There is no limit to the power to amend the Constitution provided that the restrictions applying to the mode of alteration are met. However, there is considerable room for legal dispute as to whether the power of amendment extends to the preamble and the preliminary clauses of the Constitution Act itself.
The Constitution, from which Parliament obtains its authority, cannot be changed by Parliament alone, although some provisions, such as sections 46–49, while setting out certain detail, are qualified by phrases such as ‘until the Parliament otherwise provides’, thus allowing the Parliament to modify, supplement or alter the initial provision. To change the Constitution itself a majority vote of the electors of the Commonwealth, and of the electors in a majority of the States, at a referendum is also required. The Constitution itself, expressing as it does the agreement of the States to unite into a Federal Commonwealth, was originally agreed to by the people of the States at referendum. The process of constitutional alteration commences with the Houses of Parliament.
A proposal to alter the Constitution may originate in either House of the Parliament by means of a bill. Normally, the bill must be passed by an absolute majority of each House but, in certain circumstances (see below), it need only be passed by an absolute majority of one House. Subject to the absolute majority provision, the passage of the bill is the same as for an ordinary bill. (The House procedures for the passage of constitution alteration bills are covered in the Chapter on ‘Legislation’.)
The short title of a bill proposing to alter the Constitution, in contradistinction to other bills, does not contain the word ‘Act’ during its various stages, for example, the short title is in the form Constitution Alteration (Local Government) 2013. While the proposed law is converted to an ‘Act’ after approval at referendum and at the point of assent, in a technical sense it is strictly a constitution alteration proposal and its short title remains unchanged.
Constitution alteration bills passed by one House only
If a bill to alter the Constitution passes one House and the other House rejects or fails to pass it, or passes it with any amendment to which the originating House will not agree, the originating House, after an interval of three months in the same or next session, may again pass the bill in either its original form or in a form which contains any amendment made or agreed to by the other House on the first occasion. If the other House again rejects or fails to pass the bill or passes it with any amendment to which the originating House will not agree, the Governor-General may submit the bill as last proposed by the originating House, either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory. The words ‘rejects or fails to pass, etc.’ have been considered to have the same meaning as those in section 57 of the Constitution.
In June 1914 six constitution alteration bills which had been passed by the Senate in December 1913 and not by the House of Representatives were again passed by the Senate. The bills were sent to the House which took no further action after the first reading. After seven days the Senate requested the Governor-General, by means of an Address, that the proposed laws be submitted to the electors. Acting on the advice of Ministers, the Governor-General refused the request.
Odgers put the view that the point to be made is that, following only a short period after sending the bills to the House of Representatives, the Senate felt competent to declare that they had failed to pass the other House. The view of Lumb and Moens has been that as there had been no ‘rejection’ or ‘amendment’ of the bills in the House of Representatives then the only question was whether there had been a failure to pass them, and that there had been no ‘failure to pass’ by the House and that therefore the condition precedent for holding a referendum had not been fulfilled.
The circumstances of this case were unusual as a proposed double dissolution had been announced, and the Prime Minister had made it clear that the bills would be opposed and their discussion in the House of Representatives would not be facilitated. It was also significant that referendums had been held in May 1913 on similar proposals and were not approved by the electors.
Similar bills were again introduced in 1915 and on this occasion passed both Houses. Writs for holding referendums were issued on 2 November 1915. The Government subsequently decided not to proceed with the referendums (see below).
During 1973 a similar situation arose in respect of four bills passed by the House of Representatives. Three of them were not passed by the Senate and the fourth was laid aside by the House when the Senate insisted on amendments which were not acceptable to the House. After an interval of three months (in 1974), the House again passed the bills which were rejected by the Senate. Acting on the advice of Ministers, the Governor-General, in accordance with section 128 of the Constitution, submitted the bills to the electors where they failed to gain approval.
Constitution alteration bills not submitted to referendum
In some cases constitution alteration bills have not been submitted to the people, despite having satisfied the requirements of the ‘parliamentary stages’ of the necessary process. The history of the seven constitution alteration bills of 1915 is outlined above. These were passed by both Houses, and submitted to the Governor-General and writs issued. When it was decided not to proceed with the proposals, a bill was introduced and passed to provide for the withdrawal of the writs and for other necessary actions. In 1965 two constitution alteration proposals, having been passed by both Houses, were deferred, but on this occasion writs had not been issued. When a question was raised as to whether the Government was not ‘flouting … the mandatory provisions of the Constitution’ the Prime Minister stated, inter alia, ‘ … the advice of our own legal authorities was to the effect that it was within the competence of the Government to refrain from the issue of the writ’. In 1983 five constitution alteration bills were passed by both Houses, but the proposals were not proceeded with. More recently, the Constitution Alteration (Local Government) 2013 was passed by both Houses but was not proceeded with. Section 7 of the Referendum (Machinery Provisions) Act 1984 provides that whenever a proposed law for the alteration of the Constitution is to be submitted to the electors, the Governor-General may issue a writ for the submission of the proposed law.
In the case of a bill having passed through both Houses, if a referendum is to be held the bill must be submitted to the electors in each State and Territory not less than two nor more than six months after its passage. The bill is presented to the Governor-General for the necessary referendum arrangements to be made. Voting is compulsory. If convenient, a referendum is held jointly with an election for the Senate and/or the House of Representatives. The question put to the people for approval is the constitutional alteration as expressed in the long title of the bill.
The Referendum (Machinery Provisions) Act 1984 contains detailed provisions relating to the submission to the electors of constitution alteration proposals. It covers, inter alia, the form of a ballot paper and writ, the distribution of arguments for and against proposals, voting, scrutiny, the return of writs, disputed returns and offences. The Act places responsibility for various aspects of the conduct of a referendum on the Electoral Commissioner, State Electoral Officers and Divisional Returning Officers. The interpretation of provisions of the Referendum (Machinery Provisions) Act came before the High Court in 1988, when a declaration was made that the expenditure of public moneys on two advertisements was, or would be, a breach of subsection 11(4) of the Act. Arguments were accepted that certain words used in two official advertisements, which were said to be confined to an encouragement to the electors to be aware of the issues in the impending referendums, in fact promoted aspects of the argument in favour of the proposed laws, that is, in favour of the ‘yes’ case.
If the bill is approved by a majority of the electors in a majority of the States, that is, at least four of the six States, and also by a majority of all the electors who voted, it is presented to the Governor-General for assent. However, if the bill proposes to alter the Constitution by diminishing the proportionate representation of any State in either House, or the minimum number of representatives of a State in the House of Representatives, or altering the limits of the State, the bill shall not become law unless the majority of electors voting in that State approve the bill. This means that the State affected by the proposal must be one of the four (or more) States which approve the bill.
An Act to alter the Constitution comes into operation on the day on which it receives assent, unless the contrary intention appears in the Act.
Distribution to electors of arguments for and against proposed constitutional alterations
The Referendum (Machinery Provisions) Act makes provision for the distribution to electors, by the Australian Electoral Commission, of arguments for and against proposed alterations. The ‘Yes’ case is required to be authorised by a majority of those Members of the Parliament who voted in favour of the proposed law and the ‘No’ case by a majority of those Members of the Parliament who voted against it. In the case of the four constitution alteration bills of 1974, which were passed by the House of Representatives only and before the enactment of the Referendum (Machinery Provisions) Act provisions, the Government provided by administrative arrangement for ‘Yes’ and ‘No’ cases to be distributed, the ‘No’ case being prepared by the Leader of the Opposition in the House of Representatives.
Dispute over validity of referendum
The validity of any referendum or of any return or statement showing the voting on any referendum may be disputed by the Commonwealth, by any State or by the Northern Territory, by petition addressed to the High Court within a period of 40 days following the gazettal of the referendum results. The Electoral Commission may also file a petition disputing the validity of a referendum. Pending resolution of the dispute or until the expiration of the period of 40 days, as the case may be, the bill is not presented for assent.
Of the 44 referendums submitted to the electors since Federation, eight have been approved. Of those which were not approved, 31 received neither a favourable majority of electors in a majority of States nor a favourable majority of all electors, while the remaining five achieved a favourable majority of all electors but not a favourable majority of electors in a majority of States.
The eight constitution alterations which gained the approval of the electors were submitted in 1906, 1910, 1928, 1946, 1967 and 1977 (three). The successful referendums were approved by majorities in every State, with the exception that New South Wales alone rejected the Constitution Alteration (State Debts) Bill submitted in 1910.
The proposals of 1906, 1910, 1946, 1974 and 1984 were submitted to the electors concurrently with general elections.
Successful referendums relating to the electoral and parliamentary processes have been:
Constitution Alteration (Senate Elections) 1906. This was the first constitutional referendum. It altered section 13 to cause Senators’ terms to commence in July instead of January.
Constitution Alteration (Senate Casual Vacancies) 1977. This provided that, where possible, a casual vacancy in the Senate should be filled by a person of the same political party as the Senator chosen by the people and for the balance of the Senator’s term.
Constitution Alteration (Referendums) 1977. This provided for electors in the Territories to vote at referendums on proposed laws to alter the Constitution.
The Constitution Alteration (Mode of Altering the Constitution) Bill 1974 sought to amend section 128 in order to facilitate alterations to the Constitution but was rejected by the electors. The intention of the amendment was to alter the provision that a proposed law has to be approved by a majority of electors ‘in a majority of the States’ (four States) and, in its stead, provide that a proposed law has to be approved by a majority of electors ‘in not less than one-half of the States’ (three States). The further requirement that a proposed law has to be approved by ‘a majority of all the electors voting’ was to be retained.
Proposals rejected by the electors which have specifically related to the parliamentary and electoral processes have included:
Constitution Alteration (Parliament) 1967. This proposal intended to amend section 24 by removing the requirement that the number of Members shall be, as nearly as practicable, twice the number of Senators. Other than by breaking this ‘nexus’, an increase in the number of Members can only be achieved by a proportionate increase in the number of Senators, regardless of existing representational factors applying to the House of Representatives only.
Constitution Alteration (Simultaneous Elections) 1974 and 1977. These proposals were intended to ensure that at least half of the Senate should be elected at the same time as an election for the House of Representatives. It was proposed that the term of a Senator should expire upon the expiration, or dissolution, of the second House of Representatives following the first election of the Senator. The effective result of this proposal was that a Senator’s term of office, without facing election, would be for a period less than the existing six years.
Constitution Alteration (Democratic Elections) 1974. This proposal intended to write into the Constitution provisions which aimed to ensure that Members of the House and of the State Parliaments were elected directly by the people, and that representation was more equal and on the basis of population and population trends.
Constitution Alteration (Terms of Senators) 1984. This proposal sought to make Senators’ terms equal to two terms of the House and to ensure that Senate and House elections were held on the same day.
Constitution Alteration (Parliamentary Terms) 1988. This proposal sought to extend the maximum term of the House of Representatives from three years to four years, beginning with the 36th Parliament. It also proposed that the terms of all Senators would expire upon the expiry or dissolution of the House of Representatives, that is, the ‘continuity’ achieved from the half-Senate election cycle would have been ended, and Senators would have been elected as for a double dissolution election. The practical effect of the bill was to establish a maximum four-year term and elections for both Houses of Parliament on the same day.
Constitution Alteration (Fair Elections) 1988. This proposal sought, inter alia, to incorporate in the Constitution a requirement concerning a maximum ten per cent tolerance (above or below the relevant average) in the number of electors at elections for the Commonwealth and State Parliaments and for mainland Territory legislatures.
Constitution Alteration (Establishment of Republic) 1999. This proposal sought to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.
National votes for other purposes—plebiscites
Referendums, other than for purposes of constitution alteration, were held in 1916 and 1917. These referendums related to the introduction of compulsory military service and were rejected by the people. The first was authorised by an Act of Parliament and the second was held pursuant to regulations made under the War Precautions Act.
In May 1977, concurrent with the constitution alteration referendums then being held, electors were asked, in a poll as distinct from a referendum, to express on a voluntary basis their preference for the tune of a national song to be played on occasions other than Regal and Vice-Regal occasions.
Modern practice is to use the word ‘referendum’ to cover only national votes on changes to the Constitution. The national votes on other matters (however referred to at the time) are now referred to as plebiscites. There is no established statutory framework to provide for or regulate the conduct of plebiscites. The Plebiscite (Same-Sex Marriage) Bill 2016 provided that the Referendum (Machinery Provisions) Act 1984 would apply (subject to modifications) to the proposed plebiscite, meaning that it would be conducted in much the same way as a referendum.
Review of the Constitution
In August 1927 the Government appointed a royal commission to inquire into and report upon the powers of the Commonwealth under the Constitution and the working of the Constitution since Federation. The report was presented to Parliament in November 1929 but did not bring any positive results. In 1934 a Conference of Commonwealth and State Ministers on Constitutional Matters was held but little came of it. In 1942 a Convention of Government and Opposition Leaders and Members from both Commonwealth and State Parliaments met in Canberra to discuss certain constitutional matters in relation to post-war reconstruction. They made significant progress and approved a draft bill transferring certain State powers, including control of labour, marketing, companies, monopolies and prices, from the States to the Commonwealth Government. However, only two of the State Parliaments were prepared to approve the bill.
The next major review of the Constitution was conducted by a joint select committee of the Parliament, first appointed in 1956. The committee presented its first report in 1958 and a final report in 1959. The report made many significant recommendations, but no constitutional amendments resulted in the short term.
Recommendations of the committee which were submitted some years later to the people at referendum were:
to enable the number of Members of the House to be increased without necessarily increasing the number of Senators (1967);
to enable Aboriginals to be counted in reckoning the population (1967);
to ensure that Senate elections are held at the same time as House of Representatives elections (1974 and 1977);
to facilitate alterations to the Constitution (1974);
to ensure that Members of the House are chosen directly and democratically by the people (1974); and
to ensure, so far as practicable, that a casual vacancy in the Senate is filled by a person of the same political party as the Senator chosen by the people (1977).
In 1970 the Victorian Parliament initiated a proposal to convene an Australian Constitutional Convention. Following agreement by the States to the proposal and the inclusion of the Commonwealth in the proposed convention, the first meeting took place at Sydney in 1973 and was followed by further meetings of the convention at Melbourne (1975), Hobart (1976) and Perth (1978). The convention agreed to a number of proposals for the alteration of the Constitution, some of which were submitted to the people at the referendums of 1977. The referendums on Simultaneous Elections, Referendums, and the Retirement of Judges were the subject of resolutions of the convention at meetings held in Melbourne and Hobart.
In 1985 the Commonwealth Government announced the establishment of a Constitutional Commission to report on the revision of the Constitution. It consisted of five members (a sixth resigning upon appointment to the High Court) and it operated by means of five advisory committees, covering the Australian judicial system, the distribution of powers, executive government, individual and democratic rights, and trade and national economic management. A series of background papers was published by the commission and papers and reports were prepared by the advisory committees. The commission’s first report was presented on 10 May 1988, and a summary was presented on 23 May 1988. The commission’s review and report preceded the presentation of four constitution alteration bills, dealing respectively with parliamentary terms, elections, local government, and rights and freedoms.
In 1991 the Constitutional Centenary Foundation was established with the purposes of encouraging education and promoting public discussion, understanding and review of the Australian constitutional system in the decade leading to the centenary of the Constitution.
In 1993 Prime Minister Keating established the Republic Advisory Committee with the terms of reference of producing an options paper describing the minimum constitutional changes necessary to achieve a republic, while maintaining the effect of existing conventions and principles of government. The committee’s report An Australian republic—the options was tabled in the House on 6 October 1993.
In February 1998 the Commonwealth Government convened a Constitutional Convention to consider whether Australia should become a republic and models for choosing a head of state. Delegates (152—half elected, half appointed by the Government) met for two weeks in Canberra in Old Parliament House. The Convention also debated related issues, including proposals for a new preamble to the Constitution. The Convention supported an in-principle resolution that Australia should become a republic, and recommended that the model, and other related changes, supported by the Convention be put to the Australian people at a referendum. Constitution alteration bills for the establishment of a republic and for the insertion of a preamble followed in 1999, with those concerning the proposed republic being referred to a joint select committee for an advisory report. All the proposals were unsuccessful at referendum.