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The Australian Constitution

Successful referendums

Having asked the people to approve the Australian Constitution, the nation's founders felt the people should have a say about changing it. According to section 128 of the Constitution, a change must first be approved by the Parliament and then put to a vote of the people in a referendum. For the change to go ahead, it must be approved by a majority of voters in a majority of states.

Before a referendum is held, members of parliament prepare arguments for or against the proposed change. The Australian Electoral Commission is in charge of running federal elections and referendums. It arranges for the 'Yes' and 'No' cases, along with a statement of the proposed change, to be posted to every Australian on the electoral roll. In the referendum, voters answer 'Yes' or 'No' to the proposal.

Many of the changes proposed in referendums since 1901 aimed at widening the Parliament's law-making powers. Nineteen referendums proposing 44 changes to the Constitution have been held. The Australian people have agreed to only eight changes.

1906 referendum – Senate elections

The first referendum to amend, or change, the Constitution was held nearly six years after federation. It made a small change to section 13 of the Constitution so senators' six-year terms would commence on 1 July instead of 1 January, and end on 30 June instead of 31 December.

It was thought elections for both the House of Representatives and the Senate would always be held around March, as was the first federal election in 1901. However, this meant senators would not take up their seats until the following 1 January.

Under the change, if an election was held in March, senators would only wait three months before entering the Senate in July. Over 82 per cent of Australians voted in favour.

1910 referendum – states' debts

The second referendum amended section 105 to give the federal Parliament unlimited power to take over debts owed by the six states. Before this, the federal Parliament could only take over states' debts which existed at the time of federation. Nearly 55 per cent of Australians agreed to the change.

An additional question put at the referendum, to alter the way the federal Parliament divided up extra revenue (money collected by the federal government) between the states, was defeated.

1928 referendum – states' debts and the Loans Council

The third referendum also dealt with financial relations between the federal and state parliaments. Widespread concern about the size of public debt saw 74.30 per cent of Australians vote in favour of the change. Following the referendum, section 105a was added to the Constitution. It led to the formal creation of the Australian Loans Council which co-ordinates borrowing between the states and the Commonwealth (the federal government).

1946 referendum – social services

Following this referendum section 51 of the Constitution was amended to give the federal Parliament the power to make laws about a wide range of social services, including family allowances, widows' pensions, unemployment benefits and medical services.

The federal government had already taken on responsibility for social welfare payments; however, in 1945 the High Court ruled that the Constitution did not give them this power. The 'Yes' case for the referendum argued 'social services can only be dealt with fairly and properly on an Australia wide basis'. Close to 55 per cent of Australians agreed.

1967 referendum – Aboriginal people

The 1967 referendum gave the federal government the power to make laws for Aboriginal Australians. It also repealed section 127 of the Constitution which excluded Indigenous Australians from being counted in the census, or national population count. This provision effectively meant Aboriginal people were not regarded as Australian citizens.

Prior to 1967, section 51 of the Constitution, which outlines the law-making powers of the federal Parliament, stated that the Parliament could make laws with respect to 'people of any race, other than the Aboriginal race in any state'. It gave the states, rather than the federal government, responsibility for Aboriginal affairs, and meant Aboriginal people lived under six different laws.

Under both section 127 and section 51, Aboriginal Australians were treated differently or separate to other Australians. There was widespread support for changing these provisions. The fact that the federal government made laws for all Australians except for one particular group was seen as wrong. People also felt the federal government was better placed than state governments to deal with Indigenous disadvantage.

The change was unanimously supported by the Parliament and a 'No' case was not put to the voters. The 'Yes' case appealed to Australians' sense of fairness. For example, it stated 'Section 127 is completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age'. Nearly 91 per cent of Australians voted in favour – the highest 'Yes' vote recorded in any referendum.

The 1967 referendum is regarded as a milestone because it meant for the first time Indigenous Australians were acknowledged as full citizens of the nation.

1977 referendum

Four changes were proposed in the 1977 referendum, of which three were agreed to:

Senate Casual Vacancies

Over 70 per cent of Australians agreed with the proposal to fill casual vacancies in the Senate by a person from the same political party as the senator being replaced.

Under section 15 of the Constitution when a casual vacancy occurs in the Senate, through the resignation or death of a senator, a new appointment is made by the Parliament of the state which that senator represented. However, while it was practice, or convention, that the new senator was selected from the same political party as the person they were replacing, there was nothing in the Constitution to say this was the way it should be done.

The 'Yes' case for the referendum stated 'It is the fundamental right of voters that the Senate should reflect the wishes of the electorate'.

Referendums – Territories

In 1977 the Australian people also agreed to change section 128 of the Constitution. This allowed people in the territories to vote in referendums on proposed changes to the Constitution. Until 1977, only people living in the states could vote in referendums.

The 'Yes' case argued that people in the territories paid taxes and were bound by federal laws. Therefore, they were entitled to have a say in referendums which could significantly affect their lives. A 'No' case was not put to the voters. Nearly 78 per cent of Australians voted in favour of the proposal.

Retirement of Judges

The third proposal to succeed at the 1977 referendum set a retiring age of 70 for judges of federal courts. This required a change to section 72 of the Constitution. It was argued that most people have to retire at a certain age and judges should be treated no differently. Just over 80 per cent of voters supported the change.

High Court of Australia +

The High Court of Australia in session


Simultaneous elections

The fourth proposal put at the 1977 referendum did not pass because it failed to gain the required double majority (a majority of voters in a majority of states and a national majority of voters). It would have altered the Constitution to ensure elections for the Senate and House of Representatives were held at the same time. While the proposal was supported by a majority of voters across Australia, it was only supported by a majority of voters in three states.