the process of changing the words of the Constitution through a referendum under section 128 and factors affecting its success

What this dot point is asking

VCAA wants you to explain the only process for changing the actual words of the Constitution, the double majority that a referendum must achieve, and the factors that explain why most referendums fail. Expect a 5-8 mark medium response, sometimes asking you to discuss factors affecting success or to compare a successful and an unsuccessful referendum.

The answer

Section 128: the only way to change the words

The words of the Constitution can only be altered by a referendum conducted under s 128 of the Constitution. Neither Parliament alone nor the High Court can change the text. (The High Court can change the way the existing words are interpreted, but that is a different process; see the related dot point on the High Court.)

The steps

1. A bill is passed by Parliament. A proposed alteration must be passed as a bill by an absolute majority of both houses of the Commonwealth Parliament. Section 128 also contains a deadlock provision: if one house passes the bill twice and the other rejects it, the Governor-General may still submit it to the electors.
2. The proposal is put to the electors. The proposed change is submitted to a vote of the electors in each state and territory, not less than two months and not more than six months after it passes Parliament.
3. The double majority must be achieved. The proposal becomes law only if approved by a double majority.

The double majority

For a referendum to succeed it must achieve both of the following:

• a national majority: more than half of all electors voting across Australia approve the change; and
• a majority of states: a majority of the electors in a majority of the states (at least four of the six states) approve the change.

Electors in the territories count towards the national majority only, not towards the majority of states. If approved, the change receives royal assent and the words of the Constitution are altered.

Factors affecting the success of a referendum

Only 8 of the 45 referendum proposals put to the people since 1901 have succeeded. The main factors are:

• Bipartisan support. Proposals supported by both major parties are far more likely to pass. Where the opposition campaigns against a proposal, voters tend to reject it.
• A clear and well-understood proposal. Voters reject change they do not understand. Complex or vaguely worded proposals fail.
• The double majority hurdle itself. Requiring a majority of states protects the less populous states but makes change difficult; a proposal can win a national majority yet fail for want of a fourth state.
• A cautious electorate. Australians have historically been reluctant to approve constitutional change, often summarised as "if you don't know, vote no".
• Education and the official case. The Australian Electoral Commission distributes the official "yes" and "no" cases; the quality of public education affects the result.

Real examples

The 1967 referendum (successful)

The proposal to allow the Commonwealth to make laws for Aboriginal people and to include them in the census passed with about 90.77 percent national approval and a majority in all six states. It had bipartisan support and a clear, popular proposal.

The 1999 republic referendum (unsuccessful)

The proposal to replace the Queen and Governor-General with a President chosen by Parliament failed. Republicans were divided over the model, there was no bipartisan agreement, and the proposal lacked majority support nationally and in every state.

The 1977 referendums

Several minor proposals passed in 1977 (for example, allowing territory electors to vote in referendums and setting a retirement age for federal judges), showing that uncontroversial, clearly explained proposals can succeed.

Examples in context

Example 1. Why bipartisanship matters. The 1967 referendum to amend s 51(xxvi) and s 127 enjoyed support from both major parties and a broad public campaign. With no organised "no" case of substance, it recorded the highest "yes" vote in Australian history. This shows bipartisan support and a clear proposal combining to clear the double majority easily.

Example 2. The double majority as an obstacle. A hypothetical proposal wins 51 percent nationally and majorities in New South Wales, Victoria and Queensland but loses in South Australia, Western Australia and Tasmania. Despite the national majority, it fails because it carried only three of the six states, short of the required four. This illustrates how the majority-of-states requirement can defeat a nationally popular change.

Try this

Q1. State the section of the Constitution that sets out how to change its wording and name the two majorities required. [3 marks]

• Cue. Section 128. A national majority of all electors voting, and a majority of electors in a majority of states (at least four of six).

Q2. Explain one factor that affects whether a referendum is likely to succeed. [3 marks]

• Cue. Bipartisan support: where both major parties back a proposal it is far more likely to pass (1967 referendum), whereas division or an organised "no" case usually defeats it (1999 republic referendum).

Q3. "The referendum process makes constitutional change too difficult." Discuss. [6 marks]

• Cue. For: only 8 of 45 proposals have succeeded; the double majority and the requirement of a fourth state are high hurdles; voter caution. Against: rigidity protects the Constitution from frequent or hasty change and protects smaller states; successful referendums (1967, 1977) show change is possible with clarity and bipartisan support. Reach a judgement.