Time to modernise: The future of constitutional review and referendums in Australia
Paul Kildea
11.02.2022
On 20 December 2021, the House of Representatives Standing Committee on Social Policy and Legal Affairs completed its inquiry into constitutional reform and referendums and published an anticipated Report. The Report makes 10 recommendations aimed at enhancing public awareness and understanding of the Australian Constitution, strengthening mechanisms for constitutional review, and improving arrangements for the conduct of referendums. The Committee called for urgent action on the last of these, noting its concern that Australia’s referendum laws be modernised in advance of a possible referendum on the constitutional recognition of First Nations peoples in the next parliamentary term.
The Committee deserves praise for initiating this inquiry. It is now 45 years since the Constitution was last amended and more than two decades since our most recent referendum. While public conversation on constitutional recognition has advanced somewhat in recent years, the wider debate around constitutional reform is at a low point. The Committee’s desire to kickstart that debate is to be welcomed. It also showed good judgment by focusing on three genuine problem areas.
The Report contains some shortcomings. The Committee missed an opportunity to argue for a more innovative approach to constitutional review, and its suggested reforms to referendum process are too narrow. The Report nonetheless deserves serious consideration by the Parliament. For that to happen the next government will need to view constitutional change and referendum rules as priorities in a crowded policy agenda.
This post sets out the background to the inquiry, and then proceeds to explain and critique the Committee’s recommendations in each of the three problem areas.
Background to the House Standing Committee inquiry
The House Standing Committee initiated its inquiry in June 2021. The terms of reference required the Committee to have regard to:
opportunities to improve public awareness and education about the Australian Constitution;
suggestions for mechanisms to review the Australian Constitution and for community consultation on any proposed amendments before they are put to a referendum;
the effectiveness of the arrangements for the conduct of referendums set out in the Referendum (Machinery Provisions) Act 1984 and the need for any amendments; and
any other related matters.
At the inquiry’s launch the Committee Chair, Andrew Wallace MP, made clear that the focus would be on the process of reform rather than any substantive proposals for constitutional change. It was ‘about ensuring that as a nation we can have informed discussion and debate about any proposals for constitutional change, and a fit-for-purpose referendum process to decide on them’ (Report, [1.6]).
As the Committee itself acknowledged, it is not the first body to investigate these matters. Since the 1999 republic referendum, several parliamentary committees and expert panels have inquired into how we might best run referendums and support Australians to engage in constitutional change in an informed and meaningful way. In 2009 the House of Representatives Standing Committee on Legal and Constitutional Affairs conducted a particularly detailed inquiry into the Referendum (Machinery Provisions) Act 1984 (Cth) (Referendum Act). It made 17 recommendations, including for the removal of Commonwealth spending restrictions and the establishment of an independent Referendum Panel to oversee the referendum process. Ultimately the government took three years to issue a tepid response and, in the years since, neither side of politics has shown much interest in either reforming that Act or initiating a fresh approach to constitutional review. In launching the 2021 inquiry, Chair Andrew Wallace and his Committee clearly felt that a greater sense of urgency is now required.
Issue 1: Public awareness and understanding of the Constitution
The Committee expressed concern about constitutional literacy among both school students and the general public. The limited evidence it received on schools suggested that students generally have low levels of understanding about the Constitution and constitutional issues. The Committee acknowledged the various initiatives in place but nonetheless adopted the ‘strong view’ that there is a need for students to participate in ‘more practical, hands-on civics education’ ([2.73]). To this end, the Committee recommended an expansion of the existing schools constitutional convention program. This program enables participants to debate the merits of constitutional reform proposals at mock conventions and encourages active engagement rather than passive learning. As it stands, though, the program only accommodates 120 students in years 11 and 12.
The Committee also found the general public’s awareness and understanding of constitutional matters to be limited. A recent Australian Constitutional Values Survey found that 83 per cent of those surveyed had heard of the Constitution before. Older studies suggest that knowledge of that document is poor, and the Committee cited recent Australian Electoral Commission (AEC) research showing that that ‘there is little or no knowledge of referendums and their purpose within the Australian voting public’ ([2.18]). The Committee concluded that existing education campaigns and initiatives were ‘limited and inadequate’ and that ‘there is a concerning number of Australians who don’t know about the Constitution or are misinformed about what is actually contained in it’ ([2.76]-[2.77]).
The Committee recommended that the government commission a study on public awareness of the Constitution, referendums and constitutional matters and, based on its findings, develop and implement a public awareness and education program on the Constitution, constitutional framework and Australia’s democratic system ([2.82]-[2.83]). The Report highlighted the importance of ensuring that any such program communicate appropriately with First Nations and culturally and linguistically diverse (CALD) communities.
These are all sensible recommendations. There is undoubtedly a need for more research into public awareness and understanding of constitutional matters. On the other hand, politicians and researchers have expressed concern about constitutional literacy for some decades and it is not clear that much has changed. Australians are more likely to show an interest in their constitutional arrangements if they feel that they are relevant to their lives and that they have genuine opportunities to shape them. Constitutional conventions would help with this – a point I return to below.
Issue 2: Mechanisms to review the Constitution
The Committee expressed concern about the absence of mechanisms for regular or systematic review of the Constitution. It found that ‘there is no established process for review, and no department or agency of the Australian Government [is] mandated to proactively consider or coordinate any general processes of constitutional review or consultation’ ([3.79]). The Committee called for a process that facilitates ongoing review of the Constitution, suggesting this was preferable to relying on ad hoc arrangements that tend only to arise when a specific proposal is being put forward for a referendum.
To fill this gap the Committee recommended that Parliament establish a Joint Standing Committee on Constitutional Matters (JSCCM) with ‘a broad mandate to review the Constitution and consider constitutional matters’ ([3.90]). The JSCCM could initiate its own inquiries as well as receive references from the Parliament or a Minister, make recommendations on the holding of constitutional conventions, and exercise functions relating to the referendum process when a proposal is to be put to a vote. The Committee acknowledged other ideas – such as a permanent constitutional commission or a periodic constitutional convention – but favoured a joint parliamentary committee on the basis that it is a proven mechanism that enables the ‘buy-in’ of parliamentarians, the people who are ultimately responsible for advancing specific proposals for constitutional amendment.
The Committee was right to highlight the need for a more systematic approach to constitutional review. The proposed JSSCM has promise – it could provide a much-needed focal point for regular inquiry into the adequacy of our constitutional arrangements. On the other hand, parliamentary committees tend to run uninspiring public consultations and their work can be invisible to many in the community.
It is therefore disappointing that the Committee stopped short of recommending a more innovative approach to future constitutional review. Several participants in the inquiry had recommended the holding of one-off or regular constitutional conventions. The Committee was alert to the potential value of such events but saw them as a matter to be taken up by the JSCCM and the Parliament rather than the subject of a separate recommendation.
In taking this position, the Committee missed an opportunity to endorse a constitutional convention run according to deliberative democracy principles. Such forums bring together ordinary citizens, randomly selected from the electoral roll, to learn about and debate constitutional issues and make recommendations to government. The experience of other countries demonstrates the potential of these mechanisms to promote public awareness of constitutional reform, promote debate and generate sensible and trusted reform ideas. In Ireland, the conduct of a deliberative constitutional convention (2012-2014) and several citizens’ assemblies led to referendums being held on same-sex marriage and abortion reform. Closer to home, the use of deliberative principles informed the design of the Regional Dialogues and First Nations National Constitutional Convention, which led to the proclamation of the Uluru Statement from the Heart.
The Committee, commendably, heard evidence from Irish officials and agreed that there are ‘valuable lessons that could be learned’ from both the Irish experience and the Uluru process ([3.86]). However, it stopped short of recommending that a future government initiate such a process for the purposes of advancing constitutional review. A stronger endorsement would have helped to spotlight both the existence of such forums and the contribution they stand to make to our flagging constitutional discourse.
The Labor members of the Committee disagreed on this point. They issued an additional statement in which they noted their ‘preference for an additional recommendation that would see the Australian Government establish a process for regular Constitutional Conventions’, the design of which should be informed by the Irish experience and the Uluru process ([1.7]).
Issue 3: Arrangements for the conduct of referendums
The Committee took the firm view that Australia’s referendum laws need updating. It heard evidence from the Department of Finance that the Referendum Act is ‘fit for purpose’ in the sense that ‘the act exists and [a] referendum could be conducted’ ([4.8]). It also heard that the government currently has no plans to amend the Act and that the usual practice is to consider amendments once there are firm plans for a specific referendum. The Committee was unpersuaded by this evidence. It found that ‘certain provisions in the Referendum Act are outdated and not suitable for a referendum in contemporary Australia’. This finding was in line with the conclusions of the 2009 inquiry, indicating that ‘these are longstanding issues which have gone unresolved by successive governments’ ([4.146]).
The Committee said that three changes must be made within the first six months of the next parliamentary term if Australia is to be ready for its next referendum. It recommended that, as a matter of priority, the Referendum Act should be amended to:
enable the Electoral Commissioner to distribute the Yes/No pamphlet to all electors (not just to households) and to use any additional methods of distribution (such as social media) that they feel are appropriate;
enable the government to fund referendum education and promotion of the arguments for and against the referendum proposal – this would involve repealing a much criticised prohibition that prevents the Commonwealth from spending money on referendum advocacy outside of the Yes/No pamphlet; and
introduce stronger regulation of referendum finance by (a) prohibiting campaign organisations from receiving foreign donations above $100, and (b) requiring campaign organisations to disclose donations above a certain threshold – these changes would bring the Referendum Act into alignment with election rules in the Commonwealth Electoral Act 1918 (Cth).
The Committee acknowledged that other aspects of referendum process deserve attention but suggested that they are best handled in the lead up to specific referendums. The issues that the Committee placed in this category were: the form of the wording of the referendum question; the inclusion of neutral information in the yes/no pamphlet; other neutral information and education activities; and the establishment of yes/no committees. ([4.160]) The Committee further recommended that an Independent Expert Panel be established to provide advice to the JSCCM on these matters in the run up to a referendum. The Panel’s membership would be appointed by the Prime Minister in consultation with other parliamentary party leaders, and would include constitutional law and public communication experts, representatives from the AEC and/or other government agencies, and community representatives. The Panel’s role would be advisory only. The JSCCM would consider its advice before handing it over to the Parliament along with its own views on how the referendum process should be handled ([4.162]).
Finally, the Committee suggested that there should be a comprehensive review of the Referendum Act to pick up issues not covered in sufficient detail by its inquiry. One area that it singled out for further attention was the need for stronger regulation of misinformation in referendum campaigns ([4.164]).
All of these are sound recommendations. The Report strengthens a growing consensus on the need to free the Commonwealth from its current spending restrictions, and draws welcome attention to other, often overlooked, aspects of referendum finance. The recommendation that the official pamphlet should be capable of being distributed by additional methods underscores the position of earlier inquiries. The proposal for an Independent Referendum Panel reinforces the idea that an additional, neutral actor could improve our referendum process, even if the purely advisory role envisaged by this committee is weaker than the model suggested by the 2009 inquiry.
Unfortunately, the Committee’s recommendations for priority amendments to the Referendum Act do not go far enough. The Act suffers from other deficiencies that should be addressed before our next referendum.
For instance, the statutory rules on question setting need amending to foster more straightforward and balanced questions, but the Committee did not suggest any changes. More surprisingly, the Committee made no specific recommendations on revisiting the content of the much-maligned official pamphlet. The pamphlet, first devised in 1912, presents arguments for and against the proposed amendment that are authorised by parliamentarians and are often overlong and misleading. As Cheryl Saunders remarked almost 30 years ago, ‘[t]he primary purpose of the yes/no case is to sway votes, not to provide understanding’. The Committee heard many creative suggestions, including the publication of a citizens’ statement generated through a deliberative process, the inclusion of a neutral statement on the referendum proposal, and the use of images and graphs. It is regrettable that that Committee did not endorse some of these ideas. Any move to ‘modernise’ referendum process must surely address the pamphlet’s deficiencies.
The Committee ultimately decided that decisions about question wording, pamphlet contents, and the establishment of official Yes and No campaign groups are best made by governments and Parliaments ‘on a case-by-case basis at each referendum’ on the advice of the independent Panel and the JSCCM ([4.160]). The value of this approach is that it provides the government and Parliament with the flexibility to make process decisions that are sensitive to each specific referendum context. The downside is that it leaves important process matters to be determined on the eve of a referendum campaign when strategic and partisan considerations are likely to surface. This is what happened in 2013 when the Labor government’s one-sided approach to funding allocation scuppered bipartisanship on a proposed vote on local government recognition. If the Committee’s ‘flexible’ approach to process decisions is to be workable, the Referendum Act first needs to be amended to set down basic ground rules to guide and delimit the discretion of decision makers. The allocation of public funding, the preparation of ‘neutral’ information and the drafting of questions would all benefit from a regulatory scheme of this kind.
What happens next?
The House Standing Committee has conducted the first major inquiry into the process of constitutional review, and the conduct of referendums, in over a decade. Its Report, despite its shortcomings, has the potential to reignite much-needed parliamentary debate ahead of a possible referendum on the constitutional recognition of First Nations peoples.
Whether this happens or not will come down to the priorities of the next Parliament. History tells us that constitutional review and referendum process are rarely seen as priorities until there are firm plans in place for an actual referendum. The next government will face a crowded policy and legislative agenda and, in that context, may not view as particularly urgent the need to initiate a fresh approach to constitutional change, or a wholesale review of the Referendum Act.
If the Report has a key message, it is that Australia’s referendum process needs to be modernised well in advance of our next referendum. As time passes, the window for meaningful process reforms will gradually close. It is therefore hoped that the next Parliament puts this Report, and the wider issues that it raises, near the top of its agenda.
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Paul Kildea is a Senior Lecturer at UNSW Faculty of Law & Justice, and the Director of the Elections & Referendums Project at the Gilbert + Tobin Centre of Public Law.
Suggested citation: Paul Kildea, ‘Time to modernise: The future of constitutional review and referendums in Australia’ on AUSPUBLAW (11 February 2022) <https://auspublaw.org/blog/2022/02/time-to-modernise-the-future-of-constitutional-review-and-referendums-in-australia/>