THE REFERENDUM IN AUSTRALIA Cheryl Saunders, Melbourne Law School 1. - PDF document

THE REFERENDUM IN AUSTRALIA Cheryl Saunders, Melbourne Law School 1. General introduction to the law and practice of referendums in Australia Australia is a federation with a written Constitution that sets out the framework for the federation and establishes the institutions for the Commonwealth, or national, government. Each of the sub- national units of government, which are called States, also has a Constitution that establishes its institutions, subject to the Commonwealth Constitution. A referendum is required for any change to the text of the Commonwealth Constitution. Under section 128, any proposed law to change the Constitution must first pass through both Houses of the Commonwealth Parliament and must then be submitted to referendum. All voters qualified to vote for the House of Representatives are entitled to vote in a referendum. A referendum is passed if it is approved (a) by a national majority and (b) by a majority of voters in a majority of States. This is sometimes described as the ‘double majority’ requirement. As there are six Australian States, approval at referendum requires majorities in at least four States. If a proposal is accepted at referendum it must receive assent from the Governor-General before it becomes law, but this is a formality. Under section 128, a proposed Constitution Alteration law that does not pass one House can be put to referendum if it passes the other House twice. A few proposals for alteration of the Constitution also require approval by majorities in the affected States and may, in effect, require majorities in all States. These details are relatively unimportant for present purposes and will not be discussed further in this paper. The record of success of referendums to change the Commonwealth Constitution is poor. Over the period of 113 years since the Constitution came into effect, 44 proposed Constitution Alteration laws have been put to referendum. Only 8 of these have been approved. Most of the 36 referendums that failed to be approved were rejected by national majorities. Only 5 were approved by a national majority but failed because they were not approved by voters in a majority of States. The reasons for this record lie both in the way in which proposals for Constitution alteration are chosen and in the procedures for conducting a referendum. The rest of this paper will explain these points further. Referendums sometimes also are held at the State level in Australia, to decide changes to parts of a State Constitution that are entrenched by referendum. Either the Commonwealth or a State also may hold a non-binding plebiscite on particular policy questions before legislative action is taken. State referendums and plebiscites require only a simple majority of the people voting. Neither is common. This paper deals primarily with referendums to change the Commonwealth Constitution. 2. Matters that are subject to referendum in Australia. Any part of the Commonwealth Constitution can be subject to referendum, if there is a proposal for change. For example, referendums have been held in the past on proposals to extend the legislative powers of the Commonwealth, remove discriminatory references to indigenous people in the 1

Constitution, impose a retiring age for federal judges, add a preamble to the Constitution and establish a republic in place of the constitutional monarchy. Parts of State Constitutions that can be changed only by referendum include bicameralism (New South Wales) and the office of ombudsman (Victoria). Referendums or plebiscites on policy questions that do not involve constitutional change have been held on whether or not to introduce daylight saving, whether to grant a casino licence where to build a controversial hydro-electric dam, whether to introduce compulsory military service and the choice of the national song. 3. Description of the mechanisms and processes used in organizing referendums, including relevant state agencies and the role of civil society organizations The Constitution sets out only the bare requirements for alteration of the text of the Constitution:  The Houses of Parliament must first pass a proposed law to alter the Constitution  The proposed law must be approved at referendum, by a majority of voters and by a majority of voters in a majority of States  It must receive assent from the Governor-General. The remaining procedures are set out in detail in legislation, the Referendum (Machinery Provisions) Act 1984 (Cth). Important requirements that may be of interest include the following:  Referendums are administered by the Australian Electoral Commission, an independent body with substantial electoral expertise that deals with all elections at the Commonwealth level.  Voting is compulsory: section 45.  While the effect of a successful referendum vote is to approve the text of change to the Constitution, the actual question on the ballot paper is the short title of the Constitution Alteration Bill (for example: Do you approve “a proposed law to alter the Constitution to insert a preamble”?): section 25.  Official information in relation to the effects of the proposed change is restricted to a 2,000 word argument in favour of the proposal and a 2,000 word argument against it, authorised by Members of Parliament who voted in favour of and against the law respectively: section 11. Pamphlets containing the ‘yes/no’ cases, together with the text of the proposed changes, are distributed to voters by the Electoral Commission.  More than one proposal for constitutional change may be put to referendum at the same time and referendum votes may be held on the same day as a Commonwealth election.  Polling stations are organised so that votes can be marked in private  Pre-poll and postal voting is possible  Scrutineers are appointed to assist to ensure the integrity of the count: section 90  Disputes over the validity of the referendum or of particular votes can be resolved by the High Court (Part VIII). A proposal for constitutional change that is put to referendum may originate as a policy of the incumbent Commonwealth government. Indeed, it is unlikely that a government will allow the initiation of a proposal for change that it does not support. Often, however, in addition, a proposal for change can be traced directly or indirectly to a body that has been established to advise on 2

constitutional reform. There have been several such bodies since federation: a Royal Commission on the Constitution (1927-29); a Joint Parliamentary Committee on Constitutional Review (1957-59); a Constitutional Convention (1973-87); a Constitutional Commission (1986-88); and a Constitutional Convention specifically established to decide on the form of a republic (1998). Civil society has a role in most referendums, in the sense that community groups of various kinds are likely to take a public stance in favour of or against the proposal for constitutional change during a referendum campaign. Freedom of expression about constitutional change is protected by the Commonwealth Constitution. In some cases community groups have been more significant still, in developing the form of the proposal or in encouraging the government to adopt it and put it to referendum. The 1967 referendum to remove discriminatory references to indigenous people from the Constitution was preceded by at least a decade of campaigning by indigenous and non- indigenous groups. The referendum was carried by a huge national majority of over 90% and by majorities in all States. Over the decade of the 1990s, the Australian Republican Movement also played a role in pressing for a referendum on a republic. This eventually occurred, in 1999. On this occasion, however, the particular proposal that was put to referendum was rejected by a national majority and by majorities in all States. 4. Concrete examples of the use of referendums; reflection on the pros and cons of current law and practice. The proportion of proposals for constitutional change that have been rejected at referendum is regarded as a problem in Australia. It makes the text of the Constitution inflexible. Referendums also are expensive. A 2013 proposal for a referendum to recognise local government in the Constitution, for example, (which ultimately did not proceed), was estimated to cost around 56 million AUD. There are many theories about why Australian referendums fail and what might be done to increase the chances of success.  One theory focusses on the referendum requirements themselves and suggests that it would be better only to require a national majority, without also needing majorities in a majority of States. In fact, however, because most referendums fail to get a national majority, this would have made a difference in only a few cases.  Another theory focusses on the politically divisive nature of many referendum campaigns. To overcome this, it is suggested that proposals should not be put to referendum unless there is ‘bipartisan’ agreement on them, across political party lines. It is also suggested that referendums should not be held at the same time as a general election, although it is cheaper to hold referendums in this way.  It is sometimes also suggested that in order to minimise opposition to a referendum proposal, multiple changes should not be included in the same referendum proposal and multiple referendums should not be held on the same day. Each of these suggestions may have some merit. More generally, however, there appear to be two types of difficulties with referendum procedures in Australia. One concerns the manner in which proposals for referendum are chosen. The second concerns the way in which voters are informed about what proposals mean. 3