The Process to Change the Constitution (VCE SSCE Legal Studies): Revision Notes
The process to change the Constitution
Introduction
The Australian Constitution can be amended, but the process is deliberately difficult. Changes to the Constitution must follow the procedure outlined in section 128 of the Constitution. This process involves three key players: the Commonwealth Parliament, the Australian people (through a referendum), and the Governor-General.
Historically, constitutional change in Australia has been challenging to achieve. By early 2023, only 8 out of 44 proposed changes had been successful. This represents a success rate of less than 20%, making Australia's Constitution one of the most difficult to amend in the world.
When a change is approved, the new wording becomes part of the Constitution after the bill receives royal assent.
Constitutional changes don't always affect the division of powers between federal and state governments. For instance, a 1977 referendum introduced a mandatory retirement age of 70 for federal judges, but this had no impact on law-making powers.
The three-stage process
The constitutional amendment process involves three distinct stages, each playing a critical role:
- Stage 1: The Commonwealth Parliament proposes and passes the change
- Stage 2: The Australian people vote in a referendum
- Stage 3: The Governor-General grants royal assent
Each stage serves as a checkpoint, ensuring that constitutional amendments have broad support before taking effect.
Stage 1: The Parliament
Initiating constitutional change
Any proposal to alter the Constitution must begin in the Commonwealth Parliament. This gives Parliament control over which changes are put forward for consideration.
The process starts with the preparation of a constitutional alteration bill. This document clearly sets out the proposed changes to the Constitution. For example, the 1988 proposal was titled the "Constitutional Alteration (Rights and Freedoms) 1988 (Cth)".
Passing the bill
For the bill to progress, it must be approved by an absolute majority in both the House of Representatives and the Senate.
An absolute majority means more than 50% of all members of each house must vote in favour—not just more than 50% of those present. This is a higher threshold than a simple majority and ensures strong parliamentary support for any proposed constitutional change.
For example, if the House of Representatives has 151 members, an absolute majority requires at least 76 votes in favour, regardless of how many members are actually present for the vote.
Once both houses pass the bill, the proposal must be put to voters in a referendum. This must occur between 2 and 6 months after the bill passes the House of Representatives.
Alternative pathway
If one house passes the bill by absolute majority but the other house rejects it, there's an alternative process:
- After three months, the first house can pass the bill again by absolute majority
- If the second house still rejects it, the Governor-General may submit the proposal directly to voters
This alternative pathway prevents one house from blocking constitutional change indefinitely. It ensures that if one chamber consistently supports a change, the people can still have their say through a referendum.
Stage 2: The people
The referendum
Once Parliament approves the proposal, a referendum must take place. This is a compulsory vote where the Australian people decide whether to accept the proposed constitutional change.
All citizens eligible to vote in House of Representatives elections must participate in the referendum. Before voting occurs, the Australian Electoral Commission sends information to every household explaining:
- The proposed change
- Arguments supporting the change (the "yes" case)
- Arguments opposing the change (the "no" case)
This ensures voters can make informed decisions about constitutional amendments.
The double majority provision
For a referendum to succeed, it must achieve a double majority. This is the most challenging requirement in the entire process.
The Double Majority Requirement
A referendum succeeds only if it achieves BOTH of the following:
- A national majority: More than 50% of all voters across Australia (including territories) must vote "yes"
AND
- A state majority: A majority of voters in at least four out of six states must vote "yes"
If either requirement is not met, the referendum fails, regardless of how close the vote might be.
Territories are counted in the national total but not in the state count. This provision protects smaller states from being dominated by larger, more populated states like New South Wales or Victoria. It ensures each state has an equal voice in constitutional matters, regardless of population size.
Why double majority matters
The double majority requirement reflects Australia's federal system. It prevents constitutional changes that might be popular nationally but disadvantage smaller states. Every state, whether it has 500,000 or 8 million people, has equal weight in the state count.
Worked Example: Understanding Double Majority
Consider a hypothetical referendum with the following results:
National Vote:
- Total votes: 10,000,000
- Yes votes: 5,500,000 (55%)
- No votes: 4,500,000 (45%)
State Results:
- NSW: 52% Yes ✓
- Victoria: 53% Yes ✓
- Queensland: 48% No ✗
- Western Australia: 47% No ✗
- South Australia: 49% No ✗
- Tasmania: 51% Yes ✓
Outcome: This referendum would FAIL even though it achieved a national majority of 55%. It only won in three states (NSW, Victoria, Tasmania) but needed to win in at least four states to succeed.
Stage 3: The Governor-General
If the referendum achieves both parts of the double majority, the proposed change is presented to the Governor-General for royal assent. Once royal assent is granted, the Constitution is officially amended and the new wording takes effect.
This final stage is largely ceremonial, as the Governor-General acts on the will of the people as expressed through the referendum.
Why constitutional change is difficult
The double majority requirement creates a high threshold for success. A proposal could win a majority of the national vote but still fail if it doesn't win in at least four states. Conversely, it could win in four or more states but fail if it doesn't achieve a national majority.
As of early 2023, only 8 out of 44 referendum proposals have succeeded since Federation. This represents an 18% success rate, reflecting the deliberately rigorous nature of the process, designed to ensure only widely supported changes are made.
The difficulty of achieving constitutional change means that Australia's Constitution has remained relatively stable since 1901, with only minor amendments made over more than a century.
Case study: The 1951 Communist Party referendum
Case Study: The 1951 Communist Party Referendum
This case demonstrates how the referendum process protects fundamental rights and freedoms, even when Parliament and government support a constitutional change.
Background
In 1950, the Commonwealth Parliament passed the Communist Party Dissolution Act 1950 (Cth), which banned the Communist Party of Australia. The Act declared the party guilty of sedition (acts rebellious against government authority) and gave the executive power to ban individuals or groups.
The High Court challenge
The Communist Party challenged this law in the High Court. The Court's majority found that the Act was invalid because:
- It allowed the executive to outlaw organisations without proving any connection to seditious activities
- It assumed guilt based merely on membership of a political party
- The Commonwealth couldn't lawfully ban an organisation without establishing actual illegal conduct
The referendum attempt
Following the High Court's decision, the Commonwealth Government proposed a referendum to give Parliament explicit power to ban the Communist Party. The proposal faced opposition from both the Communist Party and the Australian Labor Party, who argued it would restrict freedom of speech and association.
The result
The referendum failed:
- Only three states voted "yes" (fewer than the required four)
- The national vote was 49% "yes" (falling short of the required majority)
Significance
This case demonstrates how the referendum process protects fundamental rights and freedoms. Even though Parliament wanted the change, the people rejected it, preventing a potentially rights-limiting constitutional amendment. The double majority requirement ensured that the proposed change needed broad support across the nation, which it failed to achieve.
Exam guidance
Key command words:
When answering questions about constitutional change:
- Outline/Describe: Present the three-stage process in sequence, identifying key requirements at each stage
- Explain: Focus on why the double majority exists and how it protects smaller states
- Analyse: Examine the relationship between different stages or discuss why the process has such a low success rate
- Evaluate: Make judgements about whether the process is too difficult or appropriately rigorous, using evidence from successful and failed referendums
Common exam traps:
- Don't confuse absolute majority (over 50% of all members) with simple majority (over 50% of those present)
- Remember there are six states in Australia—not five or seven
- Territories count toward the national majority but NOT the state majority
- A referendum needs BOTH parts of the double majority to succeed—one without the other is not enough
Remember!
Key points:
- Constitutional change requires section 128 to be followed: Parliament → People → Governor-General
- Parliament must pass a constitutional alteration bill by absolute majority in both houses
- A referendum with compulsory voting must occur, with information provided to all voters
- Success requires a double majority: national majority AND majority in at least 4 out of 6 states
- Only 8 out of 44 referendums have succeeded, demonstrating the difficulty of constitutional change
- The 1951 Communist Party referendum shows how the people can reject changes they consider inappropriate, even when Parliament supports them
Key terms:
- Section 128: The part of the Constitution that sets out the amendment process
- Absolute majority: More than 50% of all members of a house, not just those present
- Referendum: A compulsory vote on a proposed constitutional change
- Double majority: National majority plus majority in a majority of states (at least 4 out of 6)
- Royal assent: Formal approval by the Governor-General that makes the change official
- Constitutional alteration bill: The formal document proposing changes to the Constitution
Critical formula: