This paper attempts to analyze the process through which the amendment of the Commonwealth’s Constitution goes through, the strength and weaknesses of this process and recommend possible changes to the process. Debates on factors that contribute to referendum failures and successes also form a part of this paper. The amendment process of the Commonwealth Constitution is a complex one and most likely partially understood by the general population. This paper also tries to explore the possible ways through which these amendments are possible.
The Commonwealth Constitution Amendment Process
Any constitutional reform must have the mechanisms for initiating change. There are three main possible ways through which the amendment of the Commonwealth Constitution is possible. These are:
- Through a referendum as detailed in section 128 of the constitution.
- Judicial Review.
iii. Intergovernmental Negotiations.
Amendment by Referendum
As stated above, amendment by referendum is explained in Section 128 of the Commonwealth Constitution. This section stipulates the process of initiation and ratification of proposals aimed at altering the constitution. Its origin is the Convention negotiations of the 1890s that culminated in a compromise between the Commonwealth and the States, and between the politicians and the electorate. Section 128 puts forth the following stages for an amendment by referendum:
- The submission of a Bill to the Commonwealth parliament proposing a Constitution amendment. Electors in a majority of states must approve this proposed amendment, which is four out of six states. A majority of electors must also approve the Bill across the Commonwealth including electors in the Territories. This condition is called the “Double Majority” rule.
- The passing of the Bill containing the proposed amendments by an absolute majority of both houses of parliament. Alternatively, it must be passed twice in either the Senate or House of Representatives.
iii. The submission of the Bill by the Governor-General after successful passing to the electors at a referendum. The referendum has to take place carried out no sooner than two months and not more than six months after the Bill has passed.
- The ratification of the amendment after the fulfillment of the following conditions: a majority of the voters from a majority of the states and an overall nationwide majority have to agree. The national votes include territorial votes but not in the votes of the state. There is no provision in section 128 that requires majority votes in all States for the amendment of the constitution to create a republic. Even though arguments exist about it, it seems most likely that these changes need approval by majorities in only four states.
Parliament has the authority to prescribe the machinery used to carry out referendums. Within the four weeks after the passing of the Bill, members and Senators who support the proposed alterations prepare their “Yes” case. Members of Parliament and Senators who oppose the proposed alterations also prepare a “No” case during this period. In case no opposition to the alterations exist, a “Yes” case suffices. It is the responsibility of the Australian Electoral Commission to organize the preparation and distribution of an information booklet detailing the proposed amendments to the Constitution with the “Yes” and “No” cases. Each elector is supplied with the pamphlet not later than 14 days before the referendum. A majority of parliamentary members who voted for or against the proposed law must sanction these arguments.
Amending the constitution by referendum has various advantages and disadvantages. Referendums sometimes referred to as “Direct Democracy” can help re-engage voters with democracy and politics. The other advantage favoring referendums is that they can be used to resolve constitutional and political problems for incumbent governments or where divisions exist in a ruling party over an issue in the constitution that is subject to amendment. Holding a referendum can solve such issues without splitting the party. Referendums also help governments get a popular mandate for any transcendental constitutional changes that were not part of the initial platform on which they campaigned. This situation often happens in cases where a constitution amendment approved by a referendum is under consideration.
Constitution amendment referendums also have some weaknesses. A referendum weakens representative democracy by whittling down the importance and role of elected representatives. In addition to this point, referendums are sometimes perceived as a means available to elected representatives to avoid taking an unpopular position on a controversial issue touching on proposed constitution amendments. The other weakness is that voters do not always have the information or capacity to make informed decisions about the constitutional issues at stake. They make ill-informed decisions based on rudimentary knowledge or based on other unrelated factors.
The other argument against constitutional referendums is that the executive has the authority to determine the time of holding referendums. The executive can use it as a political tool to favor the needs of the governing party instead of democratic interests. In most countries, the turnout at referendums is often lower than that at national elections. This fact goes against the notion that referendums increase the legitimacy of constitutional amendment decisions.
A Judicial Review (s) is one other way through which a constitution amendment is possible in the Commonwealth. The source of constitutional judicial review is Section 75 (v) of the Constitution. This section gives the High Court original jurisdiction in all matters in which exist a writ of prohibition against an officer of the Commonwealth. The writs arise out of the common law principle of the prerogative writs; these writs were common in the jurisdiction of all superior courts of record . Sometimes due to the failure of constitutional referenda, judicial interpretations by the High Court end up as being the primary method through which the evolution of the constitution is possible. Issues brought by litigants before the court have often resulted in changes to the constitution. High Court decisions over time have overhauled Constitution interpretations without resorting to referendum. Changes in Constitutional interpretation have led to an expansion and alteration of the powers of the Commonwealth concerning its relationship with the states. A person may apply for judicial review if aggrieved by a decision on the following grounds:
- Breach of the rules of natural justice.
- Lack of jurisdiction.
iii. Failure to follow procedures demanded by law.
- Lack of authorization by the enactment.
- The error of law.
vii. No evidence to justify a decision.
viii. The decision was contrary to the law.
- Bad faith.
- Acting under dictation.
One example includes the interpretation of Section 96 permitting the granting of financial assistance to the states pegged on the terms and conditions set by the Commonwealth parliament. Another example is the 1920 Engineers case that culminated in the principle that grants of Commonwealth legislative power in the Constitution requires a broad interpretation based on the ordinary English meaning. The other area of the constitution that relies heavily on judicial interpretation is the disqualification provisions for members of parliament particularly those related to:
- Foreign allegiance excluding citizens holding dual citizenship and those from another country.
- Holding an office of profit and the crown – section 44 (v).
There are complexities in unraveling the applications of these disqualifications to each case. There are also questions of certainty of interpretation and their relevance in this 21st century. The other point worth noting is that the three-year election cycle that applies to members of the House of Representatives is a provision that contrasts best governance processes at the Commonwealth level. Moving to fixed-term election terms and extending the term length are some ways of making changes to judicial interpretation.
Judicial reviews are extremely dense with complex patchwork. The system has various sources some of which overlap. These overlaps are inherent in the constitutional judicial review under section 75 (v) of the Constitution and that in section 39B of the Judiciary Act. They also exist in the ADR Act and various statutes granting specific review rights about decisions under that statute.
The dismal success rate of referenda has provided motivation for negotiations aimed at establishing practical arrangements to circumvent some constitutional provisions. An example is when in 1990 the High Court negated a single national corporation’s law. The Commonwealth proceeded to negotiate with other jurisdictions culminating in the creation of “mirror” legislation rather than seeking a constitutional amendment. Other cases in which inter-governmental negotiations have worked are in such areas as anti-terrorism laws and regulatory standards for goods and occupations. The major setback of inter-governmental negotiations is the removal of public engagement, transparency and certainty of interpretation in the amendment process.
Recommendations to the Constitutional Amendment Process
Legal experts have often argued that the requirements of section 128 set a high bar for the implementations of constitutional amendments. This paper proposes the examination of the process of the framing and debating of arguments in referenda, a change in the terms of section 128 as well as examining the mechanisms for bringing issues to referenda. The other way is through the suggestion of regular constitutional conventions. The process has to be measured and deliberate with opportunities for the public engagement in the debates. These conventions are often as effectual.
History has proved that referenda in Australia have not been so successful after all. Out of 44 referenda in Australia’s history, only eight have been successful. Another five have flopped because, despite passing a majority of national votes, they failed to pass a majority of states. Demands for a constitutional referendum from parliamentary committees and academia have been continual ever since the last successful referendum to amend the constitution in 1977.
One area in which it is crucial to improving the amendment process concerns the number of proposals put at a time. As noted by Professor Blackshield, the public can discriminate between individual proposals in a package. For instance, in 1946, out of several proposals, only one was agreed to and in 1988 all proposals flopped but by very different majorities. It is the suggestion of this paper that it is more reasonable and better to put up not too many but around four proposals at a time as advocated by Professor Blackshield . This paper suggests that one of the reasons for the failure of some proposals was the subjection of many proposals for amendment to the Australian people.
There are two main parts in section 128. First, there is a requirement for the existence of a Bill for the amendment of the constitution passed by an absolute majority of at least one House of Parliament. Then comes the referendum that must receive consent from a majority of the electorate nationwide and the states. This situation is the “double majority” rule. It is the view of this paper of changing one facet of section 128. This facet is the broadening of the scope for proposal initiation. The mere fact that the Bill emanated from politicians means that it fails the test of public ownership. Consequently, this paper suggests the inclusion of citizen-initiated referenda. This inclusion may entail a certain proportion of the electorate putting up suggestions for a referendum. The introduction of constitutional conventions as mentioned above is also one way of involving the public. Regular constitutional conventions should occur after specific periods such as every decade. They should be a regular feature of people’s public life that engages with questions of constitutional reform. For example, it is evident that the success of the 1967 referendum was as a result of a 20-year process of public engagement. These conventions must have clearly set-out discussion programs for them to be successful.
The other suggestion proposed by this paper is the adjustment of the referenda machinery. Section 128 prescribes the production of a booklet that puts forward the “Yes” and “No” cases. This process should only be a first step and is not an automatic mechanism to promote understanding of issues. This paper propose the publication of a clear, easy to understand information in the referendum booklet. As an example, it is worthy to compare the preparation of the “Yes” and “No” booklet in Commonwealth jurisdictions with that of non-Commonwealth jurisdictions such as New South Wales. While politicians handle the booklet’s preparation in Commonwealth jurisdictions, opposing arguments in New South Wales are prepared by bureaucrats and subsequently verified by constitutional lawyers and other parties to prevent bias. The resulting referenda booklets are often more educational, and the referendums in this state have a higher success rate. One way to improve the understanding of the issues at hand by the public may be by using the model employed by jurisdictions such as New Zealand. New Zealand has embraced advances in technology such as those which use social networking opportunities. The case or information may be brought out through platforms such as YouTube or Facebook. This action is necessary because most of the present generation spends more of their recreation time browsing the World Wide Web than they do watching television.
This paper also proposes some suggestions aimed at enhancing the judicial review process. These suggestions are:
- The formulation of a new general statute to align statutory and constitutional review. This statute will create a new provision that applies to all government action presently covered by the ADJR Act. One approach may be the inclusion of a judicial review provision in an existing act. This inclusion will produce some benefits such as addressing bifurcation problems, maintaining the merits of a simple statutory regime where the grounds and procedures exist in one act. Consequently, it will future amendments in cases where Parliament considers that judicial review be restricted or extended in the future. However, this suggestion has inherent risks. The courts may interpret the Act in a way that restricts review and provides a way for inconsistencies between constitutional and statutory review for future expansion. Separate systems will exist under this option due to the High Court’s jurisdiction of not being able to be excluded by legislation. A broader scheme might not be compatible with the policy behind statutory review and schemes of appeal. This broader scheme means a significant proportion of review will continue to exist under separate statutory schemes.
- Enactment of a less restrictive ADJR Act by amending it to address its restrictive application without expanding its scope to encompass all aspects of a constitutional judicial review. Some advantages of this suggestion are that the ADJR Act would not change in its grounds or procedure for review and may lead to bigger certainty in the short-term. In fact, such amendments have been in contemplation for some time and would provide some level of accessibility and accountability than the current ADJR Act. This option, however, has the risk of failing to address the main problem of overlapping judicial review sources.
iii. A minimalist statutory as stipulated by section 39B of the Judiciary Act and,
- Retaining a variety of statutory review mechanisms and providing policy guidance that apply to all statutory mechanisms.
Administrative Review Council, Judicial Review in Australia (20 April 2011) <http://www.arc.ag.gov.au/Currentprojects/Documents/Consultation_Review_in_Australia.pdf>.
Bennet Scott and Brennan Scott, ’Constitutional Referenda in Australia’ (August 1999), Information and Research Services, Research Paper No. 2 199-2000
Bennett Scott, ‘The Politics of Constitutional Amendment’, Information and Research Services (June 2003) Research Paper, No. 11, 2002-03, Parliamentary Library.
House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, A Time for Change: Yes/No?-Inquiry into the Machinery of Referendums (2009) [1.7].
John Higley and Ian McAllister, ‘Elite Division and Voter Confusion: Australia’s Republic Referendum in 1999’, (6, July 2002) European Journal of Political Research, vol., p. 845.
Parliament of The Commonwealth of Australia, Reforming Our Constitution (June 2008) <http://www.recognise.org.au/wp-content/uploads/shared/downloads/1b4e08cf9213663d585c.pdf>.
 Bennet S and Brennan S , ’Constitutional Referenda in Australia’ (August 1999) No. 2 199-2000 Research Paper
 Bennett Scott, ‘The Politics of Constitutional Amendment’, Information and Research Services (June 2003) Research Paper, No. 11, 2002-03, Parliamentary Library.
 House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, A Time for Change: Yes/No?-Inquiry into the Machinery of Referendums (2009) [1.7].
 Parliament of The Commonwealth of Australia, Reforming Our Constitution (June 2008) <http://www.recognise.org.au/wp-content/uploads/shared/downloads/1b4e08cf9213663d585c.pdf>
 John Higley and Ian McAllister, ‘Elite Division and Voter Confusion: Australia’s Republic Referendum in 1999’, (6, July 2002) European Journal of Political Research, vol., p. 845.
 Administrative Review Council, Judicial Review in Australia (20 April 2011) <http://www.arc.ag.gov.au/Currentprojects/Documents/Consultation_Review_in_Australia.pdf