Updated 8 May 2023
In the Australia federal political context,
the word ‘referendum’ is used to describe a vote to change the Australian
Constitution. Conversely, the word ‘plebiscite’ is used to describe a
non-constitutional, non-binding or advisory vote. Internationally the terms are
used much
more interchangeably, and the distinction between them in Australia is
something of a local quirk.
The Macquarie Dictionary accepts either ‘referendums’ or
‘referenda’ as plurals for a referendum, however Australian legislation uses
‘referendums’.
The rules relating to referendums
Section 128 of the Constitution provides for the ‘mode of altering the Constitution’.
Specifically, it requires:
- A
law be passed by an absolute majority of each House of the Parliament (that is,
half or more 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.
- A
majority of Australians vote to approve the change, as a total and in a
majority of the six states (this is referred to as the ‘double majority’).[1]
The Constitution leaves the details of the voting
process to ‘such manner as the Parliament prescribes’. Accordingly, the
Parliament prescribed this via the Referendum
(Machinery Provisions) Act 1984 (the Act).[2]
The Act looks much like the legislation that
governs federal elections, and provides for many similar features, such as
pre-poll, telephone and postal voting, authorisation of advertisements, and a
process for appealing results.
Timing
Timing of a referendum under the Act (section 9) is very
similar to an election. The Governor-General will issue a writ, specifying the
date the electoral rolls close, polling day (which must be a Saturday) and the
date writs must be returned (section 8).[3] After the writ is issued:
- The
rolls close (after 7 days)
- Polling
day occurs (between 33 and 58 days later)
- Pre-poll
voting commences 12 days before voting day
- The
writ is returned (after no more than 100 days).
The Act also requires the Electoral Commissioner to certify
the total number of votes in favour, not in favour, and rejected as informal,
including for each state and territory (section 98). Accordingly, all votes
must be counted before the Electoral Commissioner returns the writ to the
Governor-General. However, the election can be declared once the margin exceeds the number of votes left to count.
Recent
amendments to the Act specify that that, for a referendum that is not being
held in conjunction with a federal election, mobile polling may commence 19
days before voting day. For a referendum held on the same day as a federal
election, remote polling may commence 12 days before voting day.[4]
The Yes and No cases
Section 11 of the Act requires the Australian Electoral
Commission (AEC) to distribute a pamphlet with a written argument for and
against the passage of the referendum. This pamphlet should be received by each
household with an enrolled elector not later than 14 days before polling day.
These written arguments (no more than 2,000 words each) are
to be authorised by a majority of parliamentary members who voted for or
against the Referendum Bill, respectively.
The Act allows the Commonwealth to only spend money in relation
to preparing and distributing the pamphlets and prohibits any Government-funded
referendum education campaign or advertising. However, in 1999 the Government legislated to allow additional expenditure, such as for advertising, in relation to that
specific referendum, and the recent
history of public funding of referendum campaigns has been relatively ad
hoc.
The Government recently amended the Act to clarify that the
Government is not prevented from ‘expending money in relation to neutral public
civics education and awareness activities’ (subsection 11(6)) but that campaign
‘must not address the arguments for or against a proposed law for the
alteration of the Constitution’ (subsection 11(7)).
Ballot paper and formality
The ballot paper presents the referendum question(s) and
requires the voter to write ‘Yes‘ or ’No‘. The AEC’s
formality guidelines allow for some minor variations, provided the voter’s
intent is clear. Recent
amendments to the Referendum Act clarified that a ‘Y’ or an ‘N’ are
sufficient to establish formality.
An image of a sample ballot paper is included in the
Appendix, below.
Political
finance requirements
The 2023 referendum will be the first to include the
regulation of political finance in relation to referendum spending. In general,
the requirements are similar to those for federal elections, however without
the centrality of political parties inherent in Part XX of the Electoral Act.
The AEC has information online that outlines
the financial disclosure requirements. In general, however, a referendum
entity is any entity that incurs referendum expenditure in excess of the
disclosure threshold ($15,200) within the referendum expenditure period, and
referendum expenditure is expenditure for the dominant purpose of communicating
referendum matter. Referendum matter is material with a dominant purpose of
influencing the way electors vote at a referendum.[5]
The referendum expenditure period commences six months
prior to the issue of the writ for the referendum. The AEC has taken the
position that the Government’s flagged timing of the referendum means that the
referendum expenditure period should be treated as having already commenced.
This means that any entity that expends more than $15,200
between now and the referendum on material to convince people to vote one way
or another will have disclosure and reporting obligations, including the
details of their referendum expenditure, the total value of donations received,
and the total number of donors. Any donors who donate more than $15,200 to one
of these entities must also disclose their donations. The returns are due 15
weeks after the referendum.
Foreign campaigners are prohibited from spending more than
$1,000 in referendum expenditure, and foreign donors may not donate more than
$100 to be used for referendum expenditure.
Plebiscites (advisory or
non-binding referendums)
Australia has only ever had two ‘plebiscites’ (referred to at
the time as ‘referendums’) in 1916 and 1917. Both related to conscription
for military service and were
unsuccessful. As compulsory voting was not yet introduced,
these plebiscites were voluntary.
In 1977 there was also a national
song poll, which is sometimes grouped in with the conscription plebiscites.
However, unlike a contemporary referendum, voting was not compulsory and the
ballot was not for a yes or no question.
Referendum Results
Since Federation, only 8 of the 44 proposals for
constitutional change have been approved. The most recent successful
referendums were in 1977.
The Parliamentary Library’s online Parliamentary Handbook provides a searchable list of referendum and plebiscite questions and detailed
results.
Further reading
Appendix: Referendum ballot paper
Source: AEC