Referendums in Australia

Section 128 of the Constitution specifies that alterations to the Constitution cannot be made without a referendum.[3] A bill containing the amendment must first be passed by both houses of parliament or, in certain limited circumstances, by only one house of parliament. If the bill has only been passed in one house, the Governor-General must, under the "deadlock provision" of section 128, then decide whether or not to submit the referendum to the people. By convention, this is done on the advice of the Prime Minister. Since the Prime Minister normally controls the House of Representatives, the effect of this convention is to make it virtually impossible for a referendum to be put to the people if approved by the Senate, but not the House. In 1974, four proposals were put to the people by the Whitlam Government without the support of the Senate. Two of the four proposals had been twice rejected by the Senate, a third had been rejected once and failed to pass a second time, the fourth had been twice amended by the Senate.

If the bill to alter the Constitution is approved by both houses or satisfies the deadlock provision, the bill is submitted to the electors for approval. If the bill is approved by an absolute majority of both houses, the Constitution provides that it must be submitted to the electors no less than two months but no later than six months after passage. Despite this, the Hawke Government in 1984 failed to submit a proposed referendum that had been passed by both houses, claiming that they had a legal opinion supporting their action. There is no similar time limitation if the bill is approved by one House of the Commonwealth Parliament only.

To pass a referendum, the bill must ordinarily achieve a double majority: a majority of those voting nationwide, as well as separate majorities in a majority of states (i.e., 4 out of 6 states). In circumstances where a state is affected by a referendum, a majority of voters in that state must also agree to the change. This is often referred to as a "triple majority".

When a referendum question is carried, the amending bill is presented for royal assent, given in the monarch's name by the Governor-General.

Prior to the 1977 referendum, only electors in the six states could vote at a referendum. Since the 1977 amendment was carried, voters of the Northern Territory and the Australian Capital Territory have been eligible to vote in referendums. Territory votes are now counted towards the national total but the Territories do not count as states for the purpose of the requirement for a majority of states.

Since voting at referendums in the Northern Territory and the Australian Capital Territory has been allowed in 1977, compulsory voting has also applied there.

Residents of Australia's external territories do not vote in referendums.

Voting has been compulsory in Australia since 1924.[4]

Similar to a referendum is a plebiscite, which is conducted by the government to decide a matter relating to ordinary statute law, an advisory question of policy, or as a prelude to the submission of a formal referendum question, rather than a binding and entrenched alteration (amendment) to the Constitution. Plebiscites can offer a variety of options, rather than a simple yes/no question. Four national plebiscites have been held as of 2017. Unlike in referendums, as of 2018 voting in a plebiscite has remained optional.[5]

In 1998, the Howard Government amended the Flags Act 1953 to require a plebiscite to change the Flag of Australia.[6] There is some debate over whether such legislation is legally enforceable, and a new parliament could simply amend or repeal the legislation at any time.[7][8]

Australians have rejected most proposals for constitutional amendments, approving only 8 out of 44 referendums submitted to them since federation. Noting the difficulty of the referendum process, then Prime Minister Robert Menzies said in 1951, "The truth of the matter is that to get an affirmative vote from the Australian people on a referendum proposal is one of the labours of Hercules."[9]

Many attribute this to the double majority requirement for a referendum to be carried. There have been five instances – in 1937, twice in 1946, and once each in 1977 and 1984 – where a national Yes vote has been achieved but failed to win a majority of states. In three of these instances, the referendum received a majority in three states. The converse situation, where there is a majority of states but not an overall majority, has not yet occurred.

Apart from 1937, in which Victoria and Queensland were the only two states in favour, only these cases have followed a consistent pattern: a Yes vote in the two most populous states, New South Wales and Victoria, and a No vote in most or all of the other states. The rejection of these referendums was due to the less populous states voting contrary to the most populous states.

The primary cause of No votes has been committed opposition, which has been successful if the Commonwealth opposition has opposed it. Opposition by state political parties, or by powerful interest groups, has also contributed to referendum failure. In 1937, opposition by the states played an important role in the failure of the Aviation referendum. Similarly, many commentators pointed to the strong opposition of church groups as a reason for the failure of the 1988 Rights and Freedoms referendum.

A contributing factor to the predominance of the No vote comes from the unwillingness of the Australian voters to extend the powers of the Federal government. Although none of the votes was over additional powers over commerce and industry granted to the government, at least two successful referendums can be characterised as giving the Commonwealth more powers: in 1946, the Commonwealth was given power to make laws with respect to a range of health and welfare services; and in 1967, the Commonwealth was given a power to make laws with respect to Aboriginal Australians. The government hoped that support for the aboriginal law would encourage electors to vote yes for the second referendum submitted at the same time, which would have abolished the nexus between the numbers of members in each House.[10][11] This second law was not approved by the electors.

The impact of the compulsory vote has not been analysed.

Each question asked electors to answer "Yes" or "No", except for the National Song plebiscite where electors were asked to choose between four songs.