The Requirement for Commonwealth Parliamentary Approval and a Double Majority in a Referendum

Introduction to Constitutional Reform

• The Australian Constitution establishes the framework for our legal and political systems.
• Section 128 of the Constitution outlines the process for amending the Constitution.
• Constitutional reform is difficult; only a small number of proposed changes have been successful.
• Changes can alter the Commonwealth’s law-making powers, but not always.

KEY TAKEAWAY: Amending the Constitution is a complex process designed to protect the foundational principles of Australian governance.

The Referendum Process: A Three-Stage Approach

The process for changing the Australian Constitution involves three key stages:

1. The Parliament: A bill proposing the constitutional change is introduced.
2. The People: A referendum is held to obtain the people’s approval.
3. The Governor-General: Royal Assent is given to the bill, formally amending the Constitution.

VCAA FOCUS: Understand the order of these stages and the role of each entity.

Stage 1: Parliamentary Approval

• A Constitution Alteration Bill outlining the proposed change must be passed by both Houses of the Commonwealth Parliament.

• This requires a majority vote in both the House of Representatives and the Senate.

  STUDY HINT: Think of Parliament as the initiator of constitutional change.

Stage 2: The Referendum

• Once passed by Parliament, the proposed change is put to Australian voters in a referendum.
• A referendum is a compulsory vote where citizens indicate whether they support the proposed change.
• The vote must occur between two and six months after the bill passes through Parliament.
• The question posed to voters is a simple “yes” or “no” regarding the proposed amendment.

EXAM TIP: Be precise in your language. Referendums are about proposed changes to the Constitution, not just any law.

Stage 3: The Double Majority Requirement

The double majority requirement is a critical element for a successful referendum. It comprises two parts:

1. National Majority: A majority (more than 50%) of all Australian voters must vote “yes”.

2. State Majority: A majority of voters in a majority of states (at least four out of six) must vote “yes”.

   KEY TERM: Double Majority: A voting system that requires both a majority of voters Australia-wide and a majority of voters in a majority of states to vote ‘yes’.

Consequences of Failing the Double Majority

• If either the national majority or the state majority is not achieved, the proposed constitutional change fails.
• This highlights the difficulty in amending the Constitution and the importance of broad support across the nation.

COMMON MISTAKE: Students often forget that both the national and state majorities are required.

Diagram: Steps for a Successful Referendum

• Step 1: Legislation (Constitution Alteration Bill) passes through both houses of Commonwealth Parliament.
• Step 2: Proposed change is put to voters in a compulsory yes/no vote (within 2-6 months).
• Step 3: Majority of the Australian population (>50%) votes ‘yes’.
• Step 4: Majority of the population in a majority of states (4 or more) votes ‘yes’.

• Step 5: Legislation receives Royal Assent from the Governor-General, and the Constitution is amended.

  REMEMBER: “Parliament Proposes, People Decide, Governor-General Proclaims.” (A simple mnemonic.)

The Role of the Governor-General

• If the double majority is achieved, the Governor-General gives Royal Assent to the bill.
• This is the final step in formally amending the Constitution.
• The new words of the amendment are then incorporated into the updated Constitution.

APPLICATION: Consider the 1967 Referendum, which successfully removed discriminatory references to Aboriginal people, as an example of the double majority requirement being met.

Rationale Behind the Double Majority

• The double majority requirement is designed to protect the interests of the states.
• It prevents the Commonwealth from unilaterally altering the Constitution in ways that might disadvantage smaller states.
• It ensures that any constitutional change has broad support across the country, not just in the most populous areas.

EXAM TIP: When discussing the double majority, link it to the concept of federalism and the protection of state interests.

Historical Examples and Analysis

• As of early 2023, only eight out of 44 referendums to alter the Constitution have been successful.
• The high failure rate demonstrates the difficulty of achieving the double majority.

Case Study: The 1951 Referendum on Banning Communism

• In 1950, the Commonwealth Parliament passed the Communist Party Dissolution Act, effectively banning the Communist Party of Australia.
• The High Court ruled the Act invalid.
• The Commonwealth Government proposed a referendum to grant it the power to ban the Communist Party.
• The referendum failed to achieve a double majority, illustrating the checks and balances in the system.

KEY TAKEAWAY: The double majority requirement acts as a safeguard against radical changes lacking broad support.

Summary

VCAA FOCUS: Be able to explain why the double majority is important in the context of Australian federalism and constitutional law.