Governor-General’s Prize - 2004

Question 4:

The Australian Constitution incorporates within it a significant provision for its own review and reform. The mechanism for formal constitutional amendment contained in section 128, known as the referendum. However this section has rarely been successfully employed and as such, textually, the Australian Constitution has remained substantially unchanged since 1901[1].

The populaces apparently conservative attitude to constitutional change has lead some commentators to remark that Australia is “constitutionally speaking, the frozen continent”[2]. The modest success rate has lead frustrated reformists to challenge the utility of the referendum in effecting constitutional change.

This essay will assess the utility of the referendum, in light of its criticisms and will attempt to illuminate the factors underlying Australia’s resistance to constitutional reform. Further it will consider the history and consequences of Australia’s most successful referendum, the Aboriginal rights referendum of 1967.

Australia’s first referendum was held just five years after Federation; the most recent proposals were put to the public in 1999. In the intervening years 44 referenda have been held, on 19 different polling days. Of all of these only eight proposed changes have been successful[3]. Clearly the strong reformist sentiment displayed by our federal government[4], particularly the Labor party[5] has not been shared by the general public.

Critics of the referendum process have alleged that s. 128 sets the bar for reform too high[6]. As a reflection of the federal nature of our system s.128 requires that to pass, a proposal must be approved by a ‘double majority’, that is by a majority of Australian voters, in a majority of States[7]. The perception that the ‘double majority’ was an overly onerous standard prompted an unsuccessful attempt in 1974 to amend s.128 to require a majority in only half the States[8]. However just three unsuccessful bills would have succeeded had the lower standard been applied[9], as such it cannot be said that the ‘double majority’ is a substantial factor in referendum failure. Further it must be noted that the Constitution, as the foundation to our entire political structure, requires a certain measure of stability and as such its reform should involve a certain measure of difficulty to ensure ill-advised changes are not made in haste[10].

Another major criticism levelled at s. 128 is that, as an exercise in participatory democracy, it is reliant upon the Australian people, who are perceived to be too apathetic or ignorant to comprehend the complexities of constitutional reform. In support of such contentions is the much cited statistic that 54% of Australians surveyed by the Constitutional Commission were unaware that Australia even had a written Constitution[11]. However this level of ignorance is not reflected in referendum statistics where the range of outcomes indicates that the voters have at least a basic understanding of the issues being decided[12]. Such awareness was well illustrated in 1967 when the ‘Aborigine’ and ‘nexus’ bills, both enjoying bipartisan support, were deliberately put forward simultaneously, in the hope that the ‘yes’ vote for one would flow on to the other[13]. The results, 90.77% and 40.25% respectively, evince the fact that the ‘ignorant’ electorate could clearly differentiate between, and had differing political opinions of, the two proposals[14].

The proponents of this argument underestimate the potential of the Australian public to be engaged in political debate, and deflect attention from the deficiencies of the debates that generally accompany Australian referendum campaigns. The Referendum (Machinery Provisions) Act 1984[15] regulates the conduct of s.128 referenda. The Act provides for the distribution of publicly funded pamphlets containing the arguments prepared by parliamentarians who identify with the ‘yes’ and ‘no’ factions.  These pamphlets have the ability to inform, engage and empower the ‘apathetic’ voter, yet in practice the arguments are often characterised by political ‘point-scoring’, distortion and exaggeration[16]. Some campaigns have even played upon perceived voter ignorance with slogans such as “Don’t Know – Vote No”[17], which add little to an informed consideration of the proposal. Constitution reform does and should evoke passionate political debate; however political opportunism should have no place where such important issues are at stake[18]. It is the Governments responsibility to ensure that every citizen is afforded the opportunity to participate fully in its democratic processes, one of the most important of which is the referendum[19]. Civics education and amendment of the Referendum (Machinery Provisions) Act 1984 to allow for an additional or alternative source of independent information to be provided to voters[20] should be a priority.

Under s. 128 all referendum bills must be passed with an absolute majority by both houses of Federal Parliament, before going to popular vote. Deadlock procedures allow for bills passed twice by one house but rejected by the other may be put to people by the Governor-General. In practice Bills rejected by the lower house are highly unlikely to be put to referendum as the Governor-General conventionally acts only upon the Executive Government’s advice[21]. It has been suggested that the fact that referendum proposals originate from and are almost always backed by the Commonwealth government may be relevant to their lack of success[22]. Government initiated referendum proposals invite a partisan approach from the Opposition. Yet bipartisan support appears to be crucial to a referendums success[23], all eight successful referendums having been backed by both major political parties[24]. Furthermore as the Commonwealth Parliament has the sole power to initiate a referendum under section 128, the type of proposals likely to put to the people are generally in line with the Governments agenda, and designed to enlarge the ambit of Commonwealth power.  Such proposals are seldom well received[25] and are met with suspicion and accusations that they seek to undermine the Federal system and threaten the autonomy of the States[26]

It has been suggested that alternative means of initiating referenda, such as allowing citizens or State governments to put forward proposals has the potential to remove party politicking that often surrounds referenda proceedings, as well as reducing the suspicion often attached to Commonwealth initiated proposals[27]. Of course any such alteration to s.128 would need to be put to referendum. In the least the Government needs to open channels through which citizens can petition for change and play a role in shaping the future direction of their Constitution.

In recent years there has been a marked decline in the use of the referendum as a mechanism for constitutional reform, leading its detractors to again challenge its efficacy[28]. However s.128 must be viewed within its wider constitutional context. The bounds and divisions of constitutional power may be adjusted to meet changing political circumstances without resorting to referendum formalities[29]. This is frequently done through intergovernmental cooperation[30], the specific allocation of Commonwealth funding to the States[31], and also by means of judicial interpretation by the High Court[32]. The recent movement away from using s.128 has been attributed to the High Courts tendency to give an expansive interpretation to the scope of Commonwealth powers, obviating the need to seek powers through a referendum[33].

However s. 128 is far from redundant. There have, and will likely again arise occasions where nothing short of popular referendum would suffice to bring about the legal and political changes necessary to keep the Constitution in line with evolving societal values. Such was the situation that arose in 1967.

In May 1967 the Australian people voted overwhelmingly to amend the Constitution in relation to two provisions which were said to discriminate against indigenous Australians. The 90.77% affirmative vote was and remains the largest ever returned[34]. Politically the 1967 referendum is highly significant, being described as a major milestones for indigenous relations with the Australian nation state[35]. The legal consequences of the change are however somewhat less celebrated.

The Australian Constitution, at the time of Federation, manifested a long history of indigenous political exclusion and disregard. In drafting the Constitution the indigenous population was given little consideration, largely because they were believed to be a ‘dying race’ that would have little bearing upon the future direction of the new nation[36].

 As such there were just two reference to Aborigines contained in the Commonwealth Constitution. Section 51 (xxvi) permitted the Commonwealth to make special laws for any race, “other than the aboriginal race in any State”. The explicit exclusion of the Aboriginal race from the sphere of Commonwealth legislation reflected the assumption that it was the role of the States to control the indigenous affairs[37]. Section 127 prevented Aboriginal persons from being counted in the census. This exclusion appears to have been made on the grounds of practicality and because indigenous Australians were to play no part in the federal political process, they were not to be included in the population count upon which parliamentary seats would be apportioned[38] .

The campaign to reform these two provisions begun in 1957, when Jessie Street began petitioning for the amendment of s. 51(xxvi) and the repeal of s. 127. The Federal Council for the Advancement of Aborigines and Torres Straight Islanders (FCAATSI) was formed the following year as a national body to pursue constitutional change and citizenship[39]. The campaign gathered momentum during the 1960’s with a growing domestic and international awareness of racial issues, and the attention of national media upon the plight of indigenous Australians. By 1965 Aboriginal adults were enfranchised to vote in all State and Commonwealth elections[40] and in 1966 the Commonwealth extended social security benefits to all indigenous Australians[41]. At the same time many discriminatory state policies were being dismantled, however the Constitution remained an important symbolic marker of inequality [42].

After a decade of unrelenting lobbying the Holt Liberal Government, sensitive to their international image[43], introduced a bill for the repeal of s. 127 and the amendment of s. 51 (xxvi) to remove the words “other than the aboriginal race in any State”.  The proposal enjoyed unanimous bipartisan support, and the electorate was not presented with an official ‘no’ campaign. The ‘yes’ case, in relation to s. 51 (xxvi) was framed in terms of removing an erroneous but “deeply-rooted” perception of discrimination[44].  Of s. 127 it was forcefully asserted that “our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted everyday, require that we get rid of this outmoded provision”[45].

FCAATSI with the backing of the national media strenuously campaigned for referendum support. They approached the issue as one of indigenous rights, and social equality, elevating indigenous concerns to a national level and giving Indigenous Australians a political voice[46]. However in employing this symbolic narrative of citizenship and equality they gave the referendum significance far beyond that of the actual constitutional changes it implemented, a significance which was ultimately not warranted[47].

The successful repeal of s. 127 meant Aboriginal Australians were counted in the Australian census for the first time in the 1971[48]. While this carried strong political meaning in terms of being a marker of recognition and acceptance[49], the significance of this change was largely symbolic[50]. The removal of s.127 did not translate to any practical improvement in social conditions nor did it equate to citizenship.

The impact of s. 51(xxvi) particularly did not live up to the aspirations of its supporters. As a concurrent power, s. 51 (xxvi) placed no positive obligation upon the Commonwealth to assume responsibility for indigenous affairs[51], and to the disappointment of activists the power remained vastly underutilised[52].

The change of Government in 1972 delivered the Commonwealth intervention that indigenous people had campaigned for[53]. The Office of Aboriginal Affairs established under the Holt government was upgraded under the Whitlam Government to a Department, coinciding with an intense injection of Commonwealth funds for projects and policies targeting at redressing social inequality[54].  However as administrative measures, Whitlam’s reforms may have been implemented under s. 96 or s. 51 (xxxvii)[55], independent of the Constitutional amendment[56]. The referendum did however directly facilitate the Commonwealth Governments intervention by bestowing upon them a moral mandate for assuming an active role in Aboriginal affairs[57]. In this way the referendum was an important symbolic gesture necessary to the process of change[58]

The expansion of s.51 (xxvi) has however provided a suitable head of power for several key pieces of legislation including the Aboriginal Land Fund Act 1974, the Council for Aboriginal Reconciliation Act 1991 and the Native Title Act 1993[59]. However controversially s.51 (xxvi) has also been used to support legislation detrimental to Aboriginal interests.

Although the 1967 referendum represented a rejection of legal discrimination[60] and the clear intention of the Government and the voters was that the power be expanded for the benefit of indigenous people[61] the textual amendment does not reflect this commonly understood meaning. This has allowed for s. 51(xxvi) to be used as a basis for detrimental legislation, such as the Native Title Amendment Act 1998, which extinguished native title[62]. Such use of the amended power is contrary to the mandate of 1967, and makes “a mockery of the decision by the people” [63]. However the majority in Kartinyeri v The Commonwealth[64] held that s. 51(xxvi) is not limited by an implied prohibition against legislation detrimental to indigenous interests[65]. Thus the true legal effect of the 1967 referendum may be the opening up of s. 51(xxvi) as a means “by which yet another round of dispossession may be visited upon Australia’s indigenous people”[66].

In light of this discussion it is clear that there is an urgent need for further constitutional reform. Section 51 (xxvi) ought to be amended to authorise only beneficial legislation, reflecting the intention of the 1967 reform. Additionally Australia’s somewhat precarious human rights agenda could greatly benefit from a constitutionally entrenched prohibition against discrimination[67].

Conclusion

The referendum as provided for in s.128 acts as an important protection of Constitutional stability, enabling the populace to veto unwanted enlargements of governmental power or alterations to the existing federal system. It facilitates a significant level of public involvement and is the ultimate gauge of the will of the people; as such the referendum is an indispensable tool of democracy.

Despite the current trend away from employing s. 128 the referendum has not been made redundant. The unpalatable situation that has arisen in relation to s. 51(xxvi) emphasizes the extreme importance of the mechanism, as well as its primary failing; the Government responsible for enacting discriminatory legislation is unlikely to willingly initiate the necessary reforms. Hence it is concluded that the utility of the referendum should be further enhanced by strengthening and supporting the role of the Australian people in the initiation and debate of referendum proposals.

References

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