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Contents
“Yes” and “No” cases during the referendum.. 5
Why a referendum must be used in altering the Australian constitution. 6
Introduction
The procedure that should be followed in amending the Australian constitution is outlined in section 128. The procedure requires the Commonwealth Parliament to pass a bill that proposes the alteration. Alternatively, the house of the Parliament can pass such a bill by one twice. Next, a popular vote or referendum should be held in order to seek the approval of a majority of Australians as well as by State majority in more than half of all the States. Since Australia is made up of six states, majorities are required in four of them. The Australian Capital Territory and the Northern Territory should not be counted for purposes of these referenda. Upon approval, the Governor-General assents to the bill.
Order Political Science Paper
In the second-last paragraph, section 128 provides a provision for certain types of proposals to be accorded approval by the majority of the people in all the states that are affected by them. In practice, some instances provide for a situation whereby majorities are required to approve the proposal in all states.
However, this is a special procedure that applies whenever the proposed changes would reduce the proportion of representation of states in either House in the Commonwealth Parliament. A good example of this scenario is a proposal to change the rule that guarantees every state an equal representation in the Senate.
Approval of the majority of people in all states may also be sought when the suggestions made involve lessening the minimum number of all the representatives from every state in the House of Representatives, which presently stands at five. Similarly, this rule is adopted during alteration of State boundaries or the creation of changes in the constitutional provisions that affect how the State boundaries are defined.
It would be necessary for majorities to be obtained in all the States of the Commonwealth in order for Section 128 itself to be amended. This section does not make any provision for majorities in all the States in order for the constitution to be altered with the aim of creating a republic. Although arguments are often made on this issue, it appears as if these changes could be accorded approval by majorities in only four out of the five states. However, in practice, the obvious desire would be for all the people in all the states to approve of such drastic changes.
What is a referendum?
A referendum is a ballot question, direct vote or plebiscite whereby the entire electorate is required to either accept or reject a proposal to alter a certain provision. The provision could involve the enactment of a new constitution, amending the constitution, a law, or recalling an elected official or simply a certain government policy. Therefore, the referendum is a prototypical form of direct democracy.
In the Australian constitution, citizens have a democratic obligation to take part in referendums since they determine the way they should be governed. Sometimes a referendum may be initiated by a legislature or even by the citizens themselves through a petition. The process through which a referendum is initiated by petition is referred to as a popular or citizen’s initiative.
In Australia, referendums are neither mandatory nor binding. However, a written convention exists to the effect that certain provisions need to be put in a referendum and that the outcome of such referendums will be respected.
No part of the Australian Constitution can be amended without the approval being made through a referendum. The process of holding such a referendum is a lengthy one, requiring first the creation of a bill in both houses of parliament before the opinions of the citizens can be sought.
Once the referendum has been conducted, Royal Assent is needed, whereby the Governor-General gives it in the Queen’s name. non-constitutional referendums in Australia are usually referred to as plebiscites owing to the specific mentions of various referendums in the country’s constitution.
There is no other way of altering the text contained in the Australian constitution other than through the referendum process that is set out in Section 128. The interpretation of the high court is necessary for determining the matters that should be subjected to a referendum.
There is a remote possibility that one of the Australian Acts, section 15 can be used to amend the constitution, merely through an agreement between Australian parliaments and governments. However, powerful legal arguments against this interpretation exist, let alone many other political ones that are even more powerful. It is highly likely that a public outcry would result if any attempts were made to amend the constitution without a referendum being held.
The opening words in section 128 refer specifically to changing ‘this constitution’. The use of these words raise doubts on whether this section can be used to effect alterations to the covering clauses and the preamble, which do not form part of the constitution.
It appears that there is an ‘incidental’ power that is attached to the section, which makes it possible for its referendum procedure to be used for purposes of amending the covering clauses as well. The alternative to this would be amending section 128 itself in order to extend its application to the covering clauses as well as the preamble[1].
The referendum procedure for altering the constitution makes it critical for all Australian voters to understand clearly all the issues for themselves. Since voting is compulsory, it extends to everybody. The Australian government is obliged to make information about the constitution available to the people for them to understand the relevance of the issues that are often addressed in referendums. This includes the type of information that is made available to the electorate whenever a referendum is about to be held.
“Yes” and “No” cases during the referendum
The current referendum requirements are provided for in the Referendum (Machinery Provisions) Act 1984. This Act makes provision for a short case, that is, “for and against” a certain proposal for constitutional alteration to be prepared by all Members of Parliament who participated in voting for and against the bill when it was going through parliament.
In case nobody votes against such a proposal, there, a no “No” case will be set up. Then, the “Yes” and “No” cases need to be distributed to all voters by the Electoral Commission. This is the only information that voters receive officially.
The parliament is mandated with the task of prescribing how referendum votes will be taken. Since the Referendum (Constitution Alteration) Act 1912 (No. 2), most referenda have been conducted in such a manner that each elector is given pamphlets that contain arguments in favor of or against the proposal upon which he should vote.
In normal cases, these arguments should be constituted by more than 2000 words and have to be approved by a majority of the members of parliament who in favor of or against the proposed law. When more than one referendum is being carried out within the same day, a given argument may contain more than 2000 words, as long as YES and NO arguments do not average to more than 2000 words.
In some instances, NO arguments fail to be produced, for instance during the 1967 referendum. During this referendum, only a YES argument was produced with regard to the Aborigines amendment, even although many arguments in support of and against the Nexus alteration were given. According to the provisions of the Referendum (Machinery Provisions) Act 1984 (s. 11), such arguments have to be submitted to each voter as they are produced, within 14 days before the referendum voting day.
In typical cases, NO cases are often argued by various informal groups of people, often rallying together with opposition politicians. On the other hand, YES cases tend to be sponsored by the government.
Why a referendum must be used in altering the Australian constitution
A referendum is a critical form of direct democracy in Australia. Referendums give the electorate a chance to participate in the democratic transitions that take place in their country. The referendum provides Australians with the surest bet that their views always count with regard to the way they are the government. The section that guarantees this right (section 128) is a durable one since it has been amended only once its century-long existence.
Out of the 44 referendums that Australians have held, only 8 have resulted in a YES outcome. This implies the reluctance among Australians to change the way in which their country is governed. The negligible judicial attention that has been accorded to the section despite several ambiguities also hints at the powerful role it plays in safeguarding the permanency of the constitution(Bennett &Brennan,2000).[2]
The commonwealth reserves the monopoly to initiate any referendum, through passing a bill that alters the constitution. It is not possible for state legislatures to initiate any alteration of the constitution. The ‘double majority’ process endows states with a small population with a rather disproportionate capacity to oppose plays by the Commonwealth Government.
From the perspective of maintaining a united Australia, denying states of the power to initiate changes to the constitution appears to be a necessary measure. This ensures that sobriety is always maintained whenever changes are being made to the structures of government.
The fifth paragraph, clause four, raises the bar rather high for certain referenda that are directed at states. For instance, an amendment that seeks to shift the boundaries of a given state automatically seeks to diminish its nature of representation in either house or alters any constitutional provision regarding the States has to secure a majority in the State that is affected. For this reason, the referendum is an essential yardstick of determining the will of the people.
A referendum forms a strong link between the government and the people. Section 128 contains the ‘deadlock provision’ by giving the Senate something that it lacks in an otherwise similar provision contained section 57. This provision is necessary for ensuring that no referendum is held without the agreement of the government. The provision underscores the integral role of a referendum with regard to both the government’s executive exercises and the role of House of Representatives.
The values of participatory democracy were entrenched into the constitution during the drafting process during the 1890s. The concept of participatory democracy replaced the previous model, which was based on the indirect method based on the US system of electing delegates to various state conventions.
The referendum brings to the public awareness of how their government operates. For instance, prior to the first amendment (1906 Senate Elections), few Australians knew how senator terms are often rotated. Indeed, all the eight successful amendments that have made to the Australian constitution have drastically transformed Australian society.
Protection of the constitution remains the key issue that the makers of the constitution had in mind when they raised the hurdle of amending it too high through the provision for a referendum. It appears that they succeeded in this goal considering the overwhelming number of times that alterations to the constitution have been opposed by the electorate.
The provisions have made it impossible for people with vested political to marshal the support of the majority of the people in order to alter the constitution for their own selfish interests. The main difficulty has been securing 50% of votes nationally for the YES case.
Conclusion
In summary, for the past century, section 128 has ensured that the Constitution of the Commonwealth of Australia altered only through a referendum. Indeed, this has happened 8 times since 1906. The double majority process in the constitution makes it rather difficult for alterations to be made to the constitution. This makes a referendum an essential tool of ensuring the stability of the governance structures as described in the country’s constitution.
There are many reasons a referendum is a must-use procedure whenever proposals for alterations to the constitution are sought. First, section 128 introduced a powerful aspect of direct democracy, whereby people participate in decisions that impact on their lives. Secondly, the transition from an indirect democracy to participatory democracy was crucial in defining the Australian nation in unique terms compared to the United States and Canada, which still use the indirect system of electing delegates into different state conventions. Therefore, the existing ambiguities in Section 128 are likely to continue being denied judicial attention in order to safeguard the referendum as the only way through the constitution can be amended.
References
Bennett,
S. &Brennan, S. (2000)Constitutional Referenda in Australia: Research
Paper 2 1999-2000, Melbourne: Politics and Public Administration Group
[1] Chapter VIII of the Constitution of the Commonwealth of Australia
[2] Bennett, S. & Brennan, S. (2000) Constitutional Referenda in Australia: Research Paper 2 1999-2000, Melbourne: Politics and Public Administration Group
