Conduct of the inquiry
1.1
On 22 June 2021, the Committee resolved to examine the 2019-20 annual report of the Attorney-General's Department, in order to inquire into constitutional reform and referendums.
1.2
The Committee opened the inquiry for public submissions, inviting written submissions of less than 4000 words, with a deadline of 6 August 2021.
1.3
In total, the Committee received 21 submissions and seven supplementary submissions to the inquiry. The submissions received are published on the Committee’s website and listed at Appendix A. Four scholarly articles were also provided to the Committee and accepted as exhibits; these are listed at Appendix B.
1.4
The Committee held four public hearings between September and November 2021. Due to the Covid-19 pandemic the public hearings were all conducted from Canberra, with witnesses (and most Committee members) participating via videoconference and teleconference. Details of the public hearings held are at Appendix C.
1.5
The Committee thanks all those who contributed to the inquiry.
Scope of the inquiry
1.6
This inquiry focused on the processes for constitutional reform and the conduct of referendums, rather than substantive proposals for constitutional amendment on particular issues. Launching the inquiry, the Committee Chair made clear that:
The inquiry is not about specific changes to the Constitution, but about ensuring that as a nation we can have informed discussion and debate about any proposals for constitutional change, and a fit-for-purpose referendum process to decide on them.
1.7
The full terms of reference for the inquiry are included in the front pages of this report.
Changing Australia’s Constitution
1.8
The process for amending Australia’s Constitution is set out in its section 128. In short, section 128 requires that a law to alter the Constitution must first be passed by an absolute majority of both Houses of Parliament, then within two and six months, put to the people at a referendum.
1.9
At that referendum, the change must be approved by a ‘double majority’ – a majority of the total number of voters across the nation, and also, a majority of voters in a majority of the States (meaning at least four of Australia’s six states). Only if the double majority is achieved is the referendum passed and put to the Governor-General for final assent, bringing the constitutional change into law.
1.10
Section 128 provides that ‘the vote shall be taken in such manner as the Parliament prescribes’. The procedures determined by Parliament are set out in the Referendum (Machinery Provisions) Act 1984 (Referendum Act) and associated regulations.
1.11
The matters regulated by the Referendum Act, and proposals for their reform, are discussed further in Chapter 4 of this report.
History of Australian referendums
1.12
Since the Constitution came into effect in 1901, 44 amendments have been put to the people at 19 referendum events. More than half of these occurred prior to 1950. The proposed changes have ranged from formal ‘technical’ amendments to substantive issues of national reform.
1.13
Only 8 of the 44 changes proposed since Federation have been approved. The most recent successful referendum was held in 1977, in which three of four proposals put to the people were carried: relating to filling casual vacancies in the Senate, a retirement age for judges, and allowing Territory electors to vote in referendums. (The unsuccessful fourth proposal would have required House of Representatives and Senate elections to always be held on the same day.)
1.14
In the more than 40 years since then, eight referendum questions have been put to the Australian people, in three referendum events held in 1984, 1988 and 1999. All were defeated.
1.15
The most recent referendums in 1999 proposed two changes: to establish an Australian republic, and to insert a preamble into the Constitution. Neither of the 1999 questions was approved by a majority of electors in any state, or a majority overall.
1.16
A referendum was proposed in 2013 relating to local governments, a matter that had been put to referendum unsuccessfully twice before. While the requisite legislation was passed by both Houses of Parliament, and preparations made for the referendum to be held in September 2013, it was first delayed, then abandoned following a change of government in October that year.
Previous parliamentary inquiries
1.17
The Committee’s inquiry took note of previous consideration of constitutional reform and referendums undertaken by this and other committees in recent years. Two of this Committee’s previous undertakings were particularly germane to the present inquiry.
Inquiry into the Machinery of Referendums, 2009
1.18
In 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs (a predecessor to this Committee) conducted an inquiry into the machinery of referendums. The Committee was tasked to examine ‘the effectiveness of the Referendum (Machinery Provisions) Act 1984 in providing an appropriate framework for the conduct of referendums’, with a particular focus on the Yes and No cases and financial provisions, and to recommend any amendments to the Act that may be required.
1.19
The Committee’s report, A Time for Change: Yes/No? made 17 recommendations. These mostly related to four key areas:
amendments to the provisions of the Act and parliamentary procedures relating to the Yes/No arguments and pamphlets
changes to rules and processes relating to the funding of referendums, including removal of the limitation on Commonwealth Government funding
development of a national civics education program to enhance public understanding of, and engagement with, the Constitution
establishment of an independent Referendum Panel for each referendum, which would promote the referendum, educate voters about the referendum arguments, and exercise oversight functions relating to the Yes/No pamphlet and Government funding.
1.20
In the Government’s response to the report, presented in 2012, three of the 17 recommendations were supported, two were ‘supported in principle’, eight were ‘noted’, and four were not supported. The Government did not agree to the proposed amendments to funding provisions or to the establishment of a Referendum Panel, preferring that these be considered by governments for particular referendums on an ‘as needed’ or ‘case by case’ basis.
1.21
The recommendations of the 2009 inquiry are further discussed in Chapter 4 of this report, where relevant to matters considered in the present inquiry.
Constitutional Roundtable on fixed four-year parliamentary terms, 2019
1.22
In November 2019, this Committee convened a ‘Constitutional Roundtable’, reviving a past practice of some of its predecessor committees, of convening one-off public discussions with experts (and sometimes other invited guests) on topical constitutional issues. The subject of the 2019 Roundtable was fixed four-year terms for the Australian Parliament.
1.23
While the session focused on that issue, the Committee’s half-day discussion with a panel of four constitutional experts expanded into broader aspects of the constitutional framework in Australia—in particular, this country’s recent history with regard to engaging decision-makers and the public in substantive consideration of constitutional issues, and the need to update Australia’s laws and processes governing the conduct of referendums.
1.24
The Roundtable was a key catalyst for further consideration of such matters within the Committee, which led to its decision to launch this inquiry. Evidence obtained during the Roundtable has been taken into consideration in this inquiry and is cited in this report where relevant.
Structure of this report
1.25
This report consists of four chapters. Following introduction and background in the present chapter:
Chapter 2 discusses the state of awareness about the Constitution in Australia, and evidence received in relation to strengthening constitutional education for both school students and the public
Chapter 3 discusses mechanisms to review the Constitution, particularly processes for public engagement and consultation on constitutional issues and reform
Chapter 4 examines the legislative framework and arrangements for the conduct of referendums in Australia, and evidence received about the areas in which this may need review or change.
1.26
Chapters 2, 3 and 4 each conclude with the Committee’s comments and recommendations on the issues raised in the chapter.