1. CHANGING THE CONSTITUTION
Referenda

2. Constitutional Change
There are FIVE ways the Constitution can be altered
Referenda
Interpretation by the High Court
Cooperation between Commonwealth and states - Referral of powers / Unchallenged legislation
Use of financial powers
Constitutional conventions and commissions

3. Referenda All constitutions need to provide for their own alteration
The Australian Constitution does this in s 128 – the last section of the document. It provides the only means to formally alter the Constitution’s wording

4. Referenda
Section 128 is a lengthy and legalistic section. In short it stipulates that…
the proposal be passed by both houses (or the same House twice) of parliament (as a normal bill)
it be put to the people not less that 2 months and not more that 6 months after the passage of the bill

5. Referenda
it be passed by a majority of electors and a majority of electors in a majority of the states (the territories are not counted but their electors count towards the majority of electors)

6. Referenda
Since federation 44 referendum questions have been put to the people
Only 8 have been successful – this is a very low success rate

7. 8 Successful Referenda
1906 Senate elections - altered s. 13 (timing of Senate elections)
1910 State Debts - altered s. 105 (expanded C’th power to take over state debts)
1928 State Debts - inserted s. 105A (established loan council – all gov’t borrowing to be conducted through loan council)
1946 Social Services - inserted s. 51 (xxiiiA) – gave the C’th power to legislate to create welfare eg maternity allowances etc)

8. 8 Successful Referenda
1967 Aborigines - altered s. 51 (xxvi) and deleted s. 127 (highest YES vote – 90.8%) – allowed C’th to make laws about Aborigines and to count them in the census
1977 Casual Vacancies - altered s. 15 – the 1975 constitutional crisis was, in part, caused by the filling of casual Senate vacancies, this fixed the problem
1977 Territorial Votes - altered s. 128 – included territory electors as part of the majority of electors
1977 Retirement of Judges - altered s. 72 – set the age of retirement at 70

9. Evaluation Why is s 128 so unsuccessful? Several factors explain this…
Institutional factors
Political factors
Attitudinal factors

10. Institutional Factors
The “Double Majority” is too high a hurdle, especially when combined with compulsory voting in Australia. This factor has caused the failure of 4 referenda
The question must be YES or NO. Complex issues are more likely to attract a NO vote

11. Political Factors
To succeed almost all sides of the political divide must support the question. That is…
Government (likely since they will propose the question)
Opposition (less likely given our adversarial political system)
States (depends on the proposal). Many Premiers get “political points” standing up to Canberra so its hard to get all 6 Premiers to agree

12. Attitudinal Factors Distrust of politicians
Distrust of “power grabs” by Canberra – only 3 referenda have extended Commonwealth power
Questions and issues are complex – many voters can’t understand or can’t be bothered trying to understand them so vote NO
THE THREE “NO” VOTES
“DISTRUST NO” - distrust of politicians and Canberra
“NO OPINION NO” – I don’t care about the issue but I have to vote so I’ll vote NO
“SATISFACTION NO” – Conservative “the Constitution has given us a stable government and shouldn’t be tinkered with”.

13. Characteristics of Successful Referenda
Support of both Government and Opposition –Aborigines was supported by both sides
Limited change is proposed – avoids the “distrust” factor in the voter. Retirement of Judges is an example
Obviously good – Aborigines was seen as a morally worthy thing to do to “make amends” and reduce racism. Territory voters was logical and just
Obvious benefits to the states or voters – Social Services was a benefit to all voters