Common(wealth) Knowledge #73: Australia's referendum system makes change hard

The double majority required for a referendum means the Yes campaign faces an uphill battle.

As millions of Australians head to the polls today to vote on creating an Indigenous Voice to Parliament, with the Yes campaign trailing in all polls and surveys for several months, a look at the history of referendums in Australia reveals just how high the bar is for a successful referendum.

Borrowing from the Swiss tradition of holding national referendums on important pieces of legislation, a process known as ‘direct democracy,’ Section 128 of the Australia Constitution allows national referendums to be held for changing the constitution.

Australia, unlike other Westminster System countries like the United Kingdom, New Zealand, and Canada, has a written constitution, contained in a single document. This constitution limits the power of the government, and allows the Commonwealth, State, and Territory governments to exist side-by-side.

Other Westminster countries have ‘unwritten constitutions,’ which include a number of constitutional conventions, pieces of legislation, and legal doctrines. In these countries, Parliament reigns supreme, able to change any law, because it has the power to amend the legislation that makes up most of the unwritten constitution. This is known as ‘parliamentary sovereignty.’

Instead, Australia chose to go with an American-style written constitution, because this would limit the power of the federal government, allowing the former colonies, which pre-dated the federal government, to maintain some of their powers.

However, the framers of the Constitution were not entirely committed to the idea of an American-style constitution. Elements of the Westminster system remained, like constitutional conventions and the concept of a ‘responsible government’ that answered to Parliament, remained.

Similarly, the framers recognised that there were some benefits to a more flexible constitution, meaning the power to amend it was required. But if Parliament alone could amend the Constitution, granting itself new powers, then it wasn’t much better than an unwritten constitution, with parliamentary sovereignty.

Section 128 was the result of this compromise.

For a referendum to succeed, it would need to pass Parliament, and then would be handed over to the public, who could have their say.

Section 128 creates a ‘double majority’ requirement for the success of a referendum. To pass, it requires a majority of people in a majority of states, and a majority of Australians overall.

As Australia still consists of the original 6 states, the first majority means that at least 4 separate states must have a majority of their residents vote in favour of the referendum.

The second majority is a majority of Australians. This is simply a popular vote done throughout Australia, regardless of which state a person lives in. The Territories are included in the popular vote, though as they are not equal to States, they are not part of the first majority.

This double majority sets a high standard, as it favours the status quo. The ‘No’ campaign is not required to get a majority of states; if both campaigns win three states each, it does not pass.

Theoretically, the No campaign can also win if it loses a majority of states, but still wins the popular vote, although this is much harder to achieve.

It is therefore not surprising that so many referendums fail. Of the 44 referendums held, only 8 have succeeded. Of these, only one referendum did not win in all 6 states. In 1910, a referendum question to allow the Commonwealth government to take over State governments’ debts at any time, amending Section 105 of the Constitution, did not win in New South Wales, but met both double majority requirements.

Perhaps the best example of just how hard it is for a referendum to succeed is the 3 referendum questions put to Australian voters in 1946.

The 3 questions were about giving the Commonwealth government to make laws with respect to social services, the marketing of agricultural goods, and regulating the terms and conditions of industrial employment.

The 3 questions were introduced to Parliament by the Labor government. The Liberal/Country Party coalition, under Robert Menzies, agreed to support the social services power, provided that it prevented the ‘civil conscription’ of doctors, which would have abolished the private healthcare sector.

When the 3 questions were put to the public, only 1 question, the social services power, had bipartisan support. Unsurprisingly, it was the only question to succeed. Liberal/Country opposition to the other two questions meant that while both won the national vote, with a margin of less than 1%, they only won in New South Wales, Victoria, and Western Australia. Winning only 3 states meant that it did not meet the double majority requirement.

With the Yes campaign for the Indigenous Voice to Parliament trailing in all states, except for Tasmania, according to the polls, the Yes campaign faces an uphill battle.

While the Yes campaign may be able to secure the national vote, thanks to strong support in Tasmania, Melbourne, Sydney, the Australian Capital Territory, and the Northern Territory, winning 4 states is a much harder result, as the ACT and NT are not relevant here.

However, it won’t be until the polling booths are closed and the votes are tallied that Australians will know which side has won.