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The Many-Headed Beast

Alex Reilly teaches law at Murdoch University. The Australian Constitution has proved resistant to alteration since Federation. The failure (with few exceptions) to amend the Constitution may be due to the fact that the Constitution does not need to be changed, as it already contains an excellent model for government. Another possibility is that the failure lies in the procedure for change under s.128 which, requiring a referendum for any alteration to the Constitution, is a more complex, time consuming and expensive process than for the alteration of most other constitutions. It is important to note, however, that the requirement of a referendum is only part of the process for amending the Constitution. All other aspects of the process — creating the impetus for change, the involvement of political organisations in advocating for and against change, the extent of public education campaigns, and the formulation of referenda questions — have either developed by way of convention, are required by existing legislation, or are dictated by the policies of the government of the day. Therefore, if the process for effecting constitutional change is considered to be lacking in any of these ways, there is scope for altering the Constitution without amending s.128. This article discusses these other aspects of the process of constitutional change in Australia. It reflects on the adequacy of the process by comparing events leading to the republic referendum in Australia with events leading to the certification of the Constitution of the Republic of South Africa in 1996.