The Times Australia
The Times World News

.
The Times Real Estate

.

Changing the Australian Constitution is not easy. But we need to stop thinking it's impossible

  • Written by Anne Twomey, Professor of Constitutional Law, University of Sydney
Changing the Australian Constitution is not easy. But we need to stop thinking it's impossible

Supporters of an Indigenous Voice to Parliament have celebrated the commitment of the new Albanese government to put the issue to a referendum. But is government support enough?

It’s a start, but the road to referendum success is a hard one, as it was always meant to be.

The Constitution was meant to be hard to change

When the Constitution was being written in the 1890s, the initial expectation was that it would be enacted by the British and they would control the enactment of any changes to it, just as they did for Canada.

But the drafters of the Commonwealth Constitution bucked the system by insisting they wanted the power to change the Constitution themselves. They chose the then quite radical method of a referendum, which they borrowed from the Swiss.

While it was radical, because it let the people decide, it was also seen as a conservative mechanism[1]. British constitutional theorist A.V. Dicey described the referendum as “the people’s veto[2]”, because it allowed the “weight of the nation’s common sense” and inertia to block “the fanaticism of reformers”.

The drafters of the Commonwealth Constitution were divided on the issue. Some supported the referendum because it would operate to defeat over-hasty, partisan or ill-considered changes. Others were concerned that change was hard enough already, and voters would have a natural tendency to vote “No” in a referendum because there are always objections and risks that can be raised about any proposal. Fear of the new almost always trumps dissatisfaction with the current system, because people do not want to risk making things worse.

In this sense, the referendum is conservative – not in a party-political sense, but because it favours conserving the status quo.

Another concern, raised by Sir Samuel Griffith, was that constitutions are complex, and a large proportion of voters would not be sufficiently acquainted with the Australian Constitution to vote for its change in an informed way. He favoured using a United States-style of constitutional convention to make changes.

The democrats eventually won and the referendum was chosen. But to satisfy their opponents, they added extra hurdles. To succeed, a referendum has to be approved[3] not only by a majority of voters overall, but also by majorities in a majority of states (currently four out of six states).

Read more: An Indigenous 'Voice' must be enshrined in our Constitution. Here's why[4]

A Constitution frozen in time

The predictions were right. The referendum at the federal level has indeed turned out to be the “people’s veto”. Of 44 referendum questions put to the people, only eight have passed[5]. No successful Commonwealth referendum has been held since 1977. We have not held a Commonwealth referendum at all since 1999.

There are many suggested reasons[6] for this. Some argue that the people have correctly exercised their veto against reforms that were proposed for party-political advantage or to unbalance the federal system by expanding Commonwealth power. If reforms are put because they are in the interests of the politicians, rather than the people, they will fail.

Questions asked in referendums have been poorly formulated and often load too many issues into the one proposed reform. If a voter objects to just one aspect of a proposal, they then vote down the entire reform.

Another argument is that, as Griffith anticipated, the people know little about the Constitution and are not willing to approve changes to it if they are unsure. The mantra “Don’t know – Vote No[7]” was extremely effective during the republic campaign in 1999.

Of course, if you don’t know, you should find out. But the failure to provide proper civics education in schools means most people don’t feel they have an adequate grounding to embark on making that assessment.

Decades of neglect of civics[8] has left us with a population that is insufficiently equipped to fulfil its constitutional role of updating the Constitution.

If people have the slightest uncertainty about what they are saying ‘yes’ to, they will inevitably say ‘no’ – something the republic referendum suffered from in 1999. Rob Griffith/AAP

Vulnerability to scare campaigns

The biggest threat to a successful referendum is the running of a “No” campaign by a major political party, or one or more states, or even a well-funded business or community group.

Scare campaigns are effective even if there is little or no truth behind them. It is enough to plant doubt in the minds of voters to get them to vote “No”. Voters are reluctant to entrench changes in the Constitution if they might have unintended consequences or be interpreted differently in the future, because they know how hard it will be to fix any mistake.

The 1967 referendum was one of the few that were successful. National Gallery of Australia

If a referendum campaign ends up focused on technical issues about the future operation or interpretation of particular amendments, then it is likely lost.

Campaigns tend to be more successful if they focus on principles or outcomes, such as the 1967 referendum concerning Aboriginal people. That referendum had the advantage of not being opposed in the Commonwealth parliament. The consequence was that there was only a “Yes” case[9] distributed to voters, as a “No” case can only be produced by MPs who oppose the referendum bill in parliament.

Read more: ‘Right wrongs, write Yes’: what was the 1967 referendum all about?[10]

Overcoming the malaise

While recognising these difficulties, perhaps the greatest risk is becoming hostage[11] to the belief the Constitution cannot be changed and referendums will always fail. It will become a self-fulfilling prophecy.

Instead, we need to face constitutional reform as being difficult but achievable and worthwhile. The Constitution should always serve the needs of today’s Australians, rather than the people of the 1890s.

The key elements for success include a widespread will for change, the drive and persistence of proponents, good leadership, sound well-considered proposals and building a broad cross-party consensus. Not every element is necessary, but all are helpful.

As incoming Indigenous Affairs Minister Linda Burney[12] recently noted, there is still a lot of work to be done in building that consensus in relation to Indigenous constitutional recognition, but the work has commenced.

References

  1. ^ conservative mechanism (adc.library.usyd.edu.au)
  2. ^ people’s veto (archive.org)
  3. ^ approved (www.austlii.edu.au)
  4. ^ An Indigenous 'Voice' must be enshrined in our Constitution. Here's why (theconversation.com)
  5. ^ eight have passed (www.aec.gov.au)
  6. ^ suggested reasons (www.aph.gov.au)
  7. ^ Don’t know – Vote No (www.aec.gov.au)
  8. ^ neglect of civics (www.aspistrategist.org.au)
  9. ^ “Yes” case (www.naa.gov.au)
  10. ^ ‘Right wrongs, write Yes’: what was the 1967 referendum all about? (theconversation.com)
  11. ^ hostage (www.auspublaw.org)
  12. ^ Linda Burney (www.abc.net.au)

Read more https://theconversation.com/changing-the-australian-constitution-is-not-easy-but-we-need-to-stop-thinking-its-impossible-183626

The Times Features

Ocean Lovers Festival 2025: A Citywide Celebration of Ocean Conservation and Culture

Sydney, January 2025 – Australia’s largest cultural and science event dedicated to the ocean, the Ocean Lovers Festival, is back for its fifth year with an even bigger splash! ...

Top 5 Benefits of Wearing Hi Vis Shirts on the Job

The workplace should be safe for the employees. It is not something optional, it is the need. When workers need to work in hazardous environments, then they have to wear hi vis s...

Delicious and Healthy Vitamix Recipes for Optimal Nutrition

🍏🥦 Enjoy tasty Vitamix recipes packed with nutrients for optimum health. Healthy eating 🥕🍓 made fun & delicious! 💪🍹 #Nutrition #VitamixRecipes Healthy Eating and Optimal Nutri...

Essential Summer Tree Care Tips for Australian Homes

Caring for trees during the summer months can be challenging, especially in Australia, where the heat and dry conditions can take a toll on tree health. Proper tree care is essen...

Steven Khalil, set to bring international glamour to the PayPal Melbourne Fashion Festival

Australian couturier, Steven Khalil, will present a sixty-look collection for PayPal Melbourne Fashion Festival’s Grand Showcase on Friday 7 March at Royal Exhibition Building...

Foxtel Group and World Surf League extend partnership into 2025

Foxtel Group has announced the renewal of its broadcast rights deal with the World Surf League (WSL), extending the long-standing, 17-year partnership through 2025. The renewal...

Times Magazine

How 32-Inch Computer Monitors Can Increase Your Workflow

With the near-constant usage of technology around the world today, ergonomics have become crucial in business. Moving to 32 inch computer monitors is perhaps one of the best and most valuable improvements you can possibly implement. This-sized moni...

Top Tips for Finding a Great Florist for Your Sydney Wedding

While the choice of wedding venue does much of the heavy lifting when it comes to wowing guests, decorations are certainly not far behind. They can add a bit of personality and flair to the traditional proceedings, as well as enhancing the venue’s ...

Avant Stone's 2025 Nature's Palette Collection

Avant Stone, a longstanding supplier of quality natural stone in Sydney, introduces the 2025 Nature’s Palette Collection. Curated for architects, designers, and homeowners with discerning tastes, this selection highlights classic and contemporary a...

Professional-Grade Tactical Gear: Why 5.11 Tactical Leads the Field

When you're out in the field, your gear has to perform at the same level as you. In the world of high-quality equipment, 5.11 Tactical has established itself as a standard for professionals who demand dependability. Regardless of whether you’re inv...

Lessons from the Past: Historical Maritime Disasters and Their Influence on Modern Safety Regulations

Maritime history is filled with tales of bravery, innovation, and, unfortunately, tragedy. These historical disasters serve as stark reminders of the challenges posed by the seas and have driven significant advancements in maritime safety regulat...

What workers really think about workplace AI assistants

Imagine starting your workday with an AI assistant that not only helps you write emails[1] but also tracks your productivity[2], suggests breathing exercises[3], monitors your mood and stress levels[4] and summarises meetings[5]. This is not a f...

LayBy Shopping