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How the Constitution can be changed

Closer Look – The Australian Constitution [PDF 1.39Mb, 9 pages]

Indigenous Australians are no longer mentioned in the Constitution (due to the referendum in 1967). In recent years there have been discussions about recognising Indigenous Australians in a preamble to the Constitution and about changing the main part of the Constitution to include a section which outlaws racial discrimination.

The Constitution does not mention the Prime Minister or the Cabinet, both of which are central to the working of government and the Parliament.

Section 109 of the Constitution states that if the Commonwealth and a state Parliament both pass laws on the same subject, the Commonwealth law overrules the state law to the extent of any inconsistency.

The Australian Constitution can be changed by referendum according to the rules set out in section 128 of the Constitution. A proposed change must first be approved as a bill by the federal Parliament. It is then sent to the Governor-General in order for a writ to be issued so a referendum can occur.

A referendum is a national ballot on a question to change the Australian Constitution. In a referendum the Parliament asks each Australian on the electoral roll to vote. If a majority of people in a majority of states and a majority of people across the nation as a whole vote 'yes' (called a double majority), then the proposal to amend the Constitution is agreed to. Otherwise the Constitution remains unchanged.

Since 1906, when the first referendum was held, Australia has held 19 referendums in which 44 separate questions to change the Australian Constitution have been put to the people. Only eight changes have been agreed to.

Successful referendums have included:

  • The 1946 referendum which allowed the Commonwealth to provide social service benefits to returned servicemen and women.
  • The 1967 referendum (in which 90.77% of people voted 'yes') which gave the power to the Commonwealth to make special laws for Indigenous Australians.
  • The 1977 referendum which gave the people of the territories the right to vote in referendums, changed the way casual senate vacancies were filled and forced federal judges to retire at 70 years of age.

Unsuccessful referendums have included:

  • The 1951 referendum which asked to make laws about communism and communists.
  • The 1999 referendum which asked whether Australia should become a republic.

How the Constitution is interpreted has also changed and evolved, even without a referendum. These changes have all occurred under our existing Constitution and have been brought about by High Court decisions:

  • The Commonwealth's increased power to collect income tax has meant it has a much greater share of revenue than the states. The Commonwealth partly redistributes this revenue in the form of grants to the states. The terms and conditions which are sometimes attached to these means the Commonwealth is able to gain control of areas of responsibility the states previously controlled, for example, tertiary education.
  • The Commonwealth's power over 'external affairs' has meant Commonwealth law implementing international treaties can be applied to the states in areas (such as environmental protection) which were previously controlled by the states alone.

Tasmanian Dam Case

In the late 1970s and early 1980s the Commonwealth Government and the Tasmanian Government fought over whether a dam should be built on the Franklin River in Tasmania. The Tasmanian Wilderness Society campaigned against it and managed to get a World Heritage listing for the Franklin River.

The plan to build the dam was abandoned after a 1983 High Court ruling stated the Commonwealth's external affairs powers in section 51(xxix) of the Constitution gave it the right to honour its international treaty obligations with regard to World Heritage locations.

This overruled Tasmania's constitutional land use rights and prevented the flooding of the Franklin River.