2024 Legal Studies

• Reasons for Constitutional Reform

  • recongise First Nations people = there is no mention of First Nations people in the Australian Constitution, nor any recognition that they have inhabited the continent before the colonisation.
  • Two proposed changes, voice to parliament and honour and recognise ATSI
• Reasons for Constitutional Reform

  • increase protection of rights = number of rights protected by Australian Constitution is limited, with some rights being narrow in scope. Most rights are protected by statute or common law (freedom of speech, thought and assembly)
  • Proposals: introduce a bill of rights or to broaden the rights to protect basic democratic freedoms.
• Reasons for Constitutional Reform

  • Change the commonwealth's law-making power = has exclusive powers and overrides states in concurrent powers.
• Reasons for Constitutional Reform

  • Reform Australia's political system
  • proposals: increase the term of HoRs 3->4, allow more people to be eligible to sit in parliament (dual citizens) or become republic
• Procedure for changing the constitution is set out in section 128 of the Constitution outlining three stages, the parliament, the governer-general and the people.
• Any proposed change must be first introduced and passed in the Commonwealth Parliament. A bill is prepared with the desire to alter the constitution. Bill must be passed by over majority from both houses and must be submitted to voters between two and six months after passage of bill through parliament.
• Once proposal is agreed to in the Commonwealth, a referendum process occurs. The Australian Electoral Commission sends information to every household that explains the proposed change and provides arguments for and against it.
• Double majority provision means that for a referendum to be successful, there needs to be a majority of voters in the majority of states of the majority of Australia must vote yes to be successful.
• Double majority provision ensures there is a strict requirement that the wording of the constitution can only be changed with the agreement of voters.
• If the referendum is successful, the proposal is presented to Governer-General for royal assent.
• Double Majority Strengths:

  • important way of informing the public of the change and whether it will provide commonwealth with more power.
  • ensures law-makers do not solely change the constitution without the people
  • even if larger states support, it does not mean the referendum will succeed
  • voting is compulsory (gives voters a direct say) removes power from commonwealth
• Double Majority Limitations:

  • public may not understand complexity of proposal and be reluctant to change (fear or mistrust)
  • difficult to achieve as successful referendums in the past have had overwhelming support and were not controversial in nature
  • does not limit parliamentary power
  • states can only strongly lobby against any increase in commonwealth power
  • timely and costly
• Factors affecting Referendum Success

  • Bipartisan support = approval by two or more major political parties. Some people do not understand how to vote so they look for guidance on how to vote from the political party they support.
• Factors affecting Referendum Success

  • whether voters are seeking change = if government activity is driving the change, Australians may be more cautious due to potential general distrust of politicians
• Factors affecting Referendum Success

  • the nature of the proposal = whether proposal is straight foward or difficult to understand. If the proposal is too complex, voters may not understand what they are voting for therefore inclined to vote no
• Factors affecting Referendum Success

  • education about the proposal = general public has little knowledge of constitution, government and parliament structures. a strong campaign leading up to referendums is needed to bring about change. The booklet must also be set out and clear and straightfoward
• Until 1967, the Australian Constitution did not give the Commonwealth the power to legislate for First Nations people or to include First Nations people in the national census. This meant law-making power for the First Nations were left to the states.
• 1967 Proposal was put out to the people to allow the commonwealth to make laws about First Nations people and allow First Nations people to be counted in the national census.
• Proposal was unanimously passed by Commonwealth. This caused a 'no' campaign to not be showed to voters, meaning voters were not faced with two strong campaigns, rather there was bipartisan support and a simple message about why the change was needed
• This referendum gave the Commonwealth Parliament the power to legislate for First Nations people in the states and territories and to include them in national censuses. This amendment altered Section 51(xxvi) of the Constitution and deleted Section 127.
• Constitutional reform expanded Commonwealth powers by allowing them to move into an area that was previously denied. High levels of support across all states sent a clear message to Commonwealth to address the inconsistencies in state regarding first nations people.
• Commonwealth parliament was able to use its powers to override laws that were racially discriminatory. Allowed the commonwealth to legislate in relation to land rights (Native Title Act 1993) that allowed first nations people to claim land rights.
• Inclusion of ATSI in the national census allowed commonwealth to make informed decisions and distribute their funds based on population statistics. However, commonwealth did very little in this area, suggesting the people cannot necessarily enforce the parliament to change laws.
• Significance:

  • residual was now concurrent
  • demonstrated importance of allowing the views and values of public interest in respect to human and social rights issues
  • overwhelming support demonstrated referendum process involving people
• First nations people have advocated for their ability to participate in and be consulted about decisions and laws that affect First Nations people and their rights and their formal recognition in Australian constitution.
• National Constitutional convention held in uluru in may 2017, uluru heart statement was declared.
• Uluru statement sought to acheive:

  • constitutionally recognised voice to parliament
  • treaty between government and First Nations people
  • a truth telling process
• An amendment to the Constitution was proposed to formally recognise First Nations people and to enshrine a Voice to Parliament. This amendment would see Chapter IX and section 129 added to the Constitution.
• A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
• No changes made. Lack of bipartisan support, and australians generally lack the knowledge of the constitution and the way it works. Yes campaign may not have been able to explain clearly enough, no campaign raised concerns about details.
• 2023 Referendum highlighted embedded racism that impacts people's beliefs and voting behaviours in relatio to First nations people.
• Some people may have voted no because they did not believe the proposal went far enough
• Future Constitutional Reform

  • become republic
  • devote more funds and resources in future referendums
• People Strengths:

  • double majority ensuring strong support and protects smaller states
  • decided by the people, not just parliament alone
  • voting is compulsory
• People Limitations:

  • voting in accordance to favoured political parties rather than their own views
  • gives smaller states disproportionately large say
  • usually conducted around elections, as a result, generates less interest, thus people tend to vote no