Australians For Constitutional Monarchy Submission on Referendum (Machinery Provisions) Bill 2022 to Joint Standing Committee on Electoral Matters
‘DESIRABLE, IRRESISTIBLE AND INEVITABLE’
- SUBMISSION
This is a ten-point submission by David Flint, Emeritus Professor of
Law, as National Convenor of Australians for Constitutional
Monarchy (ACM), on certain aspects of the Referendum (Machinery
Provisions) Amendment Bill 2022 (the Bill) amending the
Referendum (Machinery Provisions) Act, 1984 (the
Referendum Act).
The submission is about the Australian traditions of being informed
through the Australian Yes/No Case pamphlet and through ensuring
that the process and financing are fair.
ACM has a particular interest in referendums, being the principal
organisation that ran the VOTE NO case in the 1999 Republic
referendum and being constantly prepared for the various plebiscites
and referendums which have been since proposed.
Based on votes received in the Constitutional Convention election,
ACM was awarded eight of the ten seats on the VOTE NO
COMMITTEE in 1999. (The other two were awarded to Real
Republicans who opposed the referendum). As a result, ACM has
some considerable and relevant experience in the public funding of
referendums.
ACM made two submissions,16 and 16 A, to the 2009 Inquiry by the
Legal and Constitutional Affairs Committee, the Machinery of
Referendums Inquiry.
ACM also made three submissions,14, 14A, and 14 B, to the 2021
Inquiry by Legal and Constitutional Affairs Committee, the Inquiry
into Constitutional Reform and Referendums. (To assist researchers
and others interested, any citation in this submission can be found in
submission 14, unless the contrary is indicated.)
ACM requests that these prior five submissions be made readily
accessible to those members of the Committee and staff who may
wish to access them.
Our broad approach in this submission is to defend democratic
Australian traditions in relation both to being informed by the and to
reflect the view of leading Founders, Sir John Quick and Sir Robert
Garran, that the referendum process has been designed as a
safeguard:
“…to prevent change being made in haste or by stealth, to
encourage public discussion and to delay change until there is strong
evidence that it is desirable, irresistible and inevitable.”
SUBMISSION POINT 1: THAT the Parliament and the Government
operate accepting that the referendum process has been designed as
a safeguard to prevent change being made in haste or by stealth, to
encourage public discussion, and to delay change until there is strong
evidence that it is desirable, irresistible, and inevitable. - NO VIABLE CASE TO SUSPEND THE YES/NO CASE PAMPHLET. IS
IT ABOLITION?
We register our surprise that the government proposes to suspend
the operation of the provisions of the Referendum Act (section 11)
that requires the preparation and distribution of the official
pamphlet with Yes and No cases to the referendum question,
something never proposed in the parliamentary reviews of
referendums.
Given that there appear to be no exceptional circumstances claimed
to justify a suspension of those provisions for the purposes of the
Voice referendum, such as there being a simultaneous election, it
seems indeed obvious, that the Government intends at some time to
abolish the Yes/No Case pamphlet.
This conclusion is reinforced by the observation in the Second
Reading speech by Assistant Minister Patrick Gorman where he
offers no short-term reason for suspension limited to the Voice
referendum. Rather the Albanese government’s official reason is
technological change. He said:
“Modern technology allows parliamentarians to express their views
to voters directly and regularly through a wide range of sources, such
as television, email, and social media, that did not exist when the
pamphlet was introduced in 1912”.
This suggests that it is the intention of the Albanese government not
just to suspend the distribution of the Yes/No Case pamphlet to
electors. Contrary to the advice of all parliamentary reviews,
including members from the same Labor Party, the government’s
intention seems to be first to suspend and then abolish the Yes/No
Case pamphlet. For reasons which will be apparent below, this
should not proceed. No case has seriously or adequately been made
either for suspension or abolition.
SUBMISSION POINT 2: THAT that part of the Bill suspending the use
of the Yes/No Case pamphlet in the Voice referendum not proceed. - ONE OF THE JEWELS OF OUR REPRESENTATIVE DEMOCRACY
The Yes/No Case pamphlet, introduced by the Fisher Labor
Government in 1912 after the first three referendums following
Federation, should not be thoughtlessly destroyed. It has, in fact ,
become one of the jewels of our Australian representative
democracy.
As such, it allows the elected federal representatives of the
Australian people, whether in the House or Senate, whether
frontbenchers or backbenchers, and whether from the major
political parties, a small party or no party, the unique opportunity to
communicate with the people in a single, popular, well-discussed
document presenting the succinct cases agreed to by our politicians
for and against something of great importance, a proposed change
to the Constitution.
The warning by Prime Minister the Rt Hon Andrew Fisher, when
speaking to the original bill for the Yes/No Case, is as relevant today
as in 1912:
’’ There can be nothing worse for a country than to expect the people
in it to vote for or against the alteration of the constitution without
knowing what they are doing.”
The genius of the Australian Yes/No Case pamphlet is that in one
source, we find a succinct and complete case for each side in a
referendum, authorised by those representatives of the people who
are either proposing or opposing the change.
Hitherto, the only recommendation by the various parliamentary
reviews has been as to the delivery of the Yes/No Case pamphlet, not
as to its existence.
It is in fact a popular and much-discussed document. This was the
reaction in 1999 across talkback radio, a medium uniquely accessible
to the rank-and-file.
Indeed, the Australian Electoral Commission submission to the 2009
inquiry revealed that a survey on the eve of the 1999 referendum
found that 80% of respondents said they had received the booklet,
with 51% reading some or all of it.
Further, Mr. Julian Leeser, who was then the ACM Youth Convenor
and was awarded a seat on the official Vote No Committee, told a
Roundtable conducted for the 2009 Inquiry that the Vote No
Committee:
“…did some polling research in relation to this in May of 1999, and
45 percent of people at that time indicated that they wanted more
information. Interestingly, 78 percent of people wanted information
delivered in booklet form directly.”
A further key aspect is that one side in a referendum debate can be
disadvantaged by the wealth of the other and through its access to
the media. The 1999 referendum was notorious for the fact that the
mainstream media, with exceptions mainly limited to one major
talkback commentator, Alan Jones, campaigned strongly for the YES
case.
The Yes/No Case pamphlet by itself introduced a degree of fairness
into the process, fairness which was not otherwise there.
This remains an important lesson.
SUBMISSION POINT 3: THAT the old and popular Australian tradition
of each Australian elector receiving a YES/NO Case
pamphlet with the referendum apply to the Voice referendum and
beyond. - NO SUPPORT FOR ABOLITION OR SUSPENSION, ONLY ABOUT
DELIVERY
In the parliamentary reviews of the referendum process, there has
never been a recommendation adopted for the abolition of the
Yes/No Case pamphlet. There have been proposals and comments
critical of the Yes/No Case pamphlet, usually written by academics
and those defeated or disappointed in referendums.
But as the 2009 Review by the Standing Committee on Legal and
Constitutional Affairs stated in paragraph 56:
“The Yes/No arguments are an important means for
parliamentarians to explain to electors why they support or do not
support the proposal for constitutional change. The oppositional
nature of the Yes/No arguments also helps stimulate public debate
and discussion. Further, they are appropriately directed to a
(document) providing a yes/no answer—which is what will be
required of the elector on the day of the referendum.”
The point is there is no support in the annals of the Parliament for
the unjustified destruction of the Yes/No Case pamphlet.
SUBMISSION POINT 4: THAT the amendment to suspend the Yes/No
Case pamphlet for the Voice referendum not proceed. - DEFAULT DELIVERY & THE ‘GARBAGE TIN’ AMENDMENT
ACM has previously taken the view that, while modern methods of
delivery should be available at the option of the elector, the default
method of delivery should be by post. Moreover, this should not be
to the household, but to each elector.
As we stated in a previous submission, sending the Yes/No Case
pamphlet to the household
could well be described as the ‘garbage tin’ mode of delivery.
Common sense would indicate that if an envelope is addressed to
“The Householder’, it is most unlikely it will be circulated among two
or especially more voters living in one household. It is more likely it
will end up in one place ─ the garbage tin. (More detail can be found
in prior submission 14)
SUBMISSION POINT 5: THAT the default method of delivery of the
Yes/No Case pamphlet be by post, and that electors be invited by
post to express their preferred method of contact for this and
replying, if they wish, digitally. - CONFUSION OF REFERENDUM FAILURE WITH SUCCESS OF
YES/NO PAMPHLET
Critics of the Yes/No Case pamphlet are too often also those
disappointed with referendum results. We discussed this in more
detail in prior submission 14. Suffice to say that criticism of a
successful No Case is usually more because it was successful rather
than because of its content or style.
The 1999 No Case is relevant. Criticised in the RoundTable referred
to above as, for example, a ‘disgrace’, it was not, of course, written
in the language and style common to an academic law treatise. That
said, it quoted some very eminent Australians, including Chief Justice
Sir Harry Gibbs, Vice Chancellor Dame Leonie Kramer, and former
Governor-General and Labor Leader Bill Hayden.
It was filled with common-sense argument and frankly,
was designed to be read. It did refer to some of ACM’s successful
political slogans, including
‘Vote No to the politicians’ republic’ and ‘If it ain’t broke don’t fix it.’
Criticised by academics, a successful political slogan encapsulates a
winning theme and is something people can believe in and see as
timely. The most famous in Australian political life was Gough
Whitlam’s ‘It’s Time’. None of ACM’s were untruthful, all were in
issue in the campaign. Its sin, we would suggest, was that it was
successful.
SUBMISSION POINT 6. THAT the Committee and commentators
carefully distinguish between two separate matters, between
referendum failure and the success of the Yes/No Case pamphlet.
There is no proven correlation between the two. - REASON FOR LOW REFERENDUM SUCCESS RATE
The Yes/No Case pamphlet is too often blamed for referendum
losses. This is not so.
First, the Constitution was designed, as we noted in Paragraph 1, to
encourage debate and discussion about change until the point at
which, as two of our great Founders observed, the referendum
process has been designed as a safeguard:
“…to prevent change being made in haste or by stealth, to
encourage public discussion and to delay change until there is strong
evidence that it is desirable, irresistible and inevitable.”
Second, there is no standard, surely, as to what percentage of
referendums should be passed. This is entirely a matter for the
people.
In that regard, we would argue that Australians are wise
constitutional people. But for their direct involvement in Federation
under the Corowa Plan, the colonial subsequently-state politicians
could still be squabbling.
The Australian Constitution is particularly good, but no constitution is
perfect. One of its weaknesses was to leave the initiation of
proposals for constitutional change to federal politicians.
Their record is that they are interested in two things. First,
increasing central power and second, removing restrictions and
checks and balances on the exercise of their powers. At least in
increasing central power they have been aided and abetted by an
activist High Court demonstrating a second error of the Founders,
monopolising High Court appointments in Canberra.
Little wonder that seeing what Canberra proposed, the people
usually said NO.
For reasons associated with these considerations, in submission No
14, ACM recommended that a Convention be elected to review the
Constitution, the first since Federation, with the final
recommendations be put to the people in referendums following the
process under which we federated, the Corowa Plan.
ACM also recommended that such a Convention consider a proposal
that the people or a majority of states be allowed to initiate
referendums to change the Constitution following the Swiss
precedent on which our constitutional referendum is already based.
SUBMISSION POINT 7. THAT the Committee consider ACM’s
suggestion for the first people’s general review of the Constitution
since Federation, including change to allow the people and a
majority of states to initiate referendums. - AUSTRALIAN FAIRNESS IN FUNDING
The proposed suspension of section 11 of the Referendum Act will
also remove a crucial statutory prohibition introduced to stop a
government of the day from funding partisan involvement in
campaigns surrounding a referendum proposal. The fear was that a
government might support one case only. Not that we say this will
happen, but the suspension could clearly allow the funding of oneside partisan argument under the cover of public education or exposing misinformation.
This potentially contradicts an old Australian tradition that such
matters relating to voting should always be fair.
SUBMISSION POINT 8: THAT section 11(4) be retained or that the
exception of a public education allocation following the precedent
established for this in the 1999 republic referendum by the Howard
government be made,
AND THAT the authorisation of taxation allowability
as a Deductible Gift Recipient be granted to an equal number of
those advancing the Yes and No Cases and until this is done, any
existing DGR status be suspended.
. - PUBLIC FUNDING
ACM renews the argument made in previous submission 14 that if
public funding of elections remains in place, the YES and NO cases, as
identified in the Yes/No Case pamphlet, be publicly funded following
the precedent introduced by the Howard Government in the 1999
republic referendum. Our full proposal on this can be found in
submission 14 identified in paragraph 1 above.
The point surely is that we either have public funding or we do not
have public funding.
SUBMISSION POINT 9: THAT if public funding of elections remains in
place, the YES and NO cases as identified in the Yes/No Case
pamphlet be publicly funded following the precedent in the 1999
republic referendum and as detailed in submission 14.
10 FOREIGN INVOLVEMENTS IN REFERENDUMS
ACM supports the provisions against foreign involvement in
referendums campaigners and donations. In the 1999 referendum,
Sinn Féin politician Gerry Adams came to Australia and campaigned
Referendum (Machinery Provisions) Amendment Bill 2022 Submission 78
for a YES vote. Whether he or Sinn Féin donated to the campaign we
do not know.
Given the killing of two young Australians in the
Netherlands by Sinn Féin, claimed to be on their being mistaken for
British soldiers, and that Sinn Féin then refused to hand over the
murderers, ACM believed it especially inappropriate and hurtful to
the victim’s families that Adams campaign in our referendum.
We, therefore, called on the ARM to distance themselves from his
campaign. This is the only intervention in the 1999 referendum of
which we are aware.
SUBMISSION POINT 10: THAT foreign persons and institutions be
disallowed from or discouraged from donating or otherwise assisting
an Australian referendum campaign.
AUSTRALIANS FOR CONSTITUTIONAL MONARCHY
11 January 2033
David Flint
SUMMARY POINTS MADE
SUBMISSION POINT 1: THAT the Parliament and the Government
operate accepting that the referendum process has been designed as
a safeguard to prevent change being made in haste or by stealth, to
encourage public discussion, and to delay change until there is strong
evidence that it is desirable, irresistible, and inevitable.
SUBMISSION POINT 2: THAT that part of the Bill suspending the use
of the Yes/No Case pamphlet in the Voice referendum not proceed.
SUBMISSION POINT 3: THAT the old and popular Australian tradition
of each Australian elector receiving a YES/NO Case
pamphlet with a referendum apply to the Voice referendum and
beyond.
SUBMISSION POINT 4: THAT the amendment to suspend the Yes/No
Case pamphlet for the Voice referendum not proceed.
SUBMISSION POINT 5: THAT the default method of delivery of the
Yes/No Case pamphlet be by post, and that electors be invited by
post to express their preferred method of contact for this and
replying if they wish digitally.
SUBMISSION POINT 6. THAT the Committee and commentators
carefully distinguish between two separate matters, between
referendum failure and the success of the Yes/No Case pamphlet.
There is no proven correlation between the two.
SUBMISSION POINT 7. THAT the Committee consider ACM’s
suggestion for the first people’s general review of the Constitution
since Federation, including change to allow the people and a
majority of states to initiate referendums.
SUBMISSION POINT 8: THAT section 11(4) be retained or that the
exception of a public education allocation following the precedent
established for this in the 1999 republic referendum by the Howard
government be made,
AND THAT the authorisation of taxation allowability.
as a Deductible Gift Recipient be granted to an equal number of
those advancing the Yes and No Cases and until this is done, any
existing DGR status be suspended.
SUBMISSION POINT 9: THAT if public funding of elections remains in
place, the YES and NO cases as identified in the Yes/No Case
pamphlet be publicly funded following the precedent in the 1999
republic referendum and as detailed in submission 14.
SUBMISSION POINT 10: THOSE foreign persons and institutions be
disallowed from or discouraged from donating or otherwise assisting
an Australian referendum campaign.