Chapter 5Committee view and recommendations
5.1In this inquiry into the adequacy of current administrative arrangements for the upcoming referendum into an Aboriginal and Torres Strait Islander Voice to Parliament, the committee considered three key aspects:
the implications of the government’s amendments to the Referendum Act;
the risk of foreign interference in the referendum; and
challenges in the online referendum debate.
5.2The committee’s views on each issue are set out below.
Implications of the government’s amendments to the Referendum Act
5.3The conduct of the Voice referendum is provided by the Referendum (Machinery Provisions) Act 1984.
5.4The government stated that its amendments to the Referendum Act had the express purpose of supporting transparency and accountability in the referendum.
5.5However, the committee considers that the government has failed to substantially and sufficiently update the Referendum Act to reflect the modernisation of Australia's federal electoral framework, let alone the other challenges that Australia now faces.
5.6The committee sets out three concerns with the Referendum Act below.
Establishment of official campaign entities
5.7First, Australian electors require access to authoritative, reliable information to inform their vote. And yet, the government has failed to provide for the establishment of official ‘Yes’ or ‘No’ campaign entities for the upcoming referendum and in doing so, the government is leaving an information vacuum that bad actors will seek to fill for their own ends which seek to profit from division within our society.
5.8As a result, the government is ignoring the real risk that foreign governments and potential adversaries will seek to use the Voice Referendum to fuel existing tensions within our society, undermine our social cohesion and national unity and do harm to our democratic institutions in the eyes of the public.
5.9There is ample evidence to suggest that multiple disparate campaigns will diminish the capacity of Australian voters to access authoritative and reliable information.
5.10In questioning government officials, Senator Paterson highlighted feedback he had received from across the tech platforms industry that it would have been helpful if there had been an official Yes case and an official No case because that would provide an authoritative source of information that they could refer to if there are disputes about misinformation or disinformation or foreign interference in the referendum.
5.11Unfortunately, the government has had very limited consultation with the tech platforms in the drafting of its legislation to update the machinery of government legislation for the upcoming referendum, and the government has made a deliberate policy choice to not establish an official Yes and No campaign entities, the corollary of which means that tech platforms will be in a more difficult position than necessary in combating foreign interference operations on their platforms.
5.12The absence of authoritative bodies increases the risk that proxy organisations claiming to be official bodies will be able to spread misinformation or disinformation in the lead up to and during the referendum, making it difficult for voters to distinguish information from malign sources of influence and legitimate public debate.
5.13Therefore, the committee is firmly of the view that official ‘Yes’ and ‘No’ campaign entities would act as reliable and trustworthy sources of information about the proposed changes to the Constitution and would help to counteract the influence of misinformation. As such, the committee considers that it would be preferable to have one official campaign for 'Yes' and another for 'No'.
Funding of official campaign entities
5.14The second area of concern is the government’s decision not to allocate public funding to either the ‘Yes’ or the ‘No campaign, regardless of the establishment of formal campaign entities.
5.15The government has suggested that the decision not to fund either campaign means both campaigns will start on an even playing field.
5.16However, the committee received evidence suggesting the lack of public funding will result in a situation where the campaigns become dependent on private funding to adequately promote their view. Further, the arrangements promoted by the government may encourage the perception that one campaign outcome is preferrable to the other.
5.17The committee notes that precedents exist for the funding of campaign entities. In the 1999 referendum, ‘Yes’ and ‘No’ campaign entities were established and $15 million was allocated to be divided equally between the entities.
5.18In defending the measures contained in the government’s Referendum (Machinery Provisions) Amendment Bill 2022, the Attorney-General Mark Dreyfus KC MP told the House of Representatives:
I acknowledge that the opposition continues to argue that the government should be using taxpayers’ money to fund official ‘yes’ and ‘no’ cases. The [Bill] does not provide for public funding of ‘yes’ or ‘no’ campaigns, let alone establish official campaign vehicles. And this government does not intend to move amendments to change this. As the Prime Minister has said, taxpayers should not be funding ‘yes’ or ‘no’ campaigns.
5.19What the Attorney-General has failed to mention is the fact that the position he has expressed on behalf of the Government is at odds with the very position he emphatically expressed as a recently elected backbencher during the Rudd Labor Government.
5.20As Chair of the House of Representatives Standing Committee on Legal and Constitutional Affairs in 2009, Mr Dreyfus was tasked with inquiring into the machinery of referendums, with specific reference to the processes for preparing the Yes and No cases for referendum questions, provisions providing for the public dissemination of the Yes and No cases and limitations on the purposes for which money can be spent in relation to referendum questions.
5.21As Chair of that Committee, Mr Dreyfus recommended in his final report, among other things, that the government ‘should introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 (Cth) and to include provisions to ensure that spending is directed to referendum education and to equal promotion of the Yes/No arguments’ (emphasis added).
5.22As Chair of that committee report, Mr Dreyfus articulated that it is important to ensure that ‘the same principles of equality and fairness continue to apply once this limitation on spending is removed’ and that there should be ‘equal funding of the Yes and No cases, irrespective of their Parliamentary support’. Mr Dreyfus noted that this was ‘in line with the original intention of the Yes/No pamphlet as well as consistent with democratic ideals of informed debate’ (emphasis added).
5.23Additionally, the position the Attorney-General has adopted for this Voice referendum is at odds with the former Labor government’s position in introducing the Referendum (Machinery Provisions) Amendment Act 2013 for the proposed 2013 referendum on the recognition of local government in the Constitution (which did not proceed). As the then Attorney-General, Mr Dreyfusnoted that the 2013 bill would implement recommendation 11 of the 2009 report to lift the current limitation on spending because that restriction on Commonwealth expenditure is ‘a barrier to the development of [a] better and more effective referendum process’, and he recognised ‘the need to ensure that electors are as informed as possible…[this] is what the lifting of this current limitation on spending is directed to’.
5.24It is disappointing that as a leading cabinet minister of a government that is taking carriage of the first referendum Australia has had in over 20 years, Mr Dreyfus is going against his better instincts on the funding of the Yes and No cases of a referendum. The 2009 report demonstrated support for equal taxpayer funding of the Yes and No cases of a referendum because doing so would maximise public participation and democratic debate and ensure that Australians are fully informed on the merits or otherwise of constitutional change.
5.25In today’s context, in which the proliferation of social media now has a significant influence over the way voters digest political information and participate in our democracy, it is the view of this committee that the equal funding of the official Yes and No campaign entities would guard against the unprecedented foreign interference risks our country is facing which threaten to undermine the referendum process and our social cohesion.
5.26As acknowledged by the Attorney-General in the debate of the 2013 referendum bill, this would be consistent with the provisions adopted by the Howard government in the 1999 republic referendum.
5.27Given the above, the committee regards the government’s decision not to provide public funding to campaign entities—even when pressed to do so by the Opposition—as seriously imprudent and regrettable.
Regulation of referendum entities
5.28Third, the Referendum Act was amended to align it with recent changes to the Commonwealth Electoral Act 1918.
5.29The committee considers new provisions such as the donation and disclosure regime to be appropriate and necessary additions to the referendum machinery. However, the committee retains some concerns regarding the implementation and enforcement of such regimes.
5.30The Electoral Commissioner indicated that the referendum would attract many inexperienced, one-time participants who are unfamiliar with their obligations under the Referendum (Machinery Provisions) Act 1984, and many of whom may be unknowingly in breach of those obligations.
5.31Further, the Electoral Commissioner stated that the Australian Electoral Commission will not keep a register of campaign entities throughout the referendum campaign. This is in stark contrast to the provisions under the Commonwealth Electoral Act 1918 fora general election.
5.32Given the above, the committee is gravely concerned that the government appears to have abdicated any responsibility for the fact that many inexperienced, one-time participants may unknowingly be in breach of their obligations under the Referendum Machinery Act. Further, it seems entirely unreasonable to saddle the Australian Electoral Commission with the responsibility for oversighting and educating a plethora of inexperienced, one-time participants.
5.33In addition, the committee observes that the only information provided by the Australian Electoral Commission on referendum entities disclosure requirements will be 28 weeks after the conclusion of the referendum. This undoubtably has the potential to undermine the integrity of the referendum, as instances of referendum fraud and the capacity for sanctions would only occur after the result.
5.34The committee emphasises that it does not doubt the ability of the Australian Electoral Commission to perform its assigned duties. Indeed, the committee reiterates its respect for, and appreciation of, the ongoing work of the Australian Electoral Commission. Nevertheless, the committee retains concerns that the current regulatory regime will not allow the Australian Electoral Commission to operate effectively as an administrator and auditor of the referendum.
5.35Therefore, the committee reiterates its preference for the establishment of official campaign entities.
Government complacency on the risk of foreign interference
5.36As the government has already acknowledged, there is a risk of foreign interference in the upcoming referendum campaign.
5.37Given that foreign interference is covert, the committee recognises that there may be sound reasons for government departments and agencies to take appropriate care in not revealing the exact nature of the measures taken to counteract foreign interference to a public inquiry such as that conducted by this committee.
5.38That being acknowledged, it is entirely appropriate for the committee to seek to establish in a public forum whether the government has adequately considered, and is appropriately responding to, the threat of foreign interference. This is the bare minimum in terms of assuring the Australian public that the federal government has taken the threat seriously and has put appropriate mechanisms in place.
5.39Yet, it seems to be the government’s view that the existing arrangements are sufficient for guarding against the risk of foreign interference in the upcoming referendum. It is not clear to the committee how the government could have formed that view, given evidence to the inquiry suggests the government has not sought or received any advice from federal agencies about the risk of foreign interference, nor sought the feedback of social media and tech platforms about their concerns on the risks of foreign interference and what actions government could take to mitigate those risks.
5.40In this regard, the committee notes that representatives of the relevant federal departments could not identify any additional steps taken to combat foreign interference in the lead up to the referendum. For example, the Attorney-General’s Department noted that the Foreign Influence Transparency Scheme would be operating as it did during the 2022 federal election.
5.41It would be naive to think that foreign actors will not seek to interfere in the referendum on the Voice. The committee points to recent reporting about foreign interference in the Canadian elections where content has been weaponised on social media platforms with the goal of undermining social cohesion and national unity.
5.42The committee considers that the risk of malign foreign interference is exacerbated by the government’s policy choice not to provide for formal 'Yes' or 'No' campaign entities. Further, the responsibility on campaign entities to self-police is at odds with the government’s stated goal of minimising foreign interference.
5.43The committee has therefore formed the view that the government is not taking the risk of foreign interference in the upcoming referendum sufficiently seriously. Priority must be given to improving the institutional architecture needed to respond effectively and proactively to the threat of foreign interference.
Challenges in the online referendum debate
5.44The proper conduct of civil debate and the dissemination of factual, relevant, and reliable information to the voting public underpins any successful electoral event in a liberal democracy.
5.45The committee recognises that much of the current referendum debate will occur in a lightly and predominantly self-regulated online environment.
5.46Evidence to the committee indicated that the current online regulatory framework is insufficient to prevent the heightened dissemination of misinformation, disinformation, and racially abusive material during the referendum campaign.
5.47The committee is concerned by evidence that indicates online racial abuse directed at Aboriginal and Torres Strait Islanders appears to be increasing in the lead up to the referendum.
5.48While not part of the committee’s initial terms of reference, the committee considers that it would be useful for the government to commission a review into the current online regulatory framework noting that few of the regulations and codes that apply to traditional media apply to the social media platforms.
Concluding remarks
5.49A decision to change the Australian Constitution is a significant national event.
5.50Taken together, the committee does not consider that the regulatory framework in which this referendum will take place is sufficient to safeguard against the interrelated issues of the dissemination of misinformation and disinformation, the risk of malign foreign interference, and the increase in social harm and polarisation.
5.51The committee notes that many of the above concerns have been raised repeatedly since the introduction of the Referendum (Machinery Provisions) Amendment Bill 2022 in December 2022. This suggests the government has either not properly considered the potential implications of such arrangements or, more alarmingly, has considered them but not deemed them important enough to be acted on for the upcoming referendum.
5.52Therefore, the committee puts forward three key recommendations that will contribute to a referendum in which voters are empowered to make informed decisions, the integrity of the referendum process is upheld, and the risk of malign foreign interference is reduced.
5.53The committee recommends that the Australian Government immediately establish and authorise ‘Yes’ and ‘No’ campaign entity bodies.
5.54The committee recommends that the Australian Government introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 and to include provisions that ensure spending is directed in equal proportions to the Yes’ and ‘No’ campaigns.
5.55The committee recommends that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 to require the Australian Electoral Commission to maintain a register of campaign bodies, similar to Part XI of the Commonwealth Electoral Act 1918.
Senator the Hon Richard Colbeck
Chair