Reasons for Constitutional Reform (VCE SSCE Legal Studies): Revision Notes

Reasons for Constitutional Reform

The Australian Constitution came into effect on 1 January 1901, establishing the framework for Australia's legal system. While Australia operates as a stable democracy, the Constitution is not perfect and may need updates to reflect the changing circumstances and needs of Australian society. Between 1901 and early 2023, 44 proposals were put to the Australian people to change the Constitution's wording, with the first proposed in 1906.

Constitutional reform is necessary for various reasons, ranging from significant structural changes (such as becoming a republic) to smaller adjustments (such as altering election timing). Understanding these reasons helps explain why and how the Constitution might need to adapt to modern Australia's needs.

Four main reasons for constitutional reform

There are four primary reasons why constitutional reform may be necessary:

1. To recognise Australia's First Nations people
2. To increase the protection of rights
3. To change the Commonwealth's law-making powers
4. To reform Australia's political system

Each of these reasons addresses different aspects of how the Constitution shapes Australia's legal and political landscape.

Recognising First Nations people

The absence of First Nations recognition

Before 1967, the Constitution explicitly excluded First Nations people from being counted as part of the Australian population. This exclusion meant that law-making responsibilities for Aboriginal and Torres Strait Islander peoples were left to individual states rather than the Commonwealth. This approach created inconsistent laws across different states, leading to varying treatment and rights for First Nations people depending on where they lived.

Proposed changes for recognition

Two main proposals have been suggested to address this constitutional gap:

First Nations Voice to Parliament

This proposal would establish a constitutionally enshrined body that allows First Nations people to provide advice to the Commonwealth Parliament on policies or laws that directly impact them. The First Nations Voice would be an independent advisory body chosen by First Nations people themselves and representative of First Nations communities. It would work alongside existing organisations and structures, giving First Nations peoples a formal mechanism to influence laws and policies affecting their communities.

Constitutional honour and recognition

Another proposal seeks to honour and recognise First Nations people through an amendment to the Constitution itself.

Increasing protection of rights

Limited express rights in the Constitution

The Australian Constitution contains only five express rights – rights explicitly stated in the constitutional text. These rights impose restrictions on what laws the Commonwealth Parliament can make, but they are better understood as limitations on law-making power rather than positive rights or freedoms for individuals.

For instance, section 116 prevents the Commonwealth from prohibiting or imposing religious practice, which effectively protects freedom of religion. However, the scope of these constitutional protections is narrow and limited. The lack of comprehensive constitutional protection means that fundamental rights can be altered through regular parliamentary processes rather than requiring the higher threshold of a referendum.

Calls for expanded rights protection

There have been ongoing calls to amend the Constitution to protect basic democratic freedoms more comprehensively. Some advocates suggest Australia should incorporate a bill of rights into the Constitution, similar to the United States Bill of Rights, which would provide a specific list of protected rights that could only be changed through referendum.

The debate around freedom of speech exemplifies these concerns about rights protection.

Freedom of speech debate: A case study

Freedom of speech is not protected by the Australian Constitution but is primarily safeguarded through statute law. The right to freedom of speech and the appropriate limitations on this right remain contentious issues in Australian society.

Section 18C of the Racial Discrimination Act

Before the McIntyre case, a national debate had emerged regarding section 18C of the Racial Discrimination Act 1975 (Cth). This provision makes it unlawful for a person to do an act that is reasonably likely to offend, insult, humiliate or intimidate another person or group based on their race, colour, or national or ethnic origin. The federal government at the time raised concerns that this provision unreasonably limited freedom of speech. Legislation was introduced to amend the Act, but it ultimately did not pass through Parliament.

Expert perspective on constitutional protection

Professor George Williams argued in 2014 that freedom of speech should be inserted into the Constitution to provide the strongest form of protection. Such constitutional protection would allow the High Court to strike down federal laws that infringe this freedom. Williams stated: "If we are serious about protecting freedom of speech, it deserves the sort of protection that only the constitution can provide."

This debate illustrates the tension between protecting free expression and preventing harmful speech, and highlights why some believe constitutional reform is necessary to clarify and strengthen rights protection.

Changing the Commonwealth's law-making powers

Understanding law-making powers

The Australian Constitution distributes law-making powers between the Commonwealth and state governments. The Commonwealth Parliament has exclusive powers (powers only it can exercise) and concurrent powers (powers shared with states). States have concurrent powers and residual powers (powers not given to the Commonwealth that remain solely with the states).

These divisions can sometimes limit the ability of parliaments to create laws in response to changing circumstances. The Commonwealth has historically sought constitutional changes to modify these powers, both to increase and occasionally decrease its law-making authority.

Examples of proposals to increase Commonwealth powers

Proposals to decrease Commonwealth powers

Not all constitutional reform proposals seek to increase Commonwealth powers. Some advocate for reducing federal authority in certain areas.

The race power debate

There have been calls to repeal (remove) section 51(xxvi) of the Constitution, known as the race power. This provision gives the Commonwealth power to make laws for people of any race for whom it deems necessary to make special laws.

This example shows that constitutional reform isn't always about expanding government power – sometimes it's about limiting it to protect individual rights and prevent potential abuse.

Reforming Australia's political system

Changing the timing of federal elections

Under the Constitution, the House of Representatives has a maximum term of three years, but it can be dissolved earlier by the Governor-General. This means the Constitution sets only maximum terms, allowing the Prime Minister to call elections whenever they choose before that limit expires. By contrast, the Senate has a fixed term of six years. This arrangement makes Australia unusual internationally – only about 10% of parliaments globally have three-year terms.

Arguments for four-year terms

In 2004, a parliamentary committee (a small group of parliamentarians who examine specific issues) recommended extending the federal parliamentary term for the House of Representatives to four years. Supporters argue this change would:

• Encourage long-term policy decisions rather than short-term political thinking
• Enhance business confidence through greater political stability
• Save resources currently spent on frequent federal elections
• Prevent elections being called at times most convenient for the government rather than at fixed intervals

Moving to a longer, fixed-term arrangement would stop governments from timing elections to suit their political interests and ensure more predictable electoral cycles.

Allowing more people to be eligible for parliament

Australia is one of the world's most multicultural, multifaith societies. However, criticism has emerged that parliamentary representatives do not always reflect the broader composition of Australian society. The Constitution itself creates barriers that prevent some Australians from serving in Parliament.

Section 44(i) and dual citizenship

Section 44(i) of the Constitution provides that a person cannot sit as a member of the Commonwealth Parliament if they are "under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power." In simpler terms, this section prevents dual citizens or dual nationals (people with citizenship in both Australia and another country) from being Commonwealth Parliament members.

Original purpose and modern reality

When the Constitution was drafted, the aim of section 44(i) was to prevent "foreign infiltration" in Parliament and ensure national sovereignty. The drafters wanted to protect Parliament from foreign influences. However, at that time, there was no understanding of dual nationality as we know it today. Modern citizenship laws across different countries have created situations where Australians can unknowingly hold citizenship in other countries, making it difficult for otherwise qualified people to serve in Parliament.

Proposed reforms

Becoming a republic

A republic is a form of governance in which power is held by the people and their representatives, and in which there is an elected head of state rather than a monarch. Currently, Australia's head of state is the British monarch (currently King Charles III), though the Governor-General acts as the monarch's representative in Australia.

Ongoing debate

Despite the 1999 referendum's failure, many Australians believe a modern Australia should formally remove its ties to the monarchy. As of 2023, the federal government was exploring a proposed referendum on becoming a republic. Supporters argue that:

• An Australian should be Australia's head of state
• The current arrangement is a remnant of colonial history
• A republic better reflects Australia's independent national identity
• Other Commonwealth nations have successfully transitioned to republics

This represents one of the most significant potential constitutional reforms, as it would fundamentally change Australia's system of government and relationship with the monarchy.

Exam guidance

When analysing reasons for constitutional reform:

• Link to contemporary issues: Connect historical proposals to current debates (e.g., First Nations Voice, section 44 citizenship issues)
• Consider multiple perspectives: Acknowledge arguments both for and against reform proposals
• Use specific examples: Reference actual referendums, High Court cases, and legislation (e.g., Re Canavan, section 18C debates)
• Explain the significance: Don't just describe what reforms were proposed – explain why they matter and what impact they would have
• Evaluate success and failure: Consider why some referendums pass while most fail – this demonstrates understanding of constitutional change barriers