Politics and Public Administration Group
Law and Bills Digest Group
24 August 1999
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
Ratifying a Referendum Proposal
The Consequences of a Successful Referendum
The Impact of Constitutional Amendment-the Eight
Amendment 1: 1906 Senate
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
The Provisions of s. 128 and the
Voter Attitudes: Ignorance? Conservatism? Discriminating
Party Attitudes: the Battle for the Constitution
The Labor Urge to Reform the
Liberal Protection of the Constitution
Party Attitudes: Tactical Difficulties
The Short-Term View
Avoiding Voter 'Confusion'
Trying to Do Too Much
Other Political Factors
Other Ways by which Constitutional Arrangements
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
Appendix 2: Commonwealth plebiscites
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.
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.
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
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
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'? 
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'? 
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
For the 1974 referenda, a slight change was made
to the wording, so that the style of ballot paper was as
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
Do you approve the proposed
For the most recent efforts in 1988, the wording
A proposed law: To alter the Constitution to
recognise local government.
Do you approve the proposed
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)
3 (Qld, WA, Tas)
5 (all except NSW)
Trade & commerce
3 (Qld, WA, SA)
3 (Qld, WA, SA)
3 (Qld, WA, SA)
3 (Qld, WA, SA)
3 (Qld, WA, SA)
3 (Qld, WA, SA)
3 (Vic, Qld, WA)
3 (Vic, Qld, WA)
Industry and Commerce
2 (NSW, Qld)
2 (NSW, Qld)
2 (Vic, Qld)
Post war reconstruction and democratic rights
2 (WA, SA)
Marketing of primary products
3 (NSW, Vic, WA)
3 (NSW, Vic, WA)
Rents and prices
3 (Qld, WA, Tas)
3 (NSW, Vic, SA)
Retirement of judges
2 (NSW, Vic)
Interchange of powers
Rights and freedoms
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,
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):
Number of referenda
1906, 1928, 1944, 1948, 1951
1910, 1911, 1919, 1926, 1937, 1967, 1973, 1984
1974, 1977, 1988
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
There have been markedly different results in
the State voting returns in the 42 referenda (Table 3):
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):
Number of States in favour of an amendment
* 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):
YES votes (%)
Number of referenda
Aborigines (1967) 90.8 per
cent-highest YES figure
Simultaneous Elections (1977) 62.2 per
cent-failed to get majority of States
Air Navigation (1937) 53.6 per cent
Primary Produce Marketing (1946) 50.6
Industrial Employment (1946) 50.3 per
Simultaneous Elections (1984) 50.6 per
-all failed to get majority of States
45-49 per cent
40-44 per cent
Under 40 per cent
Rights and Freedoms (1988) 30.8 per
cent-lowest YES figure
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
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
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
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
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
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
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
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
Amendment 2: 1910 State Debts
This amendment altered s. 105 of the
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
Amendment 3: 1928 State Debts
This amendment inserted s. 105A into the
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
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
Amendment 4: 1946 Social Services
This amendment inserted s. 51 (xxiiiA) into the
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
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
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
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
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
This amendment altered s. 128 of the
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
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
This amendment altered s. 72 of the
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
- 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)
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.
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
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
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)
Attitudes: Ignorance? Conservatism? Discriminating
Professor L. F. Crisp is one writer who has
criticised the voters for their 'ignorance' and their
... 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
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
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
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
- 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
- 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.
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
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
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
Significantly, Labor efforts to amend the
Constitution have generally sought to bring about major changes,
leading their opponents to portray the party as Constitution
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
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
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
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
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
... responsible government in a democracy is
regarded by us as the ultimate guarantee of justice and individual
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
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.
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.
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)
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
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.
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
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
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)
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)
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
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
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.
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)
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
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.
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 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
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).
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
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.
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
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
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
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
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
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
- 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
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
- 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,
- 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.
- 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.
- 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.
- 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.
- Cheryl Saunders, 'The Australian Experience with Constitutional
Review', Australian Quarterly, vol. 66, no. 3, Spring
1994, p. 55.
- Constitutional Commission, Final Report, vol. 2, AGPS,
Canberra, 1988, para 13.1.
- 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.
- 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 -
- 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.
- 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.,
- Evans, op.cit., p. 264.
- Constitutional Commission, op.cit., paras 13.176 - 13.182.
- 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.
- Ibid., para 13.177.
- Ibid., paras 13.199 - 13.204.
- 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.
- 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.
- Evans, op.cit., p. 264.
- 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.
- Russell, op.cit., p. 61.
- John Quick and Robert Randolph Garran, The Annotated
Constitution of the Australian Commonwealth, Australian Book
Company, London, 1901, p. 988.
- 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.
- Constitutional Commission, op.cit., paras 13.146 - 13.158.
- See Constitutional Commission, op.cit., paras 13.207 - 13.222
for a detailed treatment of the issue.
- Kartinyeri v Commonwealth  HCA 22 (1 April
1988). For more details, see n. 44.
- Section 51(xxvi) of the Constitution.
- 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.
- Kartinyeri v Commonwealth  HCA 22 (1 April
1988), para 157.
- 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.
- For a copy of the Constitution, see Parliamentary Handbook
of the Commonwealth of Australia.
- Odgers, Australian Senate Practice, 6th ed 1991, p.
- 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.
- R. S. Gilbert, The Australian Loan Council in Federal
Fiscal Adjustments, 1890-1965, ANU Press, Canberra, 1973, pp.
- R. L. Mathews and W. R. C. Jay, Federal Finance.
Intergovernmental financial relations in Australia since
Federation, Nelson, Melbourne, 1972, pp. 65, 122.
- Ibid., p. 109.
- S. R. Davis, 'A Unique Federal Institution', University of
Western Australia Annual Law Review, vol. II, no. 2, December,
1952, p. 350.
- Attorney-General (Vic); (ex rel Dale) v Commonwealth
(1945) 71 CLR 237.
- H. Birch, Federalism, Finance and Social Legislation in
Canada, Australia and the United States, Oxford Univerisity
Press, Oxford, 1955, pp. 234-5.
- T. H. Kewley, Social Security in Australia 1900-72,
Sydney University Press, Sydney, 2nd ed 1973, p. 183.
- Sidney Sax, A Strife of Interests. Politics and policies in
Australian health services, Allen and Unwin, Sydney, 1984, p.
- Michael Crommelin and Gareth Evans, 'Explorations and
Adventures with Commonwealth Powers', in Evans, Labor and the
Constitution, pp. 37-8.
- 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.
- Daily Mirror, 22 May 1967.
- Scott Bennett, White Politics and Black Australians,
Allen and Unwin, Sydney, 1999, p. 164.
- 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.
- Quoted in Odgers' Australian Senate Practice, 7th ed
1995, p. 134.
- Jean Holmes and Campbell Sharman, The Australian Federal
System, Allen and Unwin, Sydney, 1977, p. 96.
- 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
- 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.
- Age, 23 March 1977.
- Holmes and Sharman, op. cit., p. 96.
- 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.
- John McMillan, Gareth Evans, and Haddon Storey, Australia's
Constitution. Time for change?, Allen and Unwin, Sydney, 1983,
- 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.
- J. E. Richardson, 'Reform of the Constitution: The Referendums
and Constitutional Convention',. in, Evans, Labor and the
Constitution, pp. 85-6.
- Howard and Saunders, op. cit., p. 77.
- Colin Howard, Australia's Constitution, Penguin,
Ringwood, rev. ed, 1985, p. 135.
- L. F. Crisp, Australian National Government, Longman
Cheshire, Melbourne, 5th ed. 1983, p. 51.
- Aitkin, op. cit., p. 131.
- Mark Cooray, 'The Constitution and Constitutional Change', in
Galligan and Nethercote, op. cit, p. 24.
- 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.,
- G. S. Reid and Martyn Forrest, Australia's Commonwealth
Parliament 1901-1988. Ten Perspectives, Melbourne University
Press, Melbourne, 1989, p. 471.
- J. C. Finemore in Evans, Labor and the Constitution,
- Gilbert, op. cit., p. 4.
- Richardson, 'Reform of the Constitution', p. 76; Richardson,
Patterns of Australian Federalism, p. 105.
- Howard and Saunders, op. cit., p. 72.
- Scott Bennett, 'The 1967 referendum', Australian Aboriginal
Studies, no. 2, 1985.
- Denis Altman, 'Obstacles to constitutional change',
Australian Quarterly, vol. 51, no. 1, March 1979, p. 107.
- Scott Bennett, Federation, Cassell, Melbourne, 1975,
- Calwell, Labor's Role in Modern Society,
Cheshire-Lansdowne, Melbourne, rev. ed. 1965, p. 117.
- McMillan, op. cit., p. 70.
- Crisp, op. cit., p. 55.
- Cooray, op. cit., p. 24.
- 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.
- Menzies, op. cit., p. 54.
- Sir Robert Gordon Menzies, The Measure of the Years,
Cassell, London, 1970, p. 240.
- Chris Gilbert, 'Federalism', in George Brandis, Tom Harley and
Don Markwell (ed), Liberals face the future, Oxford
University Press, 1984, p. 202.
- Graeme Starr, The Liberal Party of Australia. A Documentary
Drummond/Heinemann, Melbourne, 1980, pp. 134, 141.
- 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?'
- P. G. Tiver, The Liberal Party. Principles and
Performance, Jacaranda, Brisbane, 1978, p. 133.
- Peter Shack MHR, Media Release, 21 July 1988.
- Age, 23 July 1978.
- Aitkin, op. cit., p.135.
- Geoffrey Sawer, Australian Federal Politics and Law
1929-1949, Melbourne University Press, Melbourne, 1963, pp.
- West Australian, 23 July 1988.
- Campbell Sharman, 'The Referendum Results and Their Context',
in Galligan and Nethercote, op. cit., p. 111.
- Canberra Times, 22 May 1977; Sharman, op. cit., pp.
- H. V. Evatt, Liberalism in Australia. (An Historical Sketch
of Australian Politics down to the year 1915), Law Book Co.,
Sydney, 1918, p. 39.
- Age, 19 August 1944.
- R. S. Parker, 'The People and the Constitution', in
Federalism in Australia, F. W. Cheshire, Melbourne, 1949,
- Finemore, op. cit., 95-6.
- Parker, op. cit., p. 163.
- Aaron Wildavsky, 'The 1926 Referendum', in Aaron Wildavsky and
Dagmar Carboch, Studies in Australian Politics, F. W.
Cheshire, Melbourne, 1958, ch. 8.
- Parker, op. cit., p. 164.
- Wildavsky, op. cit., p. 109.
- Conrad Joyner, The Commonwealth and Monopolies, F. W.
Cheshire, Melbourne, 1963, p. 87.
- See, for example, Attwood and Markus, op. cit.
- Sharman, op. cit., 112-13.
- Brian Galligan, A Federal Republic. Australia's
Constitutional System of Government, Cambridge, Cambridge
University Press, 1995, p. 120.
- 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'.
- ' ... the Parliament may grant financial assistance to any
State on such terms and conditions as the Parliament thinks fit'.
- (1983) 158 CLR 1.
- Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR
- 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.
- 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.
- Galligan, op.cit., p. 118.
- 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.
- Tony Blackshield and George Williams, Australian
Constitutional Law and Theory. Commentary and Materials,
Sydney, Federation Press, 2nd ed, 1998, p. 1194.
- 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.
- 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.
- 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.
- Russell, op. cit., p. 78.
- 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
- 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
- V. Dicey, Introduction to the study of the Law of the
Constitution, Macmillan, London, 8th ed. 1915, pp. 142-3.
- For Cockburn and Griffith, see Scott Bennett, The Making of
the Commonwealth, Cassell, Melbourne, 1971, pp. 210, 211.
- Senator Grant Tambling, letter to Northern Territory
News, 28 July 1988.
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
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
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
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.
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:
God Save the Queen
18.6 per cent
Advance Australia Fair
Song of Australia
After preferences were distributed, Advance
Australia Fair was found to have received the most support
with a vote of 65.2 per cent.