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Legal Studies Units 3 & 4 > The Referendum Process > Flashcards

Flashcards in The Referendum Process Deck (16):
1

Referendum

Refers to when a proposal for constitutional change is put to the public for vote. Voting on a proposed referendum is compulsory for anyone on the electoral roll. Section 128 of the Constitution prescribes the process of change by referendum.

2

How do referendums change the constitution

A successful referendum results in a change to the actual wording of the Constitution. This means words can be both deleted and inserted into the Constitution.

3

What was the effect of the 1967 referendum on the constitution

The 1967 referendum resulted in the complete removal of s.127 which barred Aboriginal Australians from being included in population statistics. It also resulted in the striking out of the term ‘other than the aboriginal race in any State’ from section 51 (xxvi). This allowed the Commonwealth to legislate with respect to Aboriginal Australians.

4

7 steps in s.128 process of change via referendum

Need For Change
Draft Of Bill
Passage Through Houses
Public vote
Double Majority
Royal Assent
Relevant Section Changed

5

Need for constitutional change and example

The Constitution may need to change for several of the same reasons why regular laws need to change. However a need for a change in the Constitution must regard a significant structural disadvantage that it places on the ability of the entire legal system to operate effectively. The 1967 referendum was therefore necessary to remove institutionalised discrimination against Aboriginal Australians from the Constitution.

6

Draft of alteration bill

Once a need for constitutional change has been established it is then drafted as a bill. The bill will outline the proposed amendment(s) to the Constitution and will be put before Parliament.

7

Passage through each house by majority

The alteration bill introduced to either the Senate or the House of Representatives. It must pass through the legislative process in both houses in order to be put to the public. If either House of Parliament fails to support the bill containing the proposed change to the constitution, the Governor General can refer the referendum proposal directly to the people if one house passes the bill twice.

8

Public vote and example

Voting in a referendum is compulsory for every eligible Australian citizen aged 18+. The referendum must be put to voters between 2 and 6 months of it being passed by Parliament. Everyone on the electoral roll must vote either YES or NO to the referendum proposal. For example, the 1967 referendum won 90.77% of votes

9

Double majority provision

This provision requires that a proposed referendum be passed (a ’yes’ vote) by a majority of voters (>50%) in a majority of states (at least 4/6). If either element of this provision is not satisfied the proposal lapses. Whilst territory voters count towards the national vote they are not considered ‘states’ for the purpose of this provision. This provision protects the smaller states from being dominated by the larger, more populated states.

10

Royal assent

We know from the legislative process that this involves the Crown’s representative (which in the case of referendums is the Governor-General) signing off on the Bill (or in the case the referendum) on behalf of the monarch.

11

Relevant section changed

After receiving royal assent and proclamation the relevant amendment to the Constitution will be made.

12

A referendum proposal was voted on by the electors of Australia. Fifty-six percent of all voters in Australia voted in favour of the proposal and the majority of voters in all states, except Victoria, Tasmania and New South Wales, voted in favour of the proposal. Was the referendum passed? Justify your answer.

This referendum would not have been passed. Despite that this proposal had garnered a ’yes’ vote from the majority of voters in Australia (56%) in order to satisfy the double majority provision it must also have the support of the majority of states. Australian territories are not considered ‘states’ for the purpose of this provision and as such the support of 3 out of 6 states is not sufficient to satisfy this provision (a minimum of 4/6 states in support is required).

13

Your friend Emily tells you that the ‘1967 referendum gave Aboriginal people Australian citizenship and the right to vote’. Please correct poor Emily by explaining how this referendum changed the Constitution.

The 1967 referendum changed two sections of the Constitution regarding s.127 and s.51(xxvi). Following the success of this referendum, s.127, which prohibited Aboriginal Australians from being counted in population statistics, was removed entirely to allow their inclusion. Section 51(xxvi) was also amended with the phrase ‘other than the Aboriginal race in any State’ being removed. This effect of this amendment was that Commonwealth Parliament could now legislate with respect to Aboriginal Australians.

14

The proposals of the 1967 referendum

The 1967 referendum contained two major proposals in the one question:
- to include indigenous Australians in the national census and
- To allow the Commonwealth to make laws for the Aboriginal people.

15

Impact of the 1967 referendum on the division of law making powers 3 main points

RESIDUAL The Commonwealth was given new powers that they did not previously have, with the states originally having power over indigenous Australians as a residual power. The commonwealth was now able make Laws for the aboriginal people thus it became a concurrent power. SECTION109 Under section 109, any Cwlth law made with regard to indigenous people would overturn any state law in that area where there was an inconsistency between the laws. The states had made inconsistent laws regarding Aborigines and these were soon made invalid once the Cwlth started making law regarding Aboriginal people.
EXAMPLES The Cwlth has used its power acquired from the 1967 referendum to create laws on Aboriginal land management, welfare, education, Native Title and work schemes. Without the 1967 referendum, these laws would not have been possible.

16

Explain the importance of s128

Under S128 of the Constitution, for a change to be made to the words in the Constitution, the people must be asked to vote on the change in a referendum. A referendum is a compulsory vote on a proposed change to the wording of the Commonwealth Constitution. Under s128 for a referendum to be held
ALTERATION BILL AND PASSAGE THROUGH EACH HOUSE
PUBLIC VOTE
DOUBLE MAJORITY
ROYAL ASSENT

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