What does a No Vote Mean? A Constitutional Historian’s Perspective
10.04.25
Today I want to address four matters.
1. What were the Framers thinking – when they came up with the amending provision to the Constitution?
2. How can we change the Constitution?
3. What does a defeat at a referendum mean?
4. Concluding thoughts
1. What were the Framers thinking – when they came up with the amending provision?
I want to start with a quote from Robert Garran, who was present at the drafting of the Constitution, and the establishment of the Commonwealth of Australia.
He was one of our first public servants.
He brings a unique understanding on what was in the minds of the Framers. Writing in Prosper the Commonwealth in 1958 he said this, of the Framers of the Constitution:
‘Amendment' said one of them ‘should be the medicine of the constitution, not its daily food'’. But medicine may be pleasant or unpleasant, maybe easy or hard to take. Perhaps our founding fathers made it harder than they meant.
From our perspective, this could be said to be something of an understatement.
Metaphors abound in the area of constitutional reform. Professor Geoffrey Sawer’s idea that - constitutionally speaking - Australia was a ‘frozen continent’, today feels more like the new ice-age.
We have now 45 attempts for 8 successful changes.
Not since 1977 have we successfully amended the constitution. One of those was to require chapter III judges to retire to 70. As the world discovered ‘agism’ – Australia managed to constitutionalise it.
Even looking at the unsuccessful attempts - there were 5 cases (1937, 1946 x 2, 1977 and 1984) where the percentage of voters in favour of was over 50% - but it failed to get a majority of states. In other words, NSW and Victoria largely supported the change – but the ‘smaller states’ did not.
But would-be constitutional reformers are by their very nature optimists – and I think that we must continue to be so.
So, what were the Framers thinking when they went about crafting the words of section 128 – the amending provision – that requires a double majority, that is, a majority of voters nationally as well as a majority across a majority of states?
Firstly, during the decade of the 1890s much changed in the democratic landscape. When the Framers commenced the process of drafting the Constitution the ‘democratic’ spirit, that was to later to become a hallmark of the final constitution, was not as evident.
Remembering that the membership of the 1890 and 1891 constitutional convention that commenced the task of crafting the federation was appointment by the colonial parliament. So too, the amending provision in the early drafts left the formal change of the Constitution to those legislatures, with some possible involvement of the States.
It was not until 1897, with the election of the delegates to the Australiasan convention that pressure rightly turned to the involvement of the people in the amendment of the Constitution. Remembering that by 1894 women had the vote in South Australia – a fact that has an echo in the current section 128. Indeed, Catherine Helen Spence was the first woman to seek public office in that colony.
So, with the election of the delegates, and the ultimate approval of the Constitution by the electors, it became axiomatic that the amendment of the Constitution would also involved - (the people in some form).
It is at this point we might contrast the ability to amend State Constitutions (which is largely through a parliamentary process and manner and form provisions) with amendment of the Australian Constitution through section 128.
For instance, the passage of the First Nations Voice Act 2023, amended the South Australia Constitution to include in section 3, the State version of the Voice to Parliament. This was done in South Australia without a referendum and may yet demonstrate how a Voice can operate in conjunction with a parliamentary system.
For the avoidance of doubt – I am not suggesting that the democratic underpinnings of the Constitution is not something to be lauded – rather it is a contrasting feature between amending mechanisms.
The challenge for the Framers when considering the amendment system was practical, as well as theoretical. Having spent years pouring over the words of the Constitution and crafting difficult compromises, for some it needed to be cemented in place. Indeed, John Donaldson of Queensland said in 1891, ‘For my own part, I wish to make the amendment of the constitution as difficult as possible.’
Others were much more accommodating of the future. HB Higgins, a future High Court justice, noted the errors in the appeal provisions in the Constitution and the inevitable need for future reform. He made an impassioned plea:
In short, no one can say to what an impasse this rigidity, as to representation will lead Australia. We in 1898 have no right to dictate to the future people of Australia as this section dictates, or so to tie their hands by this parchment bond. We have no right to deposit the ultimate sovereignty of Australia in a document which cannot be swayed by reason or moved by prayers, or impelled, except by the violence or revolution of the people affected by it, and which in the meantime is to be backed up by the courts, and the police, and the soldiery, and (if necessary) by the Imperial power.
In short, the Framers were divided on the rigidity they were putting into the amending process. Ultimately, I do not believe they wished to make it to be so difficult. The argument to this end can be taken from the fact they were aware that formal amendment was not the only way to change the constitution.
2. How can we change the Constitution?
The Framers believed the Constitution could be changed in three ways. Today, only two of those routes are available to us.
The first, was the formal change, through section 128. A route that Australia has since 1977 appeared unwilling to venture upon.
Secondly, the means of constitutional interpretation. There have been many articulations of this route with all roads leading to the High Court of Australia (and specifically since the severing of appeal to the Privy Council). Constitutional authors like Andrew Inglis Clark and Alfred Deakin provided clear statements of the correctness of this approach.
Inglis Clark famously articulated it in his book Studies in Australian Constitutional Law (1901 at 21):
[The Constitution] must be read and construed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document.
Alfred Deakin, during the second reading speech for the Judiciary Bill in 1902, made a similar point when he said that
the nation lives, grows, and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. The organ of the national life which preserving the union is yet able from time to time to transfuse into it the fresh blood of the living present, is the Judiciary…
Notwithstanding the controversy that may attend any particular High Court decision, the framers contemplated that the High Court would give the words of the document meaning within a changing contexts.
The third method of constitutional amendment has now, thankfully, slipped into anachronistic oblivion. It would be recourse to the source of the original authority of the Australian Constitution – the Imperial Parliament. As Quick and Garran wrote in 1900:
If unanimity cannot be secured, there yet remains the possibility of resort to the Imperial Parliament for an amendment of the Constitution, dispensing with the necessity for obtaining the consent of all the States. Such a radical and dramatic method of settling a deadlock, unsolvable by the Constitution itself could only be justified by the gravest consideration of a most serious emergency.
Since the passage of the Statute of Westminster this avenue is closed. These then are Framers approach to amendment and the methods. They knew and expected changed would be necessary.
3. What does a defeat at a referendum mean?
The failure to approve a constitutional amendment though the formal means has not been the end of the matter. Indeed, in at least one area, the failure of the electorate to approve a formal amendment has not proved to be an impediment to significant change.
Before turning to it, it is worth recalling that that Federation itself was off the rails in 1898. After the drafting of the Constitution it had to be put to the people of the colonies (noting there was not universal suffrage except in South Australia). The process was pre-ordained by the so-called Enabling Act passed by the colonies. And so a referendum needed to be held in the participating colonies to approve the Constitution prior it being shipped to the UK. In 1898 the vote was held in NSW, Victoria, South Australia and Tasmania. However, the NSW version of the Enabling Act had, at the behest of the Premier George Reid, a special majority. So while NSW voted ‘yes’ it did not do so insufficient number.
The Federation had Failed.
The result was a scramble to hold a ‘secret premiers conference’ – so secret that it was on the front pages of every daily newspaper – where Reid extracted several concessions from the other colonies (including that the permanent Capital of Australia should be ‘within New South Wales, at least 100 miles from Sydney’). At the subsequent referendum NSW voted in favour, and the Federation went forward.
Arguably one of the most contested powers in the Constitution (as distinct to guarantees such as section 92) are those related to industrial relations. This was an area of contestation between the political parties from federation in 1901 onwards. What was the role of the state in the regulations of the industrial relations and what would be the mechanism? – were questions that pitted the parties against each other. Section 51 (xxxv), and industrial regulations, proved to be an area of intense disputation and limitation.
Industrial relations was also the area where there have been the most significant attempts of constitutional reform. Referenda to expand the Commonwealth’s powers over industrial relations were put in: 1911, 1913, 1919, 1926 and 1946. Each one of these proposed amendments failed – some were close – some failed by a constitutional country mile.
Yet in the face of these sustained rejections by the electorate, the Commonwealth parliament today has significant constitution authority in the area. This can be traced through a series of High Court decisions starting with the Engineers case (1920) and ending with the Work Choices (2006). Indeed, the majority of in Work Choices case concluded that: ‘There are insuperable difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution's meaning’. The failed attempts provide ‘no assistance’ to the Court and its interpretation of the Constitution.
In short, the mechanism for constitutional amendment and reform - are not mutually reinforcing.
Further, the rejection of a constitutional amendment in 1988 to provide for ‘fair and democratic parliamentary elections throughout Australia’ did not prevent the High Court from drawing a democratic reinforcing implication from the text and structure of the Constitution in the implied freedom political communication cases in the early 1990s.
4. Concluding thoughts
Arguably the High Court has been over utilised as the means are modernisation of the Constitution. While the Framers rightly gave it this task, they would be astonished that it has been so prominent in the process.
The country’s inability to amend the Constitution is to be lamented. Not because it has proven to be a bulwark against radical changes – but it is now a hand break on necessary and modest amendments. We have, for instances, tried and tested four-year parliamentary terms in the States. Even this modest change appears out of reach for the Commonwealth Parliament. We appear to have lost our constitutional muscle memory – how to do successful change.
There is so much to do in terms of constitutional renovations.
However, a defeat is not the end to reform. Though it is a catalyst for reassessment. Other avenues – some less palatable than others – remain. These include:
· via the states and demonstrate tangible achievement;
· through non-constitutional mechanisms (always noting the security of such measures); or
· a revised proposal.
But we need to be optimistic.
Reform is possible, it is hard, but it starts with an articulated belief that the change is in the best interest of country.
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John Williams is Provost at the University of Adelaide. John’s main research interest is public law and in particular Australian constitutional law, The High Court of Australia, comparative constitutional law, federalism and legal history.
