Contents
- Procedure
- Amending the preamble and the covering clauses
- Record of constitutional reform
- Official reviews of the Constitution
- Recent proposals
Procedure
The Constitution can be changed by the process in section 128:
- A Bill setting out the proposed change is passed by an absolute majority of each house of the Commonwealth Parliament.
- If the houses are deadlocked over whether the Bill should be passed, the Governor-General may nevertheless submit the proposal to the Australian people for approval. In doing so, the Governor-General acts on the advice of the executive government, so effectively it is only if the Senate has refused to pass the Bill that this special procedure might become relevant. In practice, this procedure, and the advantage it ostensibly confers on the executive government, is of little importance given that a proposal which cannot gain the support of both houses of Parliament stands virtually no chance of being approved by the Australian people.
- Between 2 and 6 months after the Bill has been passed by both houses, the proposed change is submitted to the electors in each State and Territory at a referendum.
- To be passed, the proposal must be approved by:
- a majority of all electors Australia-wide, and
- a majority of electors in a majority of the States – that is, in 4 out of the 6 States.
- If the proposal is approved, it is presented to the Governor-General for assent and the Constitution is amended accordingly.
Amendments affecting the States in certain ways require the consent of the electors in the affected States. Specifically, no alteration to a State’s proportionate representation in the Commonwealth Parliament or to the guaranteed minimum representation of a State in the House of Representatives can be made without majority support from electors in the State or States concerned. Similarly, no referendum to alter the limits of a State can be approved unless a majority of electors in the affected State or States vote in favour of the change. It follows that, although Australia’s constitutional system can be radically altered through the process laid down in section 128, certain fundamental changes, such as the abolition of the States, would require the support of a majority of electors in each State.
Reflection of competing forces
The method of alteration tells us much about the different elements and competing forces of Australia’s constitutional system. The fact that constitutional change can be made only with the approval of the Australian electors recognises that ultimate sovereignty over Australia rests with the people. The requirement that change must be supported in a majority of States is consistent with Australia’s status as a federation and reflects the founders’ determination to protect the interests of the States, particularly those of the smaller States. Finally, the fact that only the Commonwealth Parliament can initiate constitutional change points to the Commonwealth’s status as the national body politic and its predominant position in the federal structure.
Who can vote
All persons who are qualified to vote at elections for members of the House of Representatives are qualified to vote at a referendum. Residents of Territories were not entitled to vote at a referendum until section 128 was itself amended by referendum in 1977. The votes of Territory electors count only to determine whether there is an overall majority of Australians in favour of change. Territories are not treated as States or parts of States in determining whether a majority of States is in favour of the proposal.
'Yes' and 'no' cases
The conduct of a referendum is also regulated by the Referendum (Machinery Provisions) Act 1984. This Act allows for the distribution to electors of official explanations of the 'yes' and 'no' arguments in the referendum, at public expense. The 'yes' case is authorised by a majority of members of Parliament who voted for a proposed amendment of the Constitution; the 'no' case is authorised by members who voted against it. This provision was originally enacted in 1912, when a referendum proposed by the Fisher government failed because, it was said, of misrepresentation by its opponents and misapprehension by the people.
The Act otherwise restricts the expenditure of public funds by the Commonwealth in support of, or opposition to, a proposal. The Act was amended for the 1999 referendum on the republic to allow Commonwealth expenditure to provide equal funding for advertising by the proponents of the yes case and the no case, and on public information activities.
Contrast with plebiscites
In contrast with the formal referendum process to change the Constitution, Australian governments have from time to time used other processes, generally called plebiscites, to ascertain the views of the electorate on particular issues. However, plebiscites are generally advisory and do not of themselves change the law, much less the Constitution itself. Plebiscite processes have been used, albeit rarely by the Commonwealth government, to obtain electors’ views on major contentious policies, such as conscription during World War I and same-sex marriage in 2018. A plebiscite on the national song was also held at the same time as the 1977 referendum. These were all decisions which the Commonwealth Parliament already had power to make under the Constitution but where an indication of the specific views of the electorate was sought.
Amending the preamble and the covering clauses
The Constitution is set out in clause 9 of an Act of the British Parliament, the Commonwealth of Australia Constitution Act 1900. That Act also comprises a preamble, an enactment clause, and clauses 1 to 8, the covering clauses (see [1.6]–[1.9]). For a long time, the question of how these provisions could be amended was of only academic interest. However, discussion of the possibility of Australia becoming a republic, and increasing calls for the preamble to be amended to better reflect contemporary values, has focused attention on how these parts of the British Act can be amended.
The traditional view was that amendment of the preamble and covering clauses was not possible under section 128, as that section only allowed the amendment of 'this Constitution' – that is, the provisions in clause 9 of the British Act. Accordingly, it was assumed that an amendment to the preamble or covering clauses would need to be made by the British Parliament. While the Statute of Westminster 1931 (adopted in Australia by the Statute of Westminster Adoption Act 1942) enabled the Commonwealth Parliament to amend or repeal British legislation generally, section 8 specifically excluded the Commonwealth of Australia Constitution Act (see [3.14]).
However, the possibility of amendment by the British Parliament was removed in 1986, when both the British and Australian parliaments, under section 1 of the Australia Act 1986, declared that the British Parliament no longer had any legislative power over Australia (see chapter 3, especially [3.34]).
Since then, it has been generally accepted that Australia’s constitutional system must, in some way, authorise the amendment or repeal of the preamble and the covering clauses. It would be unacceptable – indeed, absurd – for any aspect of Australia’s constitutional arrangements to be incapable of change.
Amendment directly by referendum
Some commentators believe that, whatever the position might once have been, section 128 of the Constitution can now be used to amend or repeal the preamble and covering clauses. This view was endorsed by the Constitutional Commission in its 1988 final report.
Amendment under section 15(1) of the Australia Act
Alternatively, section 15(1) of the Australia Act could be used (see [3.45]). This provides that the Statute of Westminster and the Australia Act can be amended by a Commonwealth Act passed at the request of the parliaments of all the States. All the States could request the Commonwealth to amend section 8 of the Statute of Westminster to allow the Commonwealth to amend the existing preamble and the covering clauses. The Commonwealth Parliament could then amend the existing preamble and covering clauses accordingly.
Amendment under section 15(3) of the Australia Act
As a further alternative, section 15(3) of the Australia Act states that the process in section 15(1) does not limit the exercise by the Commonwealth Parliament of any powers that may be conferred on it by alteration of the Constitution in accordance with section 128 (see [3.46]). Therefore, a referendum under section 128 could give power to the Commonwealth Parliament to amend the Statute of Westminster and the existing preamble and covering clauses.
A new preamble
A proposal to leave the existing preamble and covering clauses as they are but add a new preamble to the Constitution itself was rejected at the referendum in November 1999 (see [10.33]–[10.34]).
Record of constitutional reform
The history of constitutional reform in Australia is littered with failed attempts. Of the 44 proposals put, only the following 8 proposals were carried:
- Section 13 was amended in 1907 – a minor amendment concerning the terms of senators (note 7).
- Section 105 was amended in 1910 to broaden the Commonwealth’s power in relation to taking over the debts of the States (note 19).
- In 1929, a new section 105A (concerning Commonwealth and State borrowing for public purposes) was added (see [5.53]).
- In 1946, section 51 was amended to provide a new power (numbered (xxiiiA)) to the Commonwealth in relation to social services (see [6.71]).
- In 1967, the reference to 'other than the aboriginal race' was deleted from section 51(xxvi), thereby conferring power on the Commonwealth in relation to Indigenous peoples. Section 127, which had previously excluded Aboriginal people from being reckoned in the numbers of the people of the Commonwealth or of a State, was repealed (note 14, and note 22, see also [10.11]–[10.12]).
- In 1977, 3 amendments were approved:
- to provide that Senate casual vacancies must normally be filled by a person of the same political party as the departed senator (section 15 and note 9)
- to fix 70 years as the retiring age of High Court justices and empower Parliament to fix the retiring ages of other federal judges (section 72 and note 16), and
- to enable residents of federal territories to vote in referendums (section 128 and note 23).
Most of these were significant changes, but the substance of the Constitution remains much as it was in 1901.
The 44 proposals were put at 19 separate referendums. Referendums can be held at the same time as general elections, and on 9 of the 19 occasions this has occurred. On 5 of those occasions, one or more proposals put at the referendum was carried. At 14 of the 19 referendums, more than one proposal has been put – on 10 of those occasions none of the proposals was approved. Of the 8 proposals which have been carried, all 8 had the support of the major political parties. However 6 proposals which had bipartisan support have failed. The 1999 proposal on the republic was unusual in that the Howard government’s support was for holding the referendum rather than the proposed change. Some government members, including the Prime Minister, argued for the 'no' case.
Why are few referendums successful?
Constitutional change has thus been difficult to achieve. The conventional view is that it is difficult for a proposal to succeed in the face of significant and well-organised opposition.
What is not clear is why such opposition should often be successful in convincing a majority of Australians to stick with the status quo. Some commentators have suggested that the difficulty lies with the low level of knowledge which the average elector has of Australia’s constitutional system. Other commentators argue that, given the political stability which the Constitution has conferred on Australian society, electors are wary of constitutional change and need to be solidly convinced of the benefits of any change.
Some of the proposals put were, in retrospect, inherently unlikely to be approved by the electors. Proposals which would result in an increase in governmental power, particularly Commonwealth power, ordinarily hold little electoral appeal. (Such proposals are also, of course, likely to create significant political opposition, giving rise to a lack of bipartisan support, as well as concerted opposition from the States.) By the same token, the electorate has also shown a reluctance to endorse proposals which would limit government power by entrenching certain basic rights. In 1988, a proposal to provide for the principle of 'one vote, one value' at the Commonwealth, State and Territory level was emphatically rejected.
Suggested changes to referendum process
The poor record of constitutional reform has led to calls for a review of the referendum process. The fact that only the Commonwealth Parliament (effectively, this means the Commonwealth government) can initiate the referendum process under section 128 is seen by some as inappropriate. It is argued that there would be greater prospects of success for referendum proposals if the State parliaments or a specified proportion of the Australian people could initiate a referendum proposal.
Others have suggested that the double majority requirement (a majority of electors, and a majority of electors in a majority of States) is too stringent. One of the proposals put to the electors in the 1974 referendum was to make the amendment process easier by requiring only a majority of the people as a whole and a majority in 3 States. It is debatable whether this change would have made a significant difference to the outcomes of past referendums. If this requirement had been in force since federation, only an additional 3 amendments would have been approved. In any event, the proposal was rejected by the electors.
Official reviews of the Constitution
Early reviews
There have been a number of major reviews of the Constitution, most of which have recommended significant changes. Between 1927 and 1929 a Royal Commission investigated the Constitution, but its members could not reach a consensus on proposals for reform and it delivered a divided report. A conference of federal and State ministers took place in 1942, but it achieved no significant result. A Joint Parliamentary Committee on Constitutional Review was established in 1956 and reported in 1959. It recommended a large number of changes, but these recommendations were not accepted by the government of the day and the report was shelved.
Constitutional Convention 1973–1985
An Australian constitutional convention was convened in 1973. It comprised delegates from all houses and political parties in the State and Commonwealth Parliaments and representatives of local government. It met in Sydney in 1973, in Melbourne in 1975, in Hobart in 1976, in Perth in 1978, in Adelaide in 1983 and in Brisbane in 1985. It recommended a number of constitutional changes, some of which were put to the electors in the referendums of 1974, 1977 and 1984.
Constitutional Commission 1985–1988
In 1985 a Constitutional Commission was established to carry out a fundamental review of the Constitution. It was chaired by Sir Maurice Byers QC, a former Commonwealth Solicitor-General. The Commission reported in 1988. The report recommended major changes to the Constitution, including the insertion of a bill of rights to confer on individuals certain protections from legislative and executive interference. Three of the 4 proposals put to the electors at the 1988 referendum were based on recommendations from the Commission, but each was rejected by the electors (see [11.27]).
Recent proposals
There are 4 areas in which there has been significant recent activity for constitutional change: first, to recognise a broader range of human rights in the Constitution; secondly, to convert Australia into a republic by replacing the Queen with an Australian citizen as Australia’s head of state and to insert a new preamble into the Constitution; thirdly, to recognise local government; and, fourthly, to recognise the place of Australia’s Indigenous peoples. We consider each of these.
Rights
After the Constitutional Commission of 1985–1988, the Hawke Labor government proposed a number of changes to the Constitution in 1988. One set of changes sought to entrench certain basic human rights. This proposed in particular to extend the right to trial by jury provided by section 80 (see [9.13]–[9.16]) to offences under Commonwealth, State and Territory laws where the accused is liable to imprisonment for more than 2 years or any form of corporal punishment. Another was to extend by new sections the guarantee of 'just terms' compensation for any 'acquisition of property' under Commonwealth laws in section 51(xxxi) (see [9.9]–[9.12]) to State laws and laws made in respect of the Territories by the Commonwealth or by a Territory. Further, it was proposed to extend section 116, guaranteeing certain religious freedoms under Commonwealth laws (see [9.21]–[9.25]) in respect of laws passed by a State or Territory. Even though these changes developed provisions already in the Constitution, they all failed at the referendum. Another set of proposals for detailed provisions for free and fair elections also failed.
Republic
A republic is a state in which sovereignty is derived from the people and all public offices are filled by persons ultimately deriving their authority from the people. On this basis, Australia is a republic, except that its head of state is an hereditary monarch rather than someone who derives his or her position and power, directly or indirectly, from the Australian people. It is for this reason that the replacement of the British monarch by an Australian citizen is the essence of proposals for an Australian republic.
In the 1980s and 1990s significant consideration was given to developing constitutional amendments to provide for such a republic. This led to a constitutional convention in 1998 made up of elected and appointed delegates. The 3 principal options for appointing any head of state discussed at the 1998 constitutional convention were:
- direct popular election
- a special majority of both houses of Parliament, or
- a special council following nomination by the Prime Minister.
The convention supported what was called the 'bipartisan appointment model' – a form of the second option in [11.29]. The proposal was that the president be appointed by a process involving:
- a committee considering nominations and reporting to the Prime Minister
- the Prime Minister taking into account the report and presenting a single nomination
- the leader of the opposition seconding the nomination, and
- approval of the nomination by a two-thirds majority of a joint sitting of both houses of Parliament.
It was generally accepted that any move to a republic should not involve a shift to a United States style of government under which the president, as head of state, exercises significant power independent of Congress. Rather, the assumption was that the new head of state would exercise essentially the same powers and perform the same functions as those currently exercised and performed by the Governor-General and that they would do so – except when exercising a reserve power – in accordance with advice from the executive government (see [7.15]–[7.26]).
On 6 November 1999 a referendum to establish the Commonwealth of Australia as a republic, with the Queen and Governor-General being replaced by a president elected by a two-thirds majority of a joint sitting of both houses of Parliament, was soundly defeated. A referendum to insert a new preamble into the Constitution was also defeated (see [10.33]–[10.34] in relation to one aspect of the preamble).
The question whether the King and Governor-General should be replaced by a president will doubtless continue to be debated in Australia. Political interest in advocating for this change waned following the failed 1999 referendum. Interest has been rekindled following the election of the Albanese government in 2022 and the appointment of an Assistant Minister for the Republic. Despite this appointment there is no current proposal to put the issue of the republic to the people. The debate over the 1999 proposals highlighted several challenges in securing the necessary level of popular support for an Australian president.
The first is that at any given time a significant number of electors admire the monarch and believe that the institution of the monarchy is a beneficial feature of the Australian constitutional system. The second is that, although the Australian monarch performs virtually no functions with respect to Australia, the concept of the monarch and the Crown pervades the Constitution. This means that extensive textual amendments to the Constitution are required to remove the references to the monarch and the Governor-General and replace them with references to the president. The detailed proposal for the 1999 referendum set out these amendments. Most constitutional experts agree that these changes can be made without altering the substantial features and operation of the Constitution, but the scale of the changes needed is nonetheless significant.
The third challenge, which might seem paradoxical given the difficulty just mentioned, is related to the minor role the monarch has in Australian affairs relative to the role played by the Governor-General. This consideration has led various commentators to argue that the Governor-General is in fact Australia’s head of state and that it is not worth the considerable effort of amending the Constitution simply to recognise this formally.
Finally, the 1999 referendum campaign revealed a split in those electors who supported the concept of replacing the monarch and the Governor-General with a president. The split centred on how the president was to be selected. Some favoured appointment by a two-thirds majority of both houses of Parliament, while others favoured direct election by the people. Many who supported the former process were strongly opposed to the direct popular election model on the basis that an elected president might consider that they had a democratic mandate to act contrary to the elected government, in certain matters at least. Those who favoured direct election did not seem at all alarmed at this possibility and were determined to oppose the appointment process which, in their view, would result in a 'politician's head of state'. In the end it appears that those who supported the current arrangements and those who wanted an elected head of state defeated the appointed by parliament model put at the 1999 referendum.
Recognition of local government
Despite its relevance in the provision of services and infrastructure to Australians, there is no reference to local government in the Constitution. Rather, local government bodies are wholly created and regulated by State and Northern Territory legislation. In the past there have been calls for some level of recognition of local government in the Constitution. Attempts to do this failed at referendums in 1974 and 1988.
However, Julia Gillard promised to hold a new referendum on the subject in order to win the support of the Greens and independents to form government after the 2010 election. An Expert Panel on the Constitutional Recognition of Local Government was appointed by the federal government in August 2011, chaired by former Chief Justice of New South Wales James Spigelman. The Panel considered a number of proposals and supported a referendum on the financial recognition of local government. This recommendation was developed into a proposal to add to section 96 of the Constitution an ability for the Parliament to grant financial assistance to any local government body formed by a law of a State, on such terms and conditions as the Parliament thinks fit, in addition to the existing ability to grant financial assistance to the States themselves (see [5.64]–[5.67]).
During this period the High Court had delivered its decisions in Pape (2009) and Williams (No 1) (2012), which questioned the Commonwealth’s ability to grant financial assistance without supporting legislation, and outside the areas of Commonwealth constitutional power, to bodies and persons other than States (see [5.58]–[5.63]). The Commonwealth has traditionally provided significant funding to local government bodies to deliver a range of infrastructure and services.
However, there were significant concerns about whether the referendum would succeed, and no referendum was held.
Recognition of Australia’s Indigenous peoples
There has also been significant recent consideration of proposals to recognise the place of Aboriginal and Torres Strait Islander peoples in the Constitution. These are discussed at [10.32]–[10.43]. As noted at [10.43] the Albanese government elected in 2022 has pledged to put to the Australian people the proposal to establish in the Constitution an Aboriginal and Torres Strait Islander Voice.
Other potential areas for constitutional reform
Other issues which are likely to be the subject of continuing consideration for constitutional reform are:
- 4-year terms for the House of Representatives
- the qualifications for members of Parliament – in particular, in light of the operation of section 44 (see [6.36]–[6.44])
- the insertion of a bill of rights to entrench certain fundamental freedoms (see chapter 9 and [11.27]), and
- although not recently raised, elements of the federal relationship, including the scope of the external affairs power in section 51(xxix) (see [5.23]–[5.33]) and the fiscal imbalance between the Commonwealth and the States (see [5.37]–[5.68]).
Debate on the issues discussed, and other issues, will clearly continue. This debate is an important part of our national civic life, since the Constitution remains the foundation of the Australian nation. While the Constitution has ensured over a century of democratic, stable government, an important feature of that democracy is the power which the Australian people have to reshape this foundation.
