Sixty-six. That’s the current age of the youngest Australians to have voted in a successful referendum to change our Constitution. (The median age is now 38.3, meaning the vast majority of Australians have never seen constitutional reform.)

The year was 1977 and the Fraser Government put four questions to the Australian people: requiring simultaneous elections for both houses of parliament; codifying the convention for casual Senate vacancies; setting a retirement age of 70 for federal judges; and permitting territorians to vote in referenda. The latter three questions were approved easily, attracting at least 73 per cent of the national vote and the unanimous support of the states. The first question was defeated by a narrow margin: despite receiving 62 per cent of the national vote, only three of the required four states approved the proposal.

21 May 1977 is the apotheosis of Australian constitutional reform – there has never been so much change to our basic law in one day. But it also represents much of what is wrong with the amendment mechanism for the Constitution, section 128. The high degree of consensus was driven in part by the relatively minor and technical matters voted upon. Why should we require such an elaborate process involving a national popular vote for issues like these?

If 1977 was the high water mark for constitutional reform, 48 years since then certainly represents its nadir. Australia has now really become, as Geoffrey Sawer famously observed, “the frozen continent” in constitutional terms.

Australia’s poor record in passing referenda is well documented: just eight of 45 proposals to go to referenda have been enacted since federation. But it is the last half-century that should concern Australians most. In that time, nine questions have been rejected. Of these, only one (the 1984 proposal to remove fixed Senate terms) attracted a national majority of votes (50.64 per cent) and the support of any states (NSW and Victoria). A structural bias against constitutional reform is also clear from the cumulative votes since 1980 in referenda: 37 million Yes votes versus almost 57 million No votes. Evidently, this has affected the appetite for reform. The Voice to Parliament vote in 2023 was the nation’s first in almost a quarter century – the largest gap between referenda.

Robert Menzies’s words are now truer than ever: “…to get an affirmative vote from the Australian people on a referendum proposal is one of the labours of Hercules.”

Constitutional reform is always important, but it need not always be a profound expression of popular will. Though Australia’s system of government is in many ways world-leading, a founding document almost incapable of alteration has become a national net burden.

There are many drivers of Australia’s constitutional deep freeze – cultural, political and legal. But the best way to start the thaw is to change the procedure of amendment itself: section 128. The top priority of any future government for constitutional reform should be to open up an additional pathway to change: one that bypasses the exceptionally problematic mechanism of a “double majority” national plebiscite and moves Australia closer to similar parliamentary federations such as Canada and India, where constitutional amendment harnesses robust representative democracy in a process more akin to a regular legislative change.

Entrenchment: a question of balance

The regularity of constitutional reform, of course, has no objective standard. Australia’s Constitution, despite being a creature of the nineteenth century, is mostly effective and coherent in enabling prosperity and security for a continent-spanning liberal democracy in 2025. So, Australians’ predilection for constitutional conservatism – with an amendment process that reinforces it – is no bad thing.

However, the extent to which a constitution should be entrenched beyond regular legislation is ultimately a question of balance. India’s first prime minister, Jawaharlal Nehru, put it well, describing his country’s constitutional deliberations: "While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people.”

There are very sound reasons to make constitutional amendment difficult. It protects institutional integrity and ensures predictability. It can entrench fundamental civil rights and principles such as democracy, the rule of law and the separation of powers. It is also a bulwark against majoritarian abuses, helping protect the rights of minorities. A federal system that distributes powers between the national and state level also requires some form of entrenchment so that any further centralisation (or decentralisation) cannot occur unilaterally.

Moreover, for a constitution such as Australia’s that was adopted through a national vote – a radical expression of popular sovereignty at the time – then it is important that any changes receive similar assent. As George Williams and David Hume write in their seminal history of Australian referenda, People Power: “What the people had made, only they could unmake.”

Following Nehru’s argument, however, a constitution must be a living document capable of growth with its context and its people. Australia’s economy, society and international environment have evolved in ways that the constitutional framers of the nineteenth century could never have predicted. Keynesian economics, social security, the internet and AI, the modern national security state – all would be foreign concepts to the framers.

A constitution must be able to respond to shifting and unpredictable circumstances – otherwise its institutions risk becoming outmoded and a hindrance to common sense governance. The initial COVID-19 response, for instance, reflects the ambiguous delineation of public health powers between the states and the Commonwealth.

Constitutional flexibility is also a matter of democratic legitimacy. Australia’s document reflects the intent of a long since past generation – not to mention a franchise that excluded most women and First Nations people. Popular sovereignty demands that Australians today not be completely hostage to their forebears.

Of course, Australia’s constitutional order has evolved since 1901 in ways beyond the discrete changes to the text through referenda. Indeed, the Commonwealth has arguably accrued more power through judicial interpretation than through constitutional amendment.

Though the High Court has been an agent of modernisation, it is an imperfect mechanism for comprehensive constitutional reform. The court’s rulings are necessarily incremental, reactive and confined to the cases that reach the bench. Courts, rightly, also cannot legislate in a detailed, prospective way. Australia thankfully is not afflicted with a culture of judicial activism, with judges recognising the primacy of the separation of powers and their corresponding absence of a democratic mandate.

In balancing rigidity with flexibility, Australia has arguably skewed too far to the former. The constitution has created a bar to reform so high that it inhibits practical change and arguably traps Australians today in a system of basic law not of their own design.

Constitutional paralysis: reasons and risks

Australia’s constitutional paralysis is a byproduct of its politics, culture and law. However, it is important to recognise that the legal framework in section 128 structures the political and cultural dynamics of referenda. By requiring a national plebiscite plus a majority vote in at least four states, Australia’s system often generates counterproductive political incentives and assumes a high degree of constitutional awareness amongst voters. It follows, then, that altering the very procedure of constitutional amendment could be the most catalytic change to open up space for reform.

In People Power, Williams and Hume identify eight factors that have contributed to Australia’s low rate of referendum success: popular attitudes (including loss aversion and constitutional illiteracy), government error, committed opposition, Labor’s poor track record, the double majority requirement, the quality of campaigns, opposition to centralised power, and the features of the referendum process (such as compulsory voting and rules around campaigning).

These factors – plus the past half-century of referendum disappointment – have allowed a vicious cycle of constitutional reform avoidance to emerge. Every failure is not only a major setback of the substantive policy in question, but it also diminishes the general political appetite for serious constitutional debate. Anne Twomey warned of this in 2022: “the greatest risk is becoming hostage to the belief the Constitution cannot be changed and referendums will always fail. It will become a self-fulfilling prophecy.”

Pursuing a referendum is increasingly seen as a fool’s errand, not worth the time and political capital for a government with limited resources, short parliamentary terms and multiple other more urgent priorities. This has only been reinforced by the backward slide in the Yes vote in the two most recent referenda: from 45 per cent for the Republic in 1999 to just 39 per cent for the Voice to Parliament in 2023.

The record shows that referenda present risks for the government proposing them, while conversely providing opportunities for the opposition to run cynical No campaigns motivated by political expediency. The fallout from the result in the Voice referendum bears this out. The Albanese Government has quietly abandoned its ambitions from 2022 for multiterm constitutional reform, building up to a second Republic referendum. The post of Assistant Minister for the Republic, first created in 2022 and held by Matt Thistlethwaite, was also discreetly dropped in mid-2024.

In sum, the procedure of constitutional reform, and the politics it generates, mean that referenda are structurally difficult to pass. This, in turn, deters constitutional change from being seriously considered. It is telling that at least 143 bills to amend the Constitution have been introduced to Parliament – but only 45 have ever proceeded to a referendum. That puts aside the countless other proposals that did not even make it that far.

Naturally, then, we should consider the risks and downsides from Australia’s aversion to constitutional reform.

The most obvious is that an unchanging Constitution leaves Australia with a suboptimal system of government. Fundamental discontinuities between the basic law and the modern context in which it exists impede the capacity of government to realise national prosperity and security.

This, in turn, can encourage governments to resort to extra-legal or constitutionally risky means in order to enact their desired reforms. Just look at Australia’s continuously evolving immigration and offshore detention regime, which is constantly pushing constitutional boundaries. Such a high stakes approach to legislation and policy also pressures the High Court to use its power of interpretation to shift constitutional boundaries. The court’s development over the last 40 years of an implied “nationhood” power in the Constitution, controversially expanding executive power, is testament to this interpretative push.

If core national institutions such as the Constitution cannot evolve to meet the challenges of the day, they risk losing the confidence of the Australian people. With trust in Australian governments and political institutions already very low, this should be a serious concern. Indeed, Francis Fukuyama tells us that inflexible institutions are a critical driver of political decay: “The worship of procedure over substance is a critical source of political decay in contemporary liberal democracies. Political decay can occur in any regime simply because of the institutions themselves … The human propensity to invest rules with emotional meaning is what makes them stable over long periods of time, but their rigidity becomes a liability when circumstances change.”

Fortunately, Australian democracy is in relatively good health by global standards. But this should be no cause for complacency. Vigilance demands that we consistently interrogate our system of government for improvement, which often means constitutional renovations.

To put the opportunity costs of constitutional paralysis in more concrete terms, consider some of the most commonly proposed constitutional amendments, many of which would have practical benefits for policymaking or governance.

• Four year terms. Increasing the maximum term for the House of Representatives from three years to four years. This would provide greater time for governing and policy implementation between elections, while also bringing the Commonwealth Parliament into line with all states and territories and closer to similar countries such as Canada, the United Kingdom and potentially New Zealand. A proposal along these lines was rejected in a 1988 referendum, attracting just 32.92 per cent of ballots.
• Senate terms and simultaneous elections. Requiring that House and Senate elections be held on the same day and removing the fixed July 1 start date for new Senate terms. This would eliminate the awkwardness of standalone half-senate elections and periods of lame duck senators. Four referendums on these issues have previously failed.
• Vice regal powers and codifying constitutional conventions. Explicitly delimiting the powers of the Governor-General (or head of state) to act independently of prime ministerial advice, especially around appointment and dismissal of prime ministers. This could help avoid a repeat of the 1975 constitutional crisis.
• Distribution and creation of powers in the federation. Reallocating legislative powers between the Commonwealth and the states (and potentially the creation of new powers) to more accurately reflect the realities of governing a modern market economy and technology-driven society.
• Removing racial powers. Removing antiquated provisions in the Constitution such as section 25 and 51(xxvi) that could permit racial discrimination.
• Altering the House-Senate nexus. Removing or increasing the 2-to-1 ratio of House members to senators. This would permit the House of Representatives to grow (currently under consideration by the Albanese Government) to better represent the Australian population without significantly expanding the Senate. Each House member currently represents about 120,000 people, significantly greater than the 25,000 per member in 1901. A referendum to break the nexus in section 24 was rejected in 1967.
• Indigenous recognition and empowerment. Various forms of symbolic recognition for First Nations people in the Constitution, as well as more practical measures (such as the Voice proposed in 2023) for self-determination in policymaking.

The roadblock to reform: section 128

Australia’s method of constitutional amendment is quite unique amongst federal democracies, especially ones with British parliamentary systems. Others, such as Canada and India, have models that harness their existing institutions of representative democracy – namely federal and subnational legislatures – to enact reforms. Australia’s system, incorporating elements of direct democracy, was an unusual and controversial choice by the framers in the 1890s. Henry Parkes and Samuel Griffith both famously opposed a popular vote, while early drafts of the Constitution included an amendment process closer to that of the United States.

Section 128 is as unique as it is problematic. It has become a handbrake on much needed constitutional reform by entrenching an amendment process too onerous and biased to the status quo. There are three principal objections to this mechanism – especially when compared to the parliament-oriented processes of similar federations.

First, section 128 creates an overly rigid and linear pathway to reform. Any proposed amendment must first be formulated and legislated by the Commonwealth Parliament. Once a binary “Yes/No” question is set, then the referendum campaign begins and the issue is put to the Australian people.

This means that federal politicians are the gatekeepers to change. However, at the same time, this makes each constitutional reform initiative effectively an omni-directional “one shot game” whereby the government and parliament must articulate a proposal that it believes has the best chance of popular support. Though there may be constitutional conventions and polling before a referendum to gauge public support, ultimately there is no space for negotiation, compromise and testing of support between the various veto players – namely the Commonwealth Parliament, the national electorate and the voters of each state. Indeed, as happened with the Voice proposal, its initial popularity (over 60 per cent in favour in mid-2022) helped push it ahead, only for this to collapse to less than 40 per cent by polling day.

Section 128’s referendum requirement boils down to a singular moment of mass decision-making, with no capacity for feedback or reasoning between the people and the parliament. Contrast this with a more conventional legislative process. Bills and proposals can be shuffled back and forth between veto players (i.e., houses of parliaments) until agreement is reached. Negotiation of a consensus proposal is more feasible given that the circle of decision-makers is tightly and clearly defined.

A process involving, for instance, only the Commonwealth and state parliaments would permit a more deliberative and iterative means of constitutional amendment. The merits and reservations of proposals could be meaningfully debated between the actual decision-makers to identify whether a viable pathway to reform exists. Arguably, such a process is more democratic than the status quo by enabling substantive deliberation by a range of stakeholders.

This leads to the second principal objection: that a binary popular vote is a poorly adapted mechanism for complex proposals involving institutional design. Significant impediments to both the Republic and Voice referendums were uncertainties and disagreements over how the new institutions would function. “Referendums often involve issues that are more complex than a Yes or No answer”, write Williams and Hume, “The choice is not between No Change and Change.”

The difficulties of putting complex questions to a binary popular vote have also unfairly biased referenda campaigns towards the No case. The certainty of the status quo can be understandably attractive, especially to the disengaged voter.

Many of the most pressing constitutional reforms, including those outlined above, involve questions of technical and bureaucratic design. Were it not for their constitutional implications, they would simply be handled as any other piece of legislation.

The third principal objection to section 128 applies generally to direct democracy as a legislative mechanism. Referenda and plebiscites invite misinformation and polarisation, especially now with the proliferation of social media. In this respect, the campaign leading up to the Voice referendum was an especially unedifying period in Australian democracy. Of course, misinformation and polarisation are affecting all aspects of our politics, but when not mediated through representative democracy, the impact is more pronounced.

What merit lies in referenda also rests on the assumption of a well informed and engaged electorate. A disappointingly large portion of the Australian population remains effectively ignorant as to the Constitution and its contents. As Williams and Hume lament, “[t]his constitutional illiteracy makes it hard for people to understand why a proposal for change has been made and how it fits into the broader context of government.” Until such time as Australians’ civic awareness improves, it is hard to argue that referenda are always a meaningful expression of popular intent.

Staging a referendum is also expensive and time-consuming, especially when not held in conjunction with a federal election. The Voice referendum, for instance, cost $411 million. The campaigning period consumes significant bandwidth of both voters and politicians, especially in short three-year electoral cycles. Essentially, referenda are massively elaborate – often disproportionately so to the actual change being sought.

Let the legislators legislate

Before we look at an alternative to section 128, we should at least consider its virtues. Australia is an enviably prosperous, secure and harmonious corner of the world and the enduring nature of our system of government – its stability, fairness and openness – is no small part of that national achievement.

Section 128 has played a role here as the ultimate backstop against radical or destructive change. And for all the criticisms of Australians’ constitutional illiteracy, they have made the right decisions at crucial moments, often resoundingly so. Whether that be in 1967 to count Indigenous people towards Australia’s population, or in 1951 to uphold fundamental civil rights by rejecting a ban on the Communist Party.

So, in seeking to improve on section 128, our starting point should not be to remove the existing referendum mechanism – but to provide an additional, alternative pathway to reform to sit alongside it. There is plenty of precedent here. Similar parliamentary federations, India and Canada, have multiple different amendment procedures for their constitutions, depending on the nature of change proposed.

India has three, progressively more onerous procedures. Whereas some matters can be changed by a simple majority in the national parliament, others require a “special majority” of two-thirds in both houses on the national parliament, while some matters (such as executive power, the judiciary, legislative powers and state representation) also require ratification by at least half of the state legislatures. India has amended its constitution 106 times since 1950.

Canada, meanwhile, has four different amendment procedures. The most onerous requires the unanimous consent of all provincial parliaments as well as both houses of the national parliament. The general amendment process uses the “7/50” formula, which requires the national parliament plus at least two-thirds of provincial legislatures representing at least 50 per cent of the national population. Amendments that only relate to particular provinces can be enacted by the national parliament and relevant legislatures. Finally, some provisions relating to federal institutions can be amended just by the national parliament. Canada’s constitution has been amended 13 times since 1982 when this system came into effect.

What might a similar amending procedure look like in Australia, noting our unique federal characteristics and the imperative of simplicity? The most straightforward approach would be to substitute the referendum for a requirement that a majority of state legislatures (currently four out of six) ratify an amendment proposed by the Commonwealth Parliament. Amendments that particularly affected a specific state would also require ratification by that state’s legislature. This system would respect Australia’s federal character and the status of the states as distinct political communities. At the same time, it would normalise constitutional amendment to more closely resemble a standard legislative process.

Additionally, Australia could borrow from Canada’s “7/50” rule, by requiring that the ratifying states represent at least 50 per cent of the national population. This would help ensure the weight of the national population sits behind the change. It would also prevent, for instance, a proposal that is deeply unpopular in NSW and Victoria from being nonetheless passed by the legislatures of the four smaller states.

The order in which the states and the Commonwealth legislate could also be flexible: a proposal could first gather momentum amongst states before being adopted at the national level. This builds on existing calls to allow states and territories to initiate constitutional reform.

One critical caveat is that this new method should not be available for all proposed constitutional reforms. The existing section 128 referendum process should be the only mechanism permitted for proposals that either:

• Affect the civil and political rights of Australians (whether explicit or implied), or;
• Involve changes to fundamental constitutional principles such as responsible and representative government, federalism or the separation of powers.

In this respect, the inherent constitutional conservatism of Australians and the status quo bias of section 128’s current system would serve as the ultimate guardian of basic rights institutional integrity.

What the new mechanism – oriented around the Commonwealth and state parliaments – would facilitate is reform on everything else in the constitution that, while not necessarily fundamental, is still important. It would permit powers to be reallocated between the states and the Commonwealth, the creation of new institutions such as the Voice, the refinement of parliamentary and electoral procedures, and the entrenchment of greater detail about key institutions such as the High Court, the Governor-General and the Executive.

Getting to change

The first retort to this idea for constitutional reform is that it is anti-democratic, taking power from the Australian people and giving it to a small circle of politicians. And, in so doing, the profound expression of popular intent in adopting the Constitution is undermined in its amendment.

The answer to these contentions is twofold. First, that there are many more consequential matters of law that we entrust to representative democracy than to a popular vote. Criminal law, spending, taxes, entitlements, foreign policy, defence, and even most electoral matters are all governed – uncontroversially – by ordinary legislation enacted by elected representatives. The proposed model brings together the existing processes and institutions of Australia’s representative democracy.

The second response is to acknowledge the irony of the proposal itself. Augmenting section 128 would, of course, necessitate a referendum! It would then take an act of genuine popular intent for the Australian people to pass some of their power of constitutional reform to their elected representatives.

This would be an uphill battle. Australians rejected the only previous referendum regarding section 128 in 1974, which attempted a more limited reform: lowering the number of states voting in favour of a change to three.

Nonetheless, for any government serious about constitutional reform and leaving a legacy, investing its political capital in changing section 128 could be worthwhile. As a “meta-reform”, it would grease the wheels of constitutional change, providing an opening for any number of common sense substantive reforms. It should be paired with other steps by government to improve Australia’s constitutional culture: better and lifelong constitutional education, fostering debate and civic spaces, and a greater willingness to articulate the downsides of no reform and to take political risks.

Hugh Piper edits The Policymaker. He is also a director at Ancrum Advisory. Hugh has previously worked at the Tony Blair Institute for Global Change, the Asia-Pacific Development, Diplomacy & Defence Dialogue, and as a ministerial speechwriter and strategic policy adviser at the Department of Foreign Affairs and Trade. He holds a master’s degree in public policy from the University of Oxford and honours degrees in law and history from the University of Sydney.

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