Chapter VIII of the Constitution of Australia

Chapter VIII of the Constitution of Australia provides the method for altering the Constitution. It contains only one section, section 128, which sets out the requirements for constitutional referendums by which the words of the Constitution may be altered.

Sections

Section 128

Section 128 provides that the Constitution may only be amended by referendum, and specifies the procedures for referendums (referenda). The method involves several steps; firstly, a bill containing the proposed change must be passed by the Parliament of Australia (subject to an exception), secondly, the proposed change must be submitted to the Australian electors for approval.

The section first requires that any proposed change be passed by an absolute majority (a majority of the total number of members, not merely of the members present or of the members voting) of both houses of Parliament (the Australian House of Representatives and the Australian Senate). An exception is provided for the situation where one house passes the bill containing the proposed change, but the other house does not pass it, or passes it with amendments to which the first house will not agree. If after three months, the first house passes the bill again but the second house still will not pass it, then the Governor-General of Australia has the option of submitting the proposed change to the electors for a referendum anyway. In practice, the Prime Minister of Australia advises the Governor-General whether to do so or not, with the result that it is very difficult for a group or party that is not the Government to successfully put a proposed change to a referendum.^[1]

Once the bill has been passed, or once the exception has come into effect, the Governor-General must submit the proposed change to the electors for a referendum. The referendum must occur at least two months after the bill has been passed, but at most six months after. Section 128 allows the Parliament to make laws setting out the exact procedures for a referendum (this is currently done by the Referendum (Machinery Provisions) Act 1984), although it does provide that all electors who are eligible to vote in elections for the House of Representatives are eligible to vote in referendums.

Section 128 also makes allowance for the situation that existed very soon after Federation, when there were no laws about suffrage at a federal level; it provides that until such time that such a law was introduced, in any state where there was full adult suffrage (for men and women) only half the votes in that state would be counted. This provision is now obsolete, as there are uniform voting laws.

The section provides that a referendum will succeed if:

• a majority of electors voting approve of the change in a majority of states (four out of six); and
• a majority of all electors across Australia (including electors in territories) approve of the change.

This requirement is known as the "double majority".

There is a further requirement that any state specifically affected by the amendment must be one of the states with a majority vote in favour of the change. The situations specifically mentioned in s128 are:

• if the change proportionally reduces that state's representation in either house of parliament;
• if the change reduces the minimum number of representatives of that state in the House of Representatives;
• if the change alters the boundaries of a state, whether increasing or decreasing; or
• if the change alters the provisions of the Constitution specifically in relation to that state.

This situation is known as the "triple majority".

Amendments

Chapter VIII has been amended once, following the 1977 referendum. The change provided for the participation of electors in territories of Australia in referendums. Electors in territories which can be represented in the House of Representatives (currently the Northern Territory and the Australian Capital Territory) are counted in determining whether a majority of all electors in Australia approve of a change. Electors in other territories cannot vote in referendums.

There has been one failed change which would have amended Chapter VIII. At the 1974 referendum, a change was proposed which would have had the same effect as the later successful 1977 referendum in allowing electors in certain territories to vote in referendums, but which also would have modified the requirement that a majority of electors in a majority of states approve a change. The failed change would have altered this requirement so that if an equal number of states approved and disapproved of a proposed change, but a majority of electors nationally approved, then the referendum would succeed.

The Constitutional Commission which was established by the Hawke government in 1985 recommended in its final report in 1988 that Section 128 be altered to allow the parliaments of the states to initiate referendums by passing bills containing a proposed change.^[2] Under the proposed procedure, if at least half of the states, with combined population amounting to at least half the Australian population, passed bills proposing the same amendment within a 12 month period, then the Governor-General would be obliged to put the proposal to a referendum in the same way as if the federal parliament had made the proposal. The Commission also recommended against the introduction of an elector's initiative system, as is in use in Switzerland and several states of the United States, because it viewed such a system as being at odds with the Australian traditions of responsible government and representative government, because it regarded such processes as often being dominated by professional campaigners rather than ordinary electors, and because of the risk of tyranny of the majority.^[2]

History

The method for amending the Constitution laid out in Chapter VIII was modelled after provisions in the Swiss Federal Constitution, which had already inspired similar provisions in the constitutions of several of the states of the United States.^[3]

References

1. ^ Blackshield, Tony; Williams, George (2010). Australian Constitutional Law and Theory: Commentary and Materials (5 ed.). Leichhardt (Sydney): Federation Press. pp. 1340-1369. ISBN 9781862877733. 
2. ^ ^{a b} Constitutional Commission (1988). Final Report of the Constitutional Commission. Canberra: Australian Government Publishing Service. ISBN 0644069015. 
3. ^ Saunders, Cheryl (2000-08-15). "The Parliament as Partner: A Century of Constitutional Review". Parliament of Australia Parliamentary Library. http://www.aph.gov.au/LIBRARY/pubs/rp/2000-01/01RP03.htm. Retrieved 2006-12-14.