Week 5: Constitution, Referenda and Plebiscites

Welcome back! Today we’re going to touch on the Constitution, Referendums and Plebiscites. It’s way more riveting than you think it is. Trust me!

Between colonisation in 1788 and Federation in 1901, Australia as we know it today was comprised of independent British colonies. In 1901, the colonies federated, forming a single country. Known as the nation's birth certificate, the Constitution laid out the legal basis upon which “Australia” would be built.

Over eight chapters and 128 sections, the Constitution sets out Australia’s legal framework, such as the powers vested in the Commonwealth versus the States and Territories, the structure of the Parliament, and the High Court’s role in making and interpreting laws.

Section 51 provides a complete list of the 39 lawmaking powers granted to the Federal Parliament. Outside of this list, Federal Parliament cannot make any laws, with all other powers vested within the States. States can also make laws relating to these 39 powers, but where they conflict with Commonwealth law, the Commonwealth law prevails. I touched on these powers a couple weeks ago, notable powers include military defence, quarantine, marriage, and immigration among others.

Section 128 details how the Constitution is changed. As the nation's supreme law, the Constitution is unlike ordinary laws subject to Parliament, which can be changed with the passing of a bill. To amend the Constitution, a referendum must be passed. A successful referendum requires a majority of voters in a majority of States agreeing to a proposed change in the Constitution. This is known as a double majority.

Voting in a referendum follows the same rituals as voting in an election. However, instead of voting for a representative, voters simply write either Yes or No opposite each question on the ballot paper. Voting is compulsory for those on the electoral roll. Of the 44 referendums that have occurred, only eight have passed. Since 1984, seven referendums have been held, all have failed.

1967 saw Australia hold its most famous referendum, on Aboriginal rights. The question asked: “DO YOU APPROVE the proposed law for the alteration of the Constitution entitled— 'An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population'?" Effectively, the question asked whether the Commonwealth Government should be able to make powers specifically for First Nations people and whether they should be included in the national census. 90.77% of voters approved, along with a majority in all States.

Plebiscites are alternatives to referendums, where a question is put to the people to gauge support or opposition for a particular issue. Governments are not required to act upon results in a plebiscite, and voting is not compulsory. Plebiscites occur much less frequently, with only three ever occurring. Two were held during World War I regarding conscription, while in 2017, a plebiscite was held to gauge the public’s view on same-sex marriage.

In 2017, PM Malcolm Turnbull pledged to bring forward a bill to legalise same-sex marriage in the event of a “Yes” outcome to the question: "Should the law be changed to allow same-sex couples to marry?". The survey returned 7.8 million (around 61 per cent) "Yes"responses and 4.8 million (around 38 per cent) "No" responses, from a total turnout of 12.7 million (just under 80 per cent of eligible voters). Results were released on November 15, and the legislation came into effect on December 9.

Now that we've covered Parliament and the Constitution, it's time to get into the detail a little more. Next week, we'll have a look at Royal Commissions. These inquiries are the highest form of inquiry in Australia's legal system. They tend to unearth some of the worst aspects of Australian society and have proven critical to unlocking societal progress in many different areas.

Looking forward to it!