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Part 2 · The Commonwealth Constitution

The Commonwealth Constitution builds institutions rather than declaring rights, and it changes only by referendum. Those two design choices, made in the 1890s on assumptions the framers stated openly, still decide how Australia argues about rights, recognition and reform, and they are what this topic examines.

Ideas and cases at a glance

Authority	In a line
Saunders	A constitution constitutes the state's institutions, confers and limits public power, and sits in a global context of constitutional borrowing
Emerton	A framework of institutions, not rights: the Constitution "lacks the grand and inspirational declarations" of higher law, and the framers rejected a rights guarantee on an "assumption of deep unities of interest"
Constitution s 128	Amendment needs an absolute majority of both Houses (or one House twice), then a double majority at referendum. Only 8 of 45 referendums have succeeded
Brennan and Davis	First Peoples and the Constitution: the original exclusions, the 1967 referendum, and the warning against "exaggerated symbolism"
Kartinyeri	The orthodox reading is that the races power can support adverse laws
Uluru Statement from the Heart (2017)	Sovereignty as "a spiritual notion", never ceded, calling for a constitutionally enshrined Voice and a Makarrata Commission

What a constitution does

Before you can evaluate this Constitution you need a working account of what any constitution is for. Saunders supplies it: a constitution constitutes the state's institutions, confers public power on them, and limits that power. It also never exists in isolation. Constitutions borrow from each other, and the Commonwealth Constitution is itself a deliberate blend: a Westminster parliamentary system inside an American federal structure, enacted as a schedule to a British statute. That mixed parentage explains most of its distinctive features, and most of its silences.

RULE. arrowA constitution constitutes the state's institutions, confers and limits public power, and operates within a global context of constitutional borrowing and influence (Saunders).

Hold that definition throughout the module, because it sets the standard against which the Commonwealth Constitution is judged. When a question asks whether the Constitution "works", it is asking whether the institutions it constitutes still perform the constituting, conferring and limiting that Saunders describes, and for whom.

A framework of institutions, not rights

The Commonwealth Constitution is a framework of institutions rather than rights. Emerton's phrase is the one to quote: it "lacks the grand and inspirational declarations" of higher law, and instead establishes "a particular sort of political and institutional order ... with clear liberal elements, but also evident republican ones". Where an American reader looks for a bill of rights, the Australian text offers machinery.

That machinery rests on four structural pillars, plus the amendment rule that locks them in. Learn them as a set, because every later module in this part of the subject expands one of them.

RULE. checklistThe structural pillars: 1. representative democracy (ss 7 and 24); 2. responsible government (s 64); 3. federalism (chs I and V); 4. the separation of judicial power (ch III); with 5. amendment only by referendum (s 128).

Why the framers rejected rights

The absence of a rights guarantee was a choice, and the reasons for it are examinable. Emerton shows that the framers rejected a United States style guarantee partly on an "assumption of deep unities of interest", an assumption she connects to "the importance of racial unity". The record is blunt: Isaacs objected that an equal-protection clause "would protect Chinamen". Indigenous people, meanwhile, "figured little in the founders' conception of the polity". The result, in Emerton's analysis, is a "strongly democratic and popular framework" that was "predicated on the absence of such minorities". The design trusts parliaments and electors to protect rights, and it could afford that trust only by assuming a homogeneous people. State this accurately: it is the historical foundation on which every modern recognition debate stands.

Trap. No rights is not the same as no protection. The Constitution protects through structure: elections, federal division, an independent judiciary. Whether structural protection is enough is the essay question, not a settled premise. Argue it, do not assume it either way.

Changing the Constitution: s 128

The Constitution may be altered only under s 128, and the procedure is deliberately demanding. A proposed alteration must first pass an absolute majority of both Houses, or one House twice. It then goes to the electors, where it needs a double majority: a national majority of voters, and majorities in a majority of the States. The record tells you how demanding that is. Only 8 of 45 referendums have succeeded.

Understand why each limb exists before you evaluate the pair. The national majority makes alteration an act of the people, not of the parliaments, which is the popular sovereignty strand of the design. The States majority protects the federal bargain, so that the more populous States cannot rewrite the deal over the smaller ones. Together they mean that constitutional change in Australia needs something close to consensus, and the referendum record shows that consensus has almost always required bipartisan support. Proposals that become party contests fail.

RULE. staircaseSection 128 climbs in order: 1. passage by an absolute majority of both Houses (or one House twice); 2. a referendum; 3. approval by a national majority of electors and by majorities in a majority of States. Miss either limb of the double majority and the alteration fails.

Trap. "Rigid" cuts both ways, so do not argue only one side of it. The double majority protects stability and the federal bargain, because no State bloc can be overridden by sheer national numbers. The same feature entrenches the status quo against minorities who lack majority support. The 1967 success was bipartisan and symbolic. The 2023 failure was contested and structural. Link the two, and draw the lesson the question actually asks for.

First Peoples and the Constitution

The Constitution's treatment of First Peoples is examinable in its own right, and it runs from exclusion through symbolism to the structural debate. The original text did its work by omission and erasure: s 51(xxvi) excluded Aboriginal people from the races power, and s 127 excluded them from being counted among the people of the Commonwealth.

1967: removal, not conferral

The 1967 referendum removed both exclusions with a 90.77% Yes vote, the largest in referendum history. Be precise about what it did. It removed the exclusion from s 51(xxvi) and repealed s 127. It conferred neither citizenship nor the vote, and Brennan and Davis warn against the "exaggerated symbolism" that has grown around it. The amended races power is not a shield either: the orthodox reading after Kartinyeri is that it can support laws adverse to the people they concern.

RULE. twistThe 1967 referendum removed the constitutional exclusions of Aboriginal people, but it conferred no rights, no citizenship and no vote, and the races power it amended can still support adverse laws (Kartinyeri). The twist is what the referendum did not do: never write as though 1967 granted anything.

Uluru and the 2023 referendum

The Uluru Statement from the Heart (2017) reframed the debate. It describes sovereignty as "a spiritual notion" that was "never ... ceded or extinguished, and co-exists with the sovereignty of the Crown", and it calls for a constitutionally enshrined Voice and a Makarrata Commission for treaty-making and truth-telling. Its central demand is "structural solutions" rather than symbolism. The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 took the first of those demands to a referendum, and it failed: about 60% No nationally, and majorities against in all six States.

Trap. Do not homogenise Indigenous positions. Brennan and Davis record that minimalist recognition risks "swamp[ing] accurate analysis" and was rejected by Indigenous leaders as not going far enough, while structural reform is harder to pass. Both minimalist recognition and structural reform have Indigenous proponents, and the marks are for showing you know that.

The essay that earns the marks

Attack plan. Four steps, in this order. 1. Identify the feature the question is testing: rigidity, rights-scepticism, or institutions over rights. 2. Use s 128 and the referendum record as evidence, with 1967 and 2023 as the paired illustrations. 3. Weigh symbolism against structural reform, giving both sides their strongest form. 4. Take a position and defend it against the best counter-argument.

RULE. scalesEvery strong essay on this topic weighs a design benefit against its cost: stability against entrenchment, structural protection against the absence of rights, popular control against majority gatekeeping. Name both pans of the scales before you tilt them.

Worked example

"The Commonwealth Constitution protects its institutions well and its minorities poorly, and s 128 guarantees it will stay that way." Discuss.

A Pass answer says. The Constitution has no bill of rights and is very hard to change, because s 128 requires a double majority and only 8 of 45 referendums have passed. The 1967 referendum succeeded but the 2023 Voice referendum failed, which shows minorities are poorly protected. This is accurate but it asserts the conclusion instead of testing it, treats 1967 and 2023 as interchangeable data points, and never engages the framers' design or the argument that structure protects.

An H1 answer says. The claim has two limbs, and they deserve different answers. On institutions the Constitution succeeds on its own terms: Saunders' account of constituting and limiting power is satisfied by the four pillars, and s 128 stabilises them. On minorities the design was not neutral: Emerton shows the rights-free framework was "predicated on the absence of such minorities", so the weakness is original, not accidental. But s 128 does not quite guarantee stasis. It filtered a bipartisan symbolic change through in 1967 and blocked a contested structural one in 2023, which suggests the double majority entrenches whatever consensus exists rather than the status quo as such. The answer then weighs whether a mechanism that demands consensus is a defect or a feature, engages the Uluru Statement's demand for structural solutions, and concludes with a position on each limb.

Critical pitfalls and counter-arguments

Writing "rigid" as a one-way criticism. The double majority is also the federal bargain working as designed. An essay that only condemns it, or only defends it, has done half the analysis.
Inflating 1967. It removed exclusions by a record margin. It conferred neither citizenship nor the vote, and Brennan and Davis's warning about exaggerated symbolism is itself quotable authority.
Treating the races power as benign. After Kartinyeri the orthodox position is that s 51(xxvi) can support adverse laws. The 1967 amendment widened the power; it did not purify it.
Homogenising Indigenous positions. Minimalist recognition and structural reform both have Indigenous proponents. Present the debate as a debate.
Forgetting the comparative frame. Saunders' point about borrowing lets you place the Australian choice against the American one, which is exactly the contrast the framers themselves were making.

Take it to the practice bank

This topic is examined as an essay, usually on rigidity, recognition or the institutions-not-rights design. In the Principles of Public Law practice bank, the constitutional foundations problems put these ideas under exam pressure, each with a realistic Pass answer, an H1 model answer and the examiner's comments.

Practice prompts

Write the s 128 paragraph for an essay on rigidity twice: once as the prosecution, using the 2023 failure, and once as the defence, using the federal bargain and the 1967 success. Notice which evidence each version has to explain away.
Draft one paragraph stating the framers' reasons for rejecting a rights guarantee, using Emerton accurately and without euphemism, then a second paragraph on what follows for modern reform arguments.
Take the worked example above and write the counter-argument you find hardest: that a constitution which demands consensus for change is exactly what a federal democracy should want. Then answer it without overclaiming.

Check your understanding

Auto-marked drills. Answer, then see the authority in the feedback.