Referenda affecting the division of law-making powers

Of the eight successful referenda, only four have affected the division of law-making powers.

State debts (1910)

Under section 105 of the Constitution, the Commonwealth had had the power to assume any debts held by state governments prior to federation. Alfred Deakin, then Prime Minister, proposed that the part that specified that the debts had to be pre-existing should be removed. Therefore, a referendum was put to the people to delete the words “as existing at the establishment of the Commonwealth” from section 105.1 54.95% of the overall population, and 5/6 states voted “yes” in the referendum, and therefore, the Constitution was altered.2


This deletion increased the Commonwealth’s power. It means that the Commonwealth now has the power to take over debts that a state acquired at any time.

State debts (1928)

This referendum also related to state debts, and proposed that a new section (105A) should be added to the Constitution. Since 1910, the Commonwealth had made payments to each state on a per-capita basis (25 shillings per person). However, in 1927 a new agreement was reached given that the 1910 agreement was no longer effective due to inflation. Part of this financial agreement was that a Loan Council be established to control governmental borrowing. In conjunction, it made provisions allowing for the Commonwealth to assist the states to reduce their debt. Due to doubt over whether this agreement was Constitutional, the government drafted and proposed the insertion of section 105A. The referendum was passed, having received 74.30% of the overall “yes” vote, and approval from 6/6 states.3


By inserting s105A, the Commonwealth’s power was technically extended, but also legitimised, as it had greater power over state debts than the Constitution had previously allowed it.

Social services (1946)

Prior to 1946, the Commonwealth’s power in the area of social services was limited to pensions for invalids and the elderly. The states had the power to legislate on all other types of social services. One main aim of the proposal to extend Commonwealth power was to create uniform law across Australia, removing the possibility of different benefits applying to different people depending on which state they were in. The referendum proposal satisfied the double majority provision, receiving a yes vote from 54.39% of the overall population and 6/6 states.4


By inserting section 51(xxiiiA), the constitution extended the Commonwealth’s power to create pensions and allowances, including: unemployment benefits, sickness benefits, pharmaceutical benefits and maternity allowances.5 By extending the Commonwealth’s power, it also restricted the power of the states.

Aboriginal affairs (1967)

Before 1967, the Commonwealth precluded Federal Parliament from making law regarding Aboriginal people. It remained with the states as a residual power. Section 51(xxvi) outlined that Parliament could not make laws with respect to “the aboriginal race in any State”.6 This meant that Aborigines could not receive the same benefits that federal legislation extended to all other people. Section 127 stated that Aborigines would not be counted in any census.7 In response to changing Australian views towards race, a referendum was held to delete the part of section 51(xxvi) relating to Aborigines, and to delete section 127. 90.77% of Australians, and 6/6 states voted yes in the referendum.8


By deleting these sections of the Constitution, the responsibility of Aboriginal affairs became a concurrent power. The power of the Commonwealth therefore increased, again at the expense of the states, whom previously had residual power over Aboriginal affairs.

See also:

Referendum Process

Division of Law-Making Powers

  1. Commonwealth of Australia Constitution Act 1900 (UK), 

  2. Referendum Dates and Results, Australian Electoral Commission, 24 October 2012, 

  3. ibid.  

  4. ibid.  

  5. Constitution of Australia,  

  6. ibid.  

  7. ibid.  

  8. Referendum Dates and Results,