debt reduction and, most importantly, established the Loan Council. Henceforth all governmental borrowing, except for purposes of defence, was to be under Loan Council control. Due to doubts concerning the constitutionality of this new body, it was agreed that a constitutional amendment would be put to the people. When this was done on 17 November 1928, 74.3 per cent of the voters supported the change.

The Loan Council, described as 'a unique institution among federations',(36) attracted overseas attention from the moment of its birth:

if Australia has made a unique contribution to federal finance it lies in its harmonisation of public borrowing by an institutional device [i.e. the Loan Council] which offers a solution for a host of related federal problems-the co-ordination of public investment, economic planning, tax conflicts, and so on.(37)

There is no doubt about the enormous impact that this body has had on Commonwealth-State financial relations, particularly in helping the Commonwealth Government to oversee the national economy.

Amendment 4: 1946 Social Services

This amendment inserted s. 51 (xxiiiA) into the Constitution.

Prior to 1946, the payment of such social service benefits as were authorised by Commonwealth legislation, relied on the spending power (s. 81). The Pharmaceutical Benefits Case (1945)(38) underscored doubts about the constitutionality of this procedure, doubts which raised the possibility of various social services being invalidated. The Chifley Government (ALP) and the Opposition agreed that the constitutionality of such services should be confirmed by means of constitutional amendment.

The amendment proposal, which was put with two other questions, sought to give power to the Commonwealth to provide for 'maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances'. According to British political scientist, A. H. Birch, a YES vote was a foregone conclusion, for voters 'would otherwise have faced the risk of losing the many social benefits which were already provided'.(39) This and the two other 1946 proposals (Marketing and Industrial Employment) met some opposition based on a disinclination to see the Commonwealth gaining any more power, but the social services amendment was carried narrowly, with 54.4 per cent voting YES.

Although this amendment recognised a position in which the Commonwealth had become the prime mover in the area of social services, it was important in giving the Commonwealth power in the area of medical and dental services which it did not have before.(40) Writing in 1984, prominent health administrator Sidney Sax described the amendment as being 'of great significance', enabling the Commonwealth to legislate for the administration of many welfare schemes and potentially allowing for the provision of medical and dental services and hospital care. Sax has surmised that the Commonwealth's reach is now potentially so extensive that in the future the national government 'might well be able to establish its own hospitals in the states'. Further, the word 'benefits' in the amendment has authorised 'not only the payments of money, but benefits in kind or by way of services'. This was seen to be particularly important during the Labor Government of 1972-75 in enabling the government to make changes in health services.(41) At the same time, the High Court has indicated clear limits to this power over social welfare and it has been noted that the Whitlam Government's social welfare programme was put together with a 'keen awareness' of the limits.(42)

Education administration has also been affected by this change. Although s. 96 has been the main instrument of Commonwealth activity in education, it has been noted of this part of the Constitution that 'it would appear to give the Commonwealth very far-reaching powers with regard to education within the States'.(43) As such it increases the strength of the cards in the Commonwealth's hands in this area of policy-making.

Amendment 5: 1967 Aborigines

This amendment altered s. 51 (xxvi) of the Constitution and deleted s. 127.

Until 1967 the Constitution specifically denied the Commonwealth the power to legislate for Aboriginal people in the States or to include them in national censuses. For many years, these provisions had been regarded as an affront to Aboriginal people, as well as a barrier to effective policy-making and administration. An attempt to alter this situation had failed with the defeat of the Powers referendum of 1944.

The 1967 alteration sought to remove these barriers from the Constitution. Despite being held at the same time as the controversial-and unsuccessful-Nexus referendum, the Aborigines amendment was carried with the highest YES vote to date, 90.8 per cent. This vote was said to have reflected a general community view that this was 'a chance to make some sort of amends'.(44)

Although the Commonwealth did little in this policy area for the first five years after the amendment was passed, in time the constitutional alteration came to be seen as extremely important for Aboriginal people. Eventually there was a realisation that direct Commonwealth participation in this policy area meant much higher levels of government spending being directed towards Aboriginal affairs, as well as the possibility of overarching national legislation, such as the Native Title Act 1993.(45) A recent judgement is that the referendum was 'vitally necessary to the process of change', especially as it

bestowed upon the Whitlam and subsequent governments the moral authority required to expand the Commonwealth's role in Aboriginal affairs and implement a major programme of reform.(46)

Amendment 6: 1977 Casual Vacancies

This amendment altered s. 15 of the Constitution.

Four amendments recommended by sessions of the Australian Constitutional Convention were put to the people in 1977. The Casual Vacancies proposal arose out of the 1975 controversy over the appointment of non-party Senators Cleaver Bunton (NSW) and Albert Field (Qld) to fill Senate seats formerly held by ALP Senators. The change aimed to ensure that a replacement Senator would be required to be a member of the party of which the previous Senator was a member at the time of his or her election. Essentially, the purpose of the amendment was to preserve the party balance from one Senate election to the next, and to that end it also abolished Senate by-elections. It received 73.3 per cent of the vote.

Despite the clear intention of the amendment's supporters to ensure that the party balance in the Senate should not be altered by a casual vacancy, the aftermath indicates that the best of intentions can be thwarted. Following the resignation of a Tasmanian ALP Senator in April 1987, the nominee of the party, John Devereux, was rejected by a tied vote in the Tasmanian Parliament. As a Tasmanian Minister put it, 'we can choose only a person who is a member of the same party ... but we are not bound to accept the nomination of the party concerned'.(47) Tasmania therefore had only 11 Senators between 2 April and the double dissolution election of 11 July 1987.

Amendment 7: 1977 Territorial Votes

This amendment altered s. 128 of the Constitution.

At the time of Federation the very few people who lived in the Northern Territory voted as residents of South Australia. Territorians could therefore vote in constitutional referenda. When the Territory was surrendered to the Commonwealth in 1911, however, its citizens lost the vote in such referenda, due to the failure to refer to Territory voters in s. 128. Residents of the Australian Capital Territory were similarly restricted. In 1967 demonstrations against this restriction upon civil rights occurred in Alice Springs, as Territorians expressed their resentment at not being able to vote in the Aborigines referendum.

In 1974 the Whitlam Government attempted to amend s. 128 in a double-pronged proposal. Territorial voting rights in referenda were sought, but the Government also proposed that constitutional amendments could be carried with just half of the States-instead of a majority of States-voting in favour. Only New South Wales supported the proposal, but it is likely that had the Territories section been a separate question, it would have been ratified.

In 1977 the question of Territory votes was relatively uncontroversial, being carried in every State, gaining a national YES vote of 77.7 per cent, though Queensland (40.4 per cent) and Tasmania (37.8 per cent) had quite large NO votes. It has been claimed that the high vote of approval was a reminder of Australia's honourable record of electoral reform-that the amendment had 'Australian political tradition behind it'.(48) Despite John Paul of the University of New South Wales dismissing the change as the granting of a 'hollow privilege', the Canberra Times stated that people in both Territories should be grateful, 'for the universal acknowledgment that their natural right to vote in future referendums will now be given the force of law'.(49)

Amendment 8: 1977 Retirement of Judges

This amendment altered s. 72 of the Constitution.

In October 1976 the Senate Standing Committee on Constitutional and Legal Affairs recommended a retiring age for all federal judges. This recommendation was based on

  • a perceived need 'to maintain vigorous and dynamic courts'
  • a need to open up avenues for 'able legal practitioners' to achieve judicial positions
  • a growing community belief in a compulsory retiring age for judges, and
  • avoiding 'the unfortunate necessity' of removing a judge made unfit for office by declining health.

The committee's view was accepted by the Australian Constitutional Convention soon after.(50)

The amendment introduced in the following year sought to provide for a retiring age of seventy for all federal court judges, including those on the High Court-though not judges appointed before the approval of the referendum. The issue was not controversial, despite Sir Robert Menzies' description of the change as 'superficial and ill-considered'.(51) Over 80 per cent of voters supported the amendment:

It appears that in Australia, age provokes a reaction of vacation rather than reverence, and the electorate saw no reason to make an exception of High Court judges.(52)

Accounting for Constitutional Referenda Failures

Interestingly, although a great deal has been written and spoken about Australian constitutional referenda, remarkably little research has been conducted into Australians' voting behaviour on these occasions. What follows, then, is a brief discussion of the most commonly cited factors that might help us understand the outcomes of s. 128 referenda, but with a marked absence of behavioural data. Among the commentators, the debate is split between those who believe the results reflect Australians' general awareness and good sense about constitutional matters, opposed by those who speak of voter ignorance and unnecessarily cautious voting behaviour. The truth may lie somewhere between these two points of view.

The Provisions of s. 128 and the Referendum Legislation

Some writers have criticised the constitutional and legislative arrangements for the holding of constitutional referenda.(53) The 'double majority' has been said to create too high a hurdle, though the figures do not really bear this out. If the double majority had required just half the States-as proposed in 1974-the tally of successes would have been increased by three (1946 Primary Produce Marketing and Industrial Employment, plus 1977 Simultaneous Elections). If only a national majority had been necessary, to these three would have been added the Air Navigation attempt of 1937 (the 1984 Simultaneous Elections attempt would have been unnecessary, as this change would have been made in 1977).

Against this, however, it seems that a more significant factor has been the difficulty in securing 50 per cent of the national vote for the YES case. It has been pointed out that almost 60 per cent of the proposed changes stood a good chance of passage, but on no less than nine occasions the national vote has been in the range 49.0 to 49.8, while seven votes have been in the range 45-48 per cent, a possible consequence of so many being opposed by the Opposition of the day.(54) With more efforts to achieve bipartisan support, it is quite likely that more campaigns would have been able to secure a national YES majority, and thus the double majority would probably have also been achieved in more cases. It does not seem, therefore, that the double majority, of itself, has had a major effect upon constitutional referenda results.

Saunders and others have focussed on the 'party political character of constitutional change', which is the direct consequence of an amendment procedure which allows only the Commonwealth Government to initiate proposals. Jeffrey Goldsworthy of Monash University has suggested that this partisanship could be lessened if the States had a formal role in the amendment process.(55)

Other writers have focussed on the sending of both the YES and a NO arguments to the voters. Professor Richardson has suggested that the printing of the two cases, of equal length, in the same pamphlet, gives the NO case a status it might not have if the votes in parliament are taken as a guide. He noted that an amendment proposal passed by the Parliament is the legal expression of the will of the people, yet this provision does not recognise that legal fact.(56) Professors Colin Howard and Cheryl Saunders have asked whether the totals of the votes in the two houses of parliament ought to be included in the information sent to voters, to make clear the strength of parliamentary support for any measure.(57) Professor Howard has also commented critically about the lack of criteria required to write the two cases. He noted that the YES case has usually been presented simply, bearing some close resemblance to what is being proposed. The NO case, on the other hand often seems designed to confuse, and 'is usually a totally unreliable guide to what the amendment is all about'.(58)

Voter Attitudes: Ignorance? Conservatism? Discriminating Judgment?

Professor L. F. Crisp is one writer who has criticised the voters for their 'ignorance' and their 'conservatism':

... objective assessment of constitutional problems as such is an abstract, complex, technical business for which the average citizen is usually ill-equipped and disinclined, while the problems may be so complicated as to be ill-suited to a simple and satisfying 'Yes' or 'No' vote. The temptation, therefore, is to 'play safe' and 'let things be'.(59)

This view portrays the voters as puzzled by the wording of referenda, often confused by the complexity of the issue under discussion, and unable to make sense of the loud argument and counter-argument that swirls about them. It is possible, continue the critics, that even the form of the ballot paper used in constitutional referenda may be off-putting for voters because the wording of the questions seems to require knowledge of a particular Act of Parliament (see above). Is it any wonder, asks Professor Don Aitkin, that many 'shrug their shoulders and vote no'?(60)

For writers with a different perspective, such criticisms tell us more about the views of those who see the Constitution as out-of-date and in need of major reform, than of the voters they criticise. For Mark Cooray of Macquarie University, it indicates that those he calls the constitutional 'reformists', possess an elitist perspective-'that they, and they alone, know what is best'.(61)

The Australian Constitution is undoubtedly a complex document about which there are conflicting views, and presumably there are some voters who behave as Crisp and Aitkin claim. Having said this, the experience of certain referenda suggests that it may be simplistic-as well as patronising-to claim that most voters do not understand what they are passing judgment upon. In 1967, for instance, over half of the voters rejected the Nexus question, while nine voters out of every ten supported the Aborigines amendment.

In addition, it may be misleading to consider only the total YES and NO results across the 42 national votes. If the 42 cases are categorised, in fact, then a different picture emerges.

The Constitution is a federal document, drawn up by regional politicians determined to protect the position of the States in their federal scheme. Voters in the Federation referenda were spoken to incessantly about the need to protect the place of their colony in the future union, and in the years since, Premiers have often warned voters of the need to protect their State's rights from Commonwealth incursion. Voters have often been asked to show support for their State, most notably in regard to constitutional amendments proposing to increase central government power. Their response has been spectacular-all 17 attempts to increase Commonwealth economic power have been rejected, as have four others dealing with non-economic powers. Two referenda suggesting Commonwealth involvement with local government (1974, 1988) have also failed. Constitutional amendment can thus be difficult if it strays outside the federal parameters that seem to apply as much today as they did in the late 1890s.

In their criticism of voter performance, writers such as Crisp have especially focussed on the 17 economic powers referenda, for they see national legislation and the setting of national benchmarks as essential to the development of the nation. This is particularly the case in a nation with a constitution that has been seen by former Prime Minister Whitlam and others as 'a political structure that is outdated, reactionary and resistant to change'.(62)

If we look at different categories of amendment, however, the picture alters. There have been other questions dealing with the federal system, not just the type seeking to give more power to the Commonwealth. Two of three referenda trying to tidy up Commonwealth-State financial relations have been passed (1910, 1928), though a proposal to alter arrangements for the interchange of powers was defeated in 1984. The only amendments seeking to increase Commonwealth power that have been passed were not typical of such questions. If we classify the Social Services (1946) and Aborigines (1967) referenda as 'social', then we note that together with the 1977 Judges example that dealt with retirement ages, then three of five such 'social' referenda have been carried. The two that missed out were Communism (1951) and Rights and Freedoms (1988).

The other major type of alteration has dealt with what might be called 'machinery' amendments. Just one of four dealing with electoral or referenda arrangements has passed-that giving Territorians the right to vote in constitutional referenda. The Senate has been the focus of seven attempts, six of them occurring in the past three decades. The Rotation of Terms amendment (1906) and the Casual Vacancies amendment (1977), were both passed comfortably. By contrast, five proposals that seemed to have been designed 'to reduce the unpredictability of the Senate in the affairs of the Government' (1967, 1974, 1977, 1984, 1988) have been defeated.(63)

In summary, amendments perceived to weaken the federal system are likely to receive short shrift, whereas attempts to repair the perennially-flawed finance chapter have been received sympathetically. Perceived attacks on the Senate are likely to be repelled but matters dealing with societal relations are considered closely. Such outcomes are a possible reminder that voters go to a referendum polling place 'with some consciousness of Australian history and politics'.(64)

Apart from the different responses of voters to different categories of amendment, voters have also indicated an awareness of the issues (if not necessarily the words) surrounding particular questions. Examples illustrating this include:

  • 1910, 1928 State Debts
  • It has been argued that these referenda showed that people 'understood the intention' of these 'adjustments to fiscal relations'. In 1910 they voted clearly in favour of widening the Commonwealth's power to assist the States, and 18 years later they again voted solidly on the same theme. Gilbert has asserted that voters may not have known the detail but were well aware of the principles behind the two changes.(65)
  • 1946 Social Services
  • We have seen that most proposals to increase the power of the Commonwealth have been rejected. In regard to the Social Services referendum, however, voters seem to have been able to ascertain that the proposed amendment had more to do with social matters than with Commonwealth power. Richardson is one who has criticised the 'impressively conservative' referendum voting record of Australians, yet he also noted that voters were alert enough to support this amendment because it offered Australians some financial benefits.(66)
  • 1967 Nexus, 1967 Aborigines
  • It has been suggested that the Holt Government held these two referenda on the same day in the hope that voters' support for the one, would rub off on the other.(67) If this was the government's thinking, then it must have been disappointed. As already noted, the Aborigines referendum produced the largest YES vote on record (90.8 per cent), whereas the 40.3 per cent for the nexus alteration was the fourth-lowest YES vote to that time. Clearly, voters were able to distinguish between the two questions.

Voter awareness can also be assumed in referendum votes that suggest different perceptions have been held in different parts of the nation. Examples include:

  • 1910 Surplus Revenue
  • The votes in this referendum suggested that voters appreciated the amendment's impact was likely to be different from State to State. The 4 smallest States were to benefit from the amendment, and it was probably significant that their combined YES vote was 55.4 per cent. New South Wales and Victoria, though, were to provide the funds to help the States cope with the ending of s. 87, and their voters rejected the measure with a combined NO vote of 53.7 per cent.
  • 1967 Aborigines
  • Regional Australians showed what they thought of this proposed amendment, for the NO votes were largest in those States with the largest Aboriginal populations. Within these States, the voters nearest the largest populations of Aboriginal people tended to return high NO votes. Such voters probably rejected the call to give Aboriginal people their civil rights, and although they seem to have remained silent during the campaign, indicated by their votes their feelings of resentment.(68)
  • 1974, 1977, 1984 Simultaneous Elections
  • Tasmanians have long spoken of the importance of the Senate for the smaller States, and its voters have invariably opposed questions that seemed to threaten the place of the upper house. In the three Simultaneous Elections referenda, the Tasmanian NO vote was far higher than in the other States. In 1977, for instance, although the national NO vote was just 37.8 per cent, the NO vote in the island State was a massive 65.7 per cent.
  • 1988 Fair Elections
  • The federal Coalition parties opposed this amendment, which would have required equality of electorates in State as well as Commonwealth elections (though not for the Senate). Despite this, the Queensland division of the Liberal Party, which had experienced many difficult years under the Bjelke-Petersen malapportionment operating in that State, was very sympathetic to the change. Although all States rejected the proposal, the 44.8 per cent Queensland YES vote was clearly the highest State return and was well ahead of the national total of 37.6 per cent.

According to Denis Altman of Latrobe University, 'the greatest single obstacle to constitutional change in Australia is the conservative nature of the society itself'.(69) Such claims are common but they remain to be proven. It may be equally accurate to describe Australia's record in constitutional amendment as being merely a reflection of various Commonwealth Governments being out of step with public sentiment in a large, federated country.

It may also reflect a growing acceptance of the Constitution over the years, and a suspicion of efforts to alter it. If we look at the eleven referenda that were held before 1914, we find that in the 66 separate State votes there were 34 (51.5 per cent) that were YES votes. In the seven between-wars referenda the YES tally fell to 42.9 per cent of the whole. In the 24 referenda held since 1944, barely one-third (35.4 per cent) of the State totals have registered YES votes.

Party Attitudes: the Battle for the Constitution

The Labor Urge to Reform the Constitution

Although all major parties have had an influence upon the way in which the Constitution is viewed, it has been the Labor Party's luke-warm attitude which has been particularly significant in the politics of the Commonwealth Constitution.

The Labor Party was uncertain of the Constitution even before it became law. Federalism was seen as a barrier to social change, hindering central governmental intervention, and making uniform solutions to social problems difficult to achieve. Many Labor people thus would have preferred the creation of a unitary system.(70) The rough treatment of Chifley Government (ALP) legislation by the High Court in the 1940s seemed to suggest that there was an actual constitutional barrier to the implementation of key Labor policies. Such attitudes were important in influencing the way Labor politicians once regarded the Constitution. Former federal leader, Arthur Calwell (1960-67), summed up the party's long-time feeling of frustration with the document:

Australia has reached a stage in which the states have the residual powers but cannot undertake the task, while the Federal Parliament which can do the job effectively does not possess sufficient or adequate powers.

... No constitution is sacrosanct. All must face the fact that it is in our own interests, as well as for the good of the nation, that we remedy the defects in our Constitution.(71)

From the first years of Federation, then, Labor politicians saw constitutional amendment as an important priority. ALP Governments have rarely been prepared to leave the Constitution as they found it. The Fisher Government's eight attempts, in April 1911 and May 1913, indicated the party's clear determination to reshape the Constitution, the Curtin and Chifley Governments sponsored five attempts between 1944 and 1948, and 12 of the party's 25 attempts were proposed by the Whitlam and Hawke Governments. Labor has been in power for about one-third of the time since 1901, yet has sponsored 59 per cent of the constitutional referenda.

Significantly, Labor efforts to amend the Constitution have generally sought to bring about major changes, leading their opponents to portray the party as Constitution wreckers:

Referendum proposals which are identified exclusively as Labor Party initiatives seem certain to encounter vocal opposition and probable rejection. Just as Labor has aroused strong political passions in other areas of government (leading to many supply threats and two dismissals), so in this area it is Labor referendum initiatives that have met sharp opposition ...(72)

The consequence of this has been Labor's near-failure to institute constitutional change: just a single success in 25 attempts (four per cent), compared with the conservative parties' successes in 7 of 17 attempts (41 per cent).

Many Labor people have shared the frustrations of Professor Crisp of the Australian National University (himself a life-long party member), when he lamented the dashing of many people's hopes of 'necessary progressive amendment'.(73) The response of Crisp and others, therefore, has been to blame the voters:

Labor politicians and theorists seem to be at a loss to understand why the electorate, which endorses their policies from time to time [in an election] does not also accede to their requests for more constitutional power.(74)

A major part of the constitutional referenda story, then, has been Labor's determination to change the Constitution, clashing with a popular resistance to the further centralisation of legislative power (albeit sometimes by very narrow margins). With the Labor Government of 1983-96 having been so important in altering the party's attitudes to the importance of central government power to the achievement of the party platform, perhaps future Labor governments will not see constitutional change as being so fundamental. The views of Calwell and Whitlam, cited above, may come to be seen as simply an early stage of the party's evolution within the modern Australian nation.

Liberal Protection of the Constitution

By contrast, the Liberal Party has projected itself as the protector of a fundamental document that 'has maintained our liberties, national unity in war and depression, the federation and our national independence'.(75) Within this, there has been a determination to preserve the federal system, the British connection and the basic principles of responsible government:

... responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights.(76)

Naturally enough, then, the Liberals have often been opposed to Labor's efforts to amend the Constitution, particularly if such efforts threatened what R. G. Menzies called 'the nature and significance of federalism as the dominant factor in the Constitution'.(77)

But despite Menzies' own criticism of Labor efforts to mix politics and law during constitutional referendum campaigns, he and other Liberal spokespeople have not failed to see that protection of federalism and the Constitution could be used as 'a useful stick with which to beat the socialists'.(78) This approach has coloured the tactics used in constitutional referenda. During the 1940s, for instance, Menzies spoke of Labor's 'contempt for the basic Constitutional instrument', and portrayed the Rents and Prices amendment (1948) as one part of Labor's plan of complete socialisation of government and the undermining of the Australian way of life.(79)

Such an approach also coloured the Liberal Party's response to the Whitlam Government's reforming urge. The Constitution was described as an historical compact and charter which formed a fundamental law that ought not lightly be altered.(80) This was not to say that it could not be altered, but changes ought not be rushed, a failing common on the Labor side.(81) In keeping with this view, Labor attempts to alter the Constitution have often been described as a 'grab' for power. As former MHR, Peter Shack, put it when criticising the 1988 proposals, 'The hidden agenda ... is a grab for power by the Federal Government for more power to interfere with our democratic rights, the rights of State and Local Governments and with our rights as individuals'.(82)

A referendum is an exercise in participatory democracy and the temptations of partisan advantage have often proved too hard to resist at campaign time. With both major parties, therefore, ideological and political considerations have tended to outweigh any chance of a proper and careful consideration of the place of the Constitution in the Australian system of government.

Party Attitudes: Tactical Difficulties

The parties have also seemed to assume a high level of voter ignorance with regard to constitutional referenda. This can be illustrated in various ways.

The Short-Term View

At various times the parties have seemed to assume that voters have no memories of previous amendment attempts. This has been well-illustrated in the way that a party might be keen to introduce a particular amendment while in power but not prepared to allow their opponents to be the first to possess that power. In regard to Commonwealth control over monopolies, for instance, despite having tried to gain this power in 1911 and 1913, Labor opposed a similar attempt by their Nationalist opponents in 1919. Similarly, Labor attempted to gain power to legislate in respect of trusts in 1913, but opposed their opponents' 1919 attempt, despite the provision that the new power was to remain in force for a maximum of three years.

A more recent example occurred in relation to the different efforts to introduce simultaneous elections for the House of Representatives and the Senate. In 1974 the Coalition opposed Labor's attempt to do so, claiming that the Government's real plan was the weakening and eventual abolition of the upper house. Despite this, the Fraser Government attempted to amend the constitution to this end in 1977, earning accusations of hypocrisy from within its own ranks. With this second attempt also being defeated, Labor tried again in 1984, and once again the Coalition opposed the attempt.

Exaggerated Claims

There has been a general opportunism and the seeking of short-term victories over opponents, rather than a careful consideration of the questions under discussion. Former South Australian MLA, Robin Millhouse, has lamented that 'it's a sad fact that not enough of us [politicians] care sufficiently about constitutional reform to avoid party politics'.(83) This means that a great deal of exaggeration and distortion is standard fare, leading Professor Aitkin to complain that 'the intellectual level of referendum debates is often appalling'.(84) In 1937, for instance, opponents of the Commonwealth having power to make laws with regard to aviation, predicted that the proposal would wreck state railway systems and spoke of a substantial increase in the price of food. In 1948, the Country Party leader alleged that centralised price control would be used to destroy private enterprise and establish a socialist state.(85) In 1967 the effort to remove the nexus was motivated by a desire to avoid establishing new Senate seats (which could only be done in multiples of six) when population increases dictated small additions to the House of Representatives. Despite this, the NO case relied largely on the populist cry of 'no more politicians'. In 1988 Richard Alston reportedly warned that the passage of the Rights and Freedoms amendment could see corporal punishment in schools written into the Constitution.(86)

Avoiding Voter 'Confusion'

Another way in which parties have indicated their view of voters' abilities has been in their calls for uniform votes when more than one issue has been presented for ratification. This tactic has been seen especially on the Coalition side. In each of 1974 and 1988, for instance, it was felt better to call for a uniform NO vote for the four questions being submitted, rather than have voters 'confused' by a mix of YES and NO recommendations.(87) In 1973 many in the Coalition were in favour of the Commonwealth having power over incomes but not over prices. It was believed to be safer, however, to make the call NO for both issues, again to avoid 'confusing' voters. Not all have felt this way. In 1977 the Canberra Times noted that the results indicated that voters were well able to differentiate between issues, a point noted also by Campbell Sharman of the University of Western Australia in regard to the 1988 referenda.(88)

Trying to Do Too Much

Parties have also indicated their view of the voters by attempting too much at the one time. In 1911 and 1913 the ALP put eight questions-six of which were submitted in 1913-and a youthful H. V. Evatt suggested that it was 'chiefly due to its asking too much that the Labour [sic] Ministry failed to pass [any of these] amendments'. None of the amendments was ratified, though the six 1913 proposals only failed narrowly, with all achieving a 49 per cent vote as well as the votes of three States, so Evatt may well have been correct in his assessment.(89)

Ironically, it was Evatt as Attorney-General who sponsored the Powers referendum in 1944. This was designed to give the Commonwealth post-war reconstruction powers in fourteen areas of administration for five years after the end of hostilities. The range of policy areas was vast, including some controversial matters such as the organised marketing of commodities or control over profiteering and prices, but there were also relatively uncontroversial areas such as laws for Aboriginal people and the granting of family allowances. There were also provisions to safeguard freedom of speech, expression and religion. In an extraordinary error of judgment, the ballot paper held just the one question: 'Do you approve of the proposed law for the alteration of the constitution entitled "Constitution Alteration (Post-War Reconstruction and Democratic Rights) 1944?"'(90) This meant that voters who were strongly opposed to a single question had a strong incentive to vote in the negative, despite any sympathy they might have had for other questions.

In a similar way, we have seen earlier how the Amendment referendum of 1974 lumped together the provision for the watering-down of the 'double majority' requirement with the granting of the vote in referenda to Territory voters. If one disliked the former, then one was forced to vote against the principle of fairness that was encapsulated in the latter. In 1988 the Parliamentary Terms referendum effectively dealt with five separate matters: a longer term for the House, a shorter term for the Senate, ending the continuous nature of Senate terms, Senate terms to be no longer fixed and compulsory simultaneous elections for both houses. Once again, a voter had no choice but to vote for or against the entire group.

Other Political Factors

Apart from the impact of the federal party battle upon referendum campaigns there have been at least four other examples of politics affecting attempts to amend the Constitution.

Political Context

For some referenda, it has been claimed that their defeat may have been due in part to their sponsorship in an inappropriate political context. Professor Parker has noted of the 1948 Rents and Prices attempt, that its firm rejection may well have been due to the political times as much as to the specific proposal. By 1948, the continuation of war-time controls had become an important political issue, with the Liberal and Country Parties calling for the lifting of such controls. In 1949 this became an issue in the Commonwealth election that saw Labor lose office. Parker believes that an attempt by the Commonwealth to gain control over rents and prices, 'clashed too roughly with current attitudes towards "controls"', and was probably doomed from the start.(91)

Similarly, J. C. Finemore, Victorian Parliamentary Counsel, criticised the Whitlam Government's sponsoring of the 1974 Simultaneous Elections proposal 'at a time when there was a life and death battle between the House of Representatives and the Senate'. He believed that this ensured the short-term political aspects of the measure, would predominate over any intrinsic merit that it might have had.(92)

State Activity

Parker also asked the question as to why, in a nation apparently so homogenous as Australia, the tallies of referendum votes were not the same in each State. He concluded that there must be different perspectives in the different States, suggesting that the answer to the question must, in part, 'be sought somewhere in State politics'.(93) In illustration of this, the American scholar, Aaron Wildavsky, has shown how the Coalition Government's sponsorship of the Industry and Commerce and Essential Services referenda in 1926 was undermined by State branches of the Nationalist and Country Parties, which opposed the further weakening of State governments.(94)

Premier John Allan (CP) of Victoria was one important opponent of the 1926 changes, a reminder that State Premiers have often been instrumental in leading opposition forces to amendment proposals. This has been the case even when changes are proposed by their own party, as in Allan's case. In 1944, the Labor Premiers of New South Wales (McKell) and Tasmania (Cosgrove) led determined opposition to the Powers amendment proposed by the Curtin Government (ALP). Thirty-three years later, Queensland Premier, Joh Bjelke-Petersen (NP) and Western Australian Premier, Charles Court (LP) led the successful fight against the Fraser Government's effort to introduce simultaneous elections. Such cases seem to confirm Parker's claim concerning the importance of State governments in many referendum defeats.(95)

Extra-Parliamentary Activity

Support for, and opposition to, constitutional referenda is not necessarily limited to political party members. Wildavsky has made the point that on some occasions the explanation for a particular defeat can only be fully appreciated if the activity of other political bodies is understood. In 1926, for example, the fact that all three parties supported the Industry and Commerce proposal in Parliament clearly left unanswered the question as to why the proposal was defeated. Wildavsky's analysis noted the importance of many economic groups in the campaign and he came to the conclusion that

The results of the 1926 referendum suggest that group sentiment, while certainly not infallible, was a far more reliable indicator of voting behaviour than Party alignment.(96)

In a similar way, so many extra-parliamentary groups took a stand on the proposals of 1911, 1913 and 1919, that one cannot maintain that party activity was all-important in explaining the outcomes.(97) A number of writers have made clear the importance of Aboriginal and other groups in pushing the Aborigines referendum of 1967.(98)

More recent examples of the impact of particular interests come from the Whitlam and Hawke Governments. In 1973 Bob Hawke as president of the ACTU led the union fight against the Whitlam Labor Government's Incomes referendum, an effort that was believed to have been important in explaining the very poor YES vote that was cast (34.4 per cent). In 1988, the Rights and Freedoms amendment-and in particular the religious freedom section-was strongly opposed by many church representatives and by independent schools, both fearful of the future of state aid to such schools. The Hawke Labor Government, apparently confident that the proposal would be praised by the electorate, was said to be stunned at the severity of the defeat.(99) The 69.2 per cent NO vote for this amendment is the highest negative figure returned in a constitutional referendum.

The 1999 Republic referendum will be unusual with the Government's appointment of the two committees to put the YES and NO cases (see above). The Australian Republican Movement and Australians for a Constitutional Monarchy will therefore be key groups working to influence the vote outcome. The granting of such 'insider' status is unprecedented. Much more typical will be the private efforts of a group like the Real Republicans to enter the public debate.

Other Ways by which Constitutional Arrangements are Changed

At first glance, the only way to change the Constitution is by using the amendment procedure spelt out in its final provision, s. 128 (the full text of which is found at Appendix 1). Some of the constitutional features of that provision are examined below. Section 128, however, is merely one of several ways to alter constitutional arrangements in Australia. Compared with these other methods, the returns from formal amendment by referenda are 'modest indeed'.(100)

Judicial Review

The primary method by which the constitutional framework has evolved is judicial interpretation by the High Court. Many forces beyond text and precedent influence the way constitutional law is written and developed, including the accidents of circumstance (as well as designs) which bring litigants before the bench posing a particular question, the personalities and political preferences of individual judges, and the High Court's own sense of the spirit of the times. Over time, High Court interpretation has developed and sometimes rewritten understandings of what the Constitution means, without any referendum changing the words, and indeed sometimes where the very same revision has already been tried and failed under s. 128.

For example, the 1920 Engineers case(101) entrenched a doctrine of 'legalism' which licensed an expansionist interpretation of Commonwealth powers as the 20th Century unfolded. This progressive legal redefinition of the notion of a federal balance changed the bargaining power of the Commonwealth and the States, and has had major implications for the way federal politics has been played out. The generous interpretation of the grants power in section 96 has, for example, allowed the Commonwealth to insinuate itself into all kinds of policy areas previously regarded as State preserves. (102) The centralist logic embedded in the Engineers principle was most dramatically expressed in 1983 in the Tasmanian Dams case.(103) The High Court confirmed that halting work on the Gordon below Franklin dam on environmental grounds was a valid exercise of the power granted to the Commonwealth to legislate with respect to 'external affairs', because it was done pursuant to a treaty-the World Heritage Convention-signed by the Commonwealth in the international arena.

In some cases the relationship between judicial review and attempts at formal amendment through s. 128 is more direct. The High Court's decision in the Concrete Pipes case(104) achieved for corporations law what Commonwealth governments had sought unsuccessfully in referenda on five separate occasions.(105) Professor Coper has demonstrated that on at least four other occasions the High Court has written into constitutional law propositions earlier rejected by the people at referenda, in areas as diverse as aviation, marketing schemes for primary products and freedom of speech.(106) Sometimes events have been reversed-in 1951 Menzies sought unsuccessfully to do by referendum what the High Court had stopped him doing by Act of Parliament, that is banning the Communist Party.

Intergovernmental Negotiations

Periodic reinterpretation by judicial review may influence the legal terms of Commonwealth-State debates, but as Galligan says, at a political level constitutional arrangements have also been 'adjusted by the push and pull of inter-governmental relations'.(107) In the 1990s the machinery of shared jurisdiction 'has become more elaborate and sophisticated' through mechanisms such as the Council of Australian Governments and the National Competition Policy.(108)

Negotiated solutions which meet the financial and political objectives of the Commonwealth while securing the agreement of six State and two Territory governments, each with their own constituencies, can be extremely difficult to achieve. But the low success rate for the referendum alternative provides plenty of motivation. When, for example, the High Court spelt the end for a single national corporations law in 1990, rather than tread the perilous path of constitutional amendment, the Commonwealth engaged the States in a co-operative venture of 'mirror' legislation to achieve the same result.(109)

Other Possibilities

Other technical possibilities for changing the distribution of powers without resort to s. 128 exist, or have been suggested.(110) Some have speculated, for example, that section 15 of the British version of the Australia Act 1986(111) might authorise a change of wording without involving the electorate.(112) This option would require unanimity amongst State and Commonwealth parliaments, thumbing their nose at the popular sovereignty embodied in the referendum provision-a mix of rare co-operation, legal daring and likely unpopularity which leads Russell to conclude:

Whatever the prospects of this constitutional theory being accepted by the courts (and they would seem to be dim), the prospects of its being adopted by the politicians are even dimmer.(113)

Finally, the States can formally authorise the exercise of additional powers by the Commonwealth Parliament under subsections 51(xxxvii)(114) and (xxxviii)(115) of the Constitution. Neither subsection has been extensively employed, but they have proved useful in areas such as family law and offshore waters. Notably, the Australia Act 1986 (Cwlth), which severed most remaining constitutional links with Britain, was passed 'at the request ... of the Parliaments of all the States' in reliance on subsection 51(xxxviii).

Conclusion

In his seminal Law of the Constitution, A. V. Dicey stated that if a national constitution was written so as to be changeable by amendment, then it should be 'capable of being changed only by some authority above and beyond the ordinary legislative bodies'.(116) For a majority of Australia's Constitution-writers of the 1890s, including Dr John Cockburn of South Australia, this meant involving citizens in national referenda: 'On any question so vital as the amendment of the constitution the people have a right to be consulted directly'. Not all agreed. Queensland's Sir Samuel Griffith asserted that 'millions of people are not capable of discussing [constitutional] matters in detail', and stated his preference to have amendments approved by conventions of politicians.(117)

The history of Australia's efforts at constitutional amendment suggests that, although 'millions of people' might not have discussed the various constitutional amendments 'in detail', their voting record has indicated an adequate awareness of the relevant constitutional principles involved in the 42 referenda. Australian voters have been cautious, and conservative at times, but they have shown their willingness to accept change when persuaded that such change is sensible or right.

They will not, it seems, alter aspects of the federal system if they perceive its basic structure to be under threat, nor will they seek to weaken the position of the Senate in any way. Social issues seem to be much more likely of amendment, as are tidying-up, machinery matters.

Preamble

Such a conclusion suggests that the Preamble question of November 1999 stands a good chance of being ratified if voters accept the sentiments expressed in the words, and believe it important to add these to the Constitution.

The Republic

Matters are not so clear with regard to the forthcoming Republic referendum. Despite the reasonable number of amendment attempts from which to draw some conclusions, in this case we find that history is not necessarily a sure guide. There are various reasons for this.

We cannot be sure how voters will see such an amendment. Will it be seen as a machinery matter? If so, will a question that implies a 'minimalist' change be considered as relatively unimportant as the question of the rotation of Senators and be passed easily?

Will the 1999 change be seen as more of a societal question? Will the change be seen as a minor social alteration, whereby an Australian, rather than a British person becomes our head of state? Would such a perception mean a relatively easy acceptance by voters, particularly as a consequence of the great deal of social change over the past fifty years that has taken Australian well away from the long-standing Anglo-Celtic norm?

On the other hand, some of those arguing the NO case will portray this change as a threat to the very basis of the governmental system and with the potential for great damage. If a great many voters agree with them, the message of the historical record is that the referendum is likely to struggle to receive a majority.

How much bipartisan support will there be for the Republic question? If the significant degree of bipartisanship that has been evident continues, then party attitudes may lose their significance. However, if there is a major division based on party lines, passage may well be difficult to achieve.

What effect will dissident republicans such as Clem Jones or Phil Cleary have? The message of the 1967 Nexus case was that even when most in the major parties support a change, loud dissident voices can still bring about an amendment's defeat.

Might the proposed method of choosing the President by parliament, in preference to a popular vote for the office, be described as another example of 'Canberra arrogance'? In 1988 the four changes were described as part of 'Labor's aim of centralising all political power in the House of Representatives in Canberra', a claim that seems to have resonated with many voters.(118) Were the same thing to occur in 1999, the amendment might well be doomed.

It is therefore difficult to predict the outcome, due to an uncertainty of how voters will view the Republic question. Another difficulty in predicting the result lies in the uniqueness of many of the factors surrounding the referendum:

  • No constitutional amendment has had such a wide amount of discussion as this case. There has been an unprecedented degree of publicity of the issue of republicanism. We have to go back to the Federation referenda of 1898-1900 to have any parallel, for at that time, Australians who wished to understand the principles and details of the new Constitution were well able to find them in newspaper, book and pamphlet, as well as in listening to politicians stumping their colony.
  • A lot of the push for considering the question has come from the public, rather than from the politicians. The 1967 Aborigines amendment provides the closest parallel.
  • The Prime Minister will not be campaigning for the Republic amendment, something that has not occurred in any of the earlier cases.
  • It is possible to describe the change as something of a 'new beginning', rather than just a piecemeal alteration of a clause in the Constitution. It may therefore appeal rather more to some people's sense of nationalism than the previous 42 amendment proposals.

The history of Constitutional referenda is thus well-documented, but it is a history that does not necessarily give us much guidance for the Republic proposal of 6 November 1999.

Endnotes

  1. For a history of the provision of YES and NO arguments, see Lynette Lenaz-Hoare, 'The History of the YES/NO Case in Federal Referendums, and a suggestion for the future', Proceedings of the Australian Constitutional Convention Brisbane 29 July - 1 August 1985, vol. II, Standing Committee Reports, Appendix 5.

  2. Attorney-General Daryl Williams and Special Minister of State Chris Ellison, 'Guidelines for the YES and NO advertising campaign committees for the referendum on the republic', Joint News Release, 11 April 1999.

  3. There has been some confusion over the number of attempts. Howard and Saunders, for instance, speak of there being two Aboriginal amendments in 1967, whereas most writers refer to just one, involving two questions, see C. Howard and C. A. Saunders, 'Constitutional Amendment and Constitutional Reform in Australia', in R. L. Mathews (ed), Public Policies in Two Federal Countries: Canada and Australia, Centre for Research on Federal Financial Relations, Australian National University, Canberra, 1982, pp. 72, 73.

  4. It is not clear whether granting Territory voters the right to participate in referenda under s. 128 in 1977 amounted to a law 'affecting the provisions of the Constitution in relation thereto' and as it turned out it did not matter as the proposal achieved a majority in all six States.

  5. According to Odgers, an 'absolute' majority means a majority of the whole number of members of each House and refers to the vote taken on the Third Reading, and on any amendments moved by the other House. Even if no division is called, a roll call of the Senate is taken before the Third Reading and the names of all members voting are officially recorded presumably to assist in verifying compliance with the constitutional requirement. See Harry Evans (ed), Odgers' Australian Senate Practice, Canberra, AGPS, 8th ed, 1997, p. 263.

  6. Cheryl Saunders, 'The Australian Experience with Constitutional Review', Australian Quarterly, vol. 66, no. 3, Spring 1994, p. 55.

  7. Constitutional Commission, Final Report, vol. 2, AGPS, Canberra, 1988, para 13.1.

  8. Neither the Commission's nor the Convention's proposal was put to the people at a referendum. According to Professor Cheryl Saunders, the Constitutional Commission of 1988 'was treated as a partisan initiative by the non-Labor Opposition from the outset but its failure was precipitated by the government's decision to put four Commission proposals to referendum, severely modified in the case of one of them, before the Commission's Final Report was delivered.' Saunders, op.cit., p. 54. The Australian Constitutional Convention held between 1973 and 1985 comprised representatives from both Houses of the Commonwealth Parliament, as well as from State parliaments and local government. Most of the Convention's recommendations were not put to referendum.

  9. The similarity of words presumably means that judicial interpretation of relevant terms in section 57 such as 'fail to pass' is equally applicable to s. 128. The Constitutional Commission suggested, for example, that on the strength of the High Court decision in the PMA case (Victoria v Commonwealth (1975) 134 CLR 81), the second House must be given a reasonable period to consider the Bill on both occasions and that three months will run from the date of rejection or failure to pass. Constitutional Commission, op.cit., paras 13.163 - 13.165.

  10. The Constitutional Commission noted that the Bills in question dealt with corporations, industrial matters, nationalisation of monopolies, railway disputes, trade and commerce and trusts. Constitutional Commission, op.cit., Appendix N, p. 1116.

  11. Saunders, op.cit., p. 63; Michael Coper, Encounters with the Australian Constitution, CCH, Sydney, 1987, p. 381. See also the discussion of this and a contrary view in Evans, op.cit., p. 264.

  12. Evans, op.cit., p. 264.

  13. Constitutional Commission, op.cit., paras 13.176 - 13.182.

  14. The Constitutional Commission was assisted by 5 advisory committees appointed by the Attorney-General. The Advisory Committee on Executive Government was chaired by Sir Zelman Cowen and produced a report in 1987.

  15. Ibid., para 13.177.

  16. Ibid., paras 13.199 - 13.204.

  17. In 1982 'patriation'-full domestic control over Canada's future constitutional development, without reference to the British Parliament-was finally achieved. The Constitution was until then a British statute altered from time to time by the British Parliament, albeit only on advice from Canada.

  18. Peter H. Russell, 'The Politics of Frustration: The Pursuit of Formal Constitutional Change in Australia and Canada' in Bruce W. Hodgins, John J. Eddy, Shelagh D. Grant, James Struthers (eds), Federalism in Canada and Australia: Historical Perspectives 1920-1988, The Frost Centre for Canadian Heritage and Development Studies, Trent University, Peterborough, 1989.

  19. Evans, op.cit., p. 264.

  20. In 1965, the Bills in question repealed section 127 (which excluded Aboriginal people from the census) and removed the nexus between numbers in the Senate and the House of Representatives. Both proposals were put two years later together the proposed deletion of the reference to Aboriginal people in the races power. In 1983, the five Bills provided for advisory opinions from the High Court on constitutional questions, the flexible interchange of powers between the Commonwealth and the States, simultaneous elections for the House of Representatives and half the Senate, four year terms for the House of Representatives and removal of outmoded or expended provisions from the Constitution. The simultaneous elections and interchange of powers proposals were eventually put on 1 December 1994, while a four year term proposal was later modified to apply also to the Senate and put at a referendum on 3 September 1988. All the proposals referred to failed at referendum except those relating to Aborigines.

  21. Russell, op.cit., p. 61.

  22. John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth, Australian Book Company, London, 1901, p. 988.

  23. Constitutional Commission, op.cit., para 13.133. The quote refers back to Professor Sawer's lament that constitutionally speaking Australia is 'the frozen continent'. See G. Sawer, Australian Federalism in the Courts, Melbourne, Melbourne University Press, 1967, p. 206.

  24. Constitutional Commission, op.cit., paras 13.146 - 13.158.

  25. See Constitutional Commission, op.cit., paras 13.207 - 13.222 for a detailed treatment of the issue.

  26. Kartinyeri v Commonwealth [1998] HCA 22 (1 April 1988). For more details, see n. 44.

  27. Section 51(xxvi) of the Constitution.

  28. The case raised but did not conclusively answer questions about the scope of the 'races' power in section 51(xxvi) of the Constitution, e.g. whether it would support laws with respect to Aboriginal people only if they could be regarded as 'beneficial'. The High Court was asked by the applicants to declare that the Hindmarsh Island Bridge Act 1997 was invalid. The Act provided that certain Commonwealth laws for the protection of cultural heritage did not apply to the construction of a particular bridge in South Australia. Five of the six High Court judges sitting held the Act was valid, although the degree to which they explored the limits of section 51(xxvi) varied.

  29. Kartinyeri v Commonwealth [1998] HCA 22 (1 April 1988), para 157.

  30. J. E. Richardson, Patterns of Australian Federalism, Centre for Research on Federal Financial Relations, Australian National University, Research Monograph No. 1, Canberra, 1973, p.105.te, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1997, p. 63.

  31. For a copy of the Constitution, see Parliamentary Handbook of the Commonwealth of Australia.

  32. Odgers, Australian Senate Practice, 6th ed 1991, p. 22.

  33. Sir Robert Menzies, Central Power in the Australian Commonwealth. An examination of the growth of Commonwealth power in the Australian federation, Cassell, London, 1967, p. 14.

  34. R. S. Gilbert, The Australian Loan Council in Federal Fiscal Adjustments, 1890-1965, ANU Press, Canberra, 1973, pp. 42-3.

  35. R. L. Mathews and W. R. C. Jay, Federal Finance. Intergovernmental financial relations in Australia since Federation, Nelson, Melbourne, 1972, pp. 65, 122.

  36. Ibid., p. 109.

  37. S. R. Davis, 'A Unique Federal Institution', University of Western Australia Annual Law Review, vol. II, no. 2, December, 1952, p. 350.

  38. Attorney-General (Vic); (ex rel Dale) v Commonwealth (1945) 71 CLR 237.

  39. H. Birch, Federalism, Finance and Social Legislation in Canada, Australia and the United States, Oxford Univerisity Press, Oxford, 1955, pp. 234-5.

  40. T. H. Kewley, Social Security in Australia 1900-72, Sydney University Press, Sydney, 2nd ed 1973, p. 183.

  41. Sidney Sax, A Strife of Interests. Politics and policies in Australian health services, Allen and Unwin, Sydney, 1984, p. 55.

  42. Michael Crommelin and Gareth Evans, 'Explorations and Adventures with Commonwealth Powers', in Evans, Labor and the Constitution, pp. 37-8.

  43. D. S. Anderson, 'Planning in a Strait-Jacket: Federal Limits to State Initiatives in Higher Education', in Grant Harman and Don Smart (ed), Federal Intervention in Australian Education, Georgian House, Melbourne, 1982, p. 88.

  44. Daily Mirror, 22 May 1967.

  45. Scott Bennett, White Politics and Black Australians, Allen and Unwin, Sydney, 1999, p. 164.

  46. Bain Attwood and Andrew Markus in collaboration with Dale Edwards and Kath Schilling, The 1967 Referendum, or When Aborigines Didn't Get the Vote, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1997, p. 63.

  47. Quoted in Odgers' Australian Senate Practice, 7th ed 1995, p. 134.

  48. Jean Holmes and Campbell Sharman, The Australian Federal System, Allen and Unwin, Sydney, 1977, p. 96.

  49. J. B. Paul, 'Constitutional Amendment-Australia's Experience', in Richard Lucy (ed), The Pieces of Politics, Macmillan, Melbourne, 3rd ed, 1983, p. 273; Canberra Times, 22 May 1977.

  50. Senate Standing Committee on Constitutional and Legal Affairs, 'Report on Retiring Age for Commonwealth Judges', Parliamentary Papers, 1976, no. 414, p. 11; Minutes of Proceedings and Official Record of Debates of the Australian Constitutional Convention held at Wrest Point, Hobart 27-29 October 1976, Government Printer, Melbourne, 1976, pp. 36-48.

  51. Age, 23 March 1977.

  52. Holmes and Sharman, op. cit., p. 96.

  53. See, for example, Don Aitkin, 'Australia', in David Butler and Austin Ranney (ed), Referendums. A Comparative Study of Practice and Theory, American Enterprise Institute for Public Policy Research, Washington, 1978, p. 130.

  54. John McMillan, Gareth Evans, and Haddon Storey, Australia's Constitution. Time for change?, Allen and Unwin, Sydney, 1983, pp. 22-3.

  55. Cheryl Saunders, 'Changing the Constitution', in Galligan and Nethercote, op. cit., pp. 31-2; Jeffrey Goldsworthy, 'A Role for the States in Initiating Referendums', in Upholding the Australian Constitution Volume Eight. Proceedings of the Eighth Conference of the Samuel Griffith Society, Samuel Griffith Society, Melbourne, 1997, pp. 48-54.

  56. J. E. Richardson, 'Reform of the Constitution: The Referendums and Constitutional Convention',. in, Evans, Labor and the Constitution, pp. 85-6.

  57. Howard and Saunders, op. cit., p. 77.

  58. Colin Howard, Australia's Constitution, Penguin, Ringwood, rev. ed, 1985, p. 135.

  59. L. F. Crisp, Australian National Government, Longman Cheshire, Melbourne, 5th ed. 1983, p. 51.

  60. Aitkin, op. cit., p. 131.

  61. Mark Cooray, 'The Constitution and Constitutional Change', in Galligan and Nethercote, op. cit, p. 24.

  62. E. G. Whitlam, 'The Cost of Federalism', in Allan Patience and Jeffrey Scott (ed), Australian Federalism: Future Tense, Oxford University Press, Melbourne, 1983, p 48; Crisp, op. cit., p. 55.

  63. G. S. Reid and Martyn Forrest, Australia's Commonwealth Parliament 1901-1988. Ten Perspectives, Melbourne University Press, Melbourne, 1989, p. 471.

  64. J. C. Finemore in Evans, Labor and the Constitution, p. 94.

  65. Gilbert, op. cit., p. 4.

  66. Richardson, 'Reform of the Constitution', p. 76; Richardson, Patterns of Australian Federalism, p. 105.

  67. Howard and Saunders, op. cit., p. 72.

  68. Scott Bennett, 'The 1967 referendum', Australian Aboriginal Studies, no. 2, 1985.

  69. Denis Altman, 'Obstacles to constitutional change', Australian Quarterly, vol. 51, no. 1, March 1979, p. 107.

  70. Scott Bennett, Federation, Cassell, Melbourne, 1975, pp. 9-13.

  71. Calwell, Labor's Role in Modern Society, Cheshire-Lansdowne, Melbourne, rev. ed. 1965, p. 117.

  72. McMillan, op. cit., p. 70.

  73. Crisp, op. cit., p. 55.

  74. Cooray, op. cit., p. 24.

  75. Rod Kemp, 'Facing the Constitutional Debate', in Ken Aldred, Kevin Andrews and Paul Filing (ed), The Heart of Liberalism, The Albury Papers, Mitcham, 1984, p. 71.

  76. Menzies, op. cit., p. 54.

  77. Sir Robert Gordon Menzies, The Measure of the Years, Cassell, London, 1970, p. 240.

  78. Chris Gilbert, 'Federalism', in George Brandis, Tom Harley and Don Markwell (ed), Liberals face the future, Oxford University Press, 1984, p. 202.

  79. Graeme Starr, The Liberal Party of Australia. A Documentary History,
    Drummond/Heinemann, Melbourne, 1980, pp. 134, 141.

  80. The stationery used by Peter Reith during his leadership of the Liberal campaign in 1988 bore the slogan: 'Australia has a strong Constitution. Why weaken it?'

  81. P. G. Tiver, The Liberal Party. Principles and Performance, Jacaranda, Brisbane, 1978, p. 133.

  82. Peter Shack MHR, Media Release, 21 July 1988.

  83. Age, 23 July 1978.

  84. Aitkin, op. cit., p.135.

  85. Geoffrey Sawer, Australian Federal Politics and Law 1929-1949, Melbourne University Press, Melbourne, 1963, pp. 84, 203.

  86. West Australian, 23 July 1988.

  87. Campbell Sharman, 'The Referendum Results and Their Context', in Galligan and Nethercote, op. cit., p. 111.

  88. Canberra Times, 22 May 1977; Sharman, op. cit., pp. 114-15.

  89. H. V. Evatt, Liberalism in Australia. (An Historical Sketch of Australian Politics down to the year 1915), Law Book Co., Sydney, 1918, p. 39.

  90. Age, 19 August 1944.

  91. R. S. Parker, 'The People and the Constitution', in Federalism in Australia, F. W. Cheshire, Melbourne, 1949, p. 162.

  92. Finemore, op. cit., 95-6.

  93. Parker, op. cit., p. 163.

  94. Aaron Wildavsky, 'The 1926 Referendum', in Aaron Wildavsky and Dagmar Carboch, Studies in Australian Politics, F. W. Cheshire, Melbourne, 1958, ch. 8.

  95. Parker, op. cit., p. 164.

  96. Wildavsky, op. cit., p. 109.

  97. Conrad Joyner, The Commonwealth and Monopolies, F. W. Cheshire, Melbourne, 1963, p. 87.

  98. See, for example, Attwood and Markus, op. cit.

  99. Sharman, op. cit., 112-13.

  100. Brian Galligan, A Federal Republic. Australia's Constitutional System of Government, Cambridge, Cambridge University Press, 1995, p. 120.

  101. Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129. The principle to emerge from the case was that grants of Commonwealth legislative power in the Constitution should be given a broad interpretation in accordance with their ordinary English meaning, unconstrained by restrictive notions of what may constitute an appropriate 'federal balance'.

  102. ' ... the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.

  103. (1983) 158 CLR 1.

  104. Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.

  105. In 1911, 1913, 1919, 1926 and 1944 Commonwealth governments, both Labor and non-Labor, had sought by referendum to extend the Commonwealth's legislative power over corporations.

  106. Michael Coper, 'The People and the Judges: Constitutional Referendums and Judicial Interpretation' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law. Essays in Honour of Professor Leslie Zines, Sydney, Federation Press, 1994, pp. 78-80.

  107. Galligan, op.cit., p. 118.

  108. Martin Painter, 'Public Sector Reform, Intergovernmental Relations and the Future of Australian Federalism', Australian Journal of Public Administration, vol. 57, no. 3, September 1998, p. 52.

  109. Tony Blackshield and George Williams, Australian Constitutional Law and Theory. Commentary and Materials, Sydney, Federation Press, 2nd ed, 1998, p. 1194.

  110. The British Parliament probably had the power to amend what is after all no more than a single section of an Act of the Parliament at Westminster, until that power was renounced with the passage of the Australia Act 1986 (UK). In any case such textual imperialism was never ventured.

  111. To cover all constitutional bases and ensure validity, the Australia Acts 1986 which severed most remaining constitutional links to Britain, were passed by the parliaments of both the Commonwealth and the United Kingdom.

  112. See, for example, discussion in G. J. Lindell, 'Why is Australia's Constitution Binding?-The Reasons in 1900 and Now, and the Effect of Independence', (1986) 16 Federal Law Review 29 at p. 40. The Statute of Westminster 1931 (UK), at section 8, prevented alterations to the Commonwealth Constitution other than by already recognised methods-most relevantly for our purposes, by the s. 128 referendum procedure. Section 15 of the Australia Act 1986 (UK) permits repeal or amendment of the Statute of Westminster by an Act of the Commonwealth Parliament, if it is passed 'at the request or with the concurrence' of all State parliaments. Arguably, if it could muster unanimous State support, the Commonwealth could pass a law which repealed section 8 of the Statute of Westminster and allowed for an alternative method of amending the Constitution.

  113. Russell, op. cit., p. 78.

  114. This provides that the Parliament shall have power to make laws with respect to 'matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law'.

  115. This provides that the Parliament shall have power to make laws with respect to 'the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia'.

  116. V. Dicey, Introduction to the study of the Law of the Constitution, Macmillan, London, 8th ed. 1915, pp. 142-3.

  117. For Cockburn and Griffith, see Scott Bennett, The Making of the Commonwealth, Cassell, Melbourne, 1971, pp. 210, 211.

  118. Senator Grant Tambling, letter to Northern Territory News, 28 July 1988.

Appendix 1: s. 128 of the Commonwealth Constitution

This Constitution shall not be altered except in the following manner:

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approved the proposed law, it shall be presented to the Governor-General for the Queen's assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

In this section, 'Territory' means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

Appendix 2: Commonwealth plebiscites

In October 1916 and December 1917 plebiscites were held on the issue of compulsory military service outside Australia. The YES vote in 1916 was 48.4 per cent, and in 1917 was 46.2 per cent.

In May 1977 a plebiscite on the question of a national song was held, with voters casting preferential votes for four different songs:

 

Per cent

God Save the Queen

18.6 per cent

Advance Australia Fair

43.4

Song of Australia

9.6

Waltzing Matilda

28.3


After preferences were distributed, Advance Australia Fair was found to have received the most support with a vote of 65.2 per cent.

 
 

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