Recommendation 1
The Coalition supports Recommendation 1 of the Government’s report, in particular changes which seek to increase enrolment and participation, particularly of Aboriginal and Torres Strait Islander people, including in remote communities.
Recommendation 2
That clause 4 of the Bill relating to the suspension of Section 11 of the Act be removed, and the Government to provide an official pamphlet outlining both a ‘Yes’ and ‘No’ case on any proposed constitutional amendment.
Recommendation 3
That the Government create official ‘Yes’ and ‘No’ campaign entities to ensure the referendum is conducted as seamlessly as possible whilst ensuring misinformation is minimised. These official campaign entities would be vital in assisting the regulation of the referendum under the proposed donations and foreign interference laws.
Recommendation 4
That the Government adequately fund and resource official campaign bodies and official communications for both ‘Yes’ and ‘No’ campaigns. These respective ‘Yes’ and ‘No’ campaigns should receive equal funding.
Recommendation 5
That the Bill be opposed in its current form, should the above amendments set out in Recommendations 2, 3, and 4 not be successful.
Overview
The Coalition believes that any consideration of constitutional change should be considered, measured, and balanced. The changes proposed in this Bill will set precedent for future referenda and should not be considered as temporary or to be adopted lightly.
The Government’s decision to rush this inquiry over the Christmas and summer holiday-period is disappointing. This has limited the ability of JSCEM members to effectively scrutinise witnesses and the proposed legislation.
While there are a number of sensible and constructive changes included in this Bill, it is clear that the Government has put forward other changes that are not in the interests of informed and robust process for conducting a referendum.
The Coalition believes the publication and communication of an official pamphlet, the designation of official campaign entities, in addition to the adequate and equal funding of ‘Yes’ and ‘No’ campaigns negates Recommendation 2 of the Chair’s Report and puts at risk a successful referendum process with integrity and appropriate protections against misinformation.
The Coalition recognises the practical benefits the Referendum (Machinery Provisions) Amendment Bill 2022 would offer by bringing the Referendum Act generally into line with updates to the Commonwealth Electoral Act 1918 that have been legislated in recent years.
Unfortunately, the Government has failed to adequately address serious concerns raised in the vast majority of submissions along with those of Coalition members relating to the implications of Clause 4 of the Bill, which suspends Section 11 of the Act.
Further, the Coalition, along with numerous stakeholders and submitters remain greatly dissatisfied at the Government’s decision not to create and fund official ‘Yes’ and ‘No’ organisations. This decision by the Government allows for misinformed debate and puts at risk the entire referendum process.
In considering the valid concerns raised by the Coalition along with the majority of submitters, the Government has failed to outline any substantial reasons why the suspension of Section 11, and the absence of properly constituted and funded official ‘Yes’ and ‘No’ entities are necessary steps which would improve the overall referendum process.
Abandonment of official ‘Yes’ & ‘No’ pamphlet
The majority of evidence presented to the inquiry primarily focused on the suspension of Section 11 of the Referendum Act and changes relating to financial disclosure.
Section 11 of the Act currently requires that an official pamphlet containing arguments for and against the referendum proposal, along with the proposed textual alterations and additions to the Constitution, be prepared and distributed to households by the Electoral Commissioner via post no later than 14 days before the voting day. This requirement was first introduced in 1912.
Clause 4 of the Bill will strip away any formal ‘Yes’/ ‘No’ pamphlet in any proposed referendum that is brought forward during this parliament, including the proposed referendum on an Indigenous Voice to Parliament.
The absence of this requirement will leave Australians without any official source of information on the question being asked at the referendum. Of particular concern is the fact that this requirement has not been replaced with an alternative model for countering misinformation.
Evidence provided to the Committee characterised this as creating a vacuum for misinformation and ‘a free-for-all on the internet’ and that it will ‘encourage more bizarre views out there being given some kind of level of legitimacy’.
A prima facie analysis of the referendums that have been held since the introduction of the requirement to provide a pamphlet highlights that this suspension is without any comparable precedent. On only three occasions since 1912 have referenda been held where there was no pamphlet issued.
In 1919, there was insufficient time to produce a pamphlet prior to the conduct of the referendum. In 1926, there was no agreement on how to argue or produce the ‘Yes’ argument. And in 1928 there was overwhelming agreement between parties and Governments of all levels.
Australians have received pamphlets at every referendum since 1928.
The Government has also signalled they have no intention to publish an online version of a pamphlet, and that it could be left to parliamentarians as to how they communicate referendum detail with their constituency.
On this basis, it is clear the decision to abolish the official pamphlet is neither a cost saving or practical exercise but rather a calculated political decision on the Government’s behalf.
A large majority of submitters to the inquiry raised concerns around the Government’s decision to abolish the official pamphlet. Examples of such submissions included but are not limited to the following:
Central Land Council: Noted that the failure to provide a physical, posted pamphlet in remote areas would almost certainly leave people (in particular older Australians and Elders) without reliable access to information regarding the referendum question, especially given the barriers to telecommunications in regional communities.
Australian Electoral Commission (AEC): Advised that its research “shows that 40 per cent of people still rely on and use the guide posted to households as their primary source of information”.
Institute of Public Affairs (IPA): Argued that the official pamphlet plays an integral role in setting the tone of a referendum debate and helps to ensure an “open and fair exchange of ideas in which no side is demonised”.
As the Coalition believes that any consideration of constitutional change should be considered, measured, and balanced, the official pamphlet is, as has been evidenced in referendums past, the best medium to help achieve this outcome and ensure informed choice that counters misinformation.
‘Yes’ & ‘No’ campaigns
An additional matter of concern to the Coalition and the majority of submitters is the Government’s decision not to create official ‘Yes’ and ‘No’ campaign entities as has been standard practice in past referenda.
In 2009 the House of Representatives Legal and Constitutional Affairs Committee, chaired by the Hon Mark Dreyfus KC MP recommended the establishment of a legislated Referendum Panel to determine campaign operations and education initiatives relating to referenda.
At 1.88 of the Chairs report for this inquiry, the Government relies on Professor Appleby’s submission for further examples of functions such a panel would undertake. These included formulating the referendum question itself and fact checking information disseminated in the course of the campaign.
The Coalition would not support the formation of such a panel.
Further, the Coalition disagrees with the Government’s decision not to create official ‘Yes’ and ‘No’ campaigns for the following reasons.
The absence of official campaign entities is of concern when considering the implementation and enforcement of modern electoral regulations on donations and foreign interference.
The regulatory auditing process to administer these regulatory schemes would be assisted by having official campaigns to provide a starting point for enforcement and education by the AEC.
The existence of official ‘Yes’ and ‘No’ campaign entities would reduce the inevitable cluster of faux and or proxy organisations promoting themselves as official campaign bodies. Instances of such conduct is already evident in public coverage of a number of bodies that have already been established.
Further evidence provided to the inquiry highlighted that current or previous activities of organisations and individuals relating to the Voice have the potential to be captured by the proposed regulatory schemes.
An official campaign structure will provide a starting point for the AEC’s efforts in coordinating education on the responsibilities of organisations and individuals participating in the referendum campaign.
It is imperative to the integrity of the referendum process that the Government establish official organisations for the conduct of the upcoming referendum in order to provide greater integrity to the regulatory process which governs participants, including donations, authorisations, and foreign interference.
Public funding of official ‘Yes’ & ‘No’ campaigns
The Government has also announced its intention not to provide any public funding for ‘Yes’ and ‘No’ campaign entities or official communications for either a ‘Yes’ or ‘No’ campaign.
This risks a dependence on private funding from vested interests dominating debate and in turn distorting public discourse. This would undoubtedly compromise the quality and reliability of referendum information available to Australians, negatively affecting voters’ ability to make informed decisions.
Should the Government provide funding for either case it remains the position of the Coalition that an equal amount be provided to both sides.
Ministerial availability to the inquiry
On the 23rd of December 2022, Senator James McGrath wrote on behalf of JSCEM Coalition members to the JSCEM Chair requesting that the relevant ministers (Burney and Farrell) make themselves available to assist the committee in its deliberations, noting the significance of the legislation being considered.
In addition, Senator McGrath wrote directly to both the Hon Linda Burney MP and Senator the Hon Don Farrell requesting the same. Copies of the relevant letters are attached at Appendix A.
It is disappointing that the respective ministers chose not to make themselves available to the inquiry. Coalition members are yet to receive an explanation as to the ministers’ non-attendance or any acknowledgement of Senator McGrath’s correspondence to the ministers.
The question of how Australians change their constitution is as important as the change they make itself.
It should be of concern to Australians that their Government has chosen to not only remove the requirement of the provision of information on the choice they face, but that the Government has also chosen not to assist this Committee in understanding the change.
Conclusion
The Coalition’s position is that the full reinstatement of Section 11 in addition to the creation and adequate funding of official ‘Yes’ and ‘No’ campaign entities are fundamental elements to ensuring informed national debate and a successful referendum process.
In considering the concerns set out above, the Coalition cannot in good conscience support Recommendations 2 and 3 of the Government’s report.
The Coalition’s position remains that the Bill be opposed in its current form if the recommendations contained within this report are not adopted.
Appendix A
Letter to JSCEM Chair – Sent via email (23/12/22)
Letter to Senator the Hon Don Farrell – Sent via email (23/12/22)
Letter to the Hon Linda Burney MP – Sent via email (23/12/22)
Senator the Hon. James McGrath
Deputy Chair
Liberal National Senator for Queensland
Senator the Hon. Marise Payne
Member
Liberal Senator for New South Wales
The Hon. Darren Chester MP
Member
Nationals MP for Gippsland
Senator Ross Cadel
Member
Nationals Senator for New South Wales
James Stephens MP
Member
Liberal MP for Sturt