Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

This month’s task goes to the heart of the Foundation’s reason for existence. The reason we have so far worked through 22 tasks on various aspects of the Constitution is that we all believe, to a greater or lesser extent, that constitutional reform is too important a job to be left to lawyers and political power-brokers. We all believe that ordinary Australians, like us, should be involved in the process of formulating a new Constitution more appropriate to our country’s present-day needs. It follows that this philosophy should be reflected in the process for amending the new Constitution to ensure that it can continue to meet those needs.

As you know, in a democracy it is the right of the People to decide how they will be governed. The Peoples’ decision in this regard is enshrined in a Constitution and the People should be the only ones who can alter that Constitution. This is the case in Australia where the Constitution can only be changed by the People voting at a referendum. What is missing from our Constitution is the right of the People to ask for a referendum to change the Constitution.

In FNR Task 6 on amending the Constitution, we looked at this issue in a general way, and a report and summary of responses to that Task is included as Appendix 1. Please read that report now and refresh your memory. The particular proposal for amendment of Section 128 included in Task 6 was supported, either as a whole or with reservations, by a majority of respondents.

The most important findings from Task 6 were:

• Universal support for the referendum as the only method of altering the Constitution
• Majority support for additional avenues for initiation of amendment proposals; that is, most Members want the people to have a greater say in formulating proposals that are to go to referendum, instead of leaving this to the politicians.

One of the options favoured by a majority of Members was the use of elected People’s Conventions as an avenue for initiation of change. However, there are many issues to be worked through, such as:

• method of election
• frequency and length of conventions
• should such a conventions be a permanent feature incorporating an educational role?
• possible use of a number of subnational conventions and/or randomly chosen citizen juries as an adjunct to a full convention.

Therefore, the issue of People’s Conventions will be left to a later task.

In this task, we focus on another avenue for the People to ask for changes to the Constitution. That is, the initiation of amendment proposals by petition. This proposal should not be confused with what is generally referred to as Citizen Initiated Referenda (CIR). Confusion arises because CIR is a central aspect of direct democracy, in which petitions are used to trigger a vote on the introduction of new laws, the repeal of existing laws or the removal from office of elected officials. That is, the people have a direct say in the processes of government. We will examine the pros and cons of direct democracy in a later Task. However, that is not what we are talking about in this Task.

The two central issues to be decided in the petition method of the People asking for Constitutional change are:

1. the number of signatures required, for a petition to be considered valid and therefore trigger a referendum, and
2. whether a “filtering” procedure could be used to allow a smaller number of signatures on a petition but also ensure only appropriate proposals are put to referendum.

The number of signatures required can be expressed as a percentage of voters or as a finite number. The advantage of expressing the requirement as a finite number is that there is no confusion over how many signatures are required. On the other hand, expressing the requirement as a percentage means that the decision of the People remains constant despite any fluctuation in the number of voters over time. In other words, expressing the number as a percentage removes any necessity for continual constitutional amendment simply to preserve the original decision.

The filtering procedure proposed is known as the “citizen jury” system. It has been suggested that a randomly-selected jury of 12 people in each federal electorate (a total sample of 1800, under the present electorate system) could be used to “filter out” proposals unlikely to succeed at a referendum. Thus it would be possible to require a smaller number of signatures on original proposals. Juries could meet on a particular day or days and consider and vote on proposals put forward by petition. Proposals voted down by a majority of “juries” would fail the test and would not go to referendum.

Such a system would probably contain a small bias in favour of a “yes” vote by jurors, with some of them reasoning that they should just “let the people decide”. Therefore, any proposal that didn’t clear this hurdle would be very unlikely to succeed at a referendum.

The big advantage of such a “filtering” system is that a much smaller number of signatures (say 10,000) could be instigated, without running a risk of subjecting the People to endless referenda that have no chance of success. On the other hand, such a system could allow the petition process to succeed even in situations where, for example, the major media are opposed to the proposition and could exert considerable pressure on the electorate by publishing adverse comment thus frustrating the gathering of signatures. That is, there is less chance that the petition process will depend on the blessing of large organisations, the media, or political parties.

Task 23 - Petition Based Constitutional Change

Please examine the following five alternatives describing the basic requirements for initiating constitutional amendment, and rank them from 1 (first preference) to 5 (least favoured). It would be useful if you could fill in all the spaces, including for those alternatives you don’t favour.

Don’t have a petition-based amendment procedure - rely on Parliament to initiate change.

Don’t have a petition-based amendment procedure - rely on People’s Conventions

Use a system in which a valid petition must have a certain number of signatures eg. 100,000.
My preferred number: …..

Use a system in which a valid petition must have a certain percentage of signatures eg. 1%, 2%, 5%. (Note: 1% = about 130,000 voters)
My preferred percentage:…..%

Use a system in which fewer signatures are required, and citizen juries are used to decide whether proposals are put to referendum.
My preferred number of signatures in this case: …..

If you prefer a different system or a combination of the above, please use the space below to expand on your ideas…

Appendix 1 to FNR Task 23

Task Six: Amending the Constitution

1. Responses to the specific questions asked in Task 6 are shown below:

Q 1. Which of the following should be empowered to initiate amendment of the Constitution; (tick or cross)

1. The Governor General, à small minority - but only if the Governor General is elected.
2. Resolution by two-thirds of a joint sitting of Federal Parliament, à Majority approved
3. Resolution by the Federal Parliament (as at present), à About one-third approved
4. Petition by a specified percentage of voters, à Majority approved
5. Resolution by a Peoples' Convention elected for the purpose, à about two-thirds approved
6. Others (Please specify)? à one respondent proposed State Parliaments

Q 2. Should the Parliament (or anyone else) have the right to "fiddle" with a properly initiated proposed amendment before it is put to referendum?

Q 3. What percentage of voters should be required to sign an amendment petition for it to be valid before being put to referendum?

1. 1%? (Currently, 1 % of voters would require approx 130,000 signatures)
2. 2%?
3. 5%?
4. Other (Please specify)

Q4. Should the Constitution specify any drafting process before a petition is circulated for signatures? (See Section 128 (iii) in the Proposition below for an example)

A clear majority of respondents answered “Yes”, presumably after reading the proposal in Paragraph (iii).

Q 5. Should a referendum continue to be the only method of changing our Constitution? (If not, explain what other avenues or mechanisms you favour.)

Q 6. What should be the maximum allowable delay before a properly initiated proposal must be put to referendum? (E-g 6 months, 12 months, or at the next Federal election?)

Q 7. At a referendum to alter the Constitution, what majority should be required to ratify a proposal? 50% plus one, 60%, two-thirds, three-quarters?

Q 8. Should any additional majority be required as well as the above? (E-g a majority in a majority of States, as at present)?

Q 9. Should the Constitution include any provisions concerning the conduct of referendum campaigns? If so, please specify.

Q 10. Should the Constitution specify any rules or guidelines regarding the presentation of information to voters prior to a constitutional amendment referendum? Your recommendations are invited.

Q.11 Who should be responsible for signing an approved amendment into our Constitution?

1. The Governor-General
2. The Parliament
3. The High Court
4. Other (Please specify)

Q 12. Should the Australian High Court remain as the sole avenue of challenge on Constitutional issues?

Q 13. Should the Full Bench of the High Court of Australia remain as the final arbiter on Constitutional matters?

Respondents were then asked to consider the following proposition.

The PROPOSITION

It is proposed that a referendum be conducted to delete S 128 of our current Constitution and to substitute the following;

Chapter VIII

Section 128. This Constitution will not be altered except in the following manner:-

(i) Proposals for amendment of this Constitution shall not be adopted unless passed at referendum.

(ii) To be successful a proposal must receive the approval of two thirds of those voting at a compulsory referendum.

(iii) Proposals for change may be initiated by;

a. The People. Any Citizen eligible to vote may initiate a proposal for change to the Constitution. In the first instance a proposal must be forwarded to the Office of the Parliamentary Draftsman and must be accompanied by a sum equal to six weeks Average Weekly Earnings (AWE). The Parliamentary Draftsman is required to prepare a Petition in consultation with the initiator. On receipt of such a Petition signed by 100,000 eligible voters and verified by the Electoral Commissioner, the Governor General / President may submit the proposal to referendum.

Peoples' Convention. A Peoples' Convention convened for the purpose may initiate a change to the Constitution. To be valid such a Convention must consist of delegates elected by Peoples' Conventions conducted in at least fifty major centres of population spread evenly across the nation. A proposal approved by two-thirds of the delegates voting is to be forwarded to the Parliamentary Draftsman. The Parliamentary Draftsman is to prepare an amendment to the Constitution in consultation with a committee elected by the Convention. The Committee may then present the proposal to the Governor General / President. On receipt of such a proposal the Governor General / President may submit the proposal to referendum.

 

The Parliament. A proposal for change to the Constitution may be initiated by either House and shall be presented to the Governor General / President once the proposal has been approved by a two-thirds majority of a joint sitting. The Governor General / President may then submit the proposal to referendum.

(iv) On receipt of confirmation from the Electoral Commissioner that a proposal has been successful at a referendum the Governor General / President shall sign the amendment into the Constitution.

Plebiscites

(v) On complex issues the Governor General / President may use a referendum to gain a measure of the support for an issue or a range of optional solutions to an issue. On receipt of advice from the Electoral Commissioner of the measure of that support the Governor General / President may use any of the above means to arrive at a suitable referendum question or questions and submit those questions to referendum.

2. Response to this Proposition was as follows.

Although this task exposed some significant differences of opinion, there was a solid consensus on several important points:

• a referendum should continue to be the only method of changing our Constitution,
• a more significant majority than a bare “50% plus one” should be required to carry a referendum,
• Federal Parliament should retain the right to initiate proposals for change, but the initiation process should be broadened to include elected People’s Conventions and voter petitions,
• the Governor-General and High Court should retain their present roles with regard to the Constitution.

The specific proposal for amendment of Section 128 generally found favour with members who responded to this Task, with some expressing reservations on matters of detail.

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Last updated: 3 May 2006