September 18

Referendum process under attack

One of the wonderful things about the Australian Constitution is that the people are sovereign. And that really gets up the nose of the elites, who wish to increase the power of the political class under some sort of centralised politicians’ republic.

They can’t change the requirement for a referendum, although the Whitlam government did try –  unsuccessfully –  to make approving  a referendum easier.  Had the Whitlam government proposal succeded only  the people in three states need have approved of the referendum instead of in a majority of states.

Rather than changing the constitutional requirement – they acknowledge the people would not agree – it is now proposed to dilute the process preceding the vote.

So the House of Representative Committee has just announced an inquiry into the way in which referendums are conducted. In particular  the time honoured process of sending out the Yes/No booklet,  with the principal arguments and full details of the proposed changes, is under challenge.

Submissions are due on 9 October, a very short turnaround indeed. This will ensure there are few submissions.

I hope that some of our readers will be able to find the time to put in a short submission. Just fax yours to  02 6277 4427 or by  e-mail to [email protected]

…the provision under attack…


 The process under attack is the requirement that the Electoral Commissioner forward a booklet to all electors when a referendum has been called. This has been required since 1912; it is now contained in the Referendum (Machinery Provisions) Act, 1984.  

Under section 11, the Commissioner is to post the booklet  to each elector  not less than 14 days before the voting day for the referendum. It is to contain arguments for and against the proposal, together with a statement showing the textual alterations and additions proposed to be made to the Constitution.

The arguments for the proposal, in no more than 2000 words, have to be approved by a majority of those parliamentarians who voted in favour; there is a similar requirement for the No case.  This is a very democratic provision.  The materials are also posted to the web; but ideally requiring consideration, discussion and reflection, the web version could never replace the print version.

But the Committee Chairman, Mark Dreyfus QC MP, Labor MP for Iasaacs, says that while  the booklets were innovative and necessary to inform the electorate about the proposal submitted to referendum when they were introduced,  it is appropriate today to ask  “whether there is a more effective way to engage and inform people about the Constitution and proposed constitutional change.”

It is difficult to see what could be better than the people knowing where their representatives stand and what changes are being proposed

Mr. Dreyfus, incidentally, has been reported to have strongly supported the holding of a plebiscite at the next election, a proposal rejected by the Prime Minister.

…where it began….

  The proposal for the inquiry seems to have come out of a roundtable convened by  the  House of Representatives Standing Committee on Legal and Constitutional Affairs. This was for an inquiry, the Inquiry into Constitutional Reform. The roundtable involved several specialists on constitutional matters, and I was invited to attend.

During the course of the proceeding there was a discussion about the utility of the booklet forwarded by the Electoral Commissioner to all electors when a referendum has been called. Professor George Williams was invited to introduce the subject of the process of constitutional change. He called for a “focused inquiry” into the referendum machinery legislation. He said it was a fact that we have the “lengthy” Yes/ No case booklets “that no-one reads.”

He described the Yes/No booklet as a “major symptom of the problems of constitutional change.”  His evidence for people not reading the booklet was because no one in his constitutional law class had read it.

Clearly Professor Williams does not listen to commercial radio talkback. 

Professor Williams also seems to think there haven’t been enough changes to the Constitution. However he was unable to tell Mrs Sophie Mirabella MP how many changes would constitute the optimum number.

Other participants said the “No” case in particular was often “disgraceful” and no more than a “scurrilous political tract”.  There were suggestions the booklet be written by an impartial body. One participant even suggested a control on print fonts to stop the No case from “horrifying” people. Although I was heavily involved in the 1999 booklet I decided not to be provoked.

 …Professor Craven confused…

There were also attacks on the 1998 Constitutional Convention, Professor Craven complaining that it was too short. He said that in the “last two or three days, things were happening so quickly that I do not think anybody knew what was going on.”   

I can assure Professor Craven that the constitutional monarchists knew exactly what was going on at the Convention to the very last minute. As His Eminence  Cardinal Pell put it when he addressed the Convention:

“Yesterday the monarchists voted with discipline, integrity and honour. Lloyd Waddy was the very model of a modern major general. They did not vote tactically. Their virtue brought its own reward. Republican disarray yesterday was our own doing. The republicans know well that to divide is to rule even when the division is self-inflicted.”

…the ACM position…

In any event at the roundtable this year, I defended the referendum process and the holding of the 1998 Constitutional Convention. “Unlike most of my colleagues," I said" I think that the Yes/No case should be written by those who are responsible for it—that is, the members of parliament. They are the ones we rely on in elections to put out their agendas and so on.”

“ I think it is perfectly proper and appropriate to have them write the Yes/No case, rather than have some other body do it who would purport to be objective but who would have the same prejudices as members of parliament. I am very happy with the yes/no case as it is.”

“ You do see the result of that if, for example, there is not a  “No” case, as there was in relation to the compulsory retirement of judges. I think that was a bad provision, but it got in because there was not a no case and people could not be guided on that.”.

In my view the age of retirement in relation to future appointments should have been left to the Parliament. Seventy is now too young, given that the most eminent and experienced lawyers are not normally available until late in life.

The compulsory retirement provision was brought in just before society decided to do away with it for almost everyone else. I earlier argued in defence of the referendum and a direct role of the people.

I said that "… this country would not have federated had the colonial parliaments not promised to put the decisions of the convention to the people…The second thing that I think ensured Federation was that essentially the (later) conventions—except for Western Australia—were all elected …. That ensured that the people had a say in and an ownership of the convention.”

“I think the Yes/No case must be contradictory  and not “impartial”, I added. "I think that is the whole point of it.”

“(And)  I do not think the 1998 convention was a failure. It was a single-purpose convention, although it was probably a bit short. It came up with what was nearly a majority view, although it was not a majority view, and the Prime Minister put it to the people. I think it did succeed in that what was wanted from that convention was a republic ( ie a republican model ) and that was put to the people. So I think that convention was a great success.”

“If we want to review our Federation, I think we have a serious problem in relation to the states, particularly with the way in which the states raise their money. In fact, they do not raise their money; they come here almost as mendicants to the Commonwealth, and that is not an effective way to run a federation. I think the way to solve that is probably through a convention partially elected and partially ex officio. “

“The Constitution,” I said “was not (intended) to be set in aspic, there is to be debate and, if the people agree, that will be passed. They set the threshold as being the people agreeing that it is desirable, irresistible and inevitable. I think that is quite a reasonable standard—desirable, irresistible and inevitable.”

Supporters of our Federal Commonwealth under the Crown must be vigilant against attempts to undermine the role of the people in the process. They do not need the substitution of “impartial experts” for the adversarial views of their representatives in the Parliament.



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