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Australia's Constitution: the referenda we need to have

By Brendan O'Reilly - posted Friday, 3 November 2017


Parts of Australia's Constitution clearly are either inappropriate, out-of-date or simply don't work. Both sides of politics also want to include formal recognition of Indigenous people in the Constitution.

Six months of consultations between the Turnbull Government and Aboriginal and Torres Strait Islander leaders (predictably) have fallen in a heap. Like the Indigenous referendum proposal of the Howard Government, no one can agree on what form recognition should take. Influential Indigenous Australians endorsed a referendum to establish a permanent Indigenous Advisory Body, and also wanted a Treaty, and a Truth-Telling Commission. The Government refused, and instead wants something more minimalist.

The Howard Government had in 1999 sought Indigenous recognition in our Constitution by adding a Preamble. The result of the 1999 referendum question was a resounding NO vote in every State and Territory. The national NO vote was 60.7 per cent.

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For the moment, no further progress on Indigenous recognition is likely, and only a change of government will alter this. Even then, radical changes are unlikely to be passed by the electorate, though there seems to be widespread acceptance that Sections 25 (provisions as to races disqualified from voting) and 51 (xxvi) (power to make special laws for people of any race) are outdated and offensive to many.

What many people don't know is that a Preamble to the Australian Constitution already exists, and (given this) Howard's proposal did not exactly fit well. The existing Preamble is regarded as providing multiple recognitions (e.g. Almighty God, the "indissolubility" of the Commonwealth, and the possibility of other Australasian colonies and possessions joining), though acknowledgment of Indigenous peoples is not among such recognitions.

The Preamble is not to be found in the Constitution itself but in the British legislation (Commonwealth of Australia Constitution Act 1900) that bought the Commonwealth of Australia into existence.

The Preamble reads as follows:

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- (Australian Constitution follows)

Notwithstanding the apparent impracticality of proceeding with Indigenous constitutional recognition at this time, there are at least four other areas where there exists a broad and urgent need for constitutional change.

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First of all, (in order to make referenda easier to pass) it is desirable to change the existing Section 128, which deals with the mode for altering the Constitution. This section, requiring (inter alia) double majority electoral approval (ie a national majority of electors as well as a majority of electors in four of the six States), makes it very difficult for any referendum to get up. Since Federation, only 8 of 44 referenda have passed (ie 82 per cent were defeated).

A logical reform might be to require an overall majority and at least half the States (ie three of six) to vote YES. Such a reform would have a positive but modest effect, as only an additional four of the failed referenda would have passed under such rules (still a 50 per cent increased probability of passing compared with the status quo).

There would seem to be little point in going further and requiring only a simple majority of all voters, since this would have only resulted in one more of the defeated past referenda getting through, and such a proposed change would likely antagonise the smaller States and not itself be approved.

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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