Constitutional Amendment in Australia

Introduction

The amendment of the Australian Constitution is governed by s 128, which establishes a rigid amendment procedure requiring approval at a referendum before any constitutional alteration can take effect. The provision reflects the federal compact: not only must a majority of all electors voting nationwide approve the alteration, but a majority of electors must approve in a majority of States (that is, at least four of the six States). This “double majority” requirement is designed to ensure that constitutional change has broad community support and cannot be imposed by the more populous States against the will of the smaller States. Since Federation in 1901, only 8 of 44 referendums have been successful, making the Australian Constitution one of the most difficult in the world to amend.

The Section 128 Procedure

Section 128 establishes a two-stage process for constitutional amendment. The first stage requires the passage of a Constitutional Alteration Bill through the Commonwealth Parliament. The bill must be passed by an absolute majority of both Houses of Parliament (a majority of the total number of members of each House, not merely a majority of those present and voting). If the bill is passed by one House but rejected by the other, and after an interval of three months the same bill is again passed by the first House and again rejected by the other, the Governor-General may submit the proposed law to the electors without the approval of the second House. Alternatively, if one House passes a bill and the other rejects it, the Governor-General may dissolve both Houses simultaneously (a double dissolution) and, if the bill is again passed by the new House of Representatives and rejected by the new Senate, the bill may be submitted to referendum.

The second stage is the referendum itself. The proposed law must be submitted to the electors in each State and Territory. Votes in the Territories count only towards the national majority, not towards the State majority requirement. For the referendum to succeed, the proposed law must achieve: (1) a majority of all formal votes cast nationwide (the national majority), and (2) a majority of formal votes in a majority of States (four out of six — the State majority). If these requirements are met, the proposed law is presented to the Governor-General for royal assent and becomes part of the Constitution.

The Referendum (Machinery Provisions) Act 1984 (Cth) governs the conduct of referendums. It provides for the appointment of a “yes” case and a “no” case committee, each entitled to public funding and the distribution of argument to electors. A “yes” case pamphlet and a “no” case pamphlet are prepared and distributed to all households. The Act also regulates the campaign period, the voting procedures, and the counting of votes.

History of Referendums

Since 1901, 44 referendums have been held, proposing 44 constitutional alterations. Only 8 have been successful. This low success rate reflects both the difficulty of the s 128 requirements and the conservative voting patterns of the Australian electorate. The following referendums have succeeded:

1906 — Senate elections: altered s 13 to change the timing of Senate elections (the first referendum, unopposed).

1910 — State debts: altered s 105 to confirm Commonwealth power over State debts taken over before Federation.

1928 — State debts: inserted s 105A, establishing the Loan Council and the financial agreement between the Commonwealth and States.

1946 — Social Services: inserted s 51(xxiiiA), empowering the Commonwealth to provide a wide range of social services, including unemployment benefits, family allowances, and medical and dental services.

1967 — Aboriginals: altered s 51(xxvi) to remove the exclusion of Aboriginal people from the race power, and deleted s 127 which excluded Aboriginal people from the census. This referendum achieved the highest “yes” vote of any Australian referendum, with 90.8 per cent approval nationwide and a majority in all six States.

1977 — Senate casual vacancies: altered s 15 to require that a casual Senate vacancy be filled by a person from the same political party as the original Senator.

1977 — Territory votes in referendums: altered s 128 to allow Territorians to vote in referendums.

1977 — Retirement of judges: altered s 72 to require judges to retire at age 70.

Failed Referendums

Many significant proposals for constitutional change have failed. The 1999 Republic referendum asked two questions: whether Australia should become a republic with a President appointed by a two-thirds majority of Parliament, and whether a new preamble should be inserted. The republic question was defeated nationally (45.13 per cent “yes”), with only the Australian Capital Territory voting in favour. The preamble question was also defeated (39.34 per cent “yes”).

The 2023 Voice to Parliament referendum proposed to establish an Aboriginal and Torres Strait Islander Voice to advise the Parliament and Executive Government on matters affecting Indigenous Australians. The proposal was defeated nationally with 39.9 per cent “yes” and failed to secure a majority in any State except Victoria. The defeat was attributed to a combination of factors, including concerns about the legal implications of the Voice, the lack of detailed design, and a well-organised “no” campaign.

Other notable failed referendums include the 1913 referendums (six proposals, all defeated), the 1973 referendums (four proposals on prices, incomes, democratic processes, and local government, all defeated), and the 1988 referendums (four proposals including parliamentary terms, fair elections, trial by jury, and local government, all overwhelmingly defeated).

The Referendum Machinery

The referendum process is administered by the Australian Electoral Commission (AEC), which is responsible for the conduct of the ballot, the distribution of “yes” and “no” cases, and the counting of votes. The AEC also conducts a civics education campaign to inform electors about the proposed alteration. The “yes” and “no” cases are prepared by members of Parliament who support and oppose the proposal and are distributed to all households as a pamphlet, together with a statement of the proposed constitutional alteration.

The voting system is the same as for federal elections: voting is compulsory for all enrolled electors, and the ballot paper asks electors to vote “yes” or “no” to the proposed alteration. The votes are counted separately for each State and Territory, and the results are declared by the AEC.

Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

The ongoing debate about the constitutional recognition of Aboriginal and Torres Strait Islander peoples has been a persistent feature of Australian constitutional discourse. The 1967 referendum removed discriminatory provisions but did not provide positive recognition. The 2023 Voice referendum sought to establish a representative body but did not include broader recognition. The Uluru Statement from the Heart (2017) called for a Voice to Parliament, a Makarrata Commission for agreement-making, and a truth-telling process. The defeat of the 2023 referendum has not resolved the question of constitutional recognition, and the issue remains a subject of ongoing political and scholarly debate.

Manner and Form of Referendums

Section 128 does not prescribe the form of the referendum question, the details of the campaign, or the procedures for the submission of the “yes” and “no” cases. These matters are regulated by the Referendum (Machinery Provisions) Act 1984 (Cth), which gives the Parliament broad discretion to determine the manner and form of referendums. The Act has been amended several times, including to provide for the distribution of “yes” and “no” pamphlets and to regulate the public funding of referendum campaigns. The adequacy of these provisions has been questioned, particularly in relation to the balance of public funding and the quality of information provided to electors.