Constitution Alteration (Social Services) 1946 proposed to extend the powers of government over a range of social services. The question was put to a referendum in the 1946 Australian referendum with two other (unrelated) questions. It was carried and inserted s51(xxiiiA) into section 51 of the Australian Constitution.
|1946 Australian referendum
28 September 1946
|New South Wales||1,858,749||1,757,150||897,887||54.00||764,723||46.00||94,540||Yes|
|Total for Commonwealth||4,739,853||4,453,941||2,297,934||54.39||1,927,148||45.61||228,859||Yes|
- Armed forces totals are also included in their respective states.
This was one of the few (eight) referendum questions which were successfully passed.
Section 51 of the Australian Constitution grants the commonwealth legislative power. Prior to this amendment the only social services provision was s51(xxiii) that gave power to legislate for invalid and old-age pensions. This amendment introduced s51(xxiiiA), which reads:
(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
Notably, federal legislation already existed on a number of these issues despite the lack of a clear constitutional basis: child endowment payments were introduced in 1941, widow’s pensions in 1942, and unemployment benefits (commonwealth) in 1945. These payments were based on the spending power (s81). However, in the Pharmaceutical Benefits Case (Attorney-General (Victoria); Ex rel Dale v Commonwealth) constitutional questions were raised about the validity of Commonwealth social security legislation based on s81. The High Court held unconstitutional the Pharmaceutical Benefits Act 1944, which sought to introduce a scheme of subsidised medications, because it was not supported by a section 51 head of power and could not be supported by s81.
The amendment was therefore intended to clarify and enshrine the existence of a power that was already being exercised and received bipartisan support. This perhaps explains why this amendment was carried, given that it was already accepted as an area of Commonwealth activity. In addition, a “no” vote could have ended welfare programs from which voters were benefiting.
After the amendment the Social Services Consolidation Act 1947 was passed. In addition the Pharmaceutical Benefits scheme, held unconstitutional in the Pharmaceutical Benefits case, was reintroduced and passed as the Pharmaceutical Benefits Act 1947.
- ^Handbook of the 44th Parliament (2014) “Part 5 – Referendums and Plebiscites – Referendum results”. Parliamentary Library of Australia. Archived from the original on 29 September 2017..
- ^“COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 51 Legislative powers of the Parliament [see Notes 10 and 11]”. www5.austlii.edu.au. Australasian Legal Information Institute. Retrieved 20 November 2019.
Ofer Abarbanel is a 25 year securities lending broker and expert who has advised many Israeli regulators, among them the Israel Tax Authority, with respect to stock loans, repurchase agreements and credit derivatives. Founder of TBIL.co STATX Fund.