Australians do not vote blindly
It is not true that Australians blindly vote No at referendums, or that the double majority requirement precludes constitutional change. By Allan pidgeon.
Many commentators claim that it is a badge of shame for Australians that there have been only eight successful referendums to amend our Constitution since 1901. Yet it is worth noting that there have been only twelve amendments to the US Constitution in the same period – and two of them related to the same subject (the introduction in 1919 of ‘prohibition’, and its repeal in 1933). Also don’t forget that our ‘constitutional conservatism’ led to the defeat – remarkably at the height of the Cold War – of a constitutional amendment banning the Communist Party.
We are often told that Australians blindly and reflexively oppose any proposed change to our constitution, and further that the requirement for a ‘double majority’ represents an insuperable roadblock to success at referendums.
However only five of the 37 defeated amendments have failed because of section 128’s requirement for a majority of votes in a majority of states, as well as a national majority in favour. One of them – to give the Commonwealth power over aviation – was supported by a 53.5 per cent national majority, but carried only in two states. Three others were supported by a bare majority of national votes, i.e. 50.64 per cent or less, but failed to gain a majority of states. One referendum gained a convincing national majority (‘simultaneous elections’ in 1977, with 62.2 per cent of the vote), but was carried in only three states.
In 1977 there were in fact three other amendments put to the vote at the same time – these were all carried with majorities between 73 per cent and 80 per cent, showing that voters did indeed examine each issue separately. Another example negating the assertion of ‘kneejerk opposition’ to any constitutional change was provided in 1967. It is often forgotten that at this referendum – where 90 per cent voted for ‘the elimination of those references in the constitution which smack of discrimination’ (in the words of then Prime Minister Harold Holt); there was actually another question put at the same time. However, only 40 per cent supported the second proposal – to allow the House of Representatives to be increased without increasing the number of Senators.
While 1967 represents the most dramatic contrasting outcome for different questions put at the same time, voters have consistently shown the capacity to discriminate between various proposals. For example even at the most recent referendums in 1999 the ‘preamble’ question attracted much less support than the ‘republic’ question. (Interestingly, this rejected preamble would (inter alia) for the first time have inserted indigenous recognition into the Constitution … ‘honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country…’)
Given the period in history when it was adopted, the drafting of Australia’s Constitution was an astonishingly democratic process. Delegates to the pivotal Constitutional Convention in 1897/8 were popularly elected, and the Constitution itself was adopted by a series of referenda. The Constitution embodied the terms upon which the previously independent colonies agreed to unite, and contained a balancing of powers and responsibilities between the levels of government. Further, the Constitution could be amended only by popular vote (unlike the US Constitution, where proposed amendments are voted upon by state legislatures).
Even apart from formal amendment via referendum, the Constitution allows tremendous flexibility – for example during war there is virtually no aspect of social or commercial life untouched by Commonwealth laws. Further, the Constitution permits the Commonwealth to legislate to implement international treaties, and to also pass laws on matters referred by the states. (Following the failure of the referendum in 1937, this was how the Commonwealth gained powers over aviation.) In addition, there have been agreements for joint or complementary legislation (e.g., on corporate affairs, off-shore resources, and environmental protection of the Great Barrier Reef).
It is undeniable, though, that it has overwhelmingly been changing judicial interpretation that has allowed Commonwealth power to expand in ways that would astonish our founding fathers. Early High Court judges had been constitutional draftsmen, and so their decisions reflected these unique insights (and prejudices). Since the ‘Engineer’s Case’ in 1920 there have been major departures in constitutional approach, reflected in decisions such as the ‘Tasmanian Dams’ and ‘Mabo/Wik’ cases, etc.
It is clear that the Australian people require a high ‘burden of proof’ before they will embrace changes to the Constitution – but when convinced, will often give resounding assent. For example, every successful referendum has been carried in every state of the Commonwealth (except in 1910 when NSW was the only state to oppose the ‘state debts’ referendum).
Significantly, bipartisan support is a necessary but not sufficient condition to gain support at a referendum – for example the 1967 referendum that was defeated so convincingly had been advocated both by the Prime Minister and Leader of the Opposition and their party organisations.
Thus in considering proposed changes at referendum, voters have heeded the advice of former High Court Judge Sir Ninian Stephen: ‘Because a constitution is the fundamental law providing the framework for institutions, it must be an enduring thing; not lightly to be changed in response to the passing policy of a present parliamentary majority.’
Allan Pidgeon is a board director of the Menzies Research Centre.