1988 Australian referendum (Rights and Freedoms)

1988 Unsuccessful constitutional proposal in Australia October 2021 October 2021 1988 Australian Rights and Freedoms referendum A Proposed Law: To alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government.Do you approve of this proposed alteration? Australia 1988 09 03 y 2,892,828 6,503,752 141,145 10,362,959 Not carried, A majority "no" vote nationally and in all six states. 250px federal electoral division Note: Saturation of colour denotes strength of vote The Constitution Alteration (Rights and Freedoms) Bill 1988,Cth bill caafb1988471 Constitution Alteration (Rights and Freedoms) Bill 1988 was an unsuccessful proposal to alter the Australian Constitution to enshrine various civil rights, namely freedom of religion, rights in relation to trials, and rights regarding the compulsory acquisition of property. It was put to voters for approval in a referendum held on 3 September 1988. Background The constitution provides for 5 express rights, 3 which apply only to the Commonwealth, religious freedom, trial by jury, "just terms" compensation. The 2 rights which apply to all of Australia are free trade between the states, and protection against discrimination based on the state an individual lives in. The yes case was that the existing protections were inadequate as the state and territory governments were not bound to observe the rights.Standing Committee on Legal and Constitutional Affairs http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=laca/inquiryinconch.htm Select sources on constitutional change in Australia 1901-1997 http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_representatives_Committees?url=laca/constitutionalchange/part2.pdf Part 2 - History of Australian Referendums 0644484101 Commonwealth of Australia 24 March 1997 The no case was that the proposals threatened existing rights and freedoms and could threaten the future of state aid for independent schools. Trial by jury The proposals had been considered by an Advisory Committee to the Constitutional Commission which reported in 1987.Report of the Advisory Committee to the Constitutional Commission 1987 0642116466 https://nla.gov.au/nla.obj-1194438331 24 October 2021 Trove There are various limitations to the right in section 80 of the Constitution to trial by jury. The High Court had held in 1915 that the requirement to trial by jury did not apply to the local laws of a territory.HCA 13 1915 R v Bernasconi (1915) 6 CLR Commonwealth Law Reports 41. While this decision had been criticised by High Court judges in later cases, it had not been overturned.The High Court's recent encounters with section 80 jury trials https://www.westlaw.com.au/maf/wlau/app/blob?blobguid=I42d97e349cad11e0a619d462427863b2&file=29_Crim_LJ_139.pdf James Stellios subscription Stellios 2005 (2005) 29 Criminal Law Journal 139. The proposal was to extend the right to every state and territory.Cth memo caafb1988471 Constitution Alteration (Rights and Freedoms) Bill 1988: Explanatory Memorandum The right only applies to trials for indictable offences, which is a procedural matter referring to the form of the charge being "on indictment". While indictable offences are generally more serious than those that are tried summarily, the settled position in the High Court was that the right to jury trials did not apply to all serious offences, but only those determined by the Parliament.Stellios 2005 141-142HCA 72 1985 Kingswell v R (1985) 159 CLR 264. The proposal was to set the right to trial by jury to the seriousness of the penalty that may be imposed. Freedom of religion The "religious freedom" part of the proposed change was opposed by many churches and religious-affiliated schools concerned that it would be interpreted as requiring a level of church-state separation that would put public funding and government assistance for faith schools in jeopardy. Conversely, Liberal senator Richard Alston argued that the aforementioned provision could place the use of corporal punishment in religious schools beyond the power of the government to regulate.https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp9900/2000RP02 Constitutional Referenda in Australia www.aph.gov.au Compulsory acquisition of property Section 51 of the Constitution sets out specific powers of the Commonwealth, including for the acquisition of property. The founders viewed this as the express conferral of a power and not a civil liberties provision. Nonetheless it has come to be seen as one of the few express rights in the constitution.Patapan Haig The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia Federal Law Review 1997 25 2 211–235 10.22145/flr.25.2.1 10072/16203 220297621 https://www.austlii.edu.au/au/journals/FedLawRw/1997/8.html free (1997) 25(2) Federal Law Review 211. Question A Proposed Law: To alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government. Do you approve this proposed alteration? Proposed Changes to the Constituation The proposal was to add a new provision to the Constitution as follows (removed text stricken through; substituted text in bold):https://nla.gov.au/nla.news-article26132459 Notification of particulars of writs for referendums Commonwealth of Australia Gazette Special S212 25 July 1988 15 November 2019 3–4 TroveSection 80 Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. (1) The trial of a person for an offence, where the accused is liable to imprisonment for more than two years or any form of corporal punishment, shall be by jury except in the case of a trial for contempt of court or a trial of a member of the Defence Force of the Commonwealth before a court-martial under a law relating to the discipline of the Defence Force of the Commonwealth. (2) The trial by jury of an offence against a law of the Commonwealth that: (a) was not committed in a State or Territory; (b) was committed in two or more of the States and Territories; or (c) was committed at a place or places unknown; shall be held at such place or places as the Parliament prescribes. (3) The trial by jury of any other offence against a law of the Commonwealth shall be held in the State or Territory where the offence was committed. (4) At any time during a trial referred to in subsection (2) or (3), the court may, on application by the accused or the prosecution, transfer the trial to a court of competent jurisdiction in another State or Territory. (5) Nothing in subsection (1) prevents the making, or affects the operation, of a law to the extent that the law: (a) permits waiver by the accused of trial by jury; (b) regulates the size or composition of the jury; or (c) provides for majority verdicts. 115A Acquisition of property under State law. A law of a State may not provide for the acquisition of property from any person except on just terms. 115B Acquisition of property in Territories. A law made under section one hundred and twenty-two or a law of a Territory may not provide for the acquisition of property from any person except on just terms. Section 116 Commonwealth not to legislate in respect of religion No establishment etc. of religion The Commonwealth, a State or a Territory shall not make any law for establishing establish any religion, or for imposing impose any religious observance, or for prohibiting or prohibit the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth, a State or a Territory. Results + ResultHandbookRights and Freedoms results https://nla.gov.au/nla.news-article240630125 Result of referendum with respect to Rights and Freedoms Commonwealth of Australia Gazette S324 27 October 1988 2021-10-23 2-3 Trove State Electoral roll Ballots issued For Against Informal Vote % Vote %New South Wales 3,564,856 3,297,246 965,045 29.65 2,289,645 70.35 42,556Victoria 2,697,096 2,491,183 816,057 33.42 1,625,484 66.58 49,642Queensland 1,693,247 1,552,293 506,710 32.90 1,033,645 67.1011,938South Australia 937,974 873,511 223,038 26.01 634,438 73.99 16,035Western Australia 926,636 845,209 233,917 28.14 597,322 71.86 13,970Tasmania 302,324 282,785 70,987 25.49 207,486 74.51 4,312Australian Capital Territory Territory 166,131 149,128 60,064 40.71 87,460 59.29 1,604Northern Territory Territory 74,695 56,370 20,503 37.14 34,699 62.86 1,168 Total for Commonwealth 10,362,959 9,537,725 2,892,828 30.79 6,503,752 69.21 141,145 Results Obtained a majority in no state and an overall minority of 3,610,924 votes. Not carried See also 1988 Australian referendum Referendums in Australia Politics of Australia History of Australia References Handbook Handbook of the 44th Parliament (2014) http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22handbook%2Fnewhandbook%2F2014-10-31%2F0049%22 Part 5 - Referendums and Plebiscites - Referendum results Parliamentary Library of Australia Territory Following the 1977 referendum, votes cast in the territories count towards the national total, but are not counted toward any state total. Further reading Bennett, Scott 2003 http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0203/03rp11 Research Paper no. 11 2002–03: The Politics of Constitutional Amendment Parliamentary Library of Australia Canberra Australian Electoral Commission (2007) Referendum Dates and Results 1906 – Present AEC, Canberra. 1988 Category:1988 referendums Referendum Rights and Freedoms 1988 Rights and Freedoms Category:Proposed laws of Australia