The difficulties of constitutional reform

Achieving constitutional reform in Australia is notoriously difficult. Former prime minister Sir Robert Menzies once described changing the Commonwealth Constitution as “one of the labours of Hercules”. Of 44 referendum proposals since Federation, only eight have succeeded. Most of the eight successful reforms have involved minor changes. Two notable exceptions are a reform to give the Commonwealth law-making power over social services (1946) and with regard to indigenous people (1967). The last successful referendum occurred in 1977 when the people accepted three proposed changes to the Constitution (the filling of casual Senate vacancies, introducing a retirement age for High Court justices and referendum voting rights for citizens in the territories). There have been three referenda and eight proposed reforms since then, and all have failed. Constitutional reform is difficult for a number of reasons:

Double majority. The Constitution requires that before any reform is adopted, it must be accepted by an absolute majority of all Australian voters AND an absolute majority of voters in at least four of the six States. This ensures that proposals are accepted by both the Australian people and the States. This requirement for a ‘double majority’ can block proposals that might otherwise have been accepted by a majority of the population. Of the 36 defeated referendum proposals, five have achieved a nationwide majority but not a majority of States. A 1984 proposal to abolish fixed terms for Federal Senators, for example, was approved by 50.64 per cent of all voters but only achieved a majority in two states, New South Wales and Victoria.

Triple majority. A less known requirement is the so-called ‘triple majority’. Section 128 deems that if a State is directly affected by a proposed constitutional change – for example, if its boundaries are altered or its representation is affected – then the people in that State must support the change with a majority of votes. This restriction acts as a safeguard for the rights and sovereignty of individual states.

Conservatism and lack of understanding. The Australian people are traditionally conservative and can be very wary about altering the Constitution. In layman’s terms, their attitude to constitutional reform is that ‘if it’s not broken, don’t try to fix it’. Some voters are also suspicious of constitutional reform, seeing it as the work of politicians, political parties or interests groups, who they are reluctant to follow or trust. Many voters may not understand the purpose or intricacies of a referendum proposal, or the implications it might have on the law and society. In these situations, many people adopt a ‘do no harm’ attitude and vote against the proposal.

The need for broad and bipartisan support. If they are to stand any chance of success, constitutional reform proposals need to enjoy broad support from the media and most, if not all major political parties. Because the electorate is ‘touchy’ about constitutional reform, any significant opposition or criticism in the media is likely to increase the ‘no’ vote. Likewise, if a proposal does not have the support of both major parties and notable leaders, its chances will be greatly reduced. In 1999 the proposed change to a republic did not enjoy the support of incumbent prime minister John Howard, who was a committed monarchist, and this undoubtedly reduced public support.

Anti-reform pressure groups. Many referendum proposals have given birth to negative pressure groups, who form specifically to campaign against the proposal and have it defeated. These groups often attract a lot of attention, even if they happen to be small in number. They can obtain media coverage and influence voters who are nervous about supporting constitutional reform. They may engage in a ‘scare campaign’ that promotes all kinds of negative outcomes, real or imagined, if the proposal is adopted.