Chapter 2The Referendum Machinery Provisions - The 'Yes' and 'No' campaigns
Introduction
2.1This chapter discussed the conduct of a referendum as prescribed by the Referendum (Machinery Provisions) Act 1984, namely the:
‘yes’ and ‘no’ case pamphlet;
‘yes’ and ‘no’ case campaigns, specifically the establishment of official campaign entities and government funding for said campaigns; and
regulation of ‘referendum entities’.
Conduct of a referendum
2.2Section 128 of the Constitution sets out the provisions for altering the Constitution. It requires:
a law be passed by an absolute majority of each House of Parliament (that is, more than half of all the members of each chamber), or under certain conditions, a law be passed by a majority of either House twice within three months;
the proposal be put to the electors qualified to vote in elections for the House of Representatives between two and six months after the passage of the law; and
a majority of Australians vote to approve the change, as a total and in a majority of the six states (referred to as a ‘double majority’).
2.3It further states that ‘when a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes.’
2.4Accordingly, Parliament prescribed this in the Referendum (Constitution Alteration) Act 1906, later superseded by the Referendum (Machinery Provisions) Act 1984, which is currently in force. Parliament, therefore, has set out, over more than a century, the conduct by which a referendum is to be held.
Referendum (Machinery Provisions) Act 1984
2.5The Referendum (Machinery Provisions) Act 1984 (Referendum Act) sets out the procedures and provisions for the conduct, administration, and regulation of referendums. Like the Commonwealth Electoral Act 1918 (Electoral Act), it includes provisions for pre-polling, telephone and postal voting, authorisation of advertisements, and a process for appealing results.
2.6Section 11 of the Referendum Act contains provisions relating to the ‘distribution to electors of arguments for and against proposed law’ and has 4 subsections.
2.7Subsections 11(1), 11(2) and 11(3) provide for the production and distribution of an ‘official pamphlet’ containing an essay for both the ‘Yes’ and ‘No’ cases for constitutional amendment in a referendum. The Parliament is responsible for producing the ‘Yes’ and ‘No’ case essays, which must not exceed 2000 words each. The Australian Electoral Commission (AEC) is responsible for ‘the typesetting, printing, and distribution of the pamphlet to addresses on the electoral roll’. The Referendum Act provides that the pamphlet is to be distributed to the Australian public no later than 14 days before the voting day for the referendum.
2.8Subsection 11(4) provides that the ‘Commonwealth shall not expend money in respect of the presentation of the argument in favour of, or the argument against, a proposed law’ except for the costs of distribution of the official pamphlet. Suspension of Subsection 11(4) allows the government to provide funding for the provision of information related to the referendum, such as an education program on the proposed constitutional amendment and its implications, or official ‘Yes’ and ‘No’ campaigns.
Amendments to the Referendum Act
2.9On 1 December 2022, the Referendum (Machinery Provisions) Amendment Bill 2022 (the bill) was introduced to the House of Representatives with the stated purpose to ‘modernize the legislation that will govern how this referendum will be conducted’. The bill was referred to the Joint Select Committee on Electoral Matters (JSCEM) for inquiry, which reported its findings on 13 February 2023. The bill was passed by the Senate on 22 March 2023.
2.10Key amendments introduced with the passing of the bill, relevant to the terms of reference of this inquiry, included:
the temporary disapplication of aspects of Section 11;
establishment of a simplified financial disclosure and foreign donation restriction framework for referendums consistent with Part XX of the Electoral Act; and
an update of authorisation requirements to align with the Electoral Act.
2.11These are discussed in detail below.
The ‘Yes’ and ‘No’ pamphlet
2.12The government stated that the amendments, as a whole, would address the fact that the Referendum Act ‘does not reflect modern delivery and communications methods.’ Regarding the pamphlet, the government said:
Modern technology allows parliamentarians to express their views to voters directly and regularly through a wide variety of sources, such as television, email and social media, that did not exist when the pamphlet was introduced in the early 20th century.
2.13The bill originally proposed to temporarily suspend all of Section 11 of the Referendum Act during the upcoming referendum, meaning a pamphlet would not be produced or distributed.
2.14This proposal attracted significant criticism from stakeholders. As such, the bill was amended to remove the provisions that would have resulted in the temporary suspension of the requirement for the distribution of a pamphlet and was passed accordingly.
Establishment and funding of ‘Yes’ and ‘No’ campaign bodies
2.15Amendments to disapply section 11(4) were passed. However, the disapplication of section 11(4) would only be for the purpose of funding a neutral civic education campaign and activity. The government did not establish or commit to fund formal ‘Yes’ and ‘No’ campaign bodies.
2.16Upon the introduction of the bill, the Minister for Indigenous Australians, the Hon. Linda Burney MP, provided a rationale for the decision not to provide public funds to campaign bodies, stating:
‘we believe those campaigns can raise their own money through private means.’[9]
2.17On 22 March 2023, during the debate on the bill, the Special Minister of State, Senator the Hon. Don Farrell stated that it was the government’s intention for the referendum to be conducted in a ‘civil fashion’ in which ‘each side will have an opportunity to progress its arguments through civil society’.[10] When asked if the government would reconsider its opposition to formalizing a ‘Yes’ and ‘No’ case, Minister Farrell responded ‘no’.
2.18Precedents exist for the establishment and funding of ‘Yes’ and ‘No’ campaign bodies.
2.19During the 1999 referendum, Subsection 11(4) was disapplied to allow the government to fund ‘Yes’ and ‘No’ case committees and a neutral public education campaign. $7.5 million was allocated to both committees to adequately equip both sides to present their cases. The Government’s role was contained to ensuring that each committee's proposals met the standards set for ‘the activities to be covered by the public funding’ and monitoring the use of the funds. The then-Attorney-General, the Hon. Daryl Williams MP, and then-Special Minister of State, Senator the Hon. Chris Ellison, stated that:
Public funding for the committees will allow robust public debate on the arguments for and against change. As with the provision of public funding in election campaigns, the purpose is to ensure that the alternative views can be presented directly to the voters.
2.20In December 2009, the House Standing Committee on Legal and Constitutional Affairs tabled its report for its inquiry into the machinery of referendums. The committee was chaired by the current Attorney-General, the Hon. Mark Dreyfus QC MP. The report stated:
The committee therefore supports equal funding of the Yes and No cases, irrespective of their Parliamentary support. This is in line with the original intention of the Yes/No pamphlet as well as consistent with democratic ideals of informed debate.
Alignment with the Electoral Act
2.21The Referendum Machinery bill introduced provisions to replicate current electoral machinery provisions into the referendum context. This included establishing a simplified financial disclosure and foreign donation restriction framework for referendums consistent with Part XX of the Electoral Act, and the authorisation of referendum matter.
2.22Under the new financial disclosure provisions, ‘referendum entities’ are required to report to the AEC the amount they spend on referendum campaigning, details of donations valued above the disclosure threshold and the total value of all donations received, including aggregated smaller donations below the disclosure threshold.
2.23‘Referendum entities’ do not have to formally register with the AEC. Instead, they will be ‘captured’ under the legislation if they incur ‘referendum expenditure’ over the disclosure threshold of $15,200 during the referendum expenditure period.
2.24The Referendum Act was also amended to prohibit foreign donations of $100 or more for referendum campaigning and prohibit foreign campaigners from fundraising or directly incurring ‘referendum expenditure’ in a financial year equal to or more than $1000, consistent with the Electoral Act. The Referendum Act has not previously required any financial disclosure for donations that are used for referendum expenditure.
2.25Finally, the Referendum Act was amended to include a scheme for the authorisation of ‘referendum communications’—that is, paid advertisements, print communications and communications by a ‘disclosure entity’ where the ‘dominant purpose’ is to expressly support or oppose the proposed law for the alteration of the Constitution.
2.26Notably, the amendments did not include provisions for a registry of referendum entities, such as those found in Part XI of the Electoral Act that deals with the registration of political parties.
Views on the amendments to the Referendum Machinery Act
2.27This section considers evidence received in relation to the amendments to the Referendum Act.
2.28The committee received little evidence on the substance of the provisions and how the inclusion, or omission, of certain provisions would impact the conduct of the referendum. Given the importance of the referendum framework, the committee has, where appropriate, drawn evidence from proceedings from the Joint Select Committee on Electoral Matters inquiry into the bill and Budget Estimates 2023–24.
The pamphlet
2.29Submitters to the inquiry welcomed the decision to keep the pamphlet. Many considered the pamphlet to be a longstanding component of Australia’s referenda and a formally authorised publication to inform Australian electors.
2.30For example, the Institute of Public Affairs (IPA) noted that the pamphlet has been a feature of Australian political tradition dating back to 1912 and acts to ‘safeguard the right of all electors to read the arguments for and against a proposed constitutional change’.
2.31Similarly, the Samuel Griffith Society described the pamphlet as an ‘important resource that will underpin a rigorous and well-informed public discourse’.
2.32The Australian National University Law Reform and Social Justice Research Hub (ANU LRSJ Research Hub) submitted that to prevent the spread of misinformation, it ‘is imperative the voting public has access to an official pamphlet that is truthful and accurate, and which is not misleading’.
2.33In evidence to the committee, Dr Scott Prasser, Senior Fellow at the Centre for Independent Studies, considered the distribution of the pamphlet to be ‘very important’:
I think it's very important that there be approved by parliament a 'yes' case of 2,000 words and a 'no' case of 2,000 words, because this is coming—it's been approved by Parliament and it's coming from government—and, on any referendum issue, there are often lots of views and arguments, and I think it's very important that electors get in their mailbox or in an email to them, which is how it's done these days, something which is officially sanctioned and has been approved on both sides.
2.34Submitters also commented on the accessibility of the pamphlet. Mr Tom Rogers, the Electoral Commissioner, noted that while the ways in which the public engages with AEC electoral material had evolved, the public still extensively refer to print material:
The research we do shows that 40 per cent of people still use the householder guide that we send out at election time as a primary source of information about the electoral process.
2.35The NSW Council for Civil Liberties submitted that ‘education materials should be made available in plain English and in Aboriginal languages’:
For some First Nations people, particularly in remote communities, English may be their second, third or fourth language…Research has shown that informal voting is higher in remote Indigenous communities, with language barriers and literacy levels being among the contributing factors.
2.36Mr Rogers emphasised that the AEC was alert to such accessibility needs, stating that the pamphlet will be translated into ‘34 Culturally and Linguistically Diverse (CALD) languages and over 20 Indigenous languages’. However, Mr Rogers stated that this was a primary production challenge for the AEC:
The translation process itself isn't a straight translation process for some of those languages; it is actually a translation of the concept rather than the actual words behind it.So we have a few weeks to engage, translate those, quality control it in great detail and then distribute that information in time for citizens to make an informed choice.
2.37While acknowledging that the pamphlet itself is important in informing voters, some submitters contended that the drafting process for the essays contained within the pamphlet lacks oversight. For example, ANU LRSJ argued:
there is no regulation, input or oversight for the arguments drafted by the subject members of Parliament, so misleading or exaggerated claims may be included in the official pamphlet. This leaves open the possibility for the arguments to contain information that is deceptive, misleading or factually incorrect.
2.38The NSW Council for Civil Liberties (NSWCCL) noted that Professor Megan Davis, co-chair of the Uluru Statement, had expressed concern that the official pamphlet will not be factchecked and could spread ‘misinformation and fabrication and racist messaging’ to voters. NSWCCL urged for the pamphlet to be factchecked to ‘reduce the risk of misinformation being spread to voters’.
2.39Asked if he had any advice as to how the process of formalising the ‘Yes’ and ‘No’ case essays might occur in the absence of formal ‘Yes’ and ‘No’ campaign bodies, Dr Prasser said the government ought to show ‘some leadership’ and ‘ensure that there is a process of input, compilation and formalisation’. Dr Prasser was concerned that the government had not already set out the process:
And I'm a little bit unclear why that process has not been articulated or developed. We've got five or six months to go—or whatever it is—and one would think this should have been resolved by now. There should be a clear process of putting together these cases to reflect the legislation so that that information goes out, rather than what we're getting, which is information by drips, dripping down on us—sort of bits and pieces.
Lack of authoritative organisations
2.40Evidence to the committee was critical of the decision not to establish authorised ‘Yes’ and ‘No’ campaign bodies, and concerned about the implications that this may have on the conduct of the referendum.
2.41For example, Dr Prasser told the committee that not all Australians have a good or detailed knowledge of constitutional practice, and with so much ‘contrary and differing information’, having central bodies to refer to is important:
It's really devaluing democracy if we don't have this process, if we're only getting what certain organisations are saying, if we don't get something that has at least some official sanctioning and some clarity about the viewpoints.
2.42Similarly, the Samuel Griffith Society argued that the ‘significant’ lack of awareness by the public underscored the need for official campaign bodies that would ‘act as authoritative sources of information throughout the referendum debate’. It provided the committee with the following statistics on the public’s understanding of the purpose of the referendum to supports its claim:
one in three Australians had ‘little to no’ awareness of the proposed constitutional amendment (Samuel Griffith Society, November and December 2022);
13 per cent of voters are confident they understand the plan for constitutional change (Resolve Strategic, January 2023);
63 per cent of voters desire more information about the proposal than is currently available (Resolve Strategic, February 2023); and
49 per cent of voters say that they do not have sufficient information [to make an informed decision], and need more.’ (Freshwater Strategy, April 2023).
2.43As noted by Professor Anne Twomey in her submission to the JSCEM bill inquiry, a centralised and official case for 'Yes' or 'No' will decrease the risk of the public being misled by malign actors:
Care should be taken to ensure that there is an authoritative and trustworthy site that can be accessed by voters who wish to be better informed upon the issues…
A vacuum should not be left by the removal of the Yes/No case, as this will be filled by those who seek to mislead and manipulate.
Lack of public funding for ‘yes’ and ‘no’ campaigns
2.44As established by the amendments to the Referendum Act, and subsequently confirmed by the government, public funding will not be provided for either a 'Yes' or a 'No' campaign, regardless of established bodies. Submitters and witnesses to the inquiry encouraged the government to reconsider this approach.
2.45For example, the Samuel Griffith Society submitted that the government should ‘not hesitate’ to use public funds to support official ‘Yes’ and ‘No’ campaign bodies as was done in 1999. It argued that this approach ‘allowed Australians to benefit from a more comprehensive and effective national debate’.
2.46George Williams submitted to the JSCEM inquiry that the absence of such funding means it will be difficult to hold the government to account regarding its commitment not to fund campaign bodies.
2.47The IPA agreed. Mr Daniel Wild, Executive Director, recommended that the government should ‘ensure total funding—government, corporate and philanthropic—is equal for both cases’.
2.48The committee heard that, if the government were to ensure equality of funding, neither side of the debate would be denied the opportunity to adequately put their case to the public. The lack of proper investment in campaign bodies from the outset of the referendum increases the risk that there appears to be only one legitimate side to the debate. Furthermore, the absence of allocated funding risks a dependence on private funding from vested interests.
2.49The IPA submitted that this is what it has observed in the referendum debate so far. An analysis of documents by the IPA from the Australians Charities and Not-for-profits Commission revealed that a pro-Voice organisation, Reconciliation Australia Limited, received $30.3 million in funding from state and federal government between 2017 and 2022. While the money was not specifically dedicated to a ‘Yes’ campaign, in practice it has been used to support it.
2.50The Cape York Institute, a pro-Voice entity which sponsors the ‘From the Heart’ campaign, the stated purpose of which is to build ‘a positive case for a constitutionally-enshrined Voice to Parliament and build more support for a successful referendum’, received $11 million in public funding. Therefore, the IPA argued:
It has been publicly funded bodies, over many years, that have been the driving force behind constitutional recognition. The “Yes” campaign organisations have been well funded for years and ready to start campaigning as soon as the referendum proposal was announced last year. The “No” campaign has had to rely solely on private funds. The funding arrangements by successive federal governments have in reality been grossly uneven for years, undermining the present claim of funding neutrality.
Referendum entities
2.51A key purpose of the amendments to the Referendum Act was to streamline it with the Electoral Act. As outlined, this included amendments imposing financial disclosure, foreign donation limitations and authorisation requirements upon ‘referendum entities’.
2.52Clarification as to what will constitute a ‘referendum entity’, how they will be regulated, and what penalties would apply to non-compliant entities was sought from the AEC during the Finance and Public Administration Legislation Committee’s Budget Estimates public hearing on 23 May 2023.
2.53Mr Rogers explained that due to the heightened ‘emotional involvement’ that a referendum attracts, a larger number of individuals and organisations typically participate in a referendum than a general election:
A referendum, regardless of what the topic is, tends to be a once in a generation, so you can get a larger number of entities that might participate in a referendum than a general electoral event, which might mean that for many people it might be a once-off.
2.54Many of these participants could be considered a ‘referendum entity’ under the legislation, as demonstrated in the following exchange between Senator the Hon. Jane Hume and Ms Joanne Reid, Assistant Commissioner, Disclosure, Party Registration and Redistribution Branch, AEC:
Senator Hume: What's the threshold, from the AEC's perspective, for being a referendum entity?
Mr Rogers: …any entity that's been formed for the purpose of campaigning at a referendum is a referendum entity. Obviously that's a threshold. But, if you're going to be campaigning and spend money campaigning, that is going to make you very likely to be a referendum entity.
Ms Reid: The disclosure threshold for the referendum will be $15,200. If you have referendum expenditure or donate above that amount, then you incur the obligation to disclose.
Senator Hume: So a football club might be a referendum entity?
Ms Reid:It could be, yes.
Senator Hume:A political party could be a referendum entity?
Ms Reid:It could be.
Senator Hume:And an individual could also be a referendum entity?
Ms Reid:Yes.
2.55The committee were informed that some of these entities may have ‘never been involved in this process before’ and may be unaware of their reporting obligations.
2.56To address this, Mr Rogers outlined the AEC’s educational measures, including its commencement of a ‘comprehensive education campaign’ designed to inform those who may have referendum disclosure obligations. This has included ads on social media and in print media, and working with other peak bodies and organisations, such as the Australian Charities and Not-for-profits Commission, to provide additional information and contact organisations directly where necessary.
2.57Ultimately, however, Mr Rogers stated that it is an ‘individual responsibility’ for organisations to comply with these obligations:
Knowing those obligations absolutely is an individual responsibility for citizens and entities to comply with the electoral laws, at referendum and at election time. We do go the extra mile to make sure that people are aware of what those obligations are.
2.58The AEC was asked about transparency measures being enacted for the referendum. Unlike the Electoral Act, under which ‘electoral entities’ are required to formally register with the AEC, it confirmed that there will not be a register of referendum entities.
2.59However, Mr Rogers told the committee that the AEC will publish returns for referendum entities:
The only information that we'll be providing will be after the event at the appropriate time through the transparency register, after entities have lodged their returns with us, well after the event, in accordance with the legislation…Twenty-four weeks after referendum day—polling day—we will then release that information. But prior to that it would be impossible to have an updated list of 'yes' or 'no' campaigners because entities may decide at a drop of a hat to campaign or not to campaign. So there'll be no centralised list—unless there's another agency. I should be accurate: we're not going to be keeping a list. There may well be another entity doing so.
2.60On the penalties that would apply to non-compliant entities, Mr Rogers said:
There's no punishment if you don't register as an entity with us. There's no registration. Where that may become tricky is after the event. If you don't meet your obligations for reporting after the event, that's a separate issue. There'll be a potential punishment, at the end of a long process of education, to make sure that people adhere to their obligations….
The second part that you're talking about is the financial disclosure scheme. That's why we're doing education right now to make sure people are aware of their obligations. But just like at election time, returns for elections are submitted well after the election itself and we don't take action until after the election. The system is built that way. That will be the same for the referendum.