Lyla Lindsey
The Australian Constitution, which sets out the rules by which Australia is governed, has seen few amendments since its enactment in 1901. The document, which is divided into 8 chapters and 128 sections, can only be changed with the approval of the Australian people. Since 1901, 20 referendums proposing 45 changes to the Constitution have been held, but only 8 have been approved by a majority of voters in a majority of states, reflecting a reluctance among Australians to modify their founding document. Notable changes include amendments to sections 13, 105, and 51, which altered the length of senators' terms, allowed the Commonwealth to assume state debts, and extended its powers over social services and laws pertaining to Indigenous Australians.
| Characteristics | Values |
|---|---|
| Number of approved changes | 8 |
| Number of proposals voted on | 45 |
| Last approved change | 1977 |
| First change | 1906 – Senate elections – amended section 13 to slightly alter the length and dates of senators' terms of office |
| Second change | 1910 – State debts – amended section 105 to allow the Commonwealth to take over debts incurred by a state following Federation |
| Third change | 1928 – State debts – inserted section 105A to ensure the constitutional validity of the financial agreement reached between the Commonwealth and state governments in 1927 |
| Fourth change | 1946 – Social services – inserted section 51(xxiiiA) to extend the power of the Commonwealth over a range of social services |
| Fifth change | 1967 – Aboriginal Australians – amended section 51(xxvi) to allow the Commonwealth to make laws for Indigenous Australians and to include all Indigenous Australians in population counts for constitutional purposes |
| Number of failed attempts to amend the constitution via British act of Parliament | 2 |
| Number of referendums where a national majority of votes was received without a majority of states | 3 |
| Number of successful referendums that received a majority in each of the states | 4 |
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What You'll Learn
Recognising Indigenous Australians
In 1967, the Australian people agreed in a referendum to modify section 51 (xxvi) to remove the phrase "other than the Aboriginal race in any State", allowing the Commonwealth government to make laws for Indigenous Australians. However, this amendment did not introduce new wording that recognised Aboriginal and Torres Strait Islander peoples in any context. It also did not grant them the right to vote in elections, as that right was granted through Commonwealth legislation in 1962.
Since the 1980s, there have been increasing calls to change or replace the preamble to reflect universal values that Australians are committed to and recognise the special place of Indigenous Australians in the nation. In 1995, the Aboriginal and Torres Strait Islander Commission (ATSIC) stated in their report that constitutional reform was a priority, finding massive support for recognising Indigenous Australians in the Constitution.
In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, calling for an Indigenous Voice to Parliament as their preferred form of recognition. The Referendum Council's final report, released in June 2017, supported the Uluru Statement, with the majority recommending a referendum to change the Constitution to establish an "Indigenous voice to parliament". The proposed changes included a national representative body with the power to advise parliament on laws affecting Indigenous peoples and a "Makarrata Commission" to supervise agreement-making between governments and First Nations.
In 2023, the Albanese government submitted the proposal for an Indigenous Voice to Parliament to a national referendum, but it was heavily defeated. Despite this setback, the Australian Government remains committed to recognising Aboriginal and Torres Strait Islander Australians in the Constitution.
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The role of the Queen and Governor-General
The Australian Constitution, formed after much consideration of other constitutions, is one of the only constitutions in the world that requires a vote of the people and not just of the parliament to change. This is why, in 1999, Australians voted on whether to become a republic or remain a constitutional monarchy, and they chose the latter.
The current monarch of Australia is King Charles III, who has been king since 2022. The monarch appoints the governor-general on the advice of the prime minister. The governor-general is the federal representative of the monarch and has constitutional and ceremonial roles in the Australian political system, including giving royal assent to bills passed by the houses of parliament, issuing writs for elections, and exercising executive power on the advice of the Federal Executive Council. They also have a significant community role, recognising meritorious individuals and groups, and representing the nation as a whole.
The governor-general is also the Commander-in-Chief of the Australian Defence Force, and they open parliament in the name of the king. The governor-general has the power to appoint a prime minister, dismiss a prime minister, and refuse to dissolve the House of Representatives despite a request from the prime minister.
While the monarch is considered the head of state, the governor-general is sometimes described as the "constitutional head of state". The governor-general is also sometimes referred to as the "head of state" when representing Australia internationally, though the monarch also carries out some official duties representing Australia outside of the country.
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Australian Parliament's structure
The Australian Constitution outlines the structure, role, and powers of the Australian Parliament. It establishes a bicameral Parliament, consisting of two houses: the Senate and the House of Representatives. The King is also represented in Parliament by the Governor-General. The Constitution further delineates the roles of the executive government and the High Court of Australia, which is the final court of appeal.
The Australian Constitution also establishes six state governments, each responsible for managing state matters. It outlines power-sharing arrangements between the Australian Parliament and the state parliaments, detailing how they share the power to make laws. This federalist commitment ensures that changes to the Constitution cannot be imposed by the more populous states alone.
The Constitution safeguards certain rights of Australian citizens, such as religious freedom. Notably, it does not include a comprehensive bill of rights, unlike the US Constitution. Instead, rights are primarily protected by common law, derived from customs and court decisions, and statute law, which is written law made by Parliament.
Amending the Australian Constitution is a rigorous process. A proposed change must first be approved by Parliament before being put to a referendum, where it requires the support of a majority of voters in a majority of states, as well as a majority of voters nationwide. This dual majority requirement reflects the federalist nature of the Constitution and has resulted in a low success rate for proposed amendments. Since 1901, there have been 45 proposals to amend the Constitution through referendums, with only eight of these changes being approved by the Australian people.
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State debts and finances
The Australian Constitution has been amended several times to address the issue of state debts and finances. One of the earliest changes occurred in 1910, when an amendment was approved to alter Section 105 of the Constitution. This amendment allowed the Commonwealth to take over any debts incurred by a state at any time, not just pre-existing debts. This change was significant as it gave the federal government more power over state finances and set the tone for future financial relations between the Commonwealth and the states.
Another important amendment regarding state debts and finances took place in 1928. This amendment, known as the Constitution Alteration (State Debts) 1928, was approved by referendum and became law in 1929. It addressed the financial relations between the federal government and the six Australian states, discontinuing the per-capita payments system that had been in place since 1910. Instead, it established a Loan Council to manage the finances of the country and the states and to approve all loans to states, coordinating borrowing between governments. This council attracted international attention as a unique institution among federations.
The 1928 amendment also restricted the borrowing rights of the states by subjecting their borrowing to the control of the Loan Council. This change was made to ensure the constitutional validity of the 1927 Financial Agreement between the Commonwealth and state governments, which provided for Commonwealth assistance in state debt reduction. The 1927 agreement also established a new grants regime and included provisions for the Commonwealth to make agreements with states regarding the management and repayment of their debts.
Overall, the amendments to the Australian Constitution regarding state debts and finances have had a significant impact on the financial relationship between the Commonwealth and the states. They have provided the Commonwealth with more power and involvement in state finances, including the ability to take over state debts and manage borrowing. These changes have been made through referendums and have shaped the economic landscape of Australia, with the Loan Council, in particular, being a notable development in federal-state financial relations.
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Social services
The Australian Constitution has undergone several changes and amendments since its inception, with ongoing debates about further alterations. One significant area of change has been in the realm of social services, which has seen expansions in the scope of government power and the types of services provided.
The Constitution Alteration (Social Services) Act of 1946 was a notable amendment that expanded the Commonwealth Parliament's ability to provide a broader array of social services. This change was introduced by the Chifley Labor Government and allowed the government to offer services such as child endowment, student benefits, unemployment benefits, medical and dental services, maternity allowances, family allowances, sickness and hospital benefits, and widows' pensions. Previously, the Constitution only referenced pensions for invalid and aged individuals.
The establishment of several government departments in the 1930s and 1940s reflected this shift in focus towards social services, including the Commonwealth Department of Social Security in 1939, the Department of Immigration in 1944, and the Commonwealth Employment Service and the Commonwealth Office of Education in 1945. These departments were tasked with administering and providing these expanded social services to Australians.
The 1946 amendment also addressed concerns about potential civil conscription in the medical and dental professions. The Leader of the Opposition, Robert Menzies, criticised the initial proposal as potentially nationalising these professions. However, an amendment was accepted, adding the phrase "but not so as to authorize any form of civil conscription", which protected these professions from conscription while still allowing for the expansion of social services.
In addition to changes in social services, there have been other significant amendments to the Australian Constitution. For instance, in 1967, the Constitution was amended to empower the Commonwealth to legislate for all Indigenous Australians and remove the restriction on including them in population counts for constitutional purposes. This amendment addressed the need to recognise and include Indigenous Australians in the Constitution, with further proposals emerging since then to guarantee parliamentary representation and a constitutionally recognised voice.
While there have been discussions about more comprehensive changes to the Constitution, including proposals for a republic and calls to replace the current Constitution, most amendments have focused on specific issues like social services, Indigenous representation, and clarifying executive powers. These amendments reflect the evolving nature of Australia's constitutional framework and the ongoing efforts to ensure it remains relevant and responsive to the needs of its citizens.
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