Can you change the Australian Constitution without a referendum?

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This video addresses ways that the operation and effect of the Commonwealth Constitution can be changed without a formal constitutional amendment that requires a referendum.
It discusses sections 51(xxxvii) and 51(xxxviii), which permit the alteration of the constitutional distribution of power, and s 105A, which allows financial agreements to be made which override the Constitution. It also points out that far greater change has been made to the Commonwealth Constitution by the High Court through changing constitutional interpretation, than has been achieved through referendums.
The video concludes with a discussion of whether the Commonwealth Constitution, which forms section 9 of a British Act of Parliament (the Commonwealth of Australia Constitution Act 1900 (UK)), can be amended by the British Parliament, or whether section 15 of the Australia Acts 1986 would allow the Constitution to be amended without a referendum.

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1 июн 2024

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Комментарии : 77

@alisonlilley3039 23 дня назад

Always enjoy the clarity of your logical presentations.

@davidunwin7868 26 дней назад

Who would've thought constitutional law would be fascinating watching on RU-vid? 😂 Keep it up! ❤ 😊

@larrybaby9377 26 дней назад

Marvellous clarity on a tricky topic. Thanks!

@AlexBaz143 27 дней назад

Weirdly this may be my favourite constitutional clarion thus far! Whenever I hear all this speculating on constitutional rights edge cases, I look forward even more to learning constitutional law in my degree!

@constitutionalclarion1901 27 дней назад

I hope your constitutional law studies fulfil your expectations!

@sheilaghbolt3601 27 дней назад

Great video again! Thanks so much.

@constitutionalclarion1901 27 дней назад

You're welcome!

@JacobKnight-Barendse-pe4jk 27 дней назад

I didn’t know you have writen a book on the Australia Acts…. If I can anthropomorphise the Country of Australia for a second, I definitely think it would be in Australia’s top ten list of its most important laws. I hope I’ll be able to find a copy of your book and give it a read. Once again amazing video!

@constitutionalclarion1901 27 дней назад

Yes, I spent years digging up all the documents from each State, the Commonwealth and the UK on the various drafts and the reasons for drafting changes. The story is quite fascinating. The book was published in 2010 by The Federation Press and you can probably still buy it directly from them.

@JacobKnight-Barendse-pe4jk 24 дня назад

@@constitutionalclarion1901I love your attention to detail in all your videos so I’m sure the same will be true for your books , yes you can get it on Federation press, I’ll be sure to be getting myself a copy in the near future :)

@braytongoodall2169 27 дней назад

I've just been surprised to learn the Admissions clause in the US constitution (Article IV, Section 3, Clause 1) is nearly identical to our equivalent, except as far as I can tell doesn't have the murkiness around affecting the representation of existing states in parliament.

@constitutionalclarion1901 27 дней назад

Quite a bit of our Constitution was directly taken from the US Constitution, so there are many similarities (and crucial differences!) Constitution-writing is one of the few cases where plagiarism is OK - because you want to use wording that has already been tested in a court and for which there are already some precedents.

@cesargodoy2920 27 дней назад

we have a separate clause in our constitution about how no state may be stripped of representation except without its consent.as well the existence of two equal houses sorta makes that less of a point .Sure Alaska has way less reps then the res but it gets 2 senators so its okay with that

@johnlonie7899 27 дней назад

Very interesting. Would you do a vid one day on how the High Court has altered the balance of power between the states and the Commonwealth over the years?

@braytongoodall2169 27 дней назад

Horizontal/Vertical fiscal imblanace would be a great topic.

@constitutionalclarion1901 27 дней назад

@@braytongoodall2169 OK - I've added it to the list.

@aodaliya 14 дней назад

Your conclusion that it is highly unlikely that the Australian Constitution can be amended except by way of a referendum leaves the Australian Parliament with only two options regarding executive authority: (i) maintain the British Monarch King Charles III as head of state, or else (ii) cut the Gordian Knot and pass legislation replacing the executive role of the British monarch with an Australian indigenous body (although Queen Elizabeth would certainly have balked at the idea, King Charles would almost certainly sign off on a Bill to transfer authority from himself to an indigenous executive body). It is almost impossible to see a time when all states will agree and/or referendum succeed in establishing indigenous sovereignty, therefore a “courageous” member of the Federal Parliament would need to take this first significant step: “Private Members Bill to transfer sovereignty from the British Crown to an Australian Indigenous Body”. Happy to read your comments.

@cesargodoy2920 27 дней назад

Could a(international) treaty change the constitution or at least how it functions? Great video as always professor Twomey

@constitutionalclarion1901 27 дней назад

Yes, I thought of adding in treaties as a source of the expansion of Commonwealth power, but I thought the video was getting too long. I'll so a separate one on treaties and the external affairs power.

@cesargodoy2920 26 дней назад

@@constitutionalclarion1901 I cant wait!

@Robert-xs2mv 24 дня назад

@@cesargodoy2920second that

@davidharris7431 4 дня назад

Well , it shouldn't be possible no matter what silly legal loophole is used .

@roxee57 24 дня назад

The court has interpreted section 116 of the constitution to not mean a separation of religion and state, but to mean the treatment of all religions equally. Hence tax payers are funding schools run by any religion recognised by the state that wants to run one. I bet if Australians were asked in a referendum if they wanted separation of religion and state instead of the state sponsored religious pluralism we currently have Australians would vote for the former.

@jockgardiner7261 26 дней назад

Thanks for the video. What about constitutional conventions? Is there a reason why you didn't cover the link between constitutional change and changes in certain conventions?

@constitutionalclarion1901 26 дней назад

It would have made the video too long and complex. Yes, conventions do change gradually over time - for example, a changed convention about who advises the monarch regarding Australia was instrumental in Australia obtaining independence from the UK. But again, it's not an alteration in the text of the Constitution (although it may produce a distorted reading of the covering clauses).

@whophd 27 дней назад

I do like how you sidestepped the muddy puddle that is the Federal Council of Australasia 😅 “I’ll just put this … with the rest of the fire” as someone famously said. Separately, I am a little fascinated by the concepts of councils, assemblies and how they differ. I have been on the elected committees of community associations and strata committees, and my training in public law & fed con kicked in when I noticed which “powers” we had and had missing, requiring a full vote of the SGM or AGM. My antennae went up, and it was directly analogous to the calling of a legislative assembly - when we wanted to pass a budget, or requisition a capital expense. This is despite the chair, treasurer and secretary operating as “ministers” with all the powers to make unlimited other decisions throughout the year, between General Meetings. (One guess which position I held). All this made me reflect on the birth of NSW’s democracy, where the Legislative Council predated the Legislative Assembly - and those two names gave the historic link between all the levels of government, from micro to macro. Executive councils, elected councils, assemblies and houses … they all evolved from each other. And finally the mother of all parliaments … had such an interrupted existence in its early centuries. It was just summoned into existence to grant extra legitimacy as required? It’s always been a tapestry of constitutions and consent. We can always say the Crown is powerful or the Prime Minister is powerful, but could they live with the consent of the population? Sooner or later they have to.

@constitutionalclarion1901 27 дней назад

Thanks. The Federal Council of Australasia is quite interesting - but a rabbit hole to explore on another occasion. I'm glad your public law training has proved useful. I also find that the principles of federalism are quite useful when dealing with corporate structures and understanding that the centralisation of everything is not the most efficient. Yes, the names of these governing bodies (councils, assemblies, houses, Parliament) were all quite important and meaningful in their day, but not so much today.

@whophd 22 дня назад

@@constitutionalclarion1901 Can't wait to hear about it in a future video. It ties into one of my other favourite rabbit holes, almost in the genre of Wrong Answers Only: "Is Australia independent of Britain, and when did it become so?" Because, I can think of around 10 or 12 multiple choice options off the top of my head, ranging from "we still aren't - check the back of the coin in your pocket" to "we always were, since we always needed a governor", if only because the 'tyranny of distance' functionally gave us a form of local autonomy from Westminster in a way not enjoyed by Belfast and Balmoral … or even Birmingham and Bedlam. New South Wales and Victoria couldn't even be bridled on a matter as simple as choosing a railway gauge, and they rarely if ever used the Pound Stirling to collect taxes. I know funds practically or directly came from Britain to Australia, but did we ever pay a tax? Was there ever a year when outgoings were higher than receipts? It was enough for America to get upset, a few decades earlier. I certainly know that Australians don't get to complain about funding the royal family. And Brexit helped prove, once and for all, that any financial ties that once existed did not remain. (The legal question of independence reminds me of a great RU-vid video about the true successor to the Roman Empire - and the RU-vidr took a poll of several other big RU-vidrs, with many different answers, some of which were VERY convincing - and then summed it up by delivering his own answer that was very different, based on courts and legal recognition … it quite persuasive).

@raymondstone9636 6 дней назад

Hmmmn one wonders. Which Political Party will test it.

@jsma9999 27 дней назад

In short Answer NO. Long answer Yes. Federal Council of Austral-Asia What is that?

@constitutionalclarion1901 27 дней назад

The Federal Council of Australasia was the earlier attempt at a loose kind of confederation back in 1885. For political reasons, it never really worked and was overtaken by federation in 1901.

@jsma9999 6 дней назад

@@constitutionalclarion1901 thanks for info 👍

@ayy232 18 дней назад

Interestingly, using a law intended give greater independence to New Zealand to disapply section 8 of the Statute of Westminster 1931 and thereby allow the New Zealand Parliament amend or repeal the NZ Constitution Act 1852 is precisely what the New Zealand Parliament did in 1947 with the Statute of Westminster Adoption Act 1947 (NZ), the New Zealand Constitution Amendment (Request and Consent) Act 1947 (NZ) and the New Zealand Constitution (Amendment) Act 1947 (UK).

@constitutionalclarion1901 18 дней назад

But the big difference is that New Zealand is not a federation. In Australia, the Constitution is entrenched to ensure that the Commonwealth cannot unilaterally change it to destroy the distribution of powers between the Commonwealth and the States and the federal system as a whole. The Constitution also contains that qualification in s 128 that the Constitution may only be altered in the specified way. So the circumstances are different.

@ayy232 12 дней назад

@@constitutionalclarion1901 Given that all the State Parliaments would have to consent to use section 15 of the Australia Act (UK), isn't this more of a popular sovereignty issue rather than a federalism issue? One could imagine a wartime scenario, for instance, where there was a recognised need to extend the life of the Commonwealth Parliament, and to avoid a wartime general election or referendum. (I'm not an Australian, so forgive me if the scenario sounds absurd.)

@billhackett6715 День назад

The Vctorian Constitution is an act of parliament. As the parliamentarians can alter this Constitution without a Victorian referendum could this be anothert way of altering the federal Constitution if all states copy a Victorian Constitutional change.

@constitutionalclarion1901 День назад

Some parts of the Victorian Constitution can be changed by legislation, without a referendum. Other parts are validly entrenched, and require a referendum to change. Still others state that they require a referendum, but this is probably invalid. There's quite a complex reasons why, which one day I'll try to explain. States do, from time to time, agree to enact the same legislation in each State to create a uniform scheme. But none of this legislation can alter the terms of the Commonwealth Constitution, because all State laws (including State Constitutions) are subject to the Commonwealth Constitution).

@TheBigmongrel День назад

So who is the Australian head of state that conforms to the pre amble of the Constitution? Is it the British monarch or Charles, "king of Australia?" They are two distinct titles.

@j.w.osullivan429 20 часов назад

Covering Clause 2 makes clear that any reference to "The Queen" shall also cover her heirs and successors. So although it literally says "The Queen" in a lot of the Constitution, we can read that to mean "King Charles III" today.

@whophd 27 дней назад

In extremis … the crazy extremes are the only examples that really matter. If the UK and/or the Australian parliaments repealed the Australia Acts 1986, what then? Do we de facto return to the situation as before? I’d say (and expect we concur) that nothing is ever as persuasive as a referendum, and should any doubt exist, it would be extinguished with a vote of the people. (We’ve seen some risky hi-jinx in the last few decades with SCOTUS, and while I’m glad our High Court is nothing like theirs, a century is a long time in constitutional politics). As for the idea that “the court did what the people refused to do”, I’d qualify that with the specifics of the referendum question that failed. Too often there’s some kind of unpopular detail in a referendum proposal that gives the people a reason to reject it. That doesn’t mean there wasn’t popular support for the issue at large - two great examples being the republic, and Northern Territory statehood. There’s something to be said for the complete lack of public reaction when a High Court decision “alters” the Constitution - or should I say, the notability of when it does, like Mabo and Wik. I can’t think of any other examples where people talked about it, like Workchoices or the various corporations powers expansions. Again, compare that to SCOTUS, where it becomes a life-changer every decade or so. Dismantling DOMA (Defence of Marriage Act) seemed like such a giant reach for power by the court. Roe, and its abolition are probably easier to explain in terms of head of power, but it’s just a strange state of affairs (in Australian eyes) that a matter that could be legislated is simply never contemplated to be. We all know why, but the end result is a massive expansion in the role of a court. All of which is to say I gave thanks when I visited the High Court as a tourist last year, and suddenly noticed how much better our situation really is.

@constitutionalclarion1901 27 дней назад

Interesting questions. If the UK repealed the Australia Act 1986 (UK), (and it actually did in 1996 repeal s 4 of this Act re the application of the Merchant Shipping Act, as it was no longer relevant) then its repeal makes no difference to Australia, as it does not affect how the Act applies as part of Australian law. If the Commonwealth Parliament tried to repeal the Australia Act 1986 (Cth), this raises an interesting question of whether it could legally do so without the request or concurrence of all the States, as this was a pre-condition to the power to enact the law and may therefore be a pre-condition to its repeal. We just don't know, as this question has not been decided by the High Court. As for whether the prior situation revives after legislation which made major constitutional changes is later repealed, an analogous situation arose recently in the UK. It enacted fixed-term Parliament legislation, which got rid of the monarch's prerogative to dissolve Parliament and hold an election. When it later decided to repeal that legislation, there was a question as to whether the prerogative to dissolve Parliament spontaneously revived, or had ceased to exist. To avoid the problem, legislation provided for the revival of the prerogative (which technically makes it a power based in statute, rather than the prerogative, but the British have turned a blind eye to this inconvenient truth).

@whophd 22 дня назад

@@constitutionalclarion1901 Such a good example after last week - that UK fixed-term legislation (and its lack of de facto power & respect afforded to it), so different in experience to the NSW constitution, when its fixed-term legislation, then referendum, was undertaken. In fact, I'd like to continue the comparisons - the Brexit "referendum" was not a referendum at all, having more in common legally with the 2017 Marriage Equality postal "plebiscite" (and even that term I'm not sure enough of). And yet, the imprimatur is still there, through the engagement of the universal franchise - this imperative was pushed again and again, whether for the (hasty) application of Article 50 to engage the 2-year deadline for leaving the European Union, or for various calls to continue delaying the process through 2019-2020. At all times it was entirely within the UK Parliament's power to begin, control and delay this process. But the "people's wishes" were mentioned, and had to be respected. Because how could you not? (Of course, any hint of a second referendum was shot right down, in a volley of disingenuous denial).

@dr0pb3ar64 8 дней назад

How was the Constitution 1900 1901 enacted "Revised".? what was Changed in to the 2001 Australian Constitution.

@constitutionalclarion1901 8 дней назад

It has been amended eight times by referendums passed by the Australian people. See the results on the Australian Electoral Commission website.

@Robert-xs2mv 24 дня назад

5:44 succession to the crown act 2015 ( cth) peaked my interest. Does that mean Australia could reject King Charles, or does this mean something entirely different?

@constitutionalclarion1901 24 дня назад

So far, Australia has opted to keep its succession laws the same as those in the UK. We could arguably alter them, so that different criteria applied for succession to the Crown of Australia - although there is still an issue about the application of covering clause 2 of the Commonwealth Constitution. The High Court has previously suggested that it is merely an interpretation clause, but this is not a binding finding. One day I will explain it in more detail.

@Robert-xs2mv 24 дня назад

@@constitutionalclarion1901 Thank, your response to another comment clarified a fair bit. sadly every time I suggest Australia should have its own king or queen, even drop some suggestion, and folks just laugh. And that is what I, as an immigrant from a non British monarchy, laugh at a foreign monarch being the head of state of Australia.

@mickmccluand4677 26 дней назад

2:00 Is this why we recently have a thing called the National Cabinet?

@constitutionalclarion1901 26 дней назад

National Cabinet may have a role in achieving the underlying agreement that supports a reference under s 51(xxxvii), but more commonly it is other inter-governmental bodies, such as the committee of Attorneys-General (which used to be called SCAG - although I'm not sure they still use that acronym).

@husaberg650 6 дней назад

Should you be able to? No.

@JonathanLee-gl2bb 27 дней назад

Note carefully Anne says it would be politically unlikely for the ' unanimity procedure ' to be used to change the Constitution - not that it could not be done . Also it is important to remember that due to the UKs ' Sovereignty of Parliament ' principle ( any latter Act repeals or amends a former Act to the extent of any inconsistency ) The Australia Act ( UK ) 1986 does that to the 1901 Constitution and amends S 128 simply because the Constitution is a ' latter ' Act . Note also that the Australia Acts terminated the power of the Crown of the UK to legislate for Australia - whereas since 1986 the Crown of the UK ie its Parliament cannot legislate fo Australia --- so it did change the Constitution - and without a referendum . The Constitution still states we are under the Crown of the UK .

@constitutionalclarion1901 27 дней назад

There was a lot of debate during the enactment of the Australia Acts about whether they would, or legally could, amend the Constitution. The intention was not to do so. (For all the detail, drawn from primary documents, see my book on 'The Australia Acts 1986 - Australia's Statutes of Independence' (Federation Press, 2010)). The Australia Acts primarily dealt with the relationship between the States and the UK, including some minor changes to State Constitution. In contrast, the Australia Acts did not alter any of the text of the Commonwealth Constitution. While they altered the broader constitutional context, such as the ability of the UK Parliament to legislate for Australia, this continuing UK power is not specified or protected anywhere in the Constitution. Moreover, s 51(xxxviii) gives the power to enact laws that only the UK could have enacted at federation - hence it is authorised by the Constitution and not an alteration requiring a referendum in s 128.

@JonathanLee-gl2bb 26 дней назад

@@constitutionalclarion1901 - Primarily but not exclusively - the preamble includes the Commonwealth - and says ' bringing the Constitutional arrangements ' into conformity . That , imho says it changes the Constitution ( to the extent of any inconsistency ). It also states that the C of A is constituted ' UNDER the Crown of the UK ' so once the Crown of the UK could not Legislate for Australia we were no longer UNDER the Crown of the UK - ie a change to the Constitution . Section 15 was simply the UK transferring complete Sovereignty to Australia .( albeit the entire Commonwealth ).

@JonathanLee-gl2bb 26 дней назад

An Act to bring constitutional arrangements affecting the COMMONWEALTH and the States

@JamesVCTH 23 дня назад

@@JonathanLee-gl2bbTheres Constitutional in an abstract sense (ie pertaining to the composition of the structure of government). Then there’s constitutional in the narrow sense, (ie pertaining to the actual physical written document). Whilst the Australia Acts altered Australian constitutional arrangements (in the broad sense) it didn’t alter the actual document itself. It’s like the word “government” can also have multiple meanings. In a Westminster style sense, the word “government” typically refers to the executive branch specifically. Whilst if we use the word “government” in a broader sense it can mean all three branches together.

@JonathanLee-gl2bb 23 дня назад

@@JamesVCTH It didn't need to alter the Constitution in the physical sense a latter law of the UK amends or repeals a former law - to the extent of any inconsistency . Meaning the actual words of the Constitution do not have to be changed . There are still parts of the Constitution Act that if taken literally make no sense now and in the High Courts words are ' spent ' . Australia is no longer a ' self governing colony ' neither is it ' under the Crown of the UK ' - but the words are still in the Act .

@adrianvirdun4876 26 дней назад

If the UK becomes a republic does the new UK head of state become the Australian Head of State as the lawful successor as UK Head of State of the British Monarch? or would we still have a monarch? thanks

@constitutionalclarion1901 26 дней назад

King Charles is currently Australia's monarch because of Australia's own rules of succession. So if he ceased being King of the UK, he would still be King of Australia under our law, unless we changed it. There are, however, arguments about how to interpret covering clause 2 of the Constitution about references to the Queen extending to Her Majesty's "heirs and successors in the sovereignty of the United Kingdom". The issue is too complex to deal with here in a comments, but maybe one day I will do a video about it.

@adrianvirdun4876 26 дней назад

thanks Professor Twomey much appreciated.

@sallyweatherley3991 11 дней назад

Does the uk act apply to all commonwealth countries, or just Australia?

@constitutionalclarion1901 11 дней назад

Both the UK's 'Commonwealth of Australia Constitution Act 1900' and the 'Australia Act 1986' are only relevant to Australia. But there is other legislation that applies more broadly, such as the Statute of Westminster 1931. It depends on the terms of the statute. (I also note that the term 'Commonwealth' can be confusing, because sometimes it means the 'Commonwealth of Australia' as a polity, or the federal level of government in Australia, and other times it means the broader 'Commonwealth of Nations'.)

@kenwaugh7 27 дней назад

The constitution states that the monarch must be Queen Vic’s heirs and successors ACCORDING TO LAW. Can’t we just change the law to say, for example, that says Queen Vic’s heir and successor is considered to be a President, appointed by a 2/3 majority vote of the parliament (aka 1999)?

@cesargodoy2920 27 дней назад

they got you with"the heir".plus the sucession of the crown act makes it clear they mean royal family members

@constitutionalclarion1901 27 дней назад

There's an issue about how far you can go in changing the meaning of a Constitution by re-defining its words - eg to what extent can you legislate to affect the meaning of 'alien' in the Constitution by changing citizenship laws? For example, when the republic was being addressed in 1999, there was an issue about whether NSW needed a separate referendum to change its own Constitution to cut off links with the Queen. None of the sections in the State Constitution that referred to the monarch were 'entrenched', so they could be changed without a referendum. But there were other sections that were entrenched which referred to 'royal assent'. So could you say that the new head of state gives 'royal assent' and not change the entrenched section, or does getting rid of the monarch mean that the assent is no longer 'royal', impliedly (and invalidly) amending the section? In the end, the view was taken that the safest course would be to hold a State referendum, but it was a tricky question. As the Commonwealth republic referendum failed, we never got to change the State Constitution, so the issue was never tested.

@kenwaugh7 26 дней назад

@@constitutionalclarion1901 Wow, thanks for the detailed response Anne. Love your channel!!!

@Robert-xs2mv 24 дня назад

@@constitutionalclarion1901my answer, kind of.

@TheAbeKane 27 дней назад

Wow the high court did us dirty. Thank you for your video Hey mate, are you able to do a guide on writing to govt appropriately. I wrote to fed about the imprisonment of whistleblowers but I don't think I worded it well because all they did was write back they are doing great things to protect whistleblowers, which is clearly, strongly false and I don't know how to say that in an appropriate way.

@constitutionalclarion1901 27 дней назад

When Governments get a lot of letters on a hot topic, they tend to produce form letters to respond. They will just set out government policy and not really answer your question. It looks like that is what you have received. I've never worked out the magic formula for cutting through and getting a real answer - it's really hard. But I can tell you that you definitely need to be polite, provide evidence for any claims and be constructive (offering potential solutions, rather than just criticism). Letters that are snide, rude or aggressive always get a form letter in response and don't achieve anything.

@TheAbeKane 27 дней назад

@@constitutionalclarion1901 I really did try to be nice and polite, so maybe I succeeded and it was that they received too many letters, like you said. Thank you so much for you explanation, I really appreciate it.

@aussiereuben1 27 дней назад

Parliament just won’t accept the will of the people.

@richardsaunders3743 27 дней назад

Lord Acton famously said: Power tends to corrupt, and absolute power corrupts absolutely.

@paulanderson9313 23 дня назад

The 1986 Australia act is void

@constitutionalclarion1901 23 дня назад

That's an assertion, not a legal argument. Various challenges have been made to the validity of the Australia Acts 1986, but none have succeeded. If you want to know more about the legal arguments (and there are some legitimate ones), I have written about it in detail in my book on the Australia Acts (Federation Press, 2010).