Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

1. Closely aligned with the basic principle that the People of a society create a Constitution to establish how they will be governed, there is the question of how the Constitution should be amended.

2. Amendment of the Constitution is inextricably linked to ownership of the Constitution and goes to the very heart of the Foundation's reason for being.

3. Politicians have drafted the constitutions of many countries and the politicians have retained sole right to amend the constitution. The Constitution of the USA for example provides that, "The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution," This constitution also allows for the US State legislatures to propose amendments and that amendments are declared valid when approved by the legislatures of three-fourths of the several States.

4. The Swiss Constitution on the other hand, empowers the People to initiate change and that any change must be approved by a majority of the People voting at a compulsory referendum. Section 138 of the Swiss Constitution states: "100,000 citizens entitled to vote may propose a total revision (or a partial revision) of the Constitution. Such a proposal shall be submitted to a vote of the People for approval,"

5. Section 128 of the current Australian Constitution enshrines the principle that amendment of the Constitution is the prerogative of the People voting at a referendum. However, our current Constitution does not empower the People to initiate changes to the Constitution.

6. The first part of the 'Task' for this Month asks you to express your view on several questions. These questions are framed to gauge the degree of consensus on several points concerning amendment of the Constitution. Then you are asked to comment on a specific proposal for the revision of Section 128 of our current Constitution.

7. If a consensus on the question of amendment of the Constitution is apparent within the Foundation, it is proposed that:

a. a resolution be put to the Corowa Conference,
b. political parties be asked to endorse the position of the Foundation and/or specify their policy on this issue, in the lead up to the coming Federal Election,
c. Interest Groups across the country be urged to debate this proposition, and
d. the Foundation undertakes advocacy of the consensus position.

8. An indication of your support for the above four proposals would be appreciated.

TASK SIX (A)

The Questions

9. Most of the following questions have been framed to allow a Yes/No answer. If such an answer does not allow adequate expression of your opinion, please provide an expanded answer.

10. Initiation of Amendments

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

a. The Governor General,
b. Resolution by two-thirds of a joint sitting of Federal Parliament,
c. Resolution by the Federal Parliament (as at present),
d. Petition by a specified percentage of voters,
e. Resolution by a Peoples' Convention elected for the purpose,
f. Others (Please specify)?

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?

a. 1%? (Currently, 1 % of voters would require approx 130,000 signatures
b. 2%?
c. 5%?
d. Other (Please specify)

Q4. Should the Constitution specify any drafting process before a petition is circulated for signatures? (See Paragraph 16 below for an example)


11. Voting on Amendments

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.

12. Ratification of Amendments

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

a. The Governor General?
b. The Parliament?
c. The High Court?
d. Other? (Please specify).

13. Challenge

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?

TASK SIX (B)

The Proposition

14. As you will appreciate from your studies, our current Constitution reserves for the People voting at referendum the sole power to alter the Constitution. This is an excellent restraint on the power of politicians and one that must be preserved. The difficulty with the current Section 128 is that the People have been granted no power to initiate change and therein lies a primary reason for the constitutional stagnation we have suffered for the last 100 years.

15. The aim of the following proposition is to :

a. Provide a comprehensive system for altering our Constitution.
b. Include the necessary checks and balances that will ensure Constitutional stability.
c. Preserve for the People the sole right to amend the Constitution.
d. Allow concerned Citizens the right to initiate a process by which a proposal for change can be put to referendum.

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

"This Constitution will not be altered except in the following manner: -

A. Proposals for amendment of this Constitution shall be submitted to referendum.

This represents no change to the current system.

B. To be successful a proposal must receive the approval of two thirds of the electors qualified to vote for the election of the House of Representatives voting at a compulsory referendum.

This clause proposes a change. Our current Constitution requires a majority of only 50% plus one. It is argued that, unless a proposal receives the support of two-thirds of the voters it is not a true reflection of the will of the People. 

On the other hand, this proposal deletes the current requirement for a majority in a majority of the States. In this it is argued that, if a proposal does receive the approval of two thirds of voters, it represents the will of a clear majority of people and should not be further inhibited.

C. Proposals for change may be initiated by;

(1) The People. Any Citizen or group of Citizens eligible to vote in a House of Representative election 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 times 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 1% of eligible voters, and verified by the Electoral Commissioner, the Governor General shall submit the proposal to referendum.

The involvement of the Parliamentary Draftsman at a very early stage in the process is considered necessary to ensure that the proposed amendment is framed in an appropriate way, and that alterations to the wording will not be required before the amendment can be put to referendum or incorporated into the Constitution.

The fee of six times Average Weekly Earnings (approximately $4500 in 2001) is included to discourage frivolous proposals and to allow for the expansion of the Office of the Parliamentary Draftsman.

(2) 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 elected 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. On receipt of such a proposal the Governor General shall submit the proposal to referendum.

Despite the fact that the 1998 Peoples' Convention on the question of the Republic was created to fail, the enormous public interest and input demonstrated the attraction of such a method of involving the public in constitutional issues.

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

Currently, in the worst case, a majority in only one House is sufficient to have a proposal put to referendum. It is argued this leaves the system open to manipulation by one particular political party with a majority in just one House. A two-thirds majority of a joint sitting should ensure a proposal is much more openly debated in Parliament.

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

E. Plebiscites
On complex issues the Governor General may use a referendum to gain a measure of public 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 may use any of the above means to arrive at a suitable referendum question or questions and submit those questions to referendum".

The current Constitution makes no provision for plebiscites. It is argued that a plebiscite is a valuable tool to gauge public opinion on an issue and to determine, from a range of options, the direction in which the People would like to go.


The Task

17. Do you support the above proposition? 

YES
YES (With modification)
NO

18. If 'yes (with modification)', please outline your modifications and supporting arguments.

19. If 'no', please outline your reasons. Do you have an alternative proposition?

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Last updated: 7 September 2007