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The following post has been contributed by TIMOTHY MAYBURY, CRU Intern:

Since the early days of the Australian federation the High Court has emphasised the importance of electors having sufficient access to information to be able to make informed and genuine choices when casting their votes in elections and referendums. In the judgment in Smith v Oldham (1912) 15 CLR 355, Isaacs J delivered the following statement of general principle:

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

This post examines the legal framework determining the Australian Government’s ability to engage in communication and public education strategies around federal referendums, questions whether the law remains fit for its purpose in the present day, and makes suggestions for how it could be improved.

Yes/No cases in Commonwealth referendums

The traditional Yes/No pamphlet that is printed and delivered to electors prior to a Commonwealth referendum continues to serve as the primary means via which the Government may lawfully educate voters as to the arguments for and against proposed amendments to the Constitution. This method for engaging voters in referendums has been utilised for over one hundred years without substantial modernisation – a fact that is concerning in light of advances in information and communications technology, and the now entrenched presence of social media in everyday lives.

The Yes/No pamphlet was first introduced in 1912 via the insertion of section 6A into the Referendum (Constitution Alteration) Act 1906
(Cth), which remains in force today, virtually unaltered, in the form of section 11 of the Referendum (Machinery Provisions) Act 1984 (Cth) (‘the Act’). The provision enables a majority of Members of Parliament who have voted either in support of or against a proposed constitutional amendment to prepare and authorise a written argument corresponding with their position, limited to 2000 words, to be displayed on the pamphlet.

There are key issues with the Yes/No pamphlet that pertain to both its content and its form. A number of shortcomings in these respects were highlighted in public submissions made to the House of Representatives Standing Committee on Legal and Constitutional Affairs (‘the House of Representatives Committee’) during an inquiry into the machinery of referendums conducted in 2009, and aired in its final report A Time for Change: Yes/No?.

Content

With regard to the pamphlet’s content, the prevailing challenge is how to best facilitate the public interest in ensuring enough factual and objective information is made available to voters so that they are sufficiently informed and able to make a genuine choice at the ballot box. Critics of the Yes/No pamphlet allege that not only does the method fail to achieve the educational purpose of aiding voters’ understandings of the relevant issues, it actually achieves the opposite, serving instead as a site of misrepresentation and confusion. Many put this down to the fact that the arguments for and against are prepared by Parliamentarians, ensuring that the content is often politicised and adversarial. While it is important for democracy that partisan positions are voiced, it is also important that basic facts are not obscured in the process.

To this end lessons may be learned from the California Elections Code, which establishes a process for making alterations to the Constitution of California (and implementing other state measures) that employs a Yes/No mechanism analogous to ours. In a similar manner to the Australian legislation, the Code enables members of the California State Legislature who voted in support of or against a measure to prepare, or to appoint other people to prepare, an argument corresponding with their preferred position. However, a point of difference and strength of the Californian arrangement is that these political perspectives do not form the sole source of educational information provided; they are offset by the inclusion on the Yes/No pamphlet of a statement prepared by the Legislative Analyst, a non-partisan government agency that regularly performs the function of providing fiscal and policy advice to the Legislature. The Legislative Analyst’s contribution offers a concise summary of the general meaning and effect of the ‘yes’ and ‘no’ votes on the existing law and any new legislation that is being put forth (section 9805), as well as a statement outlining any fiscal impact of the proposed measure (section 9807). The legislation requires the Analyst’s statement to employ clear and concise language avoiding use of technical terms where possible, and to “generally set forth in an impartial manner the information the average voter needs to adequately understand the measure” (section 9807(b)) (emphasis added).

A comparable arrangement that incorporates contributions of independent participants from outside of the political process is also used in New South Wales, where arguments for and against proposed amendments to the Constitution Act 1902 (NSW) are prepared by public servants and then vetted externally by experts in constitutional law in order to ensure objectivity.

Taking these and other such considerations into account, in its final report the House of Representatives Committee recommended the Act be amended to provide for the establishment at every referendum of an independent and bipartisan referendum panel with responsibility for determining communication campaign strategies and disseminating appropriate volumes of educational materials regarding proposed amendments. In 2012, the Gillard Government did not adopt this recommendation in its formal response to the Committee’s report. Although it recognised the benefits a referendum panel could provide, the Government’s position was that one could be constituted on an as-needed basis by introducing temporary measures prior to a referendum, such as those enacted for the 1999 Australian republic referendum, and as such there was no need for permanent legislation. In view of the current government’s agenda of cutting red tape and downsizing the number of public service agencies, panels and committees, it is unlikely that the referendum panel recommendation would gain any renewed traction in the present climate.

An alternative suggestion that, if adopted, would make use of current resources and public service infrastructure could be to give the Commonwealth Parliamentary Library the task of preparing additional objective information about referendum proposals which could be included along with the Yes/No cases as approved by Members of Parliament. Situated in the Department of Parliamentary Services, the Commonwealth Parliamentary Library is well placed to perform this function as its Research Branch already provides highly regarded analysis, interpretation and explanation on bills relating to all areas of public policy to senators, MPs, the Governor-General and their staffers, and as such undertakes a role in ways similar to that of the Legislative Analyst in California.

Form

With regard to form, it is important to ensure that the presentation of the Yes/No cases is accessible, logical and concise so that any voter may quickly garner a general understanding of the issues at hand, but that facilities are also provided for people who wish to learn more to easily access detailed information.

Critics of the current arrangement have taken issue with the format of the Yes/No pamphlet, noting the high likelihood that a somewhat cumbersome printed document of up to 4000 words may be overlooked by many voters who are today accustomed to receiving information at a rapid pace via a range of electronic media. Notwithstanding the Committee’s recommendation that the word limit be removed, the previous government did not support this.

In view of the preference to retain a word limit, the California comparison is again useful as the political cases that are prepared there are limited to 500 words. A shorter length has benefits as it compels the writers to be more concise, meaning that the finished product may be more likely to hold readers’ attention. Also, taking into account concerns that the adversarial nature of Australian Yes/No cases leads to the inclusion of inflammatory and misleading statements, a shorter word limit could reduce the extent, sophistication and impact of these.

Even though it is likely that more people would read the shorter version, it would of course be concerning if two 500 word arguments formed the entirety of what is presented to voters, given that the importance and complexity of issues to be considered may not be adequately dealt within such a limited space and that the degree of complexity is likely to vary from referendum to referendum. A solution could be to publish online versions of the Yes/No cases containing embedded links that direct readers who want further information to more detailed arguments. These sources could incorporate both the objective material provided by the Parliamentary Library, as well as independent research commissioned by think tanks and universities. For instance, prior to the proposed local government referendum that did not end up going ahead in 2013, both this Constitutional Reform Unit at Sydney Law School and the Gilbert + Tobin Centre for Public Law at UNSW published objective analyses on their websites. It would be helpful if perspectives such as these could be picked up and used to inform broader public opinion beyond the otherwise niche readership their platforms reach on a regular day-to-day basis.

Conclusion

In light of the Prime Minister’s recent indication that the anticipated referendum to recognise Australia’s Indigenous peoples in the Constitution may be held in 2017, the time is now ripe for ensuring that our referendum machinery legislation is up to date and fit for its purpose. Considering that the result of such a referendum will undoubtedly be of immense historical significance and bear greatly upon the nation’s identity, it is important that the Australian public is educated sufficiently to make an informed and genuine choice when votes are cast.

SUGGESTED CITATION:Timothy Maybury, 'A Time for Change... Still: Yes/No Cases in Commonwealth Referendums', Constitutional Critique, 9 March 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).