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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Parts of Australia's Constitution clearly are either inappropriate, out-of-date or simply don't work.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.


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(provisions as to races disqualified from voting) and 51 (xxvi) (power to make special laws for people of any race) are outdated and offensive to many.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.


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.

Innate reluctance to change the Constitution remains the biggest problem.

Section 44(i) of the Constitution has been in the news recently. It disqualifies a person "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" from sitting in the Australian Parliament.

The recent debacle, whereby the High Court disqualified Barnaby Joyce, Fiona Nash, Larissa Waters, Scott Ludlam and Malcolm Roberts from Parliament, has (sensibly) resulted in calls that this section is in serious need of an update. Essentially, with 49 per cent of Australians either being overseas born or having one or both parents born overseas, about half our population has potential issues with this section. The case for abolition or a drastic softening is therefore compelling.

In regard to the term of Parliament, both sides of politics at various times have supported changes to Section 28. Effectively there seems to be consensus that the current three year maximum term for the House of Representatives should be increased, with four years being a popular preference. (Australia is very unusual in having a term as short as three years.) Some also favour terms of fixed length with no prime ministerial discretion about election dates.

The stumbling block has always been that neither side of politics wants the other side to be the first to benefit from an extra year in office. The solution might be to make the date of effect of a change to four year terms far enough in the future, that the side likely to benefit is uncertain.

Finally there is the issue of the Australian Senate, which is generally considered to be one of the most powerful upper legislative chambers in the world. The problem is that we have two Houses with almost similar powers, which are elected in different ways (and half the Senate commonly has been in office since an earlier election). All this is a clear recipe for legislative stalemate.

The problem of an obstructionist Senate is currently a huge issue for the Coalition, but during the term of the Whitlam Government it was just as big an issue for Labor. Given that about a third of voters now no longer support the big parties, Labor or Liberal, the Senate in recent years arguably has become even less friendly to the Government of the day. What legislation gets through, either gets heavily amended or requires (expensive) favours to cross-benchers for (often undeserving) pet causes.

The solution advocated by many is to either abolish the Senate or to reduce its powers, especially regarding budgetary matters. While I don't necessarily disagree, realism suggests that this will be difficult to sell in any referendum, because it will likely be opposed by Labor, the Greens, and the minor parties.

An alternative solution is to change the method of election of electing the Senate, which can be done without a referendum, because it is set by legislation and not by the constitution.

The system for electing senators has changed several times since Federation. The original first-past-the-post block voting was replaced in 1919 by preferential block voting. Such block voting tended to produce landslide majorities. In 1948 Labor brought in single-transferable-vote proportional representation, when it anticipated losing power to Menzies. This had the effect of limiting the incoming government's ability to control the upper chamber, and has helped the rise of Australian minor parties.

A change away from proportional representation election of Senators could help make the Senate more friendly towards the government of the day but would be seen as less democratic. Such legislation is unlikely to be passed in the foreseeable future. The Commonwealth Senate (until its composition greatly changes) would never pass it.

For the time being, the chances of reforming the Senate are therefore between none and Buckley's.

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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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