1. The Constitution
Commonwealth of Australia Constitution Act 1900 (UK) came into force on the 1st of January 1901.
A set of Rules or principles guiding the way our nation is governed. States have their own separate constitutions.
CONSTITUTION

2. Restrictions on Law-Making by Parliament
The constitution outlines the division of power. This division of power places restrictions on the law- making powers of the Commonwealth and the states.

3. Restrictions on state power
State law is restricted from making law in areas of exclusive power (held by Commonwealth Parliament).
The Constitution prohibits the state parliaments from making laws on matters including;
S114 Raising military forces- No state shall not raise an military and navy forces
S115 Coining money- All states are prohibited from coining money.
S109 Concurrent powers (shared powers) can also act as a limitation on law-making of the state parliaments. Although states can make laws regarding concurrent powers, if state law is inconsistent with a Commonwealth law it will be declared as invalid under s109. Commonwealth law will always prevail s109.

4. Restrictions on Commonwealth Parliament.
The commonwealth Parliaments is restricted from making laws in the areas of residual powers (state powers).
It can only pass laws on areas of power given under the Constitution.
After the Port Arthur Massacre- April PM John Howard wanted to have uniform gun laws throughout Australia.
Laws in relations to gun control come under residual powers, therefore the Commonwealth Parliament was unable to pass legislation on this matter.
As a result John Howard had to persuade the state parliaments to EACH pass uniform gun laws.
If the states refused to do this, a referendum would have had to be put to the people to change the constitution to allow the Commonwealth Parliament to pass laws relating to gun control.

5. Restrictions on Commonwealth Parliament.
The sections of the Constitution that impose restrictions on law-making by the Commonwealth Parliament include:
s116 Commonwealth not to legislate in respect of religion- The Commonwealth shall not make any law for regarding religion, or for imposing any religious beliefs, or for prohibiting the free exercise of any religion.
S106 and s108- Guarantee of state powers- The commonwealth parliament cannot pass any laws that interfere with the states’ powers and laws.
S99- Preference- The Commonwealth cannot give preference to one state over another, especially in relation to trade, commerce or revenue.
s128– Restricts the Commonwealth from changing the wording of the Constitution without first taking the proposed change to the people in the form of a referendum.
s80 Trial by jury- The trial of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

6. Question Time  1 Complete the following chart
Law making powers
Explanation
Example
Exclusive Powers
Concurrent Powers
Residual Powers
2 Explain the significance of section 109 of the Commonwealth Constitution.
3 Describe two restrictions imposed by the Commonwealth Constitution on the law-making powers of the Commonwealth Parliament.
4 Describe two restrictions imposed by the Commonwealth Constitution on the law-making powers of state parliaments.
5 Why do you think state parliaments are restricted from coining money?
6 To what extent are state parliaments supreme law- making bodies? Discuss in relation to the restrictions on state parliament.

7. What is a Referendum?
The Constitution provides a means for change and this process is called the referendum.
Section 128 sets out a process for changing or amending the Constitution.
This process results in a change to the written words of the Constitution.
Under section 128, the initiation of a referendum proposal can only come from the Commonwealth Parliament.

8. Mechanisms for Constitutional Change
When the Commonwealth of Australia Constitution Act 1900 (UK) was drafted it was recognised that times would change and the constitution would have to alter to keep up with the changing attitudes. S128 gives the mechanisms for change, however, it is a very difficult process.
Under s128 of the Constitution, for a change to be made to the words in the Constitution, the people must be asked to vote on the change in a referendum.
When the constitution has been changed, the actual words in the Constitution are amended and the new words appear in the updates version.

9. How does the Referendum change the Constitution?
A referendum is the only way in which the actual wording of the printed Constitution can be changed. A successful referendum can result in:
● words being deleted from the Constitution
● words being inserted into the Constitution.
E.g. Deleting words
The Constitution originally gave the Commonwealth Parliament power to make laws with respect to the people of any race other than the ‘aboriginal race’.
In 1967, a referendum was held to remove this phrase discriminating against Indigenous people.
The proposal was that section 51(xxvi) be amended to strike out the term ‘other than the aboriginal race in any State’, and that section 127 be struck out in its entirety. Nearly 91 per cent of electors voted in favour of the change.

10. Procedure for Changing the Constitution Under s128
The procedure for changing the Constitution as set out in s128 is as follows:
A bill setting out the proposed alteration to the constitution must be passed by both houses of the Commonwealth Parliament. The Constitution Alteration (Republic) Bill 1999 (Cth). it can be passed providing that the one house passes it twice in a period of 3 months.
The proposed change must be put to the people through a referendum, no less than 2 months and no more than 6 months after it has been passed by the 2 houses. A referendum is a compulsory vote on a proposed change to the wording of the Commonwealth Constitution.
In the referendum, the voters must answer either ‘yes’ or ‘no’ to the question asked.
Double majority is required- A majority of voters in the whole of Australia (including the territories) must vote ‘yes’ , AND a majority of voters in a majority of states must vote ‘yes’ to the proposed change- at least 4 of the 6 states have to agree.

11. Referendum proposal introduced
Senate
House of Reps
Passed by a majority in both houses? NO
YES
Put to the voters in each state and territory within two to six months.
Proposal cancelled
GG may submit a proposal passed by one house No
Passed by a majority of voters.
No Change
Passed by a majority of states No
Royal Assent
Change

12. Procedure for Changing the Constitution Under s128
The proposed changes most likely to succeed are those that are supported by both major parties and which cover issues the voting public can relate to.
Most recent referendum was held in 1999 to see whether Australia should become a republic. This proposal was rejected.
Since 1901 there have been 44 proposals for a change to the constitution put to the people and only eight have been accepted.
The strict requirement of a double majority means it is not an easy task to amend the constitution to reflect the voters.
E.g. of subjects that have been amended in the constitution:
1967- Aboriginal people- Number of states in favour= 6. Percentage of people in favour= 90.77%
1977- Retirement of Judges- Number of states in favour= 6. Percentage of people in favour= 80.10%
Look at page 104 of your text books

13. Factors affecting the likely success of referendum proposals.
Timing- Usually held at the same time as an election. Therefore, voters are concerned about which party to vote into office, rather than the issue concerning the referendum.
Double Majority- This strict requirement means it is not an easy task to amend the Constitution in order to reflect the will of the voters.
Lack of bipartisan support- Proposed changes are likely to succeed if both parties agree (bipartisan). If the opposition is against the proposal, the information from both parties can be confusing for the public.
Voter Conservatism- Voters can be conservative and accept the constitution the way it is, rather than change something and not know how it will affect the community. E.g referendum regarding making Australia a republic. This referendum was rejected because people weren't aware which model of a republic would be more beneficial for the community.

14. Strengths and Weaknesses of changing the Constitution
People can have their say- Constitution can only be changed if the majority of people and majority of states agree.
Protection f the smaller states- The double majority protects the smaller states from being dominated by the larger states because it is necessary to have a majority ‘yes’ votes in a majority of states.
Compulsory vote- Views of the community are likely to be represented because voting is compulsory.
WEAKNESSES=
Conservative- People do usually want change.
Bipartisan support- a referendum that does not have bipartisan support is unlikely to succeed.
Timing- the focus of the referendum is lost because people are more concerned about the election.
Costly- Cost of the 1999 referendum cost $66, 820, 894
Double majority- Very difficult to achieve this.

15. Referendums changing the Division of Powers
Not all referendums change the division of power.
Those that do alter, generally give more law making powers to the Commonwealth Parliament because of s109 of the Constitution.
Case study- Powers to make laws for Indigenous People.
One referendum that changed the division of powers from state to Commonwealth parliament was the 1967 referendum regarding Indigenous Australians.
Included- Commonwealth should have the powers to legislate for indigenous people and to include them in the national censuses.
BEFORE THE CHANGE= s51(xxvi) stated ‘The people of any race, other than the Aboriginal race in any state, for whom it is deemed necessary to make special laws.’
AFTER THE CHANGE= s51(xxvi) stated ‘The people of any race for whom it is deemed necessary to make special laws.’
The amendment allowed the Commonwealth Parliament to become more involved with the dealing with indigenous people and their needs and to direct more spending towards Indigenous affairs. Eventually led to the Native Title Act 1993.

16. Question Time 
Read the two articles ‘Why referendums fail—lessons from the referendum for a republic’ and ‘1967—a time for change’ and complete the following.
1 Describe the process used to bring about a change in the wording of the Constitution.
2 Explain what is meant by the term ‘double majority’.
3 Critically analyse the effectiveness of the referendum process in bringing about a change in the Constitution.
4 What factors limit the likely success of a referendum proposal?
5 Before 1967, the Constitution did not give the Commonwealth the specific power to make laws about Indigenous people. Who held this legislative power? What term would be used to describe this type of power? Explain.
6 After the 1967 referendum, which parliament held the legislative power to make laws about Indigenous peoples? What term(s) would be used to describe that type of power?