Activity 8e

1. Arguments in support of changing or protecting the Constitution through referendum include:

• The double majority provision ensures that any proposal that succeeds will be supported by the vast majority of groups across the country.
• Referenda is the only process that has the power to alter the wording of the Constitution – other methods are limited by the words and phrases in the Act, and are therefore not able to make changes of the same magnitude.
• If a referendum proposal is one of the issues in an election, voters will be engaged with the change and candidates will spend time debating the issue – this may create a greater likelihood of more ‘yes’ votes, as the public can devote proper attention to the referendum proposal and making an informed decision.
• Australia has, on average, a high standard of living, and people are right to be wary of the Commonwealth making “grabs for power” – we want to be governed locally at least in part, because then we retain more control over our lives.
• A more traditionally ‘Liberal’ conservative ideology can help restrain parliament and the people from making unwise changes to the Constitution while a more traditionally ‘Labor’ progressive ideology can help encourage parliament and the people to adapt the Constitution to social needs and changes in the community.
• Asking the public to vote on a referendum proposal is an important part of everyday citizenship education – it encourages Australians to participate in how their society is governed, and to understand legal and political institutions.

   Arguments against changing or protecting the Constitution through referendum include:

• It hasn’t been argued before the High Court yet, but the double majority provision may be even more onerous than we currently think – His Honour Mr Justice Kenneth Handley has argued that the phrase “majority of the electors voting” in s128 includes informal votes, because they are still votes. Currently, we only count formal votes, which results in a smaller number being needed to reach majority support.
• Referenda can change the wording of the Constitution, but the wording will always be subject to High Court interpretation – interpretation determines the meaning, scope and application of words, and therefore has the power to radically change the proposal in practice.
• Referenda are extremely expensive to hold, therefore the government is frequently reluctant to put matters to the public vote unless there is a great deal of demonstrated support for them; they will then usually piggyback on an existing election – referenda are more important than this, and we shouldn’t try to sideline them.
• Australia has, on average, a high standard of living, and most people would rather keep the status quo (the way things currently are) because they fear losing power – this can make progress and favouring marginalised groups difficult to achieve.
• A more traditionally ‘Liberal’ conservative ideology opposes changing the Constitution, so may resist changes that might be socially beneficial – it can be nostalgic about the past, and forget that many groups have historically been without power and may not feel the same way, whereas a more traditionally ‘Labor’ progressive ideology is in favour of changing the Constitution, so may support changes that are short-term or undermine the stability that is meant to be provided by a Constitution.
• The Constitution is not an easy document to read or understand, and there is a large body of jurisprudence and precedent built up around it – the average citizen is in a terrible position to understand the change proposed and the legal significance of it.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the use of referenda for changing or protecting the Constitution requires students to write about relevant strengths and weaknesses of the use of referenda for changing or protecting the Constitution. Responses will vary according to the arguments selected.

3. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that there is support for changing or protecting the Australian Constitution through referendum. In this case, ‘evaluating’ the process of changing the Constitution as outlined in Section 128 requires students to write about relevant strengths and weaknesses of the referendum process.

4. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that there is support for changing or protecting the Australian Constitution through referendum. In this case, ‘evaluating’ the use of referenda requires students to write about relevant strengths and weaknesses of the referendum process.

This question asks for an evaluation by feature – this means that students should point out strengths and weaknesses by feature. For example, in relation to section 128 provisions, allowing referenda to be put to the people if only one house supports the proposal prioritises the vote of the people over the vote of parliament – direct democracy is more important than indirect democracy. However, the ability to put a proposal to the people that has only been supported by one house is, in practice, a dormant, unused provision. For example, it has only been used once, in 1974, and it failed. Overall, while the ability to put a proposal to the people that has only been supported by one house has only ever been used once, it does ensure that a proposal can be put to the people to either change or protect the Constitution.