Yes or No?: The Government’s Proposed Changes to Australia’s Referendum Laws
Paul Kildea
03.02.2022
In early December 2022 the Albanese government took another important step towards the referendum to constitutionally enshrine a First Nations Voice. It introduced into the House of Representatives the Referendum (Machinery Provisions) Amendment Bill 2022. The Bill proposes numerous changes to referendum process, including new arrangements for public education and campaign finance.
Referendum process usually takes a backseat to substantive debates on constitutional change. That is understandable, but process matters now deserve a place in the spotlight. How Parliament approaches these machinery changes will influence how the public debate and campaign over the Voice unfolds. Getting the process right is essential if the Voice vote is to be fair and informed.
The Bill is a step in the right direction. It is more than 20 years since our last referendum in 1999, and the Referendum (Machinery Provisions) Act 1984 (Cth) (Referendum Act) is showing its age. It has not always been updated to reflect recent changes in voting and campaigning. The need for an overhaul was affirmed by the House of Representatives Standing Committee on Social Policy and Legal Affairs in December 2021. That Committee found that ‘certain provisions in the Referendum Act are outdated and not suitable for a referendum in contemporary Australia’.
The Bill responds to the concerns of that inquiry by modernising referendum law in several areas. For instance, the arrangements for postal voting, authorisation of advertisements and ballot scrutiny would all be brought into line with election laws. These changes are uncontroversial and likely to attract support across the Parliament.
The focus of this post is on the more contentious aspects of the Bill. The Bill has significant implications for how voters will be educated, how the referendum question will be asked, and how campaign money will be regulated. These are sensitive matters and will attract the most debate in the months ahead.
Suspension of the pamphlet
In a surprise move, the government wants to drop the official Yes/No pamphlet for the Voice referendum. The Bill suspends section 11 of the Referendum Act, which provides for the preparation and circulation of a pamphlet, for any referendum held during this parliamentary term. That effectively means the Yes/No pamphlet will be suspended for the Voice referendum: the only referendum planned for this term.
The Parliament devised the pamphlet in 1912, in part to address concerns that voters were ill-informed when they voted at the defeated 1911 referendums. Prime Minister Andrew Fisher was optimistic about it:
I have no doubt at all that the case will be put from both sides impersonally, and free from any suggestion of bias or misleading on the one side or the other. Let it be a document that Parliament will be proud of, and from which Australia will benefit. (CPD, 16 December 1912)
The design of the pamphlet has not changed much over time: today, as then, the pamphlet typically contains arguments for and against the proposed constitutional amendment, each being no more than 2000 words in length, and a statement showing the proposed textual changes to the Constitution. The arguments are authorised by a majority of the members of Parliament who voted for or against the amendment. Section 11(1) requires the Electoral Commissioner to arrange for the pamphlet to be printed and sent to each household within 14 days of polling day. Under that provision, it is open to Parliament to decide not to circulate a pamphlet, but this has only occurred on three occasions (1919, 1926 and 1928).
The government’s desire to scrap the pamphlet sits in tension with the recommendations of both the 2021 committee and an earlier 2009 parliamentary inquiry chaired by now-Attorney-General Mark Dreyfus. Both supported the retention of the pamphlet, with the most recent inquiry suggesting that the document be sent to all voters, not households. For the government, though, the pamphlet is a relic. It says that the circulation of a hard-copy pamphlet is outdated in the digital age and that MPs can make their case in other ways, including via television and social media.
The pamphlet has never lived up to its promise as an educative tool. By focusing on arguments rather than explanation, it is designed to persuade, not inform. In addition, past pamphlets have often contained exaggerated or misleading claims that seem designed to confuse or frighten voters. In 1974, for example, the No campaign said ‘democracy could not survive' a change to how electorates were drawn. The 1999 No case celebrated apathy with the suggestion ‘Don’t Know? Vote “No”’. At its worst, the pamphlet can serve to spread misinformation rather than counter it.
All the same, many voters will want an accessible source of official information, both on the proposal and the arguments for and against change, to help them make up their own mind. An official pamphlet can serve that purpose, even in a digital age.
Rather than suspending the pamphlet, the Parliament should reform it. It should be revised to include a clear, factual explanation of the proposal, just like similar pamphlets in Ireland, California and New South Wales. The arguments for and against should be shorter, calmer and more considered. And if we can’t trust politicians to formulate quality Yes and No cases, we should give that task to an independent body, such as a referendum panel established prior to each referendum.
Neutral public education
The government says it wants to focus its public education efforts on a civics campaign that will provide voters with information about ‘Australia's constitution, the referendum process, and factual information about the referendum proposal’. To this end, the Bill suspends section 11(4) of the Referendum Act, which constrains government spending on referendum advocacy, to allow that to happen for the Voice referendum. This move is promising and follows the precedent set in 1999, when the Howard government funded a neutral education program for the republic referendum.
At this stage, details on the government’s education plans remain scant. This is unfortunate, as the detail matters. Careful design will be crucial if the neutral education campaign is to be trusted and effective. A poorly designed campaign risks being accused of bias, ignored by voters, or both.
Here the government should heed the recommendations of the 2021 and 2009 parliamentary inquiries. Both advocated the establishment of an independent referendum panel to advise on or oversee public education. To ensure public confidence in the body, its membership could be appointed by the Prime Minister in consultation with other parliamentary leaders. Ideally the members would come from diverse backgrounds. The 2021 inquiry recommended a panel comprising ‘constitutional law and public communication experts, representatives from the AEC and/or other government agencies, and community representatives’.
It was disappointing that the government did not mention this idea when discussing its process changes. The creation of a well-designed, independent body to oversee public education could make a huge difference to voters looking for accessible, balanced and reliable information on the Voice. Once established, an independent panel could perform a number of additional functions aimed at building public awareness and understanding of the Voice proposal, and countering misinformation. Such functions could include reviewing the proposed wording of the referendum question, drafting the contents an official pamphlet, and factchecking arguments made during the campaign.
Moreover, while the decision to suspend section 11’s constraint on government advocacy spending is understandable, it creates a new vulnerability. Its suspension leaves the government free to spend public money in support of the Yes or No positions, including in a one-sided manner. It would be preferable for the Act to protect against one-sided government advocacy spending while fostering public expenditure on genuine public education.
The referendum question
Looking ahead to the Voice referendum, many would like to see the referendum question asked in a clear and simple way. The Prime Minister is in this camp. At Garma in July, he proposed that the following question be printed on ballot papers: ‘Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?’.
The overarching rules on question wording are set out in the Constitution. Section 128 requires that a ‘proposed law’ be ‘submitted’ to and ‘approve[d]’ by electors. This indicates that the question on the ballot paper must contain some reference to the Constitution Alteration Bill. The Referendum Act establishes rules on question wording that seek to implement this overarching requirement. The Act requires that ballot papers present voters with the long title of the Constitution Alteration Bill, followed by the question: ‘Do you approve this proposed alteration?’ (see section 25 and Schedule 1).
The Prime Minister’s proposed question probably does not comply with the Constitution, as it makes no reference, direct or indirect, to the amendment Bill. But there are other possibilities for asking a clear and simple question on the Voice. The Parliament could amend the Referendum Act to introduce a more straightforward approach to question setting. For instance, the Act could require that a question be put along the following lines: ‘Do you support the establishment of a First Nations Voice, as provided in the [short title of Act]?’ This approach would comply with the Constitution, while also being more friendly to voters.
Campaign finance
The Bill makes long-overdue changes to the rules on referendum campaign finance. Labor wants campaigners to publicly report donations and expenditure that exceed the disclosure threshold (which is currently set at $15,200). It would also restrict foreign influence by banning foreign donations over $100. These changes bring referendum laws into line with ordinary election laws and will help to improve accountability and transparency.
Unfortunately, these amendments replicate the failings of our election laws and fall well short of best practice. The disclosure threshold is too high, ensuring some large donations will remain anonymous. A lower threshold, say $1,000 (as applies in NSW), is preferable.
The timeliness of disclosure is also a concern. If the Bill is enacted, registered campaigners will not have to report their donations or expenditure until 15 weeks after voting day. Electoral Commissioner Tom Rogers has confirmed that Australians will not learn who gave money to the Yes and No campaigns until 24 weeks after the date of the referendum. That information is potentially relevant to the choice voters make at the ballot box and should be made available in advance of voting day. A better approach would be to require real-time disclosure, as occurs in some states.
Even with stronger disclosure requirements around donations and expenditure, our referendums remain vulnerable to the influence of big money. The Referendum Act currently imposes no limits on the amount of money that individuals, campaign groups and political parties can spend on referendum campaigns. There is a danger that a wealthy individual or group could take advantage of this regulatory gap to flood the airwaves of a referendum campaign and drown out opposing arguments. Clive Palmer’s willingness to spend huge amounts of amount at the 2019 and 2022 federal elections has demonstrated the impact that such expenditure can have on public debate. The Parliament should therefore consider amending the Referendum Act to impose limits on private expenditure. This would help to foster a level campaign playing field. It would be important for the spending cap to be set at an appropriate level: if set too low, it could prevent a group from getting their message across in today’s media environment; if set too high, the risk of excessive and one-sided spending would remain.
First Nations electoral participation
The government says it is committed to support First Nations participation in the Voice referendum. In the October budget, it committed $16 million to assist enrolment in advance of the vote. This is welcome, but a change to the Referendum Act could also help. The Act could provide for on-the-day enrolment, as occurs at New South Wales and Victorian elections. How it works is that eligible, unenrolled persons are permitted to enrol on voting day and cast their ballot by declaration vote. This would foster referendum participation generally but be of particular benefit to First Nations people given their disproportionately low enrolment rate.
The downside of last-minute rule changes
It has long been apparent that Australia’s referendum laws need an overhaul. The government’s Bill is a step in the right direction, although it falls short in important areas. The electoral matters committee is currently reviewing the Bill and will issue its report on 10 February. Its recommendations will inform the wider parliamentary debate that will follow.
It is unclear if the major parties will reach consensus on all aspects of the Bill. The decision to axe the pamphlet has already proved contentious. The Liberal opposition has said that suspending the pamphlet is ‘worrying’ and ‘puts a successful referendum at risk’.
Unfortunately, conversations about referendum process are much harder on the eve of a vote. Rule changes, even when well-intentioned, are more likely to be viewed as strategic or self-interested.
Given our long referendum hiatus, it is a shame that the Parliament has waited until now to seriously consider these process reforms. Be that as it may, there is now a short window for parliamentarians to work seriously and cooperatively towards a framework that will ensure a fair and informed vote on the Voice referendum.
—
Dr Paul Kildea is an Associate Professor at UNSW Law. This post expands upon a shorter piece published on The Conversation website on 7 December 2022.
Suggested citation: Paul Kildea, ‘Yes or No?: The Government’s Proposed Changes to Australia’s Referendum Laws' on AUSPUBLAW (3 February 2023)<https://auspublaw.org/blog/2023/2/yes-or-not-the-governments-proposed-changes-to-australias-referendum-laws/>