1937 Australian referendum (Marketing)

The Constitution Alteration (Marketing) Bill 1936,[1] was an unsuccessful proposal to alter the Australian Constitution to ensure that the Commonwealth could continue legislative schemes for the marketing of agricultural produce such as the quota for dried fruits. It was put to voters for approval in a referendum held on 6 March 1937.


Do you approve of the proposed law for the alteration of the Constitution entitled 'Constitution Alteration (Marketing) 1936'?

The proposal was to insert section 92a into the constitution as follows:

92a. The provisions of the last preceding section [ie section 92] shall not apply to laws with respect to marketing made by, or under the authority of, the Parliament in the exercise of any powers vested in the Parliament by this Constitution.


The proposal was intended to overcome the effect of the decision of the Privy Council in James v Commonwealth which the found that the Commonwealth legislation regulating the sales of dried fruit was invalid as .[2][3] This judgment overturned a previous High Court decision in W & A McArthur Ltd v Queensland that section 92 of the constitution applied to state legislation but not to legislation passed by the Australian parliament.[4]

A 22 page booklet was prepared setting out the arguments in favour of the proposal and those against that were endorsed by a majority of members of parliament who voted for and against the proposal.[5]

Yes caseEdit

The argument in favor of the amendments was prepared by the Attorney-General Robert Menzies.[a] The Sun summarised the yes case as follows:

There can be no effective control of marketing of products in Australia, unless there can be control of interstate transactions in these products.

By 1928 it had been realised, as a result of legal decision, that no State Parliament was in a position to exercise effective control over Interstate trade. The Commonwealth Parliament was not bound by Section 92 of the Constitution, and the States concerned eagerly asked the Commonwealth to pass a law relating to interstate trade in dried fruits, which would be supplementary to and give effect to States' schemes of control, already in operation. The Commonwealth agreed, and the result was the Dried Fruits Act.

The Privy Council decided the Commonwealth had no power to pass an interstate trade or commerce law which interfered with the absolute freedom of that trade or commerce. The Commonwealth law became unconstitutional and the State laws were reduced to equal futility. The marketing of other primary products was affected.

The amendment is one to permit co-operation between the Commonwealth and the States in the marketing field, which is at present constitutionally impossible. There is no invasion of State rights. The

States cannot legislate for the Australian marketing of goods without the Commonwealth help, and that help cannot be given unless the amendment is carried.[7]

No caseEdit

The case in opposition to the marketing referendum was prepared by Labor and Lang Labor who opposed the Referendum Bill.[b] The Sun summarised the no case as follows:

A "Yes" majority will give a few people power to tax many without their consent.

Monopolies will coerce small farmers, farm employees will get nothing, and wage-earners' wages will shrink as prices are artificially forced up.

When the Commonwealth legislated for dried fruits it did not protect the consumer, the farm employee, or the minority growers, but merely fastened together a collection of State laws.

In August, 1930, Mr. Menzies said it was ludicrous to suggest that prices of important commodities could be put up without reducing what the ordinary consumer would be able to buy week for week with his wages or salary.

We support full Commonwealth powers over marketing. We normally consume most of our own food. Reject this proposal and the way is cleared for a national and equitable solution of our marketing problems.

Under the cloak of technical and ambigious [sic] language upon the pretext of an emergency, the Government is making another attempt to whittle away self-government.[7]


Result [8]
State Electoral roll Ballots issued For Against Informal
Vote % Vote %
New South Wales 1,550,947 1,461,860 456,802 33.76 896,457 66.24 108,601
Victoria 1,128,492 1,074,278 468,337 46.58 537,021 53.42 68,920
Queensland 562,240 519,933 187,685 38.78 296,302 61.22 35,946
South Australia 358,069 341,444 65,364 20.83 248,502 79.17 27,578
Western Australia 247,536 221,832 57,023 27.77 148,308 72.23 16,501
Tasmania 133,444 125,016 24,597 21.88 87,798 78.12 12,621
Total for Commonwealth 3,980,728 3,744,363 1,259,808 36.26 2,214,388 63.74 270,167
Results Obtained majority in no state and an overall minority of 954,580 votes. Not carried


This was the first of 11 referendums (as of October 2021) that failed to achieve a majority in any state.[8]

See alsoEdit


  1. ^ 45 members voted in favour of the proposal, 28 United Australia, 13 Country and 4 Labor from Queensland.[6]
  2. ^ 21 members voted against the proposal, 12 Labor outside of Queensland and 9 Lang Labor.[6]


  1. ^ "Constitution Alteration (Marketing) Bill". Retrieved 16 October 2021 – via legislation.gov.au.
  2. ^ Davern Wright, R J (1938). "The dried fruits case: James v Commonwealth". (1938) 1 Res Judicatae 173. Retrieved 16 October 2021.
  3. ^ James v The Commonwealth [1936] UKPC 52, [1936] AC 578; (1936) 55 CLR 1 (17 July 1936), Privy Council (on appeal from Australia),
    reversing James v Commonwealth [1935] HCA 38, (1935) 52 CLR 570 (11 June 1935), High Court.
  4. ^ W & A McArthur Ltd v Queensland [1920] HCA 77, (1920) 28 CLR 530 (29 November 1920), High Court.
  5. ^ "Alteration of Constitution : Federal referendums, the case for and against". Commonwealth Electoral Office (Australia). 1937. Retrieved 17 October 2021 – via Trove.
  6. ^ a b "Constitution Alteration (Marketing) Bill 1936" (PDF). Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. 29 October 1936. p. 1465.
  7. ^ a b This article incorporates text from a publication now in the public domain: "4,000,000 booklets for electors". The Sun. 11 January 1937. p. 11. Retrieved 17 October 2021 – via Trove.
  8. ^ a b Handbook of the 44th Parliament (2014) "Part 5 - Referendums and Plebiscites - Referendum results". Parliamentary Library of Australia.

Further readingEdit