CHANGING THE CONSTITUTION Other Methods besides Referenda

CHANGING THE CHANGING THE CONSTITUTIONCONSTITUTION

Other Methods besides Other Methods besides ReferendaReferenda

Constitutional ChangeConstitutional Change

There are FIVE ways the Constitution can be There are FIVE ways the Constitution can be alteredaltered

1.1. ReferendaReferenda

2.2. Interpretation by the High CourtInterpretation by the High Court

3.3. Cooperation between Commonwealth and Cooperation between Commonwealth and states - Referral of powers / Unchallenged states - Referral of powers / Unchallenged legislationlegislation

4.4. Use of financial powersUse of financial powers

5.5. Constitutional conventions and commissionsConstitutional conventions and commissions

High Court InterpretationHigh Court Interpretation

This has proven to be the most This has proven to be the most important method of changing the important method of changing the Constitution because of the difficulty Constitution because of the difficulty of passing a referendum of passing a referendum

Interpretation does not alter the wording Interpretation does not alter the wording of the Constitution but rather the way of the Constitution but rather the way in which it is readin which it is read


All courts can only act on cases brought All courts can only act on cases brought before them thus the High Court before them thus the High Court cannot decide on the meaning of the cannot decide on the meaning of the Constitution unless two parties are in Constitution unless two parties are in dispute about how the Constitution is dispute about how the Constitution is to be read and bring the case before to be read and bring the case before the Court.the Court.


High Court decisions in Constitutional cases High Court decisions in Constitutional cases often affect the often affect the balance of powerbalance of power between between the States and the Commonwealth by…the States and the Commonwealth by…

► Protecting the States from Commonwealth Protecting the States from Commonwealth powerpower

► Extending Commonwealth financial powerExtending Commonwealth financial power► Extending other powers (such as the External Extending other powers (such as the External

Affairs power or the Corporations power)Affairs power or the Corporations power)


Some Constitutional cases alter the Some Constitutional cases alter the Constitution in ways that do not affect the Constitution in ways that do not affect the balance of power.balance of power.

Finding “implied rights” that are not written in Finding “implied rights” that are not written in the Constitution but which seem to be the Constitution but which seem to be suggested is one examplesuggested is one example

Much more detail on the impact of the High Much more detail on the impact of the High Court on the federal balance of power is the Court on the federal balance of power is the subject of the next part of the course and subject of the next part of the course and your Research Essayyour Research Essay

Federal / State CooperationFederal / State Cooperation

s 51 (xxxvii) says…s 51 (xxxvii) says…““Matters referred to the Parliament of the Commonwealth by the Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law”referred, or which afterwards adopt the law”

This allows States to hand on residual powers This allows States to hand on residual powers to the Commonwealthto the Commonwealth

► SA & Tasmania referred their powers over SA & Tasmania referred their powers over State Railways in 1977State Railways in 1977

► Victoria referred its power over Industrial Victoria referred its power over Industrial Relations in 1997Relations in 1997


Referral of Powers is difficult because Referral of Powers is difficult because the States are reluctant to surrender the States are reluctant to surrender SovereigntySovereignty

The Commonwealth persuaded the The Commonwealth persuaded the States to refer their Income Taxing States to refer their Income Taxing powers in WW2 and then refused to powers in WW2 and then refused to hand them back. This lead to two High hand them back. This lead to two High Court cases which the States lostCourt cases which the States lost


Referral of Powers allows the States to Referral of Powers allows the States to enact identical legislation to produce enact identical legislation to produce uniform uniform nationalnational (as opposed to (as opposed to Commonwealth) laws – examples…Commonwealth) laws – examples…

►Off-shore oil and gas industry Off-shore oil and gas industry regulationsregulations

►Air safety regulationsAir safety regulations►Uniform national gun lawsUniform national gun laws


UNCHALLENGED LEGISLATIONUNCHALLENGED LEGISLATION

The Commonwealth may pass laws that are The Commonwealth may pass laws that are outside its Constitutional powers (it cannot outside its Constitutional powers (it cannot refer to a “head of power” in the refer to a “head of power” in the Constitution). Usually someone will Constitution). Usually someone will challenge this in the High Court and the challenge this in the High Court and the Court will strike down such laws because the Court will strike down such laws because the Commonwealth has acted Commonwealth has acted ultra viresultra vires (beyond its power)(beyond its power)


In some cases, however, the States may In some cases, however, the States may not challenge the legislation. In this not challenge the legislation. In this case the law stands – even though its case the law stands – even though its not within the Commonwealth’s power not within the Commonwealth’s power to pass such a law.to pass such a law.

Why would this happen??Why would this happen??


Sometimes an action of the Commonwealth is a “manifestly good Sometimes an action of the Commonwealth is a “manifestly good idea” of which everyone can see the good sense. In these cases idea” of which everyone can see the good sense. In these cases the States may prefer to just let the Commonwealth act – even the States may prefer to just let the Commonwealth act – even if it is ultra vires – and not challenge it in the High Court (no-one if it is ultra vires – and not challenge it in the High Court (no-one else can challenge because no-one else is a “party to the case”)else can challenge because no-one else is a “party to the case”)

► Legislation to create the CSIROLegislation to create the CSIRO► Snowy River AuthoritySnowy River Authority► SA railways (before the power was referred) SA railways (before the power was referred) ► Cross-vesting (allowing state courts to hear federal matters & Cross-vesting (allowing state courts to hear federal matters &

vice versa) Family Court matters (except WA)vice versa) Family Court matters (except WA)► Radio & TV regulationRadio & TV regulation► Australian Companies CodeAustralian Companies Code

Overall impact of unchallenged legislation on the Constitution is Overall impact of unchallenged legislation on the Constitution is smallsmall

Constitutional Conventions and Constitutional Conventions and CommissionsCommissions

These are “meetings” formed to study and These are “meetings” formed to study and recommend changes to the Constitutionrecommend changes to the Constitution

The 1890’s debates about federation are The 1890’s debates about federation are examples of Constitutional Conventionsexamples of Constitutional Conventions

The most recent example was the Convention The most recent example was the Convention on becoming a Republic. This convention on becoming a Republic. This convention drafted the question that was then passed drafted the question that was then passed by parliament and put to the people as the by parliament and put to the people as the Republic ReferendumRepublic Referendum


Various governments have formed conventions and Various governments have formed conventions and commission over the years.commission over the years.

► Whitlam formed the Australian Constitutional Whitlam formed the Australian Constitutional Convention in 1973. It meet 4 times and was Convention in 1973. It meet 4 times and was dissolved in 1985dissolved in 1985

► It was replaced in 1985 by the Constitutional It was replaced in 1985 by the Constitutional Commission – which lasted until 1988Commission – which lasted until 1988

► The Constitutional Centenary Foundation was set The Constitutional Centenary Foundation was set up in 1995up in 1995

► The 1998 Republic Convention was established to The 1998 Republic Convention was established to examine the issue of Australia becoming a republicexamine the issue of Australia becoming a republic


This has been a most This has been a most unsuccessful and unsuccessful and limitedlimited form of changing the form of changing the Constitution. PM Menzies once Constitution. PM Menzies once remarked, after sitting on the Joint remarked, after sitting on the Joint Committee on Constitutional Review in Committee on Constitutional Review in 1959, that Constitutional change 1959, that Constitutional change required “the labour of Hercules” (i.e. required “the labour of Hercules” (i.e. it was almost impossible)it was almost impossible)

Financial PowersFinancial Powers

In all federations there is a Vertical Fiscal Imbalance In all federations there is a Vertical Fiscal Imbalance (VFI) – but Australia has the world’s highest VFI(VFI) – but Australia has the world’s highest VFI

Thus the Commonwealth is in a very favourable Thus the Commonwealth is in a very favourable position – money is powerposition – money is power

ss 86 & 90ss 86 & 90 gives the Commonwealth exclusive power gives the Commonwealth exclusive power to collect customs & excise (this actually means a lot to collect customs & excise (this actually means a lot tax)tax)

s 87s 87 The Braddon Clause (after Premier Braddon of The Braddon Clause (after Premier Braddon of Tasmania) aimed to ensure the distribution of the Tasmania) aimed to ensure the distribution of the Commonwealth surplus to the states. This was spent Commonwealth surplus to the states. This was spent after 10 years and the Commonwealth legislated to after 10 years and the Commonwealth legislated to stop the surplus distribution as soon as it couldstop the surplus distribution as soon as it could


► Since then the Commonwealth Grants Since then the Commonwealth Grants Commission has decided on the distribution Commission has decided on the distribution of the surplus – at the Commonwealth’s of the surplus – at the Commonwealth’s discretiondiscretion

► This has been used to carry out Horizontal This has been used to carry out Horizontal Fiscal Equalisation (to ensure uniform living Fiscal Equalisation (to ensure uniform living standards across Australia)standards across Australia)

► The Commonwealth has influence over the The Commonwealth has influence over the States’ borrowing through the Loans Council States’ borrowing through the Loans Council (est. by referenda in 1928)(est. by referenda in 1928)


► In WW2 the Commonwealth acquired In WW2 the Commonwealth acquired Income Taxing powers from the States and Income Taxing powers from the States and refused to return them – this was upheld by refused to return them – this was upheld by the High Court in two casesthe High Court in two cases

► Various High Court cases (eg Tobacco Case) Various High Court cases (eg Tobacco Case) have defined “excise” broadly to include have defined “excise” broadly to include any tax on goods up to but not including any tax on goods up to but not including consumption – thus all these “sales taxes” consumption – thus all these “sales taxes” can only be collected by the Commonwealthcan only be collected by the Commonwealth

►Other state taxes, such as franchise fees, Other state taxes, such as franchise fees, have been defined by the High Court as have been defined by the High Court as “excise” (Hammond Case 1997)“excise” (Hammond Case 1997)


s 96s 96 allows the Commonwealth to grant money to the states “as allows the Commonwealth to grant money to the states “as the [Commonwealth] parliament thinks fit”the [Commonwealth] parliament thinks fit”

► Thus the Commonwealth has complete discretion in how it Thus the Commonwealth has complete discretion in how it grants money to the statesgrants money to the states

► These “tied grants” have been used to influence state These “tied grants” have been used to influence state decisions in areas of residual power where the decisions in areas of residual power where the Commonwealth is prevented from direct action by the Commonwealth is prevented from direct action by the Constitution – eg education, housing, roads & health. Tied Constitution – eg education, housing, roads & health. Tied grants enable the Commonwealth to specify what the States grants enable the Commonwealth to specify what the States must do with the funds, and in many instances, involve must do with the funds, and in many instances, involve matching arrangements requiring States to contribute. This matching arrangements requiring States to contribute. This has greatly reduced the freedom States have in how they has greatly reduced the freedom States have in how they spend funds within their budgets. spend funds within their budgets.


► Impact of the GST Impact of the GST The Commonwealth raises revenue through the The Commonwealth raises revenue through the GST which all goes to the States. These GST GST which all goes to the States. These GST revenues have been assigned to the States by revenues have been assigned to the States by the Commonwealth the Commonwealth in place of the in place of the Commonwealth's general purpose grantsCommonwealth's general purpose grants. This . This gives the States access to a more reliable and gives the States access to a more reliable and a more generous source of funds. It a more generous source of funds. It does not does not diminish the Commonwealth's use of tied diminish the Commonwealth's use of tied grantsgrants to influence policy in areas of State to influence policy in areas of State responsibilityresponsibility

Other MethodsOther Methods

Other possibilities exist for changing the Other possibilities exist for changing the ConstitutionConstitution

►New States – would require existing New States – would require existing states to surrender territory – highly states to surrender territory – highly unlikelyunlikely

►New States – Northern Territory – no New States – Northern Territory – no need for an existing state to surrender need for an existing state to surrender territory. A referendum on statehood territory. A referendum on statehood was rejected by Territorianswas rejected by Territorians

Other MethodsOther Methods

►Repeal of the Repeal of the Commonwealth of Australia Commonwealth of Australia Constitution Act 1900Constitution Act 1900 (clause 9 of which (clause 9 of which is the Australian Constitution) by the is the Australian Constitution) by the Westminster Parliament. This is possible Westminster Parliament. This is possible but fanciful – especially since the passing but fanciful – especially since the passing of the of the Australia ActsAustralia Acts in 1986 by both the in 1986 by both the Australian and Westminster ParliamentsAustralian and Westminster Parliaments, , which effectively removed any remnant which effectively removed any remnant legislative and judicial links to Britainlegislative and judicial links to Britain

ReviewReview

The Australian Constitution can be changed in The Australian Constitution can be changed in the following ways – in order of importance…the following ways – in order of importance…

1.1. Interpretation by the High Court (the most important)Interpretation by the High Court (the most important)2.2. Use of financial powers (very important & related to Use of financial powers (very important & related to

the above)the above)3.3. Referenda (formal but less important)Referenda (formal but less important)4.4. Cooperation between Commonwealth and states - Cooperation between Commonwealth and states -

Referral of powers / Unchallenged legislation Referral of powers / Unchallenged legislation (relatively little significance)(relatively little significance)

5.5. Constitutional conventions and commissions (very Constitutional conventions and commissions (very little significance)little significance)

6.6. New States (never occurred & unlikely but possible - New States (never occurred & unlikely but possible - NT)NT)

7.7. Repeal by Westminster (fanciful)Repeal by Westminster (fanciful)

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CHANGING THE CONSTITUTION Other Methods besides Referenda