4.1
This chapter considers the arrangements for the conduct of referendums, which are set out in the Referendum (Machinery Provisions) Act 1984 (the Referendum Act). The chapter also considers evidence relating to the need for bodies or mechanisms to oversee certain aspects of the referendum process.
4.2
The chapter concludes with a brief discussion of evidence on section 128 of the Australian Constitution, which sets out the manner in which the Constitution itself may be altered.
4.3
While the chapter examines evidence received in the present inquiry, the Committee also notes that some of these issues were considered in detail in the House of Representatives Standing Committee on Legal and Constitutional Affairs’ 2009 report, A Time for Change: Yes/No?—particularly provisions relating to the yes/no pamphlet and rules relating to the funding of referendum campaigns. That Committee’s recommendations and the Australian Government’s responses are noted where relevant throughout the chapter.
The Referendum (Machinery Provisions) Act 1984
4.4
As noted in Chapter 1, section 128 of the Constitution sets out the manner in which the Constitution itself may be altered. It provides that a bill to amend the Constitution must be passed by an absolute majority of each House of the Parliament (or, in certain circumstances, one House of the Parliament on two separate occasions) before it is submitted to electors at a referendum. A majority of electors in a majority of states and a majority of all electors must then approve the proposed amendment. Evidence on these aspects of section 128 is discussed later in this chapter.
4.5
Section 128 also provides that the Parliament prescribe the procedures for the conduct of a referendum. Specifically, it states:
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes.
4.6
The Referendum Act provides the framework for the conduct of referendums. It sets out a range of mechanical matters, including the issuing of a writ for a referendum, voting procedures (including pre-poll and postal voting), and scrutiny of the results. It also sets out a process for informing electors about a referendum proposal.
4.7
Responsibility for the administration of the Referendum Act (together with electoral matters more generally) sits within the Finance portfolio. The Australian Electoral Commission, an independent statutory authority within the Finance portfolio, is the agency that conducts referendums.
4.8
A representative of the Department of the Finance told the Committee that the Referendum Act is ‘fit for purpose’ in the sense that ‘the act exists and [a] referendum could be conducted’. The Committee heard that the practice of successive governments has been to consider the Referendum Act in the context of a given referendum and pursue any appropriate amendments to the Act as required at the time; and that there was no proposal to change the Act at the present time.
4.9
Mr Tom Rogers, the Electoral Commissioner, stated that the Australian Electoral Commission (AEC) would consider whether there are any legislative or other barriers to the proper conduct of a referendum, and provide advice to the Government, when it appeared that a referendum was likely to proceed.
4.10
The Department of Finance also advised that changes made to the Commonwealth Electoral Act 1918 (Electoral Act) to modernise electoral processes are, where possible, mirrored in the Referendum Act.
4.11
However, a strong theme in evidence to the inquiry was that aspects of the Referendum Act are outdated and should be modernised to support referendums in contemporary Australia. This view was articulated by Professor George Williams, who characterised the Referendum Act as being ‘in very poor shape’.
4.12
Professor Williams explained that the framework for the conduct of referendums was adopted in 1912 and ‘has changed little since then’:
It was designed at a time when voting was not compulsory, Australia’s population was far smaller and far less diverse, and the print media and public speeches were the dominant modes of communication. The system is showing its age and is not suited to contemporary Australia.
4.13
Similarly, Dr Paul Kildea said there is ‘a clear need’ to update the Referendum Act ahead of any future referendum:
Some features have not been revisited in over a century; others, for many decades.
4.14
Dr Kildea argued it is ‘critical’ that changes to the Referendum Act be considered in advance of a referendum, ‘to ensure that they are careful, considered and made for principled rather than strategic reasons’. Dr Kildea told the Committee that:
Often we only wait until a referendum is right around the corner before we start thinking about constitutional review, processes and the rules that govern referendums and how we vote in them... If we wait until a referendum is held, it’s just too late.
4.15
Professor Williams elaborated on this point, arguing that updating the Referendum Act should not be done ‘on the eve of a campaign’:
... as soon as you get to the campaign it’s politicised and it’s too difficult. You’ve got to do it before you’ve got a particular proposal being considered. This is why the local government referendum fell over in 2013. We had bipartisan support, but we left the referendum machinery changes to the eleventh hour, and bipartisanship broke down over amendments to the Referendum (Machinery Provisions) Act...
4.16
Mr Rogers, the Electoral Commissioner, told the Committee that any changes to the Referendum Act should be enacted ‘fairly early’ ahead of a referendum.
4.17
In making the case for specific changes to the Referendum Act, Professor Gabrielle Appleby argued that ‘the rule book for conducting referendums must be in a fit and modern state’. She proposed two criteria against which the framework for the conduct of referendums should be assessed: ‘that it meet the government’s responsibility to provide citizens with objective and fair information on any proposed referendum’ and ‘that the Australian people are able to communicate freely and transparently with each other about that referendum proposal’.
4.18
The remainder of this section examines evidence received on specific aspects of the Referendum Act.
Setting a referendum question
4.19
A number of submitters considered the formulation of the question presented to voters at a referendum.
4.20
Section 128 of the Constitution requires that for a constitutional amendment to be enacted, electors must first ‘approve the proposed law’. The Referendum Act achieves this in practice by requiring that the ballot paper at a referendum include the (long) title of the proposed law, which is determined by the Parliament, followed by the question: ‘Do you approve this proposed alteration?’
4.21
Australians for Constitutional Monarchy (ACM) submitted that the referendum question should continue to ‘refer to the long title’ of the proposed law passed by the Parliament, which it said was consistent with section 128 of the Constitution.
4.22
The Indigenous Law Centre (ILC) at the University of New South Wales submitted that:
It is imperative that the question that is put on the ballot paper is easily understood, and captures the essential nature of the reform. It must be clear, simple and neutral.
4.23
In the context of a possible referendum on the constitutional recognition of Indigenous Australians, the ILC noted that for some voters the referendum question will be the first time that they engage with the issue ‘at the level of decision-making seriousness’.
4.24
Dr Kildea submitted that under the current arrangements, questions ‘tend to be technical and wordy, and can be confusing to voters’. Furthermore, he said, the use of the long title ‘encourages members of parliament to draft emotive or misleading Bill titles in the hope of swaying voters’:
In 1988, for example, voters were asked to approve a proposed law ‘[t]o alter the Constitution to provide for fair and democratic parliamentary elections throughout Australia’, notwithstanding the fact that the actual proposal was aimed at achieving the relatively narrow objective of ‘one vote, one value’.
4.25
The ILC recommended that the Referendum Act be amended to allow the referendum question to be put in the following form: ‘Are you in favour of [short description of proposed reform], as provided in the [short title of Act]?’ The short description of the proposed reform would be developed by a joint parliamentary committee, assisted by an independent panel, which would advise the committee on the ‘clarity and neutrality’ of proposed descriptions.
4.26
Dr Kildea echoed this recommendation, but also suggested that a ‘short, factual description’ of the proposed constitutional amendment be included on the ballot paper. Like the ILC, Dr Kildea recommended that there be independent scrutiny of the referendum question and any other text on the ballot paper, while leaving the final say to the Parliament.
4.27
Citizens for Democratic Renewal and Women for an Australian Republic both suggested that bodies other than Parliament be responsible for drafting referendum questions. Evidence on the possibility of other bodies overseeing certain aspects of the referendum process is discussed later in this chapter.
4.28
In addition to the wording of the referendum question, some submitters considered the issue of which bodies should be able to initiate a referendum. This evidence is also discussed later in this chapter.
Information and education about a referendum question
4.29
The primary way in which the Government must inform voters about a referendum question is through the production and distribution of a pamphlet containing arguments in favour of and against the proposed constitutional amendment, along with a statement showing the text of the proposed amendment (the ‘yes/no pamphlet’).
4.30
Evidence on the yes/no pamphlet and other issues relating to public information and education is examined in this section.
Yes/no pamphlet
4.31
The Referendum Act requires that the arguments in favour of and against the proposed constitutional amendment to be included in the yes/no pamphlet be authorised by the majority of those members of the Parliament who voted for and against the amendment respectively. Each argument must consist of no more than 2,000 words and must be provided to the Electoral Commissioner within four weeks of the passage of the proposed law through the Parliament.
4.32
The Electoral Commissioner must then post a printed copy of the yes/no pamphlet to each address on the electoral roll no later than 14 days before the voting day for the referendum.
4.33
The Commissioner may also post the pamphlet to any other addresses that they consider appropriate, send the information contained in the pamphlet to any email addresses they consider appropriate, publish the information on the internet, and arrange for it to be translated into other languages or forms suitable for the visually impaired.
4.34
In evidence to the inquiry, stakeholders examined issues including the structure and content of the pamphlet, oversight of information contained in the pamphlet, and distribution of the pamphlet.
Structure, content and oversight
4.35
Several submitters raised concerns about the educational and informational value of the pamphlet in its current form. For example, Professor Williams argued that the structure of the yes/no pamphlet encourages Australians to ‘divide into two camps – to be either for or against a proposal’:
This has value – it can force people to really think about an issue. But adversarial rhetoric should not be the only information the Commonwealth Government provides in the official pamphlet.
4.36
Similarly, Dr Kildea submitted that, in its current form, the yes/no pamphlet is ‘a poor mechanism for educating voters’:
The arguments presented are often exaggerated and/or misleading. The maximum length of 2000 words is unnecessarily long and likely exceeds the attention span of many voters. Further, the law does not provide for the preparation of a statement setting out basic facts about the referendum proposal. Overall, a fair-minded voter motivated to learn more about the referendum will find little of value in the official pamphlet.
4.37
The ILC also argued that the current specifications ‘encourage a pamphlet that is unnecessarily long... and devoid of potentially useful explanatory material such as images’.
4.38
Professor Williams recommended that the yes/no arguments be preceded by ‘neutral material’ including ‘a clear explanation of the proposal and a clear explanation of its context, including where it fits into the constitutional structure’.
4.39
Along similar lines, several submitters recommended the inclusion of a neutral explanation of the parts of the Constitution affected by the proposed amendment, and the anticipated effect of the amendment.
4.40
The ILC recommended that the pamphlet include an ‘objective summary of the arguments that have been made for and against the proposal’ of no more than 1,000 words, which could be supplemented with images. The ILC also recommended the inclusion of a ‘citizens’ statement’ developed through a deliberative process, stating that:
This section allows the voters to hear about the reform from ‘ordinary people’, which can increase understanding as well as trust in the information provided.
4.41
Women for an Australian Republic among others recommended that the yes/no pamphlet include a list of the members of the Parliament who voted for and against the proposed amendment. It also suggested relaxing the requirement to include the text of the proposed amendment to allow for consequential amendments to be summarised rather than listed in their entirety.
4.42
Some submitters contemplated whether oversight of some or all of the content contained in the yes/no pamphlet should be taken out of the hands of parliamentarians. For example, Dr Kildea suggested that giving responsibility for drafting the yes/no arguments to other individuals or bodies ‘promises to foster more accuracy and balance’. On the other hand, ACM submitted that the yes/no arguments should continue to be authorised by the parliamentarians for and against the proposed constitutional amendment, arguing that ‘it would be wrong on principle to hand this task to some unelected body’.
4.43
Evidence on the possible roles for different bodies in the referendum process is discussed later in this chapter.
4.44
In its 2009 report, the House Standing Committee on Legal and Constitutional Affairs recommended that the Referendum Act be amended to remove the word limit for the yes/no arguments and to require all members of Parliament to authorise both yes and no arguments in the circumstance where a proposed constitutional amendment is passed unanimously. However, the Government did not support these recommendations.
4.45
The committee also recommended retaining the requirement that the yes/no arguments be authorised by parliamentarians, noting that the involvement of other bodies or persons is not precluded.
Distribution
4.46
As outlined above, the Referendum Act requires that the yes/no pamphlet be posted to households, and it also allows for the pamphlet to be sent via email. However, a common theme in evidence to the inquiry was that the information contained in the pamphlet should be required to be distributed in other ways, such as on the internet and via social media, and be made more accessible.
4.47
Evidence on the use of social media during a referendum campaign more generally is discussed in the following section.
4.48
Professor Williams argued the pamphlet needs to ‘move on’ from being a print-based publication:
Today, few Australians would expect to receive information on a referendum only in print form. Presenting information only in this form risks not engaging with a large segment of the population that now expects to receive information about public affairs online.
4.49
Professor Williams recommended that the yes/no pamphlet and other information about a referendum be able to be distributed using ‘all available methods’, including radio, television, email and the internet:
The available methods of delivery should not be specified and narrowed. Just as communication technologies have changed over the last century, so may we expect them to continue to change in the future.
4.50
The Law Council of Australia (LCA) said the rationale for maintaining the current arrangements was unclear, ‘as there is no basis to suggest that disseminating information only via printed material (as opposed to digital information dissemination) is more likely to increase understanding and interest in the process’.
4.51
Similarly, Dr Kildea recommended that the pamphlet’s contents be disseminated via print and broadcast media and the internet. He suggested one approach, which would be consistent with the referendum procedures in Western Australia and Tasmania, was to ‘authorise the Electoral Commissioner to bring the arguments to the notice of voters, thus leaving the choice of media to the Commissioner’.
4.52
Dr Kildea also suggested allowing the pamphlet to be posted to households further in advance of the referendum, ‘to give voters more time to consider the information and arguments’. Professor Williams made a similar recommendation, stating that:
If referendums are to be successful, information, deliberation and citizen engagement need to be at the core of the referendum process from the beginning of the campaign.
4.53
In addition to distribution of the pamphlet on the internet and in other media, the ILC recommended making it a requirement that the pamphlet be translated into ‘key voter languages’ and made available in a form suitable for the visually impaired.
4.54
When asked about the case for re-examining how the yes/no pamphlet is distributed, Mr Rogers, the Electoral Commissioner, noted the cost involved and suggested that there could be scope for making information available in other formats. However, he also explained that the AEC’s research indicated that the guide posted to households at every election was used by large numbers of Australians to inform them about the electoral process.
4.55
In its 2009 report, the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that the Referendum Act be amended to require that the pamphlet be delivered to every household, rather than every elector. This recommendation was supported by the Government and implemented in 2013.
4.56
In a submission to the present inquiry, ACM argued that this change should be reversed. It stated that:
Material addressed to ’the householder’ or some similar vague addressee is likely to be thrown out unopened, especially in shared households.
4.57
Professor David Flint, National Convenor of ACM, said that while the default position should be that the pamphlet is mailed to every elector, electors should be able to opt instead to receive it via email or to access it themselves.
A neutral education campaign
4.58
As outlined in the previous section, a number of submitters suggested the inclusion of neutral information about a proposed constitutional amendment in the yes/no pamphlet. In addition to this, some submitters advocated for a neutral public education campaign in a referendum.
4.59
The Committee notes that the Referendum Act currently restricts the Government from spending money on activities including a neutral public education campaign. Evidence on this point is discussed later in this chapter.
4.60
The Attorney-General’s Department explained that the 1999 referendum involved a broad public education program to provide information about the referendum. Speaking at the time, the then Attorney-General, the Hon. Daryl Williams MP, stated that:
In order to make an informed decision, the Australian people must have access to relevant information about our system of government and the proposal for change.
4.61
He went on to say that the aim of the education program would, in part:
... ensure that balanced, factual information is made widely available to assist electors to understand the issues before they vote in the referendum.
4.62
In a submission to the present inquiry, Dr Kildea characterised neutral education campaigns as ‘another useful tool for fostering informed voting’. Dr Kildea said that the experience of the campaign in 1999 was ‘generally a positive one’ and that:
Looking ahead, the priority for any neutral educational initiative should be to produce and circulate information that is balanced, accurate and, as much as is possible, coordinated with other official sources of information.
4.63
Similarly, Professor Williams argued for the development and distribution of ‘neutral information about the referendum in a way that promotes community participation and enables Australians to cast an informed vote’.
4.64
The newDemocracy Foundation referred favourably to a citizen-produced voter information kit used in Oregon and Switzerland, which it suggested could ‘help improve trust and the quality of information in the wider public conversation’ on the referendum issue.
4.65
In its 2009 report, the House Standing Committee on Legal and Constitutional Affairs expressed its view that the yes/no pamphlets alone are ‘insufficient to adequately prepare voters to exercise their democratic right and responsibility’ in referendums.
4.66
In addition to a national civics education program, the Committee recommended that the Referendum Act be amended to allow for spending on referendum education, which could include ‘background and contextual material to aid in understanding the nature of the proposed changes and the effect of its success or defeat’. The Government noted this recommendation, stating that it would consider any amendments to the Referendum Act ‘on a case by case basis’.
Social media and misinformation
4.67
As noted above, some submitters recommended amending the Referendum Act to facilitate information about a referendum question being distributed more widely on the internet and social media. Evidence to the inquiry also considered broader issues relating to social media and misinformation in the context of a referendum campaign.
4.68
Mr Rogers, the Electoral Commissioner, said that social media was something that the AEC was ‘dealing with and learning to deal with’. He went on to say that social media ‘will certainly be an issue at the next event and we'll have to be alert to that’.
4.69
Professor Williams told the Committee that:
I really fear that ... we are heading to the nation’s first social media referendum, yet we have legislation that does not mention a word about how to deal with the quite significant challenges that emerge from that. As I say, it was drafted pre radio, and the focus is upon this written pamphlet that goes out a week or so before the referendum. Really, that’s a pretty hopeless way of dealing with these issues sensibly.
4.70
Professor Williams suggested that an independent panel (discussed later in this chapter) could have responsibility for ‘reviewing and reporting on the accuracy of factual claims’ made during a referendum.
4.71
Women for an Australian Republic suggested the introduction of penalties for ‘misleading information or claims’ contained in arguments for and against constitutional changes, ‘including those spread through the media including social media’. It said that the platforms or publishers concerned should be required to remove such material and recommended the establishment of an independent complaints mechanism for this purpose.
4.72
Dr Kildea suggested there should be consideration of the merits of introducing measures to ‘regulate the dissemination of misinformation’ in a referendum:
The law currently makes it unlawful to mislead voters as to the manner in which they cast their referendum ballot. However, it applies only to statements that might mislead a voter about the process of casting their vote. The question is whether some sanction should be introduced to penalise those who disseminate statements that misrepresent the substance of a referendum proposal.
4.73
Dr Kildea suggested two possible approaches:
One possible approach would be to introduce a measure like section 113 of the Electoral Act 1985 (SA). Under that provision, it is an offence to authorise, cause or permit the publication of an election advertisement by any means (including on radio or television) that ‘contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent’. The state’s Electoral Commissioner may request that such an advertisement be withdrawn and/or that a retraction be issued, and can seek a court order to support that request. Individuals (including opposition campaigners) can also request a withdrawal and/or retraction, provided that they can demonstrate standing.
... An alternative approach is taken in New Zealand. The law regulates the making of misleading statements during election campaigns, but only for the two days preceding polling day. It is an offence within that period to make ‘a statement of fact that the person knows is false in a material particular’.
4.74
Mr Sean Burke, a member of ACM, supported using a range of platforms to reach people ‘through their preferred means of communication’, but said that information should be monitored for accuracy.
4.75
More generally, the LCA argued that improved public awareness of the Constitution would address the risk of misinformation in relation to proposed constitutional changes. A related point was made by Mr Sandy Biar, National Director and Chief Executive Officer of the Australian Republic Movement (ARM), who told the Committee that low levels of civic awareness ‘increase the susceptibility of Australians to foreign disinformation campaigns’.
4.76
Evidence on public awareness about the Constitution is discussed in detail in Chapter 2.
4.77
Mr Andrew Johnson, Chief Legal Officer at the AEC, explained that changes were made in 2018 to require that communications about referendum matter are authorised, consistent with the requirement in the Electoral Act:
That's any matter which is likely to influence or any matter about the referendum. That would have to have an authorisation on it. The requirements, then, apply to social media, as well as all traditional forms of communications.
4.78
Mr Johnson added that the authorisation requirement applies to paid advertising and communication by ‘political entities, parties, candidates and other people who are spending money’, but not to people ‘just voicing an opinion on social media’.
Expenditure and donations in a referendum campaign
4.79
This section examines evidence received on public and private expenditure in referendum campaigns, as well as issues relating to donations to campaign organisations.
Public expenditure
4.80
As noted above, section 11(4) of the Referendum Act limits the Government from spending money ‘in respect of the presentation of the argument in favour of, or the argument against, a proposed law’ to amend the Constitution, except in relation to certain activities. These include the preparation and distribution of the yes/no pamphlet and the provision by the AEC of other information about the proposed amendment and its effect.
4.81
Following the 1988 decision of the High Court in Reith v Morling, the limitation contained in section 11(4) is understood to be quite broad. The operation of section 11(4) was subsequently suspended for the 1999 referendum to allow for public education and the funding of the yes and no campaigns, and again for the proposed 2013 referendum on the recognition of local government, which ultimately did not proceed.
4.82
Dr Kildea explained that the restriction was introduced in 1984 ‘to ensure neutrality in public expenditure’. However, Dr Kildea outlined what he saw as three shortcomings of the current arrangements:
First, they prevent the Commonwealth from spending money to promote referendum arguments via mass media outlets such as television, radio and newspapers, or through social media, even if it wishes to do so in an even-handed manner. They also preclude the federal government from funding Yes and No committees to undertake their own campaigns.
Second, section 11(4) impedes Commonwealth spending on genuine education campaigns. ... Third, the existing rule is selective in its application. Equivalent restrictions do not apply to expenditure by State and Territory governments, political parties, interest groups or individuals.
4.83
Professor Williams was concerned about the implications of the bar:
Australia’s history of referendums shows that this restriction can allow the public debate to be monopolised by groups that have an interest in opposing reform or, even, in confusing voters.
4.84
Both Dr Kildea and Professor Williams recommended lifting the restriction on government expenditure. However, both also recommended that, if the Government spends money to support the yes and no campaigns at a referendum, it be required to spend equal amounts on each campaign.
4.85
ACM noted that the Government provided equal funding for the yes and no campaigns in the 1999 referendum, and recommended that this arrangement be retained at a future referendum.
4.86
The LCA also recommended abolishing the restriction on government expenditure. However, it argued that providing unequal amounts to the yes and no campaigns may be appropriate in some circumstances—it suggested that this should require parliamentary approval.
4.87
Women for an Australian Republic suggested that the fact that section 11(4) of the Referendum Act was suspended for the 1999 referendum indicates that the provision does not meet contemporary requirements. It suggested leaving only general provisions relating to expenditure in the Referendum Act and providing for specific expenditure in legislation on a case-by-case basis for each referendum.
4.88
Mr Rogers, the Electoral Commissioner, also said that the limitation on government spending was ‘something that the parliament might care to look at’:
If that's going to be a permanent suspension of that part of the legislation it'll be useful to do that rather than just in the enabling legislation [for each referendum]. Time has certainly moved on.
4.89
As noted above, in 2009 the House Standing Committee on Legal and Constitutional Affairs recommended amendments to remove the restriction on government expenditure, but this recommendation was not adopted.
Private expenditure
4.90
The question of private expenditure in referendum campaigns was also considered in evidence to the inquiry.
4.91
Dr Kildea explained that currently there are ’no limits on the amount of money that individuals, campaign groups and political parties can spend on referendum campaigns’. While he said that past referendum campaigns had not seen significant amounts of private spending, he cautioned that this may not be the case in future campaigns:
The Australian Marriage Postal Survey ... demonstrates that in hard fought campaigns on salient issues, some individuals and groups are prepared to spend significant amounts on advertising. Such spending is of particular concern where it is one-sided, as this enables one side of the issue to flood the airwaves and drown out opposing arguments.
4.92
Dr Kildea recommended that the Referendum Act be amended to ‘impose spending limits on individuals, campaign groups and political parties’, which he said would ‘help to foster a level campaign playing field’. However, he also highlighted the importance of setting any spending limit at an appropriate level:
... if set too low, it can prevent a group from getting their message across in today’s media environment; if set too high, the risk of excessive and one-sided spending remains.
4.93
On the other hand, the ILC recommended against any limits on private expenditure in a referendum campaign:
The exercise of popular sovereignty involved in a referendum depends on the free flow of communication by and to citizens in the run up to a referendum vote at the ballot box.
The [referendum] process involves a much less predictable dynamic than conventional elections, with much greater scope for horizontal alliances between citizens, civil society organisations, faith groups, businesses, professional associations, sporting organisations and so on. The risk of spending caps is that they will impede or discourage this protean capacity for a referendum proposal to galvanise civic engagement and unite diverse groups within the Australian community.
4.95
While the ILC argued that individuals and organisations should not be limited in their ability to campaign during a referendum, it also called for the disclosure of significant donations to campaign organisations. This issue is discussed below.
Donations and campaign transparency
4.96
A number of submitters considered the regulation of donations, including foreign donations, to referendum campaigns.
4.97
The Committee heard that there is currently no requirement for referendum campaigns to disclose information about donations, nor is there any limitation on foreign donations to referendum campaigns.
4.98
As noted above, the ILC recommended the introduction of a disclosure regime for significant donations to campaign organisations, arguing that public transparency was important in a referendum. The ILC nominated a threshold of $1,000, consistent with electoral laws in New South Wales and Queensland. The source and amount of any donations above this threshold would be required to be declared to the AEC within seven days of receipt, and this information would be published on the AEC’s website in real time. Furthermore, the ILC suggested that:
Once the referendum campaign officially commences, any organisations undertaking referendum campaigning could also be required to disclose donations they have received within the preceding two years for the purpose of campaigning.
4.99
Similarly, Dr Kildea recommended an obligation on campaign organisations to report in real time on the source and amount of their donations, saying that the current arrangements shield campaigners from scrutiny.
4.100
Women for an Australian Republic said it did not oppose a requirement for campaign organisations to disclose donations during a defined campaign period, but raised concerns about a requirement to disclose donations received prior to the campaign, as was suggested by the ILC.
4.101
Mr Iain Walker, Executive Director of the newDemocracy Foundation, expressed some scepticism about the effectiveness of regulating donations:
You're trying to catch a bucket of water with a sieve, trying to limit the influence of money on these campaigns. People will set up grassroots organisations or door-knocking organisations. It becomes, in our view, an almost impossible task.
4.102
The ARM suggested that consideration could be given to the introduction of a register of political campaigners consistent with sections 287F and 287H of the Electoral Act. Mr Biar from the ARM said that this measure would ‘ensure there is transparency of who is attempting to influence the outcome of Australian referenda’.
4.103
The ARM also addressed the question of foreign donations, recommending the introduction of a ban on foreign donations to entities campaigning for constitutional change, consistent with the restrictions introduced in the Electoral Act in 2019. The ARM submitted that:
Foreign influence campaigns should not be allowed to undermine Australian democracy or subversively attempt to amend Australia’s Constitution. Australians should have the confidence that those seeking to inform them about constitutional change represent Australians’ interests, not those of a foreign nation.
4.104
In response to this evidence from the ARM, ACM submitted that there was ‘in fact only one instance of foreign intervention in the 1999 referendum’ and that, accordingly, the cost and burden of a register of political campaigners would not be justified.
4.105
Dr Kildea said that foreign donations to referendum campaigns should be banned, both to address the risk of foreign interference and to bring referendum and election laws into alignment.
4.106
Mr Rogers, the Electoral Commissioner, highlighted the absence of a prohibition on the receipt of foreign donations in the Referendum Act as an obvious point of different with the Electoral Act. Mr Rogers said he was not aware of the reason for the discrepancy between the two acts:
I can't quite understand it myself. That would certainly be something, if we wished to, particularly in the modern era, to make the two acts more closely aligned. That would be an area for examination.
Arrangements for voting at a referendum
4.107
The Committee received some evidence on the current arrangements for voting at a referendum.
4.108
The ARM argued for the introduction of ‘no excuse’ eligibility criteria for postal voting (effectively enabling any voter to choose to vote by postal ballot), and for consideration to be given to the use of electronic voting in order to:
... increase participation, reduce the cost of referenda to taxpayers and decrease the time required to determine a result, so long as this can be done securely and maintain the integrity of the ballot process.
4.109
Mr Biar from the ARM told the Committee:
... we believe every Australian should have the opportunity to participate in elections and referenda, and we should remove the barriers to that participation.
4.110
Professor Graeme Orr argued that voting at a referendum should be voluntary, noting that there were 13 referendums between 1906 and 1919 before compulsory voting was introduced at the national level in the 1920s. Professor Orr outlined a number of arguments against compulsory voting at referendums, including that:
the Constitution mainly concerns procedural issues about government institutions rather than fundamental social values
compulsion invites ‘if in doubt, throw it out’ campaigns and/or purely partisan campaigns
voluntary plebiscites have had high turnout by international standards, suggesting that where people understand the issue and its salience, they will vote in numbers to legitimate the outcome.
4.111
Professor Orr suggested that requiring referendums to not coincide with elections (where compulsory voting would remain) could ‘help separate party-voting from the referendum issue and enhance focus on the yes/no cases’. He suggested that a combination of postal and electronic voting could be used to reduce cost.
4.112
However, the LCA suggested that it may be ‘prudent’ to attach referendums to elections, and that cost savings could be redirected to awareness campaigns.
4.113
On this issue, Mr Rogers, the Electoral Commissioner, told the Committee:
Certainly, if we run a referendum at the same time as an election, there'll absolutely be economies of scale, but it will still cost money. It will require extra people, staff training, a public awareness campaign and all of those sorts of issues, which end up costing money.
4.114
ACM raised concerns with the AEC’s practice of not including informal votes when counting the total number of electors voting. It argued that a clear reading of section 128 of the Constitution would require that both formal and informal votes are counted.
Bodies to oversee aspects of the referendum process
4.115
As noted above, the AEC is the agency responsible for conducting referendums. However, the Committee heard evidence about the possibility of other bodies overseeing certain aspects of the referendum process.
Referendum panel
4.116
A number of submitters recommended the establishment of an independent referendum panel in the lead-up to each referendum.
4.117
Dr Kildea suggested the roles and responsibilities of the referendum panel could include:
... scrutiny of question setting, preparation of a neutral statement on the meaning and implications of the proposed reform, preparation of arguments for and against that reform, and oversight of Yes and No committees.
4.118
Similar suggestions for the panel’s roles and responsibilities were made by Professor Williams and the ILC.
4.119
There was a common view that the referendum panel should be appointed by the Prime Minister in consultation with other parliamentary party leaders, and should include experts in constitutional law, public communication, a representative from the AEC, and community representatives.
4.120
Professor Williams added that the states should be consulted on the panel’s membership, and suggested the panel should include members who are ‘widely respected and known to be impartial on the issues being debated in the referendum’. Similarly, Dr Kildea said that the panel’s composition ‘should be carefully considered to ensure that it is trusted by political parties, campaigners and the general public’.
4.121
It was noted in evidence that a referendum panel of this kind has been widely recommended. In particular, in the 2009 report of the House Standing Committee on Legal and Constitutional Affairs, the Committee recommended that amendments to the Referendum Act provide for the establishment of an independent, bipartisan referendum panel, appointed for each referendum.
4.122
The Committee recommended the panel be comprised of no more than eight persons, including a representative of the AEC, and would have responsibility for:
determining an appropriate and relevant information and communications strategy for the referendum, including identifying what education material should be distributed and the methods of distribution
determining the maximum word length for the yes/no arguments
making recommendations to the Government concerning the budget to be provided for a referendum campaign
determining the budget available to the yes/no campaigns, which should be funded equally.
4.123
The Committee recommended that the Government determine the budget available to the referendum panel for education and campaign activities, and that the panel provide a report to the Parliament on its activities and expenditure at the conclusion of the referendum.
4.124
In its response to that Committee’s report, the Government noted the recommendation for the establishment of a referendum panel, and noted or otherwise did not support the recommendations relating to the proposed panel’s membership and functions. It stated:
The Government notes there may be benefits in establishing a Referendum Panel for the purposes of promoting a particular referendum and educating voters on the referendum arguments but notes that this can be achieved on an as needed basis without the need to legislate for the general establishment of a panel.
4.125
The Committee notes that a panel of experts was convened for the 1999 referendum to provide advice on the public education program. The panel was chaired by Sir Ninian Stephen and included Professor Geoffrey Blainey, Dr Colin Howard QC, Professor Cheryl Saunders and Dr John Hirst.
Joint parliamentary committee
4.126
The ILC recommended that a joint parliamentary committee be responsible for developing a short description of the proposed constitutional amendment to be included in the referendum question. Under this model, the committee would recommend the proposed wording for approval by the Parliament.
4.127
The ILC suggested the committee should be assisted in its work by the referendum panel, which would advise the committee on the ‘clarity and neutrality of proposed descriptions’.
4.128
Evidence on the possible role for a joint parliamentary committee in the constitutional reform process more broadly is discussed in Chapter 3.
Yes and no committees
4.129
A number of submitters referred to the yes and no campaign committees established in the 1999 republic referendum. The committees were drawn from delegates to the 1998 Constitutional Convention, and were each allocated $7.5 million to make the respective arguments for and against the proposed constitutional amendment.
4.130
Professor Williams recommended that the Referendum Act be amended to allow for such committees in future referendums. However, he also recommended that information and advocacy produced by the yes and no committees be subject to the oversight of the referendum panel, to ensure that statements of fact are not inaccurate.
4.131
Women for an Australian Republic commented that the way in which the yes and no committees were constituted ‘only served to intensify the adversarial nature’ of the referendum process.
4.132
The ARM argued that the Referendum Act should be amended to formalise the status of the yes/no committees, where these are established. In particular, it recommended that the yes/no committees be given access to electoral roll data and the list of postal vote applicants; be given the same status as registered political parties with regard to the appointment of scrutineers; and be responsible for authorising the material included in the yes/no pamphlet.
Section 128
4.133
In addition to evidence on arrangements for the conduct of referendums as set out in the Referendum Act, the Committee received some evidence on section 128 of the Constitution, which sets out the manner in which the Constitution may be altered.
4.134
The Committee acknowledges that the extent of evidence on section 128 may have been limited as it did not call for evidence on specific proposals for constitutional change, including changes to section 128. Nevertheless, the Committee considers this evidence to be relevant to the overall theme of the inquiry, which concerns the processes for constitutional change.
4.135
Aspects of section 128 examined in evidence included the provisions that:
a bill to amend the Constitution must be passed by an absolute majority of each House of the Parliament (although, in certain circumstances, a proposed amendment can proceed to a referendum if it is passed on two separate occasions by only one House of the Parliament)
a majority of electors in a majority of states and a majority of all electors (in electors in the territories) must approve the proposed amendment at a referendum—this requirement is sometimes referred to as a ‘double majority’.
4.136
Some submitters suggested that the ability to initiate a referendum should not be limited to the Australian Parliament. For example, Mr Stuart McRae referred to a paper published by the Constitutional Commission in 1987, which considered proposals for referendums to be initiated by states, a constitutional convention, or directly by electors. Reflecting on these alternative means of amending the Constitution, Mr McRae stated:
... it would improve our Constitution if the ability to initiate proposals for change were not limited to the Commonwealth. The Commonwealth is unlikely to initiate a proposal that, for instance, reduced its power in some fashion even if such a change is objectively a good idea.
4.137
Similarly, ACM argued that the power to initiate referendums should be extended, proposing that a referendum be ‘initiated by a petition approved by 10 per cent of electors nationally and five percent in a majority of states’. Under their proposal, signatures on the petition could be obtained over the period of one year, and, in the event that the proposed amendment was not supported at a referendum, ‘no question in identical or substantively similar terms could be put again until ten years had elapsed’.
4.138
ACM also proposed that a referendum be initiated by any four houses of any state parliaments adopting identical resolutions over the period of one year.
4.139
In making the case for these changes, Professor Flint from ACM told the Committee that power to initiate referendums should not be a monopoly of the federal Parliament and that referendums should be ‘widespread’.
4.140
Associate Professor Luke Beck outlined a mechanism whereby a committee of the Australian Parliament would be required to inquire into a report on alterations to the Constitution resolved upon by any house of a state parliament. Associate Professor Beck said the present arrangements ‘give insufficient respect to the States as constituent components of the Federation’.
4.141
Other submitters addressed the requirement for a ‘double majority’ at a referendum. For example, Women for an Australian Republic stated that section 128 ‘makes the Constitution almost impossible to change and brings with it consistent failure’. It argued that the requirement for a majority of votes in a majority of states should be removed, stating that:
... things have moved on since Federation when retention of States’ rights and roles was paramount, jealously and zealously guarded... We now have more than a [century’s] experience with the operation of the Senate as its members represent the interests of the States and Territories although this emphasis is now much diminished as the interests and cohesion of the nation have changed over time.
4.142
The Attorney-General’s Department advised that the Joint Standing Committee on Constitutional Review noted the high benchmark required to achieve constitutional change in a 1958 report. In its report, the Committee recommended that the requirement for a majority of votes in a majority of states be lowered to a majority of votes in at least half of the states.
4.143
Women for an Australian Republic also raised the possibility of section 128 being amended to allow for multiple propositions to be considered at referendums rather than simply the acceptance or rejection of single propositions.
4.144
On the other hand, reflecting on the historical difficulty of constitutional change in Australia, Mr McRae argued that section 128 ‘has protected us from measures that may not have improved our Constitution’. Further, he said:
... section 128 works fairly well and the focus that should occupy the minds of those who want to change the Constitution should be on the real merit of any proposed change. If there is a meritorious proposal then a good argument to adopt it can be mounted.
4.145
The Samuel Griffith Society argued that the stability of Australia’s constitutional framework has contributed to its ongoing prosperity, and that the process for constitutional amendment set out in section 128 is ‘both an effective means of altering the Constitution when appropriate, and an effective safeguard of the Constitution and its virtues’:
The framers of the Constitution conceived of the referendum process as a means by which the Australian people could be empowered to exercise a ‘veto’ over any proposed reform. Critically, the Constitution was deliberately designed to be relatively difficult to alter in order to afford maximum protection to the states.
Committee comment
4.146
From evidence to the inquiry, it is clear to the Committee that certain provisions in the Referendum Act are outdated and not suitable for a referendum in contemporary Australia. This conclusion is consistent with the findings of the House of Representatives Standing Committee on Legal and Constitutional Affairs in 2009, indicating that these are longstanding issues which have gone unresolved by successive governments.
4.147
The Committee acknowledges and accepts the need for some flexibility to make special arrangements for the conduct of particular referendums, having regard to the timing of the referendum, the nature of the proposed constitutional amendment, and any other relevant matters.
4.148
However, the Committee’s view is that the arrangements set out in the Referendum Act should, in so far as possible, reflect modern expectations for how a referendum should be conducted, and should be consistent with relevant Commonwealth electoral laws. They should also facilitate, rather than restrict, the fully informed participation of voters to the highest extent possible.
4.149
Furthermore, the Committee’s strong view is that it is desirable to consider any changes to the Referendum Act outside of the context of an imminent referendum. This is important to minimise the risk that otherwise routine amendments to the Act will be politicised in the debate about the referendum question, and to assist in setting clear expectations about the conduct of the referendum.
4.150
As such, the Committee is concerned to see that the Referendum Act and the referendum process more generally is modernised well in advance of any referendum on the question of constitutional recognition of Indigenous Australians, which is expected to occur in the next term of Parliament, or indeed any other future referendum.
4.151
To this end, the Committee has identified three specific changes needed to the Referendum Act, outlined below.
4.152
First, given the central role of the yes/no pamphlet in the referendum process, the Committee supports reinstating the requirement that the printed yes/no pamphlet is sent to all electors, rather than to all households. However, the Committee also recognises that people’s preferences for how they receive information continue to evolve. The Referendum Act should therefore not unnecessarily constrain the Electoral Commissioner from using whatever additional methods they consider will be most effective to distribute the pamphlet.
4.153
The Committee recommends that Section 11 of the Referendum (Machinery Provisions) Act 1984 be amended to enable the Electoral Commissioner to distribute the yes/no pamphlet to all electors using any additional methods that the Electoral Commissioner considers appropriate.
4.154
Second, the limitation on Australian government expenditure in a referendum campaign should be relaxed. The Committee considers that there are legitimate reasons for the Government to spend money in a referendum campaign outside the scope of what is currently permitted under section 11(4) of the Referendum Act, including to conduct a neutral education campaign and to support the arguments for and against the proposed constitutional amendment. These activities are consistent with modern expectations for how governments seek to inform the community about issues of public importance.
4.155
The Committee also notes that section 11(4) of the Referendum Act was suspended for the referendum in 1999 and the proposed referendum in 2013, indicating the view of successive governments that the limitation is too restrictive.
4.156
The Committee recommends that Section 11(4) of the Referendum (Machinery Provisions) Act 1984 be amended to provide for the Australian Government to fund referendum education and promotion of the arguments for and against the referendum proposal.
4.157
Third, there should be greater transparency in relation to donations in a referendum campaign, and a restriction on foreign donations. In this regard, the Committee considers that provisions for the regulation of donations in the Referendum Act should in so far as possible mirror those contained in the Commonwealth Electoral Act.
4.158
The Committee recommends that the Referendum (Machinery Provisions) Act 1984 be amended, consistent with relevant provisions in Part XX of the Commonwealth Electoral Act 1918, to:
prohibit referendum campaign organisations from receiving gifts or donations of $100 or more from foreign donors
require referendum campaign organisations to disclose gifts or donations above a certain threshold.
4.159
The Committee considers that these are relatively modest and straightforward amendments that would result in an improved set of arrangements for the conduct of any future referendum. The Committee’s view therefore is that the Government should seek to make these changes within the first six months of the next term of Parliament.
4.160
Further to these changes, the Committee has identified other aspects of the referendum process with scope for improvement. These include the form of the wording of the referendum question; the inclusion of neutral information in the yes/no pamphlet; the development and rollout of other neutral information and education activities; and the establishment of yes/no campaign committees. The Committee’s view is that, while it is reasonable for these issues to be determined on a case-by-case basis at each referendum, there should be a clear and consistent process for doing so.
4.161
The Committee acknowledges the view among some submitters that an independent referendum panel should oversee some aspects of the referendum process. This is consistent with the 2009 recommendations of the House Standing Committee on Legal and Constitutional Affairs.
4.162
The Committee’s view, however, is that a joint parliamentary committee is a more appropriate body to examine these issues and provide advice to the Parliament. In particular, it is the Committee’s expectation that the joint standing committee of the kind recommended at Recommendation 4 would have a strong understanding of the development of the referendum proposal and the specific issues to be considered when determining the arrangements for the referendum. This committee could be assisted by expert advisors and representatives of the AEC as required.
4.163
The Committee recommends that an Independent Expert Panel be established to provide advice to the Joint Parliamentary Committee recommended at Recommendation 4 in the lead up to each referendum on aspects of the referendum process, including but not limited to:
the form of the wording of the referendum question
the inclusion of neutral information in the yes/no pamphlet
other neutral information and education activities
establishment of yes/no committees.
The Joint Parliamentary Committee would consider the advice of the Panel before providing that advice to the Parliament, along with the considered views of the Committee.
The Committee recommends that the Panel be appointed by the Prime Minister in consultation with other parliamentary party leaders, and should include experts in constitutional law, public communication, representatives from the Australian Electoral Commission and/or other relevant government entities, and community representatives.
This process should be reflected through amendments to the Referendum (Machinery Provisions) Act 1984 where appropriate.
4.164
While the Committee has sought to make recommendations to modernise the Referendum Act, it also acknowledges that some aspects of the Act were not examined in detail in evidence to the inquiry. Recognising the fact that the Referendum Act has been updated in a piecemeal, ad hoc fashion, the Committee therefore suggests there would be benefit in a more comprehensive review to identify any further areas where the Act should be modernised and brought into line with Commonwealth electoral laws, in addition to those outlined above. One area the Committee suggests for consideration as part of any review is the need for stronger regulation of misinformation in referendum campaigns, including on social media.
4.165
The Committee emphasises, however, that any review of the Referendum Act should not delay the implementation of the recommendations included in this chapter, and that the Government should seek to modernise the referendum process as soon as practicable and well in advance of any future referendum.
4.166
The Committee recommends that the Australian Government ensure that the Referendum (Machinery Provisions) Act 1984 and the referendum process more generally is modernised well in advance of any referendum on the question of constitutional recognition of Indigenous Australians, which is expected to occur in the next term of Parliament, or any other future referendum.
4.167
Lastly, the Committee received some evidence on section 128 of the Constitution, but notes that this issue was not considered in detail in the inquiry. The Committee is not convinced that there is an urgent need to pursue changes to section 128. Instead, the Committee is more concerned to see greater awareness of and engagement with constitutional issues within the existing framework for constitutional change, as articulated in the recommendations contained throughout this report.
Ms Sharon Claydon MP
Acting Chair
20 December 2021