Chapter VIII of the Australian Constitution
Encyclopedia
Chapter VIII of the Constitution of Australia
provides the method for altering the Constitution. It contains only one section, section 128, which sets out the requirements for constitutional referendums
by which the words of the Constitution may be altered.
containing the proposed change must be passed by the Parliament of Australia
(subject to an exception), secondly, the proposed change must be submitted to the Australian electors for approval.
The section first requires that any proposed change be passed by an absolute majority (a majority of the total number of members, not merely of the members present or of the members voting) of both houses of Parliament (the Australian House of Representatives
and the Australian Senate
). An exception is provided for the situation where one house passes the bill containing the proposed change, but the other house does not pass it, or passes it with amendments to which the first house will not agree. If after three months, the first house passes the bill again but the second house still will not pass it, then the Governor-General of Australia
has the option of submitting the proposed change to the electors for a referendum anyway. In practice, the Prime Minister of Australia
advises the Governor-General whether to do so or not, with the result that it is very difficult for a group or party that is not the Government to successfully put a proposed change to a referendum.
Once the bill has been passed, or once the exception has come into effect, the Governor-General must submit the proposed change to the electors for a referendum. The referendum must occur at least two months after the bill has been passed, but at most six months after. Section 128 allows the Parliament to make laws setting out the exact procedures for a referendum (this is currently done by the Referendum (Machinery Provisions) Act 1984), although it does provide that all electors who are eligible to vote in elections
for the House of Representatives are eligible to vote in referendums.
Section 128 also makes allowance for the situation that existed very soon after Federation
, when there were no laws about suffrage
at a federal level; it provides that until such time that such a law was introduced, in any state where there was full adult suffrage (for men and women) only half the votes in that state would be counted. This provision is now obsolete, as there are uniform voting laws.
The section provides that a referendum will succeed if:
This requirement is known as the "double majority".
There is a further requirement that any state specifically affected by the amendment must be one of the states with a majority vote in favour of the change. The situations specifically mentioned in s128 are:
This situation is known as the "triple majority".
. The change provided for the participation of electors in territories of Australia
in referendums. Electors in territories which can be represented in the House of Representatives (currently the Northern Territory
and the Australian Capital Territory
) are counted in determining whether a majority of all electors in Australia approve of a change. Electors in other territories cannot vote in referendums.
There has been one failed change which would have amended Chapter VIII. At the 1974 referendum
, a change was proposed which would have had the same effect as the later successful 1977 referendum in allowing electors in certain territories to vote in referendums, but which also would have modified the requirement that a majority of electors in a majority of states approve a change. The failed change would have altered this requirement so that if an equal number of states approved and disapproved of a proposed change, but a majority of electors nationally approved, then the referendum would succeed.
The Constitutional Commission
which was established by the Hawke
government in 1985 recommended in its final report in 1988 that Section 128 be altered to allow the parliaments of the states to initiate referendums by passing bills containing a proposed change. Under the proposed procedure, if at least half of the states, with combined population amounting to at least half the Australian population, passed bills proposing the same amendment within a 12 month period, then the Governor-General would be obliged to put the proposal to a referendum in the same way as if the federal parliament had made the proposal. The Commission also recommended against the introduction of an elector's initiative
system, as is in use in Switzerland
and several states of the United States
, because it viewed such a system as being at odds with the Australian traditions of responsible government
and representative government, because it regarded such processes as often being dominated by professional campaigners rather than ordinary electors, and because of the risk of tyranny of the majority
.
, which had already inspired similar provisions in the constitutions
of several of the states of the United States
.
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
provides the method for altering the Constitution. It contains only one section, section 128, which sets out the requirements for constitutional referendums
Referendums in Australia
In Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
by which the words of the Constitution may be altered.
Section 128
Section 128 provides that the Constitution may only be amended by referendum, and specifies the procedures for referendums (referenda). The method involves several steps; firstly, a billBill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
containing the proposed change must be passed by the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
(subject to an exception), secondly, the proposed change must be submitted to the Australian electors for approval.
The section first requires that any proposed change be passed by an absolute majority (a majority of the total number of members, not merely of the members present or of the members voting) of both houses of Parliament (the Australian House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
and the Australian Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
). An exception is provided for the situation where one house passes the bill containing the proposed change, but the other house does not pass it, or passes it with amendments to which the first house will not agree. If after three months, the first house passes the bill again but the second house still will not pass it, then the Governor-General of Australia
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
has the option of submitting the proposed change to the electors for a referendum anyway. In practice, the Prime Minister of Australia
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
advises the Governor-General whether to do so or not, with the result that it is very difficult for a group or party that is not the Government to successfully put a proposed change to a referendum.
Once the bill has been passed, or once the exception has come into effect, the Governor-General must submit the proposed change to the electors for a referendum. The referendum must occur at least two months after the bill has been passed, but at most six months after. Section 128 allows the Parliament to make laws setting out the exact procedures for a referendum (this is currently done by the Referendum (Machinery Provisions) Act 1984), although it does provide that all electors who are eligible to vote in elections
Elections in Australia
Australia elects a legislature the Parliament of the Commonwealth of Australia using various electoral systems: see Australian electoral system. The Parliament consists of two chambers:...
for the House of Representatives are eligible to vote in referendums.
Section 128 also makes allowance for the situation that existed very soon after Federation
Federation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
, when there were no laws about suffrage
Suffrage
Suffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
at a federal level; it provides that until such time that such a law was introduced, in any state where there was full adult suffrage (for men and women) only half the votes in that state would be counted. This provision is now obsolete, as there are uniform voting laws.
The section provides that a referendum will succeed if:
- a majority of electors voting approve of the change in a majority of states (four out of six); and
- a majority of all electors across Australia (including electors in territoriesStates and territories of AustraliaThe Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
) approve of the change.
This requirement is known as the "double majority".
There is a further requirement that any state specifically affected by the amendment must be one of the states with a majority vote in favour of the change. The situations specifically mentioned in s128 are:
- if the change proportionally reduces that state's representation in either house of parliament;
- if the change reduces the minimum number of representatives of that state in the House of Representatives;
- if the change alters the boundaries of a state, whether increasing or decreasing; or
- if the change alters the provisions of the Constitution specifically in relation to that state.
This situation is known as the "triple majority".
Amendments
Chapter VIII has been amended once, following the 1977 referendumAustralian referendum, 1977 (Referendums)
Constitution Alteration 1977 proposed to allow residents in the territories to vote in referendums. Residents in territories were to be counted towards the national total, but would not be counted toward any state total...
. The change provided for the participation of electors in territories of Australia
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
in referendums. Electors in territories which can be represented in the House of Representatives (currently the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
and the Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
) are counted in determining whether a majority of all electors in Australia approve of a change. Electors in other territories cannot vote in referendums.
There has been one failed change which would have amended Chapter VIII. At the 1974 referendum
Australian referendum, 1974 (Mode of Altering the Constitution)
Since federation, voters in the Australian territories had been excluded from voting in referendums. The proposed law, Constitution Alteration 1974 attempted to rectify this situation by counting voters in the territories towards the national majority, but not towards any state total.The question...
, a change was proposed which would have had the same effect as the later successful 1977 referendum in allowing electors in certain territories to vote in referendums, but which also would have modified the requirement that a majority of electors in a majority of states approve a change. The failed change would have altered this requirement so that if an equal number of states approved and disapproved of a proposed change, but a majority of electors nationally approved, then the referendum would succeed.
The Constitutional Commission
Constitutional Commission
Many entities have been called a Constitutional Commission with the general purpose of reviewing a constitution, or planning to create one.-Afghanistan:*Afghan Constitution Commission**Timeline of the War in Afghanistan...
which was established by the Hawke
Bob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
government in 1985 recommended in its final report in 1988 that Section 128 be altered to allow the parliaments of the states to initiate referendums by passing bills containing a proposed change. Under the proposed procedure, if at least half of the states, with combined population amounting to at least half the Australian population, passed bills proposing the same amendment within a 12 month period, then the Governor-General would be obliged to put the proposal to a referendum in the same way as if the federal parliament had made the proposal. The Commission also recommended against the introduction of an elector's initiative
Initiative
In political science, an initiative is a means by which a petition signed by a certain minimum number of registered voters can force a public vote...
system, as is in use in Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
and several states of the United States
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
, because it viewed such a system as being at odds with the Australian traditions of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
and representative government, because it regarded such processes as often being dominated by professional campaigners rather than ordinary electors, and because of the risk of tyranny of the majority
Tyranny of the majority
The phrase "tyranny of the majority" , used in discussing systems of democracy and majority rule, is a criticism of the scenario in which decisions made by a majority under that system would place that majority's interests so far above a dissenting individual's interest that the individual would be...
.
History
The method for amending the Constitution laid out in Chapter VIII was modelled after provisions in the Swiss Federal ConstitutionSwiss Federal Constitution
The Federal Constitution of 18 April 1999 is the third and current federal constitution of Switzerland. It establishes the Swiss Confederation as a federal republic of 26 cantons , contains a catalogue of individual and popular rights , delineates the responsibilities of the...
, which had already inspired similar provisions in the constitutions
State constitution (United States)
In the United States, each state has its own constitution.Usually, they are longer than the 7,500-word federal Constitution and are more detailed regarding the day-to-day relationships between government and the people. The shortest is the Constitution of Vermont, adopted in 1793 and currently...
of several of the states of the United States
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
.