Referendums in Australia
Referendums have been held in Australia to approve parliament-proposed changes to the Constitution of Australia or to the constitutions of states and territories.
Polls conducted on non-constitutional issues are sometimes but not always referred to as plebiscites. Not all federal referendums have been on constitutional matters (such as the 1916 Australian conscription referendum), and state votes that likewise do not affect the constitution are frequently said to be referendums (such as the 2009 Western Australian daylight saving referendum). Historically, they are used by Australians interchangeably and a plebiscite was considered another name for a referendum.
Voting in a referendum is compulsory for those on the electoral roll, in the same way that it is compulsory to vote in a general election. As of 2020, 44 nation-wide referendums have been held, only eight of which have been carried. However, there have only been 19 times the Australian people have gone to the polls to vote on constitutional amendments, as it is common to have multiple questions on the ballot. There have also been three nation-wide plebiscites (two on conscription and one on the national song), and one postal survey (on same-sex marriage).
Section 128 of the Constitution specifies that alterations to the Constitution cannot be made without a direct public vote. 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".
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.
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[update] voting in a plebiscite has remained optional.
In 1998, the Howard Government amended the Flags Act 1953 to require a plebiscite to change the Flag of Australia. 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.
The No vote
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."
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. This second law was not approved by the electors.
The impact of the compulsory vote has not been analysed.
List of referendums and plebiscites
Each question asked electors to answer "Yes" or "No", except for the National Song plebiscite where electors were asked to choose between four songs.
|1911||4||Trade and Commerce||1:5||39.42%||No|
|1913||6||Trade and Commerce||3:3||49.38%||No|
|1926||14||Industry and Commerce||2:4||43.50%||No|
|1944||19||Post-War Reconstruction and Democratic Rights||2:4||45.99%||No|
|1948||23||Rents and Prices||0:6||40.66%||No|
|1951||24||Communists and Communism||3:3||49.44%||No|
|30||Mode of Altering the Constitution||1:5||47.99%||No|
|32||Local Government Bodies||1:5||46.85%||No|
|34||Senate Casual Vacancies||6:0||73.32%||Yes|
|36||Retirement of Judges||6:0||80.10%||Yes|
|1984||37||Terms of Senators||2:4||50.64%||No|
|38||Interchange of Powers||0:6||47.06%||No|
|42||Rights and Freedoms||0:6||30.79%||No|
|1999||43||Establishment of Republic||0:6||45.13%||No|
|2017||–||Australian Marriage Law||6:0||61.60%||Yes|
State and territory referendums
States and territories of Australia may also hold referendums. Some of the most important ones were:
- In the years leading up to the Federation of Australia in 1901, all six colonies (as the states then were) passed referendums in favour of Federation.
- In 1933, voters in Western Australia voted for their state to leave the Commonwealth of Australia with the aim of reverting to the British Empire as an autonomous territory. The Western Australian Government sent a delegation to Westminster; however the United Kingdom House of Commons refused to intervene, declaring it had no power to grant secession, and therefore no action was taken to implement this decision.
- In 1967, voters in north-east New South Wales were asked if they favoured creating a new state in their region. The no vote won, with 54.1% of the formal vote.
- In 1968, Tasmanian voters took part in a referendum to approve the granting of Australia's first casino licence to the Federal Group to operate the Wrest Point Hotel Casino in Hobart. The referendum passed with 53% of the formal vote.
- In 1975, voters in Western Australia voted against permanent daylight saving/summer time.
- In 1978, the Australian Capital Territory voted at a referendum on whether the ACT should be granted self-government. Voters were given the choice of becoming a self-governing territory, a local government or continuing with the Legislative Assembly being an advisory body to the Department of the Capital Territory. 63.75% voted to continue with the then current arrangement. Despite the outcome of the referendum, the Parliament of Australia passed the Australian Capital Territory (Self-Government) Act in 1988 and the ACT became a self-governing territory in 1989.
- In 1981, the Tasmanian Government held a controversial referendum to decide the location of a hydro-electric dam on the Franklin River. With the electorate simply given a choice of two different dams, approximately 33% of the electorate voted informal by writing "No Dams" on their ballot paper.
- In 1984, voters in Western Australia voted against permanent daylight saving/summer time for a second time.
- In 1992, after trialling Daylight Saving in Queensland for a total of three years, a referendum was held, with 54.5% of Queenslanders voting against daylight saving. Regional and rural areas strongly opposed daylight saving, while those in the metropolitan south-east voted in favour of it. (Formally this was a plebiscite, since time zones can be amended at any time by state parliaments.)
- In 1992, a referendum to amend constitutional law in Queensland to extend the maximum parliamentary term from three to four years was defeated by 51.1% to 48.9%.
- Also in 1992, voters in Western Australia voted against permanent daylight saving/summer time for a third time.
- In 1995, voters in New South Wales voted for a fixed four-year term for the state parliament.
- In 2005, voters in Western Australia rejected two referendums related to weekday trading and Sunday trading.
- In 2009, after a three-year trial, voters in Western Australia voted against permanent daylight saving/summer time for a fourth time in four decades.
- In 2016, voters in Queensland voted 52.96% for a fixed four-year term for the state unicameral parliament.
- Antony Green (12 August 2015). "Plebiscite or Referendum – What's the Difference". ABC News. Retrieved 27 August 2015.
- "The referendum". Evening News. 21 September 1897. p. 4. Retrieved 26 August 2020 – via Trove.
- "Government by plebiscite". The Sydney Mail and New South Wales Advertiser. 29 January 1898. p. 217. Retrieved 26 August 2020 – via Trove.
- "The plebiscite or referendum". The Bendigo Independent. 3 December 1910. p. 4. Retrieved 26 August 2020 – via Trove.
- "Referendum dates and results". Australian Electoral Commission.
- Constitution (Cth) s 128 Mode of altering the Constitution.
- "Referendums and Plebiscites". Parliamentary Education Office. Commonwealth of Australia. 3 July 2020. Retrieved 16 September 2020.
- "Electoral Backgrounder: Compulsory voting". Australian Electoral Commission. Retrieved 14 September 2018.
- "Is it compulsory to vote in a plebiscite?". Parliamentary Education Office. Retrieved 14 September 2018.
- Flags Amendment Act 1998 (Cth) s 3
- Laurie Fergusson (22 August 1996). "Flags Amendment Bill 1996". Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. p. 3562.
- Evans, S. "Why is the Constitution Binding? Authority, Obligation and the Role of the People". (2004) 25 Adelaide Law Review 103 at p. 121.
- Craig, John (1993). Australian Politics: A Source Book. Harcourt Brace. p. 39. ISBN 9780729513272.
- "The 1967 Referendum—history and myths" (PDF). Parliamentary Library. 2 May 2007. p. 8. Retrieved 17 February 2018.
- "Cabinet decision, 1967". Collaborating for Indigenous Rights. Retrieved 17 February 2018.
- Handbook of the 44th Parliament (2014) "Part 5 – Referendums and Plebiscites – Referendum results". Parliamentary Library of Australia..
- As this was a plebiscite not a referendum, there was no requirement for a majority of states.
- Choice of four songs. The song with the most votes was "Advance Australia Fair".
- As this was a survey not a referendum, there was no requirement for a majority of states.
- 29 April 1967, NSW Electoral Commission
- "1978 Referendum". Elections ACT.
- Tasmanian Referendums