The referendum before us (in a couple of weeks) is a national vote on a question about a proposed change to the Constitution.
What is our constitution?
Our national constitution is a set of rules for governing our country. Such rules may be based on tradition or may be written down in the form of a law or a number of laws. In some countries laws forming the constitution are ordinary laws which can be changed just like any other law, but in most countries the laws forming the constitution have a special status.
The Constitution of Australia has a special status—it cannot be changed in the same way as other laws can be changed and it is a supreme law, that is, it overrides other laws.
How was the Australian Constitution created?
Before 1901 the present Australian States were separate colonies of the then British Empire. When the colonies decided to join together in a federation, representatives from each colony were elected to attend meetings (called constitutional conventions) to draw up a constitution for the new nation. The draft constitution was later approved by a vote of the people in referendums held in each colony.
The new Australian nation was established on 1 January 1901 following the passing of the Commonwealth of Australia Constitution Act by the United Kingdom Parliament. The purpose of the Act was ‘to constitute the Commonwealth of Australia’. The Constitution drawn up at the conventions was included as part of this Act, which declared that ‘The Constitution of the Commonwealth shall be as follows:—…’.
What does our Australian Constitution do?
Australia is a federation of states which each have their own constitution, government and laws. The Australian Constitution originated as an agreement under which the former colonies came together as states in a federation. In brief, the Constitution establishes the form of the federal government (that is, the Commonwealth, national or central government) and sets out the basis for relations between the Commonwealth and the states.
All Australian citizens aged 18 and over must vote.
It’s been quite a while since we held a referendum – the last was over 20 years ago in 1999.
Matters not in the Constitution
Some of the central features of Australia’s system of government (described as parliamentary, cabinet or responsible government and also called a Westminster-style system) are not set down in the Constitution but are based on custom and convention. These include the position of Prime Minister and the group of senior Ministers called the Cabinet, who make major policy and administrative decisions and in effect govern the country.
On some matters the Constitution sets down temporary arrangements ‘until Parliament otherwise provides’. The Parliament does this by passing legislation. For example, the first national elections were held under state laws. Later elections were conducted under the provisions of the Commonwealth Electoral Act 1902. Another example is the number of Senators and Members, which may be changed by an Act of Parliament as long as the specific conditions set by the Constitution are met.
Unlike the constitutions of some other countries, the Australian Constitution does not contain a list of the rights of citizens (a ‘bill of rights’).
Interpreting the Constitution—the role of the High Court
One of the roles of the High Court is the interpretation of the Constitution. The High Court does this only when a specific case is before the court requiring a ruling on a provision of the Constitution; it does not give advisory opinions.
Interpretation of the Constitution has been needed not only because of disagreements over the meaning and application of particular provisions, but also because of developments which were not foreseen when the Constitution was written (for example, aviation and television).
Through interpretation the effect of the Constitution has been changed over the years. Many of the court’s rulings have had the result of extending the powers of the Commonwealth at the expense of the states.
How can the Constitution be changed?
The Parliament can change ordinary laws by passing amending laws, but it can only initiate proposals for changes to the Constitution. The approval of the people of Australia is necessary for any change to the Constitution, just as the approval of the people of Australia was a step in the process of creating the Constitution in the first place. The Constitution itself sets out the way in which it can be changed.
A proposal to alter the Constitution starts as a bill in either House of the Parliament and can be introduced by any Member or Senator. A constitution alteration bill goes through the same stages and follows the same procedures in each House as any other bill with the important exception that its third reading must be passed by an ‘absolute majority’. An absolute majority means that it must be agreed to by more than half of the total number of Members of the House—other bills need only the agreement of the majority of Members voting at the time (a ‘simple majority’).
When a constitution alteration bill has passed both Houses it is voted on by the people of Australia in a referendum (held after two months but within six months). To save expense, referendums are usually held at the same time as elections for the House of Representatives and/or the Senate.
A constitution alteration bill does not have to be passed by both Houses of Parliament. If one House refuses to pass a constitution alteration bill which has been passed by the other House, the bill may be submitted to a referendum if the first House passes the bill a second time.
To be successful the proposal must be approved by the majority of voters nationwide, and also by the majority of voters ‘in the majority of the States’ (that is, in at least four states). If a proposal affects an individual state rather than all states generally, the proposal must also obtain majority approval in the state concerned.
Many proposals for constitutional change have been discussed over the years, but most have not got as far as referendum or have been rejected at referendum. Forty four proposals to alter the Constitution have been passed by the Parliament and submitted to referendum, but only eight have been successful. These were to:
- allow Senator’s terms to commence in July instead of January (1906)
- allow the Commonwealth to take over state debts (1910)
- permit the Commonwealth to make agreements with the states about the states’ public debts and borrowings (1928)
- give powers to the Commonwealth to legislate on a range of social services (1946)
- remove provisions which had prevented the Commonwealth from making laws with respect to Aboriginal people and which had excluded them from being included when counting the population (1967)
- provide for casual vacancies in the Senate to be filled by a person of the same political party as the Senator being replaced (1977)
- let electors in the territories vote in referendums (1977)
- set a retiring age of 70 for High Court and federal court judges (1977).
How a referendum proposal is decided
Federal Parliament decides on the proposed change to the Constitution to put to voters. A proposed law outlining the changes to the Constitution must be passed by both houses of Parliament – or passed twice in either the House of Representatives or the Senate.
A referendum must then be held no sooner than two months and no later than six months after the bill has passed Parliament.
How the vote is conducted
- The Governor-General issues a writ (the formal instruction to run the referendum) which, like an election, must be held on a Saturday.
- A referendum can be held at the same time as a federal election but can also be held as a stand-alone event.
- There can be a single referendum question or several proposed changes to the Constitution for voters to consider at the same time.
Legislation
- While Chapter 8 of the Constitution provides key rules for the conduct of a Referendum, the Referendum (Machinery Provisions) Act 1984 outlines specific processes the Government must follow when holding a referendum.
The proposed change to the Constitution must be approved by a ‘double majority’ – that is:
- a national majority of voters (more than 50%) from all states and territories, and
- a majority of voters (more than 50%) in a majority of states (at least four of the six states).
The result is binding. This means the Australian Government must act on what voters decide.
While the votes of people living in the Australian Capital Territory and Northern Territory count towards the national majority only, all vote totals will be communicated for information through the AEC’s tally room by state and territory, by electoral division and by polling place.
Is it all counted on the night?
No, this isn’t possible. The access provided to people to vote away from their home division or state/territory, internationally or by post means votes take time to travel back to the appropriate AEC counting centre. While the count itself is easier than a federal election (formal vs informal, yes vs no), there are still logistical considerations that mean a clear indication of a final result may take days or even weeks.
In addition, just like a federal election, every vote will be counted more than once to check that the initial count was correct (a process called fresh scrutiny) and all counting happens in front of party-appointed scrutineers.
Once the count is complete
Once the counting process is finished the AEC will return the writ (the formal instruction to run the referendum) to the Governor-General with a certificate from the Electoral Commissioner setting out the result of the vote for each state and territory and nationally.
If the referendum is approved by a double majority of Australian voters, this is the final step in approving the Bill setting out the changes to the Constitution that was passed by federal Parliament. This Bill will be presented to the Governor-General for assent. An Act to change the Constitution comes into operation on the day the approved Bill (Act) on which the approved Bill (Act) receives assent unless the Act itself says something different.
If the referendum is not passed by a double majority of Australian voters, the Bill previously passed by Parliament setting out the proposed changes to the Constitution is not approved and can’t be presented to the Governor-General for assent.
The AEC’s role
“The AEC is the independent statutory authority responsible for running a referendum. We’ll communicate with voters about their requirement to participate, the purpose of referendums and voting options.
There is freedom of political communication and while the AEC will be active in ensuring accurate information is available about the referendum processes we operate, it’s not our role to comment on campaign communication about the referendum topic”
