Preliminary Pages

Foreword

In 1911, two proposals to change the Constitution were put to Australian electors at the third referendum since federation. Both proposals were soundly defeated.  The Government of the day felt that the proposals were sound and necessary changes to the Constitution and that their defeat could be explained, at least in part, by electors being misinformed on the issues and the Opposition’s misrepresentation of the proposals to the Australian public.

It was for this reason that in 1912 the Government undertook to post to each elector a document which would provide the arguments for and against the proposed change and the text of the Constitution identifying the proposed changes. The Yes/No pamphlet, as it became known, was an innovative development in the way in which the Australian Government communicated with electors.

It has now been almost 100 years since the introduction of the Yes/No pamphlet. Its form has changed very little since 1912 and it is also the only official material provided to electors prior to a referendum. In 2009, it is appropriate to ask whether there is a more effective way to engage and inform the Australian public about the Constitution and proposed constitutional change.

Before the Government can amend the Constitution, section 128 of the Constitution requires that a majority of electors in a majority of states approve of the proposal. It is therefore as important today as it was in 1912 that electors understand the proposal being put to them so that they can make an informed decision at a referendum.

Constitutional change in Australia is not common. Since Federation, Australian electors have accepted only eight out of 44 proposals to change the Constitution. Since the introduction of the Yes/No pamphlet in 1912, the rate is six out of 39 proposals. 

Although not every proposal to change the Constitution will have widespread support, it is also clear that a lack of understanding still plays a part in an elector’s decision to vote ‘No’. Indeed, the 1999 republic referendum campaign showed this directly when the No Committee used the ‘Don’t know – Vote no’ slogan.

Under the Referendum (Machinery Provisions) Act 1984 (Cth),the Government is only able to provide electors with the Yes/No pamphlet prior to a referendum. In order for the Government to campaign more broadly, amending legislation would be required. During this inquiry, the Committee asked whether the Yes/No pamphlet provides sufficient information to allow electors to make an informed decision at a referendum. The answer appears to be no. Although the Yes/No pamphlet is a valuable document which provides electors with the views of their elected representatives, it is insufficient as the sole material provided to electors prior to a referendum.

This conclusion was supported by the weight of evidence received by the Committee during this inquiry. Although it is evident that many people still want to receive the Yes/No pamphlet, many other submitters argued that the Yes/No pamphlet is insufficient for many electors. For instance, polling and survey results indicate that young women aged 18-24 know the least about the Constitution. Young women are also increasingly the most prolific users of new technology, such as the internet and social networking sites. The Committee’s view is that the Machinery of Referendums Act should be flexible enough to communicate appropriately and effectively with all electors.

The shortcomings of the Machinery of Referendums Act are also illustrated by the Parliament’s response to the 1999 referendum on a republic and a preamble. Before that referendum, legislation was introduced to amend the Machinery of Referendums Act. The temporary amendments provided for additional information to be provided to electors by a neutral panel of experts who would provide factual material and Yes and No Committees who would advocate for a ‘Yes’ or ‘No’ vote.

After considering the framework provided for referendums and in particular, section 11 of the Machinery of Referendums Act, the Committee has determined that changes to the legislation are necessary to assist electors in making an informed vote at referendums. In this report, the Committee has recommended significant changes to section 11 of the Machinery of Referendums Act, including removing some of the more restrictive provisions and introducing measures which are intended to provide a flexible and adaptable approach to referendum campaign information.

With regard to amending some of the current restrictive provisions, the Committee has recommended removing the limitation on government expenditure, removing the word limit for the Yes/No arguments and changing the delivery requirement to every household rather than every elector. The Committee is of the view that some provisions should remain unchanged, including the continued authorisation of the Yes and No arguments by members of Parliament.

In looking to provide a more flexible and adaptable approach, the Committee has recommended that the Government establish a Referendum Panel for each referendum. The Referendum Panel would be responsible for developing an overarching communications strategy relevant to that referendum. This would include determining the word limit of the Yes/No pamphlet, as well as providing background and contextual material to electors on the referendum proposal. The Committee envisages that specific ‘Yes’ and ‘No’ campaigns, similar to those established in 1999, would contribute to the debate.

The changes recommended by the Committee mean that there will be more than one way to communicate with electors before a referendum. The Yes/No pamphlet will continue to be provided to electors and this will serve as a guaranteed minimum for referendum material. However, additional material, targeted more effectively to different groups of electors, can now also be provided. Above all, the Committee’s recommendations are intended to provide flexibility and adaptability so that the specific requirements of each referendum can be met.

Mr Mark Dreyfus QC MP

Chair

Membership of the Committee

Committee Secretariat

Terms of reference

The Committee is to consider and report on:

1. The effectiveness of the Referendum (Machinery Provisions) Act 1984 in providing an appropriate framework for the conduct of referendums, with specific reference to:

·         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.

2. Any amendments to the Referendum (Machinery Provisions) Act 1984 the Committee believes are required to provide an appropriate framework for the conduct of referendums; and

3. Any other federal provisions relevant to terms 1 and 2 above, as the Committee considers appropriate.

List of acronyms and abbreviations

List of recommendations

Committee Comment and Recommendations

Recommendation 1

Recommendation 2

Recommendation 3

Recommendation 4

Recommendation 5

Recommendation 6

Recommendation 7

Recommendation 8

Recommendation 9

Recommendation 10

Recommendation 11

Recommendation 12

Recommendation 13

Recommendation 14

Recommendation 15

Recommendation 16

Recommendation 17