Constitutional Change in Australia (Booklet 9)

What is a Constitution?

A set of fundamental laws that establishes the structure, powers, and processes of government.

What is correct citation for Australia’s Constitution?

Commonwealth of Australia Constitution Act 1900

• Australia’s Constitution

• the Constitution

What is a referendum?

A national vote held to approve changes to the wording of the Commonwealth Constitution. To be successful, the proposal must receive support from a majority of voters and a majority of voters in at least 4 states.

Is the term referendum singular or plural?

singular

What is the plural for referendum?

• referenda

• referendums

What is the High Court of Australia?

Australia’s apex court established under Section 71 of the Constitution.

It serves as the nation’s constitutional court and final court of appeal.

What is meant by constitutional interpretation?

The power to adjudicate disputes regarding the Commonwealth Constitution (Australia). Vested in the High Court under s76 and s30 Judiciary Act (1903).

What is a landmark decision/judgment?

a significant court decision that establishes a new legal principle (precedent) or substantially alters the interpretation of existing law. They have wide-reaching impacts.

o   e.g. HCA cases about constitutional interpretation, implied rights, or federalism.

What is meant by referral of power?

An informal method of constitutional change, through which State law-making power is transferred to the Commonwealth Parliament under s51(xxxvii).

What is meant by unchallenged legislation?

A law that may exceed a Parliament’s legislative power but remains in force because its constitutional validity has never been tested in court.

What is informal change of the Constitution? What is the preferred phrasing?

Do not use the term ‘informal’ change. The only way to change the Commonwealth Constitution is to formally change the text through a referendum. Instead, learn and use the phrase ‘changes to the understanding of the Constitution’ when discussing changes to the operation (ie meaning) of the Constitution.

Outline the referendum process

• proposal passes both houses of Parliament or same house twice (enabling bill)

• Governor-General issues a writ directing the AEC to conduct a referendum

• Pamphlet made outlining official arguments for and against the proposal, prepared by Members of Parliament and sent to all voters

• put to the people (referendum must be held after 2 months of the enabling bill passing but no later than 6 months)

• double majority to pass (federal and democratic)

• royal assent

• Constitution changed

What are the three methods that alter the meaning and operation of the constitution?

• interpretation made by the HCA

• referral of powers from the States to the Commonwealth

• unchallenged legislation

What is a democratic majority?

• refers to the national majority

• more than half of voters from fall states and territories vote YES

What is a federal majority?

• more tha half of voters in at least 4/6 states vote YES

What statue controls how a referendum is conducted? What are these provisions?

Referndum (Machinery Provisions) Act 1984

• Section 11: Requires that arguments for and against a proposal (each up to 2,000 words) be distributed to voters. Beyond printing these pamphlets, the Commonwealth is restricted from spending money to promote either side

• Section 45: Makes voting in referendums compulsory

• Section 24: Sets out how ballot papers must be completed

How many bills have been introduced to Parliament to propose to amend the Australian Constitution? How many were approved by both houses (or HoR twice)?

introduced to Parliament:143

Passed Parliament: 60

How many referendums have actually been held?

45

How many referendums have been successful?

8

Which party has made the most proposals to amend the Constitution?

• ALP 26/45, only 1 has succeeded (1946 Social Services Amendement)

• Contrast, 7/19 non-ALP proposals have passed

What three factors that underpin successful referendums?

• Bipartisan support: Proposals are more likely to pass when both major parties publicly support it, increasing the likelihood of public confidence.

• Simplicity: Voters prefer incremental proposals with clear, unambiguous wording.

• Practical benefits: While proposals that grant the Commonwealth greater power are treated with suspicion, those with practical benefits are more likely to pass.

Why did the Constitution Alteration (Retirement of Judges) 1977, adding to s72, pass?

It was a minor and simple change

Why did the Constitution Alteration (Social Services) 1946, adding to s51, pass?

Benifited people (practicial benefit)

Why did the Constitution Alteration (Aboriginals) 1967, removing s127, pass?

Reflected commonly held views.

90.77% YES.

Why did the Constitution Alteration (State Debts) 1928 and Constitution Alteration (State Debts) 1928, adding to s105A, pass?

Benefited the States.

Why did the Constitution Alteration (Establishment of Republic) 1999, not pass?

Major change and complex question

Why did the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023, not pass?

Parisan division, controversial (60% no)

Why did the Constitution Alteration (Simultaneous Elections) 1977, not pass?

Benefited the Commonwealth

What are the two main areas of constitutional change the HCA has impacted?

• federal balance of power

• implied rights (discovery, refinement)

How are implied rights in the Constitution discovered, developed, and refined?

HCA:

• discovered

• developed and clarrified

• refined meaning and scope through the development of tests (ensure consistent and predictable decisions)

Briefly outline Australian Capital Television v Commonwealth [1992]

• Political Broadcasts and Political Disclosures Act 1991 (Cth)

  • limited political election campaign advertising on TV

• ACT argued Act violated s7 and s24 Constitution “directly chosen by the people”

  • voters must be informed

• HCA discovered implied right to political communication which struck down the Act

How did Theophanous Case [1994] and Lange v ABC [1997] further develop the implied right to political communication?

• Theophanous Case [1994] applied and broadened implied right

• Lange v ABC [1997] clarified implied right is not unlimited

What did McCloy v NSW [2015] do in relation to the right to political communication?

Established the McCloy test for the right to political communication:

1. Does the law limit the freedom of political communication

2. if so, is it legitimate and compatable with representative democracy

What did Brown v Tasmania [2017] do in relation to the right to political communication?

Applied and refined the McCloy Test. Added:

3. is the law appropriate for its purpose whilst remaining compatiable with representative democracy

How did the Unions NSW v NSW [2019] apply the refined McCloy test?

• HCA held that the reduction on the political donation cap breached freedom of political communication

• Electoral Funding Act 2018 (NSW) - unconstitutional

How does s51(xxxvii) work?

States can tranfer their law-making powers to the Commonwealth Parliament, allowing it to pass national laws on matters that fall outside their jurisdiction.

e.g. in 2002-03 all States referred their power to make criminal laws regarding terrorist acts to the Commonwealth. This allowed the passage of the Criminal Code Act 1995 which sets out Commonwealth offences relating to terrorism,

e.g. in 2010 all States (except WA) referred their industrial relations powers to the Commonwealth to enable the Parliament to create a single, national system of indrustrial relations for the private sector.

What are some benefits of referring power to the Commonwealth?

• Allow the Commonwealth to legislate on areas originally reserved for the States, altering the federal balance of power

• Allow for the creation of uniform laws and efficient national frameworks

• Enable the Constitution to adapt to changing circumstances without the need for referendums

Why is referring power to the Commonwealth a limited power?

• Relatively few referrals since Federation due to State suspicion of Cth power

• Referrals are reversible and conditional, allowing states to revoke them or limit their duration.

• Relies on political cooperation between Commonwealth and States in intergovernmental forums (e.g., NatCab)

Briefly outline what happened to family law in regard to referral of powers

• 1975 Commonwealth established the Family Court of Australia

  • jurisdiction over marriage and divorce (s51(xxi) and (xxii)

  • only covered married couples and their children, not de facto couples or ex-nuptial children

• States referred power to Commonwealth throughout 1980’s-90’s

  • Commonwealth passed Family Law Act 1975 giving jurisdiction to Family Court of Australia the remaining powers

  • WA did not refer its power, instead made its own Family Court

How does unchallenged legislation sometimes go unchalleneged if it is unconstitutional?

• If a group or individual cannot prove their standing the case cannot be brought to court. (directly affected).

• benefits Australia, therefore no one wants to challenge it

How is the Snowy Hydro Electric Power Act 1949 unconstitutional and still remaining?

• major hydroelectric power scheme that stretches NSW, VIC, ACT

• arguably justified by s51(i) and s51(xx), it likely stretches beyond the Commonwealth’s constitutional powers, intruding critical areas of state responsibilities (e.g. water)

• provides irrigration and water for inland farming areas (benefits Australians)

How is the Science and Industry Research Act 1949 unconstitutional and still remaining?

• national agency

  • practicial innovations: agriculture, mining, health, technology

• arguably justified by s51(ix) and s51(vi), body likely stretches beyond Commonwealth’s constitutional power