Legal Studies UNIT 4 AOS 2
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32 Terms
Law reform
The process of constantly updating and changing the law so it remains relevant and effective
Reasons for Law Reform
Changes in beliefs, values and attitudes
As society changes, so do the values, morals and beliefs of people
Laws need to reflect the majority of people, and sometimes that means that laws need to change to reflect these shifts
Examples:
In December 2017 the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cwlth) was passed to recognise changes in values and morals regarding same-sex marriage.
2017, Victoria was the first state to pass voluntary assisted dying laws (euthanasia). The Voluntary Assisted Dying Act 2017 (Vic), was passed due to community pressure and a shift in support towards euthanasia.
Anti-smoking laws have become stricter as more Australians change their attitude towards smoking and the tobacco industry.
In 2024, the Victorian Government decided not to implement a second heroin-safe injecting room in the Melbourne CBD due to pressure from business groups and the community.
Changes in living conditions - social, economic and international
Economic:
The economy of Australia can be affected by many things – international events such as conflict driving up oil prices; recession; pandemics; unemployment rates; inflation etc.
These need to be managed by the Government to ensure that Australians do not suffer as a result of economic conditions.
Often, parliament will create legislation to counter the negative effects of the above
Social:
E.g. Casinos required to have clocks
Technology
Technology is changing at a rapid pace and with it comes new challenges and opportunities.
This also means that laws need to be kept up to date to accommodate these changes and ensure that society is kept safe
Can assist in the investigative process such as developments in forensic science
Can also facilitate criminal activity, e.g. online fraud, cyberstalking and digital piracy
Community Protection
Laws must protect people and give them the assurance that they are safe.
When it becomes apparent that the law is not protecting society, those laws need to change
Petition
A formal, written request to the parliament to take some action or implement law reform
Example:
Extinction Rebellion (XR) Australia is part of a global movement that uses non-violent civil disobedience to ‘disrupt business as usual’ to raise community awareness and demand governments act on climate change. Each year XR activists take part in a range of demonstrations or ‘disruptive civil disobedience rebellions’.
In October 2022, one month before the Victorian state election, XR Victoria began a two-week series of demonstrations (called the ‘Spring rebellion’) to demand the end of fossil fuel (gas, coal and oil) projects and logging in Victoria. XR climate activists took part in several demonstrations and activities throughout Melbourne and regional Victoria, including:
A demonstration at the National Gallery of Victoria where two activists glued their hands to a painting by world-renowned artist Pablo Picasso. The painting was protected by a hard plastic covering and was not damaged, but the controversial action resulted in police arrests and gained national and global media attention
A demonstration in the Melbourne CBD, during the 5.00 pm peak hour, where hundreds of XR activists, and activists from other climate action groups, marched together for climate justice
Activists took part in the Melbourne Fringe Festival with a float that included a ‘burnt koala’ puppet, saying they represented the koalas and other animals destroyed in the 2019–20 bushfires.
Explanation points:
Petitions are formal documents, signed by one or more people, requesting parliament to take action or change the law. It is a direct way in which individuals can make known to the parliament their desire for changes to the law.
Each parliament will have rules or requirements for a petition to be accepted. The process will ordinarily involve the petition being presented in parliament (sometimes by a member of the house), after which it will be on the public record.
Petitions are a relatively simple, easy and inexpensive way for people to express support for a change in the law; e-petitions are particularly easy to set up, sign and monitor (in terms of progress).
In an attempt to make laws that reflect the views of the majority of the community, members of parliament are more likely to consider a petition for law reform that contains many signatures demonstrating strong support within the community.
The act of creating a petition and gathering signatures can generate public awareness of an issue and support for the desired legislative change.
Even if a petition is not initially successful in generating law reform, its tabling can help gain the attention of other members of parliament and the media, which can then generate further community support.
Discussion points:
For privacy reasons, some people are reluctant to put their name, residential address or email address on a petition. Therefore, while they may support the change, they may not be prepared to demonstrate that support by signing a petition.
To be presented in the parliament, petitions must adhere to certain rules. For example, there may be a word limit, or the petition may have to be tabled by a member of parliament (as in the Victorian Parliament). Petitions that do not adhere to rules are unlikely to be accepted and therefore may not ever be presented or get any attention.
Petitions in the Victorian Parliament must be tabled by a member of parliament. The ability of a petition to effect change may depend on whether a member is willing to table it, who tables it, and their influence within parliament.
Parliaments receive hundreds of petitions each year and there is no guarantee or compulsion for the suggested law reform to be adopted.
Many petitions do not gain public and media attention after being tabled, especially if there is no other source of community pressure beyond the petition. This means valuable requests for law reform may be overlooked.
Opposing petitions (putting opposite points of view) and multiple petitions on the same topic can also reduce the impact of a petition.
Demonstrations
A gathering of people to protest or express their common concern or dissatisfaction with an existing law as a means of influencing law reform
Example:
Extinction Rebellion (XR) Australia is part of a global movement that uses non-violent civil disobedience to ‘disrupt business as usual’ to raise community awareness and demand governments act on climate change. Each year XR activists take part in a range of demonstrations or ‘disruptive civil disobedience rebellions’.
In October 2022, one month before the Victorian state election, XR Victoria began a two-week series of demonstrations (called the ‘Spring rebellion’) to demand the end of fossil fuel (gas, coal and oil) projects and logging in Victoria. XR climate activists took part in several demonstrations and activities throughout Melbourne and regional Victoria, including:
A demonstration at the National Gallery of Victoria where two activists glued their hands to a painting by world-renowned artist Pablo Picasso. The painting was protected by a hard plastic covering and was not damaged, but the controversial action resulted in police arrests and gained national and global media attention
A demonstration in the Melbourne CBD, during the 5.00 pm peak hour, where hundreds of XR activists, and activists from other climate action groups, marched together for climate justice
Activists took part in the Melbourne Fringe Festival with a float that included a ‘burnt koala’ puppet, saying they represented the koalas and other animals destroyed in the 2019–20 bushfires.
Explanation points:
Demonstrations are public rallies or protests, where groups of people gather together at a central location or locations to express their common concern or dissatisfaction with an existing law.
Demonstrations can be effective in generating an awareness for a need to change the law. For example, large, peaceful demonstrations attended by thousands or hundreds of thousands of people may demonstrate to parliament that the majority of people support a change in the law. This has happened in the past in relation to climate change and gender equality.
Demonstrations that attract large numbers of participants often attract media attention, which can generate further public support for the desired law reform. This is important because, in an attempt to make laws that reflect the views of the majority of the community, members of parliament are more likely to consider law reform that has strong support within the community.
Demonstrations can gain the support of members of parliament who want to ‘adopt a cause’ – particularly ones that might improve their public profile or image.
Demonstrations can alert and educate members of the community about social, economic, political and legal injustice and the need for law change. This can bring change over time.
Discussion points:
The number of people who attend a demonstration may affect its ability to influence law reform. For example, demonstrations with only a few participants may not generate any interest or awareness, or media attention. However, this may depend on the nature of the demonstration. For example, an original, creative, ongoing or controversial ‘small’ protest may gain the attention of the media.
The ability of a demonstration to influence law change may depend on the type or nature of the demonstration. For example: - demonstrations that cause public inconvenience, become violent or lead to breaches of the law may be less effective in generating positive media attention and the support of the community and members of parliament (who may prefer to associate themselves with positive campaigns, rather than ones that cause conflict, public inconvenience or violence). However, disruptive non-violent demonstrations that involve civil disobedience (e.g. forming a human blockade to prevent logging) may generate media attention and discussion, and persuade members of the community to consider various injustices and the need for law reform - demonstrations that are single events may not generate ongoing support for the desired law reform.
Demonstrations may focus on an injustice or issue that cannot be changed by parliament (e.g. a human rights issue in a country over which Australia has no authority or little influence), although they may attract global attention and have a longer-term influence.
Disorganised demonstrations, or demonstrations that have no clear call for action or messaging, may be less effective. Organised demonstrations, particularly those where there is a global movement or messaging, may have more of an impact.
Use of Courts
Explanation points:
Individuals and groups can influence a change in the law by challenging the validity, meaning or fairness of an existing law in the courts. A judge’s decision can lead to a change in the law or clarify the meaning of the law.
Challenging an existing law (either common law or statute law) in a superior court can clarify a vague or unclear law. For example, courts can expand or limit the meaning of legislation through statutory interpretation. Even if a court challenge is unsuccessful, it may gain significant media coverage that may generate community interest in the decision and the possible need to change a law.
Judges can rule that legislation made outside the power of the parliament (ultra vires) is invalid.
Judges’ decisions and comments made in court can encourage parliament to change the law.
Judges are politically independent and determine cases based on the facts and merit rather than for electoral concerns (i.e. the need to gain voter support).
Discussion points:
Courts are limited in their ability to change the law because they can only do so when a case is brought before them and only in relation to the issues in the case. This relies on individuals being willing to mount a court challenge – which requires them to have standing and be willing to pursue costly, time-consuming and stressful cases, with no guarantee of success.
With the exception of High Court disputes involving the interpretation of the Constitution, a judge-made law can be abrogated (cancelled) by parliament.
Judges must wait for a party to challenge the authority of parliament to legislate before they can make a ruling and declare legislation invalid. That party must also have standing.
Judges are unelected and their decisions and comments may not necessarily represent community views and values
Role of media (social media) and law reform
The way information is communicated to the public, including print media (e.g. newspapers and magazines), broadcast media (e.g. film, television, radio) and digital media, which includes media distributed through the internet and electronic devices (e.g. websites, emails and text messages, video games) and social media (e.g. online platforms and applications like Facebook, YouTube and Instagram)
Example:
Role of documentaries:
Used to raise community awareness and influence law reform.
Documentary Australia:
Not-for-profit supporting social-change documentaries; over 600 produced since 2008.
Examples:
KaChing! Pokie Nation (1.5M viewers) – highlights poker machine addiction → need for gambling law reform.
Blue (3M viewers) – exposes marine pollution/overfishing → need stronger environmental laws.
Dominion – focuses on animal cruelty in food, clothing, and entertainment industries; triggered activism and viewed 55,000 times in 48 hours in 2019.
Impact of TV programs:
ABC’s Four Corners and Nine’s 60 Minutes influence law reform.
2018: After Four Corners program Who Cares? revealed neglect in aged care, Commonwealth Government announced Royal Commission into aged care services one day before airing.
The episode was viewed by ~755,000 people; included hidden camera footage showing neglect, poor food, inadequate care, and loneliness in aged care facilities
Informing and raising awareness:
The media can inform people about social, political and legal issues and the need for law reform, and can also generate interest in, and awareness of, those issues or need
Assessing levels of community support:
The media can assist the parliament, government and political parties to assess the level of community support for law reform
Influencing community opinion on a change in the law:
The media can influence community views and opinions about social, political and legal issues and the need for law reform
Issues or limitations in the role of the media:
While the media has a role to play in law reform, some issues or limitations affect that role. Three of these are:
Media concentration
Risk of spread of misinformation
Use of algorithms online
VLRC
Victoria’s leading independent law reform organisation which reviews, researches and makes recommendations to the state parliament about possible changes to Victoria’s laws.
Roles:
Monitors and coordinates law reform activity in Victoria and investigates and advises the Victorian Government on ways to update and improve Victorian law
When conducting its investigations, the VLRC engages in community-wide consultation and debate to ensure its recommendations for changes to the law meet the needs and desires of the Victorian community
For example, the VLRC will respond to issues and concerns raised by individuals and pressure groups, and consider newly emerging rights and responsibilities
Functions of the Victorian law Reform Commission (VLRC)
Major inquiry
To examine and report on any proposal or matter referred to it by the Victorian Attorney-General and make recommendations to the Attorney-General for law reform. This includes conducting research, consulting with the community and reporting on law reform projects
Community inquiry
To investigate any relatively minor legal issues that the VLRC believes are of general concern within the community and report back to the Attorney-General with suggestions for law reform. This means that in addition to its main role of examining legal issues and matters referred by the Attorney-General, the VLRC can also examine minor matters or areas of law reform without a reference, provided the review will not consume too many of its resources. These investigations are called community law reform projects
Monitoring
To monitor and coordinate law reform activity in Victoria, including making suggestions to the Attorney-General that they refer a legal issue or matter relating to law reform to it for investigation. In other words, after consultation with various groups and other law-reform bodies, the VLRC may suggest to the Attorney-General new references relating to areas where law reform would be desirable
Education
To undertake educational programs and inform the community on any area of the law relevant to its investigations or references. This means the VLRC delivers programs to help inform the community about its work. One way the VLRC achieves this is by visiting schools throughout Victoria to talk to students about its role and past and current projects. It also provides a vast range of information about its investigations and references on its website.
VLRC processes used
Undertake initial research and consult experts in the law under review to identify the most important issues
Establish an expert panel or committee to provide advice to the VLRC about the subject matter of the inquiry
Publish a consultation paper (or issues paper) which explains the key issues in the area under review and poses questions about what aspects of the law should be changed, and how, for community consideration
Hold consultations and discussions with, and invite submissions from, parties who are affected by the area under review and members of the Victorian community. Submissions can be made in writing, online or by speaking to a Commission staff member. Members of the community may include interested individuals, groups and organisations. In particular, the VLRC will seek the views and opinions of people from marginalised groups such as those from non-English-speaking backgrounds, people with disabilities, First Nations people and people living in remote communities.
Publish a final report with recommendations for changes in the law. Depending on the requirements in the terms of reference, the VLRC may also publish an interim report during their inquiry which may focus on one particular aspect or area of the inquiry
Present the final report to the Attorney-General, who will then table it in the Victorian Parliament within 14 sitting days. The government may decide to implement some or all of the VLRC’s recommendations by incorporating them into a bill, but it is not bound (compelled) to do so, and there is no timeline for the government to respond.
Present VLRC projects - Inclusive juries
Inquiry start:
VLRC began the Inclusive Juries community law reform project in March 2020
Reason:
To investigate making juries more accessible for people who are deaf, hard of hearing, blind, or have low vision
Current law:
Under Juries Act 2000 (Vic), jurors must perform duties (understand/communicate, pay attention, follow judge’s instructions)
These people are not explicitly excluded, but in practice cannot serve due to restrictions on interpreters/support persons
Key barrier:
Common law ‘13th person rule’ - only 12 jurors allowed during deliberations → prevents interpreters/support persons entering the jury room
Reasons for reform:
Remove discrimination against those able to perform duties with support. Reflect contemporary values of inclusion
Ensure jury is representative of the community
Inquiry process:
14 submissions, 29 consultations (legal bodies + disability support orgs)
Online survey to gather views
Final report:
Tabled in Parliament in May 2023
51 recommendations to increase inclusivity
Key recommendations:
Judges must direct reasonable adjustments (e.g., Auslan interpreters, support persons, assistance animals, tech aids)
Modify 13th person rule to allow interpreters/support persons in jury room when ordered by court
Not included:
English language eligibility issue was outside terms of reference
VLRC ability to influence law change
Strengths:
As the Victorian Government asks the VLRC to investigate the need for law change in specific areas, the government may be more likely or willing to act on the VLRC’s report and recommendations.
The VLRC also has the power to investigate and make recommendations on minor matters or areas of law reform without a reference from the Attorney-General, which can lead to important law reform.
The VLRC can measure community views on areas of investigation by holding consultations and receiving public submissions, and then reflect them in its recommendations. This should increase the likelihood of the government implementing its recommendations, because, to maintain and increase voter support, governments generally implement law reforms that reflect the views of the people.
Weaknesses:
While the Government may support the VLRC’s recommendations, it may need the support of the crossbench to pass law reform through the Parliament, particularly if the government does not have a majority in the upper house. In addition, the law-making process is not always quick, so the recommendations may not be immediately implemented.
The VLRC is limited by how many projects it can undertake at a time, and can only initiate investigations without a reference if it will not consume too many resources (e.g. money, staff and time). Therefore, its ability to investigate issues without a reference from the Attorney-General is limited.
The VLRC’s investigations can be time-consuming. For example, inquiries may take 12 to 24 months.
Parliamentary committees
A small group of members of parliament who consider a report on a single subject in one or both houses
Committee members can come from any part
Processes used by parliamentary committees
Receives the terms of reference that specify the precise purpose of the inquiry, the specific issues that must be investigated and the date by which the final report must be completed.
Publicises its terms of reference and seeks input from interested individuals, experts, groups and organisations within the community, via written submissions. This includes advertising in broadcast media such as newspapers, and using digital media, including social media.
Undertakes public (or on occasion private) hearings. This involves the committee inviting a range of people (e.g. experts in the matter under review and representatives from different interested groups and organisations) to provide their input, give evidence relating to the matter under investigation and answer specific questions from committee members. Most committees have the power to call or require certain individuals and experts, like people who work in government departments, to give evidence, answer specific questions and explain their actions. If a person who is called to give evidence to a committee refuses to attend or answer specific questions, they can receive a formal reprimand or some other form of penalty.
Prepares a written report once all the submissions have been received and considered, and all hearings have concluded. The report will contain recommendations for law reform or actions and will be presented to the parliament for consideration. Generally all written submissions and hearings are published in Hansard and made public on the parliament’s website.
Types of parliamentary committees
Standing committees |
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Select committees |
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Joint investigatory committees |
• Scrutiny of Acts and Regulations Committee • Integrity and oversight Committee • Public Accounts and Estimates Committee. |
Domestic committees |
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Recent inquiries (online gambling)
In October 2022 the House of Representatives Standing Committee on Social Policy and Legal Affairs (the Committee) was asked by the House of Representatives to conduct an inquiry into, and report on, online gambling and its impact on those experiencing gambling harm
In accordance with the terms of reference, the Committee was required to investigate a range of areas including: (Know an overview)
the impact of and harm caused by online gambling
the effectiveness of existing protections that aim to reduce the harm caused by online gambling
the need to change the Interactive Gambling Act 2001 (Cth), which governs online gambling in Australia, so that it includes a wider range of ‘gambling-like’ activities such as gambling in online video games via ‘loot boxes’ and social casino games
the effectiveness of counselling and support services to address online gambling
ways to better target programs to address the harm caused by online gambling
The inquiry process:
The Committee began a consultation process so that interested individuals and organisations could share their experiences of the harm caused by online gambling and offer suggestions to address the issues raised by online gambling as outlined in the terms of reference
As part of this process the Committee received 161 written submissions from interested individuals and groups including community health experts and medical organisations (like the Australian medical Association), academics, members of parliament, sporting bodies (like Racing Victoria and the Australian Football League) and gambling companies (like Sportsbet)
To protect privacy, interested parties could also make submissions in confidence, with names withheld
The Committee also held 13 days of public hearings to allow individuals and organisations to provide a detailed account of their experiences and suggestions for legal change
The public hearings also provided the Committee with the opportunity to question organisations, such as the Alliance for Gambling Reform, about their specific recommendations for law reform
For example, the Committee discussed with the Alliance for Gambling Reform its recommendation to ban gambling advertisements in broadcast media (including television and radio) and introduce a national body to regulate gambling
Recommendations:
To better regulate advertising and online gambling (limits)
Ban certain forms of advertising
Public education programs
Strengths and Weaknesses of Parliamentary Committees
Strengths:
Committees can investigate a wide range of legal, social and political issues and concerns and report back to the parliament about the need for law reform
Parliamentary committees have the power to request that specific individuals and representatives of organisations appear at hearings to give evidence and answer questions, which enables them to gain extensive and valuable information for their consideration
Committees can examine issues more efficiently (i.e. more quickly, economically and in greater detail) than having the entire parliament involved in the investigation
Weaknesses:
Due to limited resources (e.g. funding and time constraints on members of parliament) a committee cannot be formed to examine all issues and concerns
Committees are restricted to examining matters and issues within the scope of the terms of reference
Committee investigations can be time-consuming and costly
Similarities and differences between VLRCs and parliamentary committees
Similarities:
Law Reform Focus: Both VLRCs and parliamentary committees play a role in reviewing and suggesting changes to the law
Community Input: Both bodies often engage with the public and stakeholders through consultations and submissions
Reporting: Both types of bodies produce reports with recommendations for law reform or policy changes
Differences:
Independence: VLRCs are independent of government and political influence, while parliamentary committees are made up of members of parliament
Scope:VLRCs tend to have a broader focus, examining a wider range of legal issues, while parliamentary committees focus on specific policy areas or government performance
Powers: VLRCs have limited powers to compel evidence or subpoena witnesses. Parliamentary committees have more extensive powers to summon witnesses and require evidence
Decision-Making: VLRCs make recommendations on law reform, but the government ultimately decides whether to implement them. Parliamentary committees can also make recommendations to parliament, which then decides on action
Political Influence: VLRCs are designed to be free from political influence, while parliamentary committees are inherently part of the political process
Reasons for Constitutional Reform
To recognise Australia’s First Nations people
To increase the protection of rights
To change the Commonwealth’s law-making powers
To reform Australia’s political system
Recognise First Nations people
The recognition in the Australian Constitution of First Nations people has been the subject of much debate in the past. There is no mention of Australia’s First Nations people in the Constitution, nor is there any recognition of the fact that First Nations people have been living on the continent for at least 65 000 years, long before European colonisation in the late 1700s. In fact, as you will learn later in this chapter, before 1967, the Australian Constitution expressly did not recognise First Nations people as part of the Australian population. Instead, it left policies and law-making in relation to Aboriginal and Torres Strait Islander people to the states rather than the Commonwealth. This led to inconsistencies in the laws across individual states. Over the years, there have been calls for the Australian Constitution to be amended to recognise First Nations Australians.
Two of the changes proposed have been:
To establish a First Nations Voice to Parliament. This would have been a body enshrined in the Constitution to allow First Nations people to provide advice to the Commonwealth Parliament on policies or laws that impact directly on First Nations people. The body would have been chosen by First Nations people and been representative of First Nations communities, working alongside existing organisations and structures.
To honour and recognise First Nations people in the Constitution. For example, in the 1999 referendum (which you will explore later in this chapter), there was a proposed change to insert a ‘preamble’ (an introductory statement) to the Constitution. Part of this preamble sought to honour ‘Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’. The 1999 referendum was not successful.
Increase protections of rights
There are five express rights in the Australian Constitution
These impose limits or restrictions on what laws the Commonwealth Parliament can make. For example, under section 116 of the Constitution, the Commonwealth cannot prohibit or impose religious practice
This acts as a form of protection of freedom of religion
However, the express rights in the Australian Constitution are better described as restrictions on law making, rather than positive rights or freedoms
It is broadly accepted that the number of rights protected by the Australian Constitution is limited, with many of the rights themselves being narrow in scope
Most rights in Australia are therefore protected by statute law or common law, rather than by the Australian Constitution
These include freedom of thought, speech, assembly and movement
There have been calls to change the Australian Constitution to protect basic democratic freedoms, or to clarify or broaden the existing express rights
Some have suggested that Australia should incorporate a bill of rights into the Australian Constitution, which would be a specific list of rights similar to the United States Bill of Rights
One of the most intense debates in Australia is in relation to the right to freedom of speech
Change division of powers
Law-making powers are given to the Commonwealth and states, which can limit the ability of parliaments to create law. The Commonwealth Parliament has exclusive powers
and concurrent powers, and the states have concurrent powers and residual powers. In the past, the Commonwealth Parliament has sought to change the Australian Constitution to provide it with more power. Some of these were in response to High Court decisions which held that the Commonwealth did not have specific power to legislate in relation to certain matters.
Listed below are some examples of past referendums where the Commonwealth sought to increase its powers:
In 1911, the Commonwealth proposed to change the Constitution to extend its power to control companies, labour and employment (including wages and conditions). The Commonwealth argued these were national issues that should be regulated at a federal level. The proposal was not passed. An almost identical reform was also put in 1913, but again, it did not pass.
In 1919, the Commonwealth sought to alter the Constitution to extend its powers in relation to air navigation and aircraft. Commercial air navigation and aircraft did not exist at the time the Constitution was drafted. The High Court held that the parliament did not have general power over aviation, and so a proposal was put to the people. The proposal did not pass.
In 1946, a proposal to change the Constitution was put to give the Commonwealth the power to legislate on a wide range of social services. This included in relation to unemployment benefits, medical and dental services, benefits to families and students, and parental leave allowances. This was because a High Court case found that the Commonwealth did not have the power to legislate in relation to these areas, but had already done so despite not having any power. The proposal was successful.
All the above examples are situations where the Commonwealth sought to increase its law-making powers. However, there have also been suggestions to change the Australian Constitution to decrease the Commonwealth’s law-making powers. For example, there have been calls to repeal (remove) section 51(xxvi) of the Constitution (known as the race power), which gives the power to the Commonwealth to make laws for the people of any race for whom it is deemed necessary to make special laws. Previously, this power has been identified as potentially allowing the Commonwealth to make laws that negatively discriminate against certain races. If the race power were removed, the Commonwealth’s law-making powers would be reduced or decreased.
Reform our political system
A final reason why there may be a need to change the Australian Constitution is to reform our political system. In particular, there have been suggestions to change the Constitution in relation to the timing of federal elections, to allow more people to be members of the Commonwealth Parliament, and to substantially change our political system so that it becomes a republic.
Timing of federal elections:
Under the Constitution, the term of the House of Representatives is a maximum of three years, but it can be dissolved sooner by the Governor-General
That is, the Constitution only allows for maximum terms and the Prime Minister of the day can call elections whenever they choose prior to that maximum term
Other parliaments around the world have longer terms, with one estimate noting that only about 10 per cent of parliaments globally have three-year terms. Members of the Senate are elected for a fixed term of six years.
A referendum held in 1988 tried to change the Constitution to increase the term of the House of Representatives to four years, and to reduce the term of the Senate from six years to four years
The referendum failed, In 2004, a parliamentary committee recommended that the federal parliamentary term for the House of Representatives be extended to four years
Some argue that this would encourage the making of long-term policy decisions and would enhance business confidence
It would also save resources that are otherwise spent on the number of federal elections that need to be held
Moving to a longer term, and a fixed-year term, may also stop elections being held at a time that is convenient for the federal government, that is, when the political climate suits them to hold an election
Allow more people to be eligible to sit in parliament:
Australia is one of the world’s most multicultural, multifaith societies
At times, there has been criticism that those who represent the people in parliaments do not reflect the broader composition of our society
A key part of the Constitution that restricts who can sit as a member of the Commonwealth Parliament is section 44(i), which provides that a person cannot sit as a member if they are ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’.
Said another way, section 44 prevents dual citizens or dual nationals (people who have citizenship in Australia and one other country) from being members of the Commonwealth Parliament
Whether a person is a dual national depends on the laws of that particular country
A country could consider a person a national even if the person does not accept it or is not aware of it, such as where the person has a parent who is a national of that other country
In 2017, the High Court had to determine whether some members of parliament were invalidly elected because of section 44. Indeed, some members of parliament who were involved in the High Court case did not even know they were technically incapable of sitting as a member of parliament
This issue is explored in the scenario on the following page.
There have been calls to change the Australian Constitution to delete section 44(i) or to amend it to clarify its effect
Some have called for it to be clarified to require candidates to be Australian citizens, but to allow parliament to legislate to determine disqualification where a person has foreign allegiance as a result of their ancestry
This could potentially allow more people to be eligible to sit as a member of parliament.
There have been calls to change the Australian Constitution to delete section 44(i) or to amend it to clarify its effect
Some have called for it to be clarified to require candidates to be Australian citizens, but to allow parliament to legislate to determine disqualification where a person has foreign allegiance as a result of their ancestry
This could potentially allow more people to be eligible to sit as a member of parliament
Allow more people to be eligible to sit in parliament:
Australia is one of the world’s most multicultural, multifaith societies
At times, there has been criticism that those who represent the people in parliaments do not reflect the broader composition of our society
A key part of the Constitution that restricts who can sit as a member of the Commonwealth Parliament is section 44(i), which provides that a person cannot sit as a member if they are ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’.
Said another way, section 44 prevents dual citizens or dual nationals (people who have citizenship in Australia and one other country) from being members of the Commonwealth Parliament
Whether a person is a dual national depends on the laws of that particular country
A country could consider a person a national even if the person does not accept it or is not aware of it, such as where the person has a parent who is a national of that other country
In 2017, the High Court had to determine whether some members of parliament were invalidly elected because of section 44. Indeed, some members of parliament who were involved in the High Court case did not even know they were technically incapable of sitting as a member of parliament
This issue is explored in the scenario on the following page.
There have been calls to change the Australian Constitution to delete section 44(i) or to amend it to clarify its effect
Some have called for it to be clarified to require candidates to be Australian citizens, but to allow parliament to legislate to determine disqualification where a person has foreign allegiance as a result of their ancestry
This could potentially allow more people to be eligible to sit as a member of parliament.
There have been calls to change the Australian Constitution to delete section 44(i) or to amend it to clarify its effect
Some have called for it to be clarified to require candidates to be Australian citizens, but to allow parliament to legislate to determine disqualification where a person has foreign allegiance as a result of their ancestry
This could potentially allow more people to be eligible to sit as a member of parliament
Becoming a republic:
There have been calls to change our political system to make Australia a republic
This would mean having an Australian person selected as the head of state instead of the British monarch (King)
In 1999, there was a proposal to make Australia a republic. This failed to win majority support in any state of Australia
Despite this, many Australians believe that a modern Australia should formally remove its ties to the monarch
As of 2023, a proposed referendum on a republic was being explored by the federal government
Double Majority
A voting system that requires a national majority of all voters in Australia and a majority of electors in a majority of states (i.e. a majority of voters in at least four states) to vote in favour of a proposal
A double majority is required for a change to be made to the wording of the Australian Constitution at a referendum
Parliamentary process
Any proposed change to the Australian Constitution must first be introduced and passed in the Commonwealth Parliament
Therefore, the Commonwealth Parliament has the overall power to decide whether to introduce a change to the Constitution
A bill is prepared, which will set out the proposed alteration to the Constitution
It is written as a constitutional alteration bill; for example, the Constitutional Alteration (Rights and Freedoms) 1988 (Cth)
The bill must be passed by an absolute majority of both houses of parliament
If that occurs, between two and six months after the passage of the bill through the House of Representatives, the proposal must be submitted to voters
If either house passes the bill by an absolute majority (over 50 per cent of the house), and the other house rejects or fails to pass it, after three months the first house can once again pass the bill by an absolute majority
If the bill is again rejected by the other house, the Governor-General may submit the proposed change to voters
Bipartisan support
Bipartisan support refers to support or approval by two or more political parties; in Australia, it usually means support from the two major political parties.
A referendum is most likely to succeed if it has the support of all major political parties at Commonwealth and state levels. If the opposition leads a ‘no’ campaign, then voters may be faced with two strong opposing campaigns. Voters may also look to guidance from their preferred political parties.
The position of the state premiers and political parties may also influence voters’ views, which can then affect whether the majority of voters in the majority of states vote ‘yes’
The 1999 referendum demonstrates the impact on the vote if there is a strong ‘no’ case, as opposed to the 1967
Voter change
The success of any referendum proposal depends on whether the people themselves support and ‘own’ the change, or whether it is owned and supported by the government itself.
If voters themselves are driving the change, then there may be a greater willingness to vote ‘yes’. For example, the 1967 referendum was seen to be a ‘people’s movement’, in that it was driven by the people after decades of First Nations people agitating against discrimination and unfair treatment, as well as advocacy by some non-Indigenous people.
In contrast, if the government itself is owning or driving the change, voters may be more cautious. If the proposal involves an increase in Commonwealth power, the states might encourage the voters in their state to vote ‘no’.
There may be a mistrust of politicians, where voters perceive that they are only seeking to reform the Constitution to enhance their own power.
Nature of a proposal
The nature of the proposal – whether it is simple and straightforward, or complex – can also impact on success.
The double majority provision in the Constitution is difficult to achieve, and the successful changes to the Constitution have been limited to proposals where there is overwhelming public support. These have been non-controversial in nature, such as allowing people in the territories to vote in referendums, and having judges in the federal courts, including the High Court, retire at the age of 70 (1977 referendum). The proposals that have succeeded have generally been straightforward in nature.
Where multiple options for change are debated in the media, the ‘yes’ vote can be lost because the majority of voters decide to vote ‘no’ if they prefer an alternative model that has been presented by the ‘no’ case.
Education about the proposal
The Australian Constitution is rarely the subject of mainstream media analysis, which creates challenges when voters are contemplating change.
A strong education campaign in the lead-up to the referendum is required, with strong messaging about the need for change. The booklet sent out must also be clear and straightforward.
The Commonwealth funds an education program on the arguments for and against the proposal to ensure that voters can make an informed choice.
The booklet for the 1999 referendum was seen by some as difficult to understand; this contrasts with the 1967 referendum, which contained a clear message.
Given the lack of awareness about the Constitution, public debate can sometimes be side-tracked by irrelevant issues that serve only to confuse voters.
1967 Referendum
Background:
The 1967 referendum opened the door for the Commonwealth Parliament to make laws in relation to Aboriginal and Torres Strait Islander people to better meet their needs and to pass reforms such as the Native Title Act 1993
It also allowed for Aboriginal and Torres Strait Islander people to be included in the Census which allows the Federal Government to budget for current and future expenditure for Aboriginal and Torres Strait Islander communities
Statistics:
90% of voter population voted ‘Yes’ (highest) and majority of states (6/6 states) voted ‘Yes’
Significance:
Prior to the referendum, law-making in relation to First Nations people was left to the state governments, this led to inconsistent laws and was also seen as discriminatory
The success of this referendum demonstrated the shifting attitude of the Australian people and a shift towards recognising them as part of the population
Including First Nations people in the Census (as they are no longer classified as flora and fauna) allowed for the Federal Government to budget for spending in Aboriginal and Torres Strait Islander communities
It opened the pathways for the Federal Government to establish government agencies for Aboriginal and Torres Strait Islander affairs and to pass the Native Title Act 1993
Ability of the Australian People to change the Australian Constitution in 1967
Explanation points:
In 1967, a referendum was put to the people about whether to change the Australian Constitution in relation to Aboriginal people. The change would have allowed the Commonwealth to make laws about First Nations people (when it otherwise did not have this head of power), and First Nations people to be formally counted in state and national populations.
The proposed change was unanimously passed in the Commonwealth Parliament.
The 1967 referendum achieved the double majority requirement, with an overwhelming number of voters voting in favour, and a majority of voters in all states voting in favour of both proposals for change.
The 1967 referendum outcome led to a key reform that allowed the Commonwealth to legislate in an area that was once a residual power, that is, in relation to First Nations people.
The outcome allowed First Nations people to be formally counted in state and national populations, thus ensuring that federal electorates and the distribution of Commonwealth tax revenue were determined using actual population counts that included First Nations people
The outcome showed that constitutional change is possible, and that the Australian people significantly influence that change, in both campaigning and voting
Discussion points:
The overwhelming support for the proposal may have been influenced by the fact that the people ‘owned’ this proposal; it had resulted from a decades-long battle by First Nations people against the discrimination in these constitutional provisions. However, if there was no ‘ownership’ of this proposal and it was driven in part by politicians, people may have been less willing to support it because of distrust or a level of cautiousness.
Although the Australian people can change the Constitution, they cannot necessarily force the Commonwealth to change laws. The Commonwealth did very little in this policy area for some time, even though the very high level of support across all states sent a clear message to the Commonwealth that it needed to act to address discrimination and inequality faced by First Nations people.
The unanimous support from parliament ultimately meant that no ‘no’ case was presented to voters. This meant that voters were not faced with two strong, opposing campaigns; rather, there was bipartisan support and a unified, simple message about why change was needed. Had there been no bipartisan support, it is possible the results would have looked different.
At the same referendum, there was another proposal that would have allowed for the number of House of Representatives members to be increased without increasing the number of Senators. The failure of this proposal shows that while voters can embrace one proposal, they can reject another on the same day, which suggests that the public can consider multiple issues at the same referendum and arrive at different outcomes.
The proposal was about a matter that was arguably easy to understand. Had the question asked been different, or additional matters been included in the proposal, then it is possible this may have impacted on how people voted.
Future Constitutional Reform - The Voice
Proposed constitutional recognition of First Nations peoples
Would establish an Indigenous advisory body (The Voice) to advise Parliament and government on laws/policies affecting Indigenous Australians
Requires referendum under s.128.
Arguments For:
Promotes recognition and respect for First Nations peoples
Gives Indigenous Australians a greater say in decisions that affect them
Could lead to better policy outcomes
Symbol of reconciliation and unity.
Arguments Against:
Critics feared it might divide Australians by race
Concerns it could become a third chamber of Parliament
Lack of clarity on powers and roles
Difficulty of passing a referendum (historical precedent)
2023 Referendum:
Proposal: Constitutional recognition + Indigenous Voice to Parliament
Result: Defeated – failed to achieve double majority
Reasons: Public uncertainty, lack of bipartisan support, misinformation.
Reform Process (if revisited):
Proposal → Referendum (double majority) → If passed, amend Constitution
Future Constitutional Reform - Becoming a Republic
Replace British monarch with Australian head of state.
Requires referendum under s.128
Arguments For:
Strengthens national identity
Democratic – Australian chosen by Australians.
Modernises Constitution.
May allow greater Indigenous recognition
Arguments Against:
Current system provides stability
No agreement on model (elected vs appointed)
Expensive/complex to change
Referendum success is rare
1999 Referendum:
Proposed parliamentary-appointed president.
Defeated (55% No, 45% Yes) due to disagreement & status quo preference.
Reform Process:
Proposal → Referendum (double majority) → If passed, amend the Constitution.