Bills Digest No. 109, 2012–13

14 May 2013

Referendum (Machinery Provisions) Amendment Bill 2013

Brenton Holmes
Politics and Public Administration Section 

The Bills Digest at a glance

The Bill implements two of the recommendations of the former House of Representatives Standing Committee on Legal and Constitutional Affairs in its 2009 report entitled: A Time for Change: Yes/No?[1] The Committee recommended that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 (Cth) to require a Yes/No pamphlet to be sent to every household, not every elector. The Committee also recommended the introduction of amendments to remove the current limitation on spending imposed by subsection 11(4) of the Referendum Act. The Bill implements these recommendations.

Date introduced: 21 March 2013

House: House of Representatives

Portfolio: Special Minister of State

Commencement: The Act commences on the day the Act receives the Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Referendum (Machinery Provisions) Amendment Bill 2013 (the Bill) is to amend the Referendum (Machinery Provisions) Act 1984 (the Act)[2] to provide for the Yes/No pamphlet produced for each referendum to be sent to each household address held by the Australian Electoral Commission (AEC) for electoral purposes—instead of each individual elector being posted a pamphlet. The Bill also allows the Electoral Commissioner to send the information via email.

The Bill also allows for broader Commonwealth spending on a Referendum by temporarily suspending the operation of a legislative limitation at subsection 11(4) of the Act. Subsection 11(4) generally limits the capacity of the Commonwealth to spend money in relation to a referendum other than on the production and delivery of the Yes/No pamphlet.

The temporary suspension of subsection 11(4) will increase the capacity of the Commonwealth to spend money on promoting, educating and informing the public about the case for and against any 2013 referendum. A similar amendment was made by the Referendum Legislation Amendment Act 1999 which suspended the operation of subsection 11(4) for the 1999 referendum on whether Australia should become a republic.[3] The proposed temporary suspension will cease operating at the end of polling day.

Background

Under the Act, subsections 11(1), (2) and (3) provide, among other things, that when a referendum is to be held, the Electoral Commissioner must ‘cause to be printed and to be posted to each elector, as nearly as practicable, a pamphlet containing the arguments together with a statement showing the textual alterations and additions proposed to be made to the Constitution’. This is commonly referred to as the ‘Yes/No’ case. (Note that where a Constitution Amendment Bill is passed unanimously, that is where no Member of Parliament voted against it, there will be no official ‘No’ case distributed. This happened in referendums in 1967 and 1977.)

In its December 2009 report entitled: 'A Time for Change: Yes/No', the then House of Representatives Standing Committee on Legal and Constitutional Affairs inquiry into the Machinery of Referendums recommended (Recommendation 3):

…that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 to require a Yes/No pamphlet to be delivered to every household, not every elector.[4]

The AEC advised the Inquiry that the production and delivery of a referendum pamphlet posted to every elector today would cost approximately $25 million. In contrast, the householder mail-out for the 2007 federal election cost between $2.5 million to $3 million.[5] (Note that, although not required to do so under the Commonwealth Electoral Act 1918, for Federal elections the AEC sends election information to each household not each elector.[6])

In Recommendation 11 the Committee also proposed the introduction of amendments to remove the current limitation on spending imposed by subsection 11(4) of the Act[7]:

With regard to the total amount of funding to be provided to the referendum campaign, the Committee considers this an appropriate decision for the Government of the day. It is apparent that referendums require a flexible and adaptable approach–some referendums may require more funding and others less. The Committee is of the view that the funding level for referendum campaigns should be determined on a case-by-case basis and that decision should be taken by the Australian Government.[8]

The Government accepted both Recommendation 3 and Recommendation 11.

In addition, the Government is considering the final report of the Joint Select Committee on Constitutional Recognition of Local Government, released on 7 March 2013, and wishes to keep open the option of a referendum on the matter at the forthcoming 14 September election.[9]

The introduction and passage of the amendments proposed by the Bill does not commit the Government to holding a referendum at the 14 September 2013 election, but would keep open the option of doing so.

Committee consideration

At the time of writing this Digest, the Bill has not been considered by any committees of either the House of Representatives or the Senate. However, the Joint Committee on Human Rights considers all Bills before the Parliament, and is expected to publish its next report on 15 May 2013.

Policy position of non-government parties/independents

In the above-mentioned report by the House Legal and Constitutional Affairs Committee, the Opposition took a strong stance against Recommendation 3—pamphlets being sent to households rather than individual electors—which the Government is seeking to implement with this Bill:

[The Opposition] strongly disagree with this recommendation. Household distribution would reduce the number of people who had access to the Yes/No case.

Referenda to change the Australian Constitution are significant events and require the engagement of as many Australians as possible. All politicians know that communicating with their constituents via direct, personalised mail is far more effective that a letter delivered ‘To the Household’. It therefore seems rather odd that the Australian Government would reduce the direct delivery of official information regarding referenda.[10]

The Opposition supported Committee Recommendation 11 to introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Act.[11]

Financial implications

The Government has stated that printing and sending the Yes/No pamphlet to every Australian elector ‘represents a substantial expense’ and considers that it is ‘not unreasonable for persons who share a family household to share the Yes/No pamphlet’.[12] The temporary suspension of subsection 11(4) will broaden the capacity of the Commonwealth to spend money on promoting, educating and informing the public about the case for and against any referendum. The financial impact of implementing the provisions of the Bill has yet to be determined.[13] Note the advice of the AEC (page 4 above) that the production and delivery of a referendum pamphlet posted to every elector today would cost approximately $25 million.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[14] As noted earlier, the Joint Committee on Human Rights has yet to assess the Bill.

It seems likely that Opposition members of the Committee—in the context of the Joint Committee’s deliberations—will reiterate their concerns that the Bill will reduce the number of people who have access to the Yes/No pamphlet.

Key issues and provisions

Proposed section 4 of the Bill suspends the operation of subsection 11(4) of the Act, thereby enabling the Government to incur expenditure beyond the limitations which currently apply. This provision will cease operation on polling day for the general election in 2013.

Items 1 and 3 of Schedule 1 of the Bill propose that, instead of the ‘Yes/No’ pamphlet being posted to each elector, the Electoral Commissioner may send the information—that is, by post or other means of communication.

Item 2 proposes that:

·         pamphlets may be sent to addresses that are on the electoral roll and to the addresses of so-called ‘silent electors’ whose names are not on the roll because of section 104 of the Commonwealth Electoral Act 1918[15] and

·         pamphlets may be sent to any other addresses that the Electoral Commissioner considers appropriate, and information in a pamphlet may be sent to any email address that the Commissioner considers appropriate.

Item 4 proposes that the amendments apply only to referendums whose writs are issued after the Bill is passed.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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ISSN 1328-8091

[1].              House of Representatives Standing Committee on Legal and Constitutional Affairs, A time for change: yes/no?,
Inquiry into the Machinery of Referendums, Commonwealth of Australia, Canberra, December 2009, viewed 1 May 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=laca/referendums/report.htm

[2].              The Referendum (Machinery Provisions) Act 1984, viewed 10 May 2013, is available at: http://www.comlaw.gov.au/Details/C2012C00570

[3].              The Referendum Legislation Amendment Act 1999, viewed 10 May 2013, is available at: http://www.comlaw.gov.au/Details/C2004A00416

[4].              House of Representatives Standing Committee on Legal and Constitutional Affairs, Inquiry into the Machinery of Referendums, op. cit., p. 57.

[5].              Ibid., pp. 56–57.

[6].              Verbal advice to author from AEC Chief Legal Officer on 16 April 2013.

[7].              House of Representatives Standing Committee on Legal and Constitutional Affairs, Inquiry into the Machinery of Referendums, op. cit., p. 65.

[8].              Ibid., p. 66.

[9].              G Gray (Special Minister of State), ‘Second reading speech: Referendum (Machinery Provisions) Amendment Bill 2013’, House of Representatives, Debates, 21 March 2013, p. 2911, viewed 5 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F7d2bdc3b-35ed-4264-bd05-2f4e82a3829f%2F0047%22

[10].              House of Representatives Standing Committee on Legal and Constitutional Affairs, Inquiry into the Machinery of Referendums, op. cit., p. 71.

[11].              Ibid.

[12].              G Gray (Special Minister of State), ‘Second reading speech: Referendum (Machinery Provisions) Amendment Bill 2013’, op. cit.

[13].              Explanatory Memorandum, Referendum (Machinery Provisions) Amendment Bill 2013, p. 2, viewed 1 May 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4977_ems_b97f3f97-2d7e-4e97-b2e2-e5585c1141db%22

[14].              The Statement of Compatibility with Human Rights can be found at pages 3–4 of the Explanatory Memorandum to the Bill.

[15].              Section 104 of the Commonwealth Electoral Act 1918 allows a person to request that their address not be entered on the electoral roll, for security reasons. This Act, viewed 10 May 2013, is available at: http://www.comlaw.gov.au/Details/C2013C00165