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Australia’s constitution is constrained by people power

By James McConvill - posted Thursday, 9 November 2006

Later this year, the High Court is expected to hand down its decision on whether the Howard Government’s controversial WorkChoices legislation is legally valid.

The main argument against the legislation, an argument run by Labor states and the trade union movement, is that the Federal Parliament does not have power under the Australian constitution to enact laws regulating the internal activities (including workplace relations) of corporations.

This case is the first time in a while that the constitution has been the subject of significant public attention. The simple reason for this is that the constitution is dead boring and in need of fundamental reform. While the United States constitution gets American citizens excited with its introductory phrase “We the people”, there is precious little in our constitution to get the heart racing.


Supporters of the Australian constitution will obviously dispute this, referring doubters to section 128 of the constitution, which provides that it is only the voting public who can change the constitution, by way of referendum. Thus, unlike the United States constitution which can be amended by congressional vote (and approval of two-thirds of state legislatures), Australian citizens really have power when it comes to their constitution.

But in my view, this “power to the people” approach to amending our constitution is the major problem with the document. Counter-intuitively, giving power to the voting public to change the constitution has resulted in a stale document reflecting the attitudes and values of our dead ancestors, rather than a living document representative of our community today.

There is often talk about the need for constitutional reform in Australia, but rarely, if ever, is the referendum process for changing the constitution raised as an aspect of our constitution being in need of change. It should be.

Since federation, there have been 44 referenda in Australia in which only eight have been successful. Despite consistent commentary that proposed referenda have been rejected because the public are protective of their constitution, this is far from true. Rather, Australians are a conservative bunch who when faced with change - even positive change - that they don’t fully understand, vote to maintain or restore the status quo. No more is this true than when it comes to referenda in Australia.

Holding a referendum is an expensive process. Taxpayers’ money must be spent on printing, postage, advertising and the like. This is money clearly wasted. Why bother giving the public a say about their constitution, when a large number do not care whether the constitution exists let alone how it is proposed to be changed, and many more will undoubtedly fail to appreciate the intricacies of the change being proposed?

The difficulty in changing the referendum process for constitutional change, however, is that it is understood that this very process would have to be followed in order to scrap it from the constitution. It is unlikely that Australians will vote in favour of a change which takes away one of the few positive rights they have in this ageing document.


One way around this, however, is to just get rid of the current constitution in its entirety. Section 128 of the constitution says that a referendum is required to “alter” the constitution, but it is my contention that this process would not apply if a new constitution was enacted by the Federal Parliament to repeal the existing one.

The new constitution could be brought before the Federal Parliament for debate as early as the next session. Much of the existing constitution could be retained, but there would be some important changes to be made.

First, the referendum process would be gone. Instead, a change to the constitution would require a positive vote of an absolute majority of the Federal Parliament at a joint sitting. There is a similar procedure under the constitution in place already (Section 57), in which a joint sitting can pass proposed laws following a double dissolution election, and I believe this procedure is appropriate for constitutional change.

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First published in Lawyers Weekly on September 5, 2006.

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About the Author

James McConvill is a Melbourne lawyer. The opinions expressed are his personal views only, and were written in the
spirit of academic freedom when James was employed as a university lecturer.

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