Thursday 5 January 2023
Joint Standing Committee on Electoral Matters
PO Box 6021
Canberra ACT 2600
Submission to the Inquiry into the Referendum (Machinery Provisions) Amendment Bill 2022
Dear Committee Secretary
The Australian Monarchist League is pleased to make a submission in respect of the Referendum (Machinery Provisions) Amendment Bill 2022 and expresses its gratitude to the Joint Standing Committee on Electoral Matters for its extension enabling the League to express its views.
With a database that currently stands at in excess of 54,000, the Australian Monarchist League (henceforth “the League”), re-formed in 1993, is Australia’s largest organisation in defence of the Australian Constitution and Crown. Whilst the specific matter of the proposed referendum on the Voice to the Parliament does not fall within our mandate, any proposed amendment to the Australian Constitution, and the way in which attendant referenda are conducted, naturally concerns our members.
The League accepts that Referendum Acts need to be updated to accord with modern times. However, we believe that the Referendum (Machinery Provisions) Amendment Bill 2022 totally undermines the whole basis of Australia’s democratic system of governance by its gross unfairness and bias in advantaging the views of the government of the day and thus undermining any opposing viewpoint.
The high bar for constitutional change and the balanced nature of a referendum, whereby a case for change and a case for the status quo are fairly and equally put to the Australian people, are hallmarks of Australian democracy. No matter the weight of support lent to the case for change by the government of the day, the operation and character of a referendum transcends political mandates and programs of reform; they stand as a hardy mark of respect for both the strength and precedent of the Constitution, and the right of each Australian to decide between two equally conceivable and selectable alternatives.
Shadowing the choice every Australian elector must make between supporting the government’s proposed program of change, with all its principles or particulars, is the simple choice whether or not to change the Constitution. Because a No case in a referendum necessarily entails retaining our respected founding document in its current form (as opposed to actively objecting to a program or principle of the government), no Australian should be impugned or maligned for tending towards this option, or even for voting No as a matter of default or principle. As a matter of course, governments ought to allow equally strong and visible exposure for the Yes and No cases in every referendum that they hold, even where support for the principles of the Yes case are strong and are cast in moral terms. This is because behind every No case is the decision to retain a strong working document and behind every Yes case is the decision to alter the document at the heart of our national life.
If the government has concerns about the content of the No case as expressed, it ought to consider that some arguments in favour of the No case may not concern the moral or political principles at the heart of a reform, but rather a pragmatic consideration of the functional effect of change, intended or unintended, in the context of the current workings of parliamentary democracy.
Any legislation needs to be drafted not just for the convenience or political advantage of one particular side at a particular time. Legislators need to consider their response to such gross unfairness should they be in a legislative minority and their opponents used the opportunities so afforded for a cause with which they vehemently disagreed. In any electoral law, the system developed must be fair to all and equitable to ensure the people retain confidence in the system and that the results produced are a fair expression of the will of the people after a reasonable, balanced and fair campaign. To retain a robust democracy and maintain goodwill, governments must seek to have confidence that every Australian voting Yes in a referendum is doing so having equally and meaningfully considered both cases, ensuring electors do not experience ‘buyer’s remorse’ regarding the direction they might take. It would be deleterious to democracy if, in the case of success for the Yes case, voters feel their vote was not genuinely arrived at but was naturally swayed by the lopsided amplification afforded to the government perspective. These proposed changes would rightly be called out as ‘stacking the deck’ and potentially leave any result under a cloud of misgiving and resentment. This would be a particularly sad and bad outcome and would undermine Australians’ trust in their democratic system.
Modernising and moving with our increasingly digitised times is an important and understandable objective. However, while not all Australians are digitally literate, and while Australia still has a digital divide in regional and rural Australia, as well as among older Australians, then paper means of receiving information about the Yes and No cases in a Referendum (Section 11 of the Act) will inherently be more democratic. After all, while not all Australians who receive paper mail access the Internet, all Australians who access the Internet may receive paper mail. The League would also note that Referenda are conducted by paper ballot, and that the AEC has postal vote processes.
Therefore, posted pamphlets and printed material are natural, commensurate companions to paper ballots. Once the digital divide has been totally bridged and electoral infrastructure has been improved to the extent that paper ballots are extinguished in favour of equitable online voting, then – and only then –will it be time for online information to take the place of paper pamphlets in respect of the Yes and No cases in a referendum.
The federal government, in the recent Commonwealth budget, enabled deductible gift recipient status for a pro-Voice campaign entity, (Australians for Indigenous Constitutional Recognition) whereas it has not offered any such status to any entity representing the No campaign, which is distinctly prejudicial.
We submit, in the interests of democracy and fair play, that equal funding for the Yes and No cases be restored in the Bill. The plans to fund with taxpayer money an ‘education campaign’ in relation to the Referendum concerns the League, despite the government’s stated aim of countering misinformation. It is imperative that government funding decisions in respect of a Referendum do not constitute the amplified anticipation of little-known, little-heard counterarguments by those who would make a No case. The proper place for the repudiation of ‘misinformation’, which may also merely constitute ‘rebuttal’, is the pamphlets where equal opportunity is given for each case to be made to each household. Sound, informed arguments, fairly put, will always ultimately prevail against true misinformation in the Australian body politic and ought to have nothing to fear. The League finds it unusual and irregular that the Bill seeks only to disapply Section 11 of the Act for a period until the next General Election, which would indicate that the Government perhaps understands the general importance of allowing for Yes and No cases to be equally made in the context of a Referendum but is applying special treatment to this particular proposal for change; a manifestly undemocratic and inappropriate attitude to referenda and legislative change.
Since Federation, interested individuals and small organisations have contributed much to Australia’s democracy, and yet not one of them would be eligible to be publicly involved under the terms of the proposed amendments to the Referendum Act, which restricts involvement to what it terms ‘referendum entities’ which themselves are subject to the same political onerous requirements of political parties. Worse, because restrictions apply from six months prior to the writ for the referendum being issued. The Minister for Indigenous Affairs, the Hon. Linda Burney MP, has indicated that the referendum could be held as early as August. This means that reporting requirements would fall into place in February.
The Australian Electoral Commission (AEC) has stated “Section 128 of the Australian Constitution provides that a referendum must be held ‘not less than two nor more than six months’ after the passage of the proposed law through both Houses. In this case, it means that under the current Bill the expenditure period will commence prior to the passage of the proposed law. The Committee may care to consider the implications of this matter, and whether such a requirement would impose onerous and retrospective regulatory and administrative obligations on people and entities, and whether that regulatory burden may act as a disincentive for participation in the national debate.”
The League fully supports this recommendation and shares the AEC’s concerns regarding the retrospectivity and onerousness of the Bill’s effect as it stands.
The proposed Act replaces the printing of a pamphlet outlining the Yes and No cases, which have been distributed to electors at all referendums except certain unanimous proposals in 1967 and 1977 since 1912, with a subsidy allocated to members of the Parliament to provide information online. There is no determination of what sort of information would be provided or how the attention of electors would be reliably drawn to such material. Given that the majority of members of the Federal Parliament would be in favour of the Yes case, this is manifestly unfair. Furthermore, it is estimated that some 2.33 million Australians do not access the Internet, which has an estimated penetration rate of 91%, and we submit that they would be severely discriminated against by not having sufficient written information to enable them to make their decision prior to voting. For as long as there are paper ballots in a referendum, they must be accompanied by paper pamphlets outlining the case for and against constitutional change.
We are also astounded that it appears that the full detail of changes to be made to the Australian Constitution are not to be advised to people prior to any vote. This is totally unacceptable; the League calls for the proposed Act to require that full details of any proposed amendment to the Constitution be made public prior to the issue of writs for the proposed referendum. We would mention that the three paragraphs earlier provided by the government are totally insufficient to enable people to make a proper decision (reproduced below):
“There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
“The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.
“The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.”
The Australian Monarchist League fully accepts and agrees with the restriction on foreign donations, provided it is made clear that Australian citizens resident and/or living overseas are exempt from this restriction.
The Australian Monarchist League submits that the provisions contained within the Referendum Bill (Machinery Provisions) Amendment Bill 2023 are insufficient to enable voters to be properly informed prior to casting their votes at a referendum and requests that the following amendments and conditions be considered prior to its passage through the parliament:
1) First, that full disclosure is made of the exact text that is proposed to be approved by the referendum for insertion into the Australian Constitution;
2) Second, that steps be taken to inform the entire electorate precisely regarding each of the following:
a. how, by that proposed text, the Voice to the Parliament will be constituted;
b. how the body would operate;
c. to explain the process and eligibility for determining membership;
d. to describe what powers and influences it would have over whom and to what effect;
e. to describe the checks and balances by which its powers would be circumscribed; and
f. importantly, to provide information to the electorate regarding the extent to which the proposed text could be anticipated to be sent to the Courts for adjudication on the constitution, operation, and powers of the Voice.
3) Third, that the Bill, if it becomes law, require that hard-copy statements from both the official Yes and No cases making the case for or against constitutional change be sent by Australia Post to all electors, as has been near-universal precedent since 1912.
Thank you once again for the opportunity to make a submission on this Bill. The League thanks the Joint Standing Committee on Electoral Matters for the care it is taking in considering these amendments and seeking the views of Australian entities and individuals in preparing its report.