Bills Digest no. 34 2007–08
Commonwealth Electoral Amendment (Democratic
Plebiscites) Bill 2007
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact officer & copyright details
Electoral Amendment (Democratic Plebiscites) Bill
16 August 2007
House: House of Representatives
Portfolio: Finance and
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
To amend the
Commonwealth Electoral Act 1918 (the CEA) to enable the
Australian Electoral Commission (the AEC) to use and disclose
information for the purpose of conducting an activity (such as a
plebiscite). The Bill also seeks to override any state or territory
law that prohibits or discourages a person or body from entering
into such an arrangement with the AEC or taking part in such an
Queensland local government amalgamations
On 17 April 2007 the Premier of Queensland,
the Honourable Peter Beattie, and the Queensland Minister for Local
Government, the Honourable Andrew Fraser, announced the
establishment of a seven-member Queensland Local Government Reform
Commission (the QLGRC).  The brief of the Commission was to consider new
boundaries for the long-term sustainability of local government
across the state. 
The Queensland Government s rationale for the changes was that 40
per cent of Queensland councils were struggling financially and
that, as Australia s fastest growing state, Queensland s system of
local government was outdated and needed to be modernised to
reflect the way Queenslanders live, work and interact in today s
Queensland.  They
claimed these major reforms
will provide a stronger, more efficient local
government system that has a greater ability to deliver services
and infrastructure for all Queenslanders. 
As a consequence of the July 2007
recommendations of the QLGRC,  the amalgamation of Queensland s 157 councils is
going ahead, under legislation passed by the Queensland Parliament.
The details of the mergers are beyond the scope of this digest.
However, some aspects of the laws will be canvassed, since the
Commonwealth Government is presenting this Bill as a consequence of
the process adopted in Queensland.
Local Government Act 1993 (Queensland), certain proposed
determinations made by a Local Government Electoral and Boundaries
Review Commission require a referendum.
Section 92(1) requires a compulsory
referendum on certain reviewable local government matters
, defined in section 64 as follows:
(1) The following are reviewable local
(a) creating a new local government area, including, for
example, creating a new local government area from
(i) 2 or more local government areas that are
(ii) a local government area that is abolished
and a part of another local government area; or
(iii) a part of a local government area that is
excluded from the local government area; or
(f) abolishing a local government area and
merging the local government area with another local government
Section 92(2) provides that the Commission may
decide to have a non-compulsory referendum in
relation to a reviewable local government matter if it pertains
(c) changing the external boundaries of a local
government area by excluding part of the local government area and
including the part in another local government area, or
(e) including in a local government area a part
of the State that is not part of a local government area.
In going ahead with its reforms, the Beattie
Government initially decided not to allow a referendum on the
amalgamation issue, and made amendments to this effect via the
Local Government and Other Legislation Amendment Bill. This led to
controversy and discontent on a variety of fronts. 
The Commonwealth Government was not initially
involved. It did not seem to consider that it could directly
prevent the amalgamations, nor did it appear to want to. The
Federal Minister for Local Government, the Honourable Jim Lloyd,
was reported as saying:
Obviously, local governments are creatures of
state legislation and it s an area where the Commonwealth really
doesn t have a role to play, other than certainly supporting them
and appealing to the Queensland Government to ensure there is a
longer public consultation period. 
He also ruled out any retaliatory action such
as withholding of funding, and indeed guaranteed to maintain
So there is in fact, no financial impediment to
amalgamations. We certainly don t support involuntary
The Prime Minister, the Honourable John
Howard, has explained that the allegations regarding the lack of
consultation and the possibly involuntary nature of the Queensland
measures had led him to offer funding to allow the AEC to undertake
any plebiscite on the amalgamation of any local government body in
any part of Australia. He has accused Mr Beattie of behaving in an
arbitrary jackbooted fashion  and in a joint press conference with the Treasurer
on 8 August 2007, Mr Howard said:
I think it is a total travesty of democracy to
not only refuse to consult people about what you are going to do
that is going to affect them[, but] having refused to consult them,
threaten to punish them if they dare to express their opinion in a
Shortly thereafter the Beattie Government
inserted a provision into the Local Government Reform
Implementation Act 2007, section 159ZY, prohibiting an
existing local government from conducting a poll on the
An existing local government must not conduct a poll in its
area, or a part of its area, if the question the subject of the
poll relates to anything that is, or is in the nature of, a reform
matter, or the implementation of a reform matter.
An existing local government must not conduct a
poll under chapter 6, part 2 about whether its local government
should be abolished and be included in a new local government
(3) Maximum penalty 15 penalty points.
This Act was passed on 10 August 2007.
Mr Howard, in turn, on 16 August 2007,
announced that he would change the electoral laws to override the
Queensland Government s attempt to block local councils from
holding referendums on mergers .  This led to the current Bill having a provision
to the effect that any law prohibiting the holding of a plebiscite
would be invalid (proposed subsection 7A(1E),
discussed further below).
Mr Beattie has since changed his position on
the question of the holding of plebiscites and on 22 August 2007 a
Bill repealing section 159ZY was introduced into the Queensland
Parliament.  Mr
Beattie is reported as commenting that he wanted to move on and
Perhaps we were a bit heavy-handed in relation
to that, and we got that wrong That part of it we stuffed up. But
if people want the right to protest we should allow that. I
obviously got that wrong. When it comes to giving people a vote,
John Howard and Kevin Rudd got it right and I didn t. 
The resulting amendments mean that the
proposed provision in the Bill to override such restrictive
measures is otiose, at least as far as it applies to the Queensland
The Minister made the point in his second
reading speech that the Bill is not designed to provide an avenue
for citizen-initiated referenda (CIR). Without this reference in
the second reading speech, this conclusion would be very difficult
to glean from the text of the Bill. The Acts Interpretation Act
1901 section 15AB allows the Minister s second reading speech
to be an aid to the interpretation of a Bill in certain
circumstances, but the second reading speech is not conclusive of
issues raised by legislation and does not override the text of that
Mr Howard has been very emphatic in stating
that the issues of consultation and the participation of local
people in political processes are at the centre of his
It should be remembered that the Government is not expressing a
view as to whether or not an individual merger should occur.
Rather, the Commonwealth believes that people should have the right
to express a view on the actions of a government without threat of
However, if there is a strong expression of opinion in local
government areas that choose to go ahead with the ballots, the
Queensland Government may be forced to reconsider those
In Australia there are legally binding
mechanisms for constitutional referenda under s. 128 of the
Constitution. There is also the possibility for advisory referenda
An issue put before the electorate which does
not effect [sic] the Constitution is called an advisory referendum
or a plebiscite. Governments can hold advisory referendums to test
whether people either support or oppose a proposed action on an
issue. The Government is not bound by the result of an advisory
referendum as it is by the result of a Constitutional referendum.
Australian Governments, Federal, State and Territory, have held
advisory referendums on various issues 
There have been three plebiscites held at the
federal level. Military-service plebiscites were held in 1916 and
1917. Both sought a mandate for conscription and were defeated.
There was also a federal plebiscite in 1977 on
the question of a national song, at which four alternatives were
put and Advance Australia Fair won (with 43.29 per cent of
the vote). 
More recently, Western Australians were asked
to vote on extended shopping hours (this was rejected), and ACT
voters were asked to endorse the Hare-Clark proportional
representation electoral system (this was accepted). 
Norman Abjorensen, an ANU political scientist,
provides this further background on CIR:
Australia was once a leading proponent of direct democracy
because of the provision for referenda in the Australian
Constitution, where s128, adapted from the Swiss Constitution,
provides for amendment of the Constitution by a referendum
initiated by the federal parliament. The experiment, however, has
progressed little further.
Bills for Citizens Initiated Referenda (CIR) have been
introduced across the Australian parliaments, yet not one has been
passed despite support for the concept at different times by all
sides of politics.
The concept of CIR has been advocated in
Australia since before Federation, and the Australian Labor Party
was an early proponent of the principles of popular initiative and
referendum, adopting as part of its platform in 1908 where it
remained until it was removed in 1963.
Although the Liberal Party has not supported CIR at a national
level and recently rejected it in Queensland, it has supported it
in the ACT, Tasmania and Western Australia.
CIR has been introduced successfully only at the
local government level, but only in rare and isolated instances,
most notably at North Sydney Council in NSW and Burnie City Council
in Tasmania. CIR has long been in use in Switzerland, and in the
United States it is widespread at the State level even though there
is no provision for CIR at a federal level.
It has been argued that CIR is inconsistent with the Westminster
system of government and, in particular, the principles of
responsible government and representative democracy.
While its proponents argue that it increases the participation
of electors in a democracy and serves to make governments more
responsive and accountable to voters, opponents claim that it
clearly has the potential to undermine the accountability of
elected representatives if they were to abdicate leadership to the
The measure in recent years has become the preserve of the
extreme right and its distrust of politicians and the political
system in general. 
Recently the question of having a plebiscite
has also been raised in relation to the Northern Territory
emergency measures as well as in relation to nuclear power
stations, by the Deputy Prime Minister, the Honourable Mark Vaile,
agreed to by Mr Howard on 23 August 2007. 
The Commonwealth Constitution, while recognising
government at the national and state levels, makes no mention of
local government. The issue of constitutional recognition of local
government has been put to the Australian people twice by way of
referenda pursuant to section 128 of the Constitution. 
The Constitution Alteration (Local
Government Bodies) 1974 sought to give the Commonwealth
Parliament powers to borrow money for, and to make financial
assistance grants directly to, any local government body.
This was a proposed law to allow the
Commonwealth to directly fund local councils. It was rejected by
referendum. Such assistance still has to be paid through the
The Constitution Alteration (Local
Government) 1988 sought to give such constitutional
recognition to local government.
Constitutional Commission in its Final Report (1988)
recommended that a new section 119A be added to the Constitution in
the following terms:
Section 119A. Each State shall provide for the
establishment and continuance of local government bodies elected in
accordance with its laws and empowered to administer, and to make
by-laws for, their respective areas in accordance with the laws of
the State 
This was the provision that would have been
inserted by the Constitution Alteration (Local Government)
1988 but was rejected by the people in the 1988
The actual amendment was not for the
Commonwealth to have a direct relationship with the
local-government tier of government, but rather sought to entrench
the existing situation of local governments being creatures of the
states. That is, it was not seeking to cut the states middleman
The result was an even more resounding defeat
than that in 1974.
This means that the constitutional
relationship between the Commonwealth and the third tier of
government has to be through the states.
The Bill was referred to the
Senate Finance and Public Administration Committee upon its
introduction to the Parliament. The Committee will visit regional
Queensland to hear first-hand about the impact of the Beattie
government s plans to forcibly amalgamate councils.  Submissions were due
by 24 August 2007, and the Committee is due to report on 4
September 2007. To date, submissions come from a variety of
perspectives, ranging from support for the Bill but with a request
that its measures go further (from the North Queensland
Self-Government League),  to the claim the Bill is a political stunt  and support for the
principle of ensuring public consultation. 
According to the Explanatory Memorandum there
will be a financial impact but it is not possible to quantify it at
One matter that is relevant to the cost of
holding a vote such as a referendum or a plebiscite is the timing
of the process. Section 394 of the CEA provides that on the polling
day for an election for the Senate or the House of
No election or referendum or
vote of the electors of a State, or part of a
State shall, without the authority of the Governor-General, be held
or taken under a law of the State (emphasis added).
There may be questions as to whether a
plebiscite is a referendum , however, no vote can be held
on the same day as a federal election, unless the Governor-General
(acting on the advice of the Federal Executive) so approves.
This provision of the CEA is not being
amended. It should be noted that once an election is called, the
caretaker conventions come into play, and such advice to the
Governor-General is required to be bipartisan. 
Section 7 of the CEA sets out the functions of
the AEC. Most matters specified under section 7 revolve around
functions relating to electoral matters . This term is defined in
means matters relating to Parliamentary elections, elections and
ballots under the Workplace Relations Act 1996 and
Although electoral matters does not
specifically encompass plebiscites , paragraph 7(1)(g) provides
that the AEC has any other functions that are conferred on it by a
law of the Commonwealth. As discussed above, the AEC provides
information on advisory referenda/plebiscites, which have been held
before, and are generally understood as part of the electoral
This suggests that the CEA, and section 7 in
particular, would currently provide a sufficient basis for the AEC
to hold plebiscites, and that the AEC and the states and
territories could enter into arrangements under existing
Section 7A currently allows the AEC to make
arrangements for the supply of goods and services to any person or
body. These arrangements can cover arrangements under section 84 of
the CEA, relating to a joint electoral roll with the states and
Section 7A was inserted into the CEA in 1992
and amended in 1998. At the time of its introduction the
Explanatory Statement explained that the new section was:
To empower the Australian Electoral Commission,
in a manner not inconsistent with the performance of its primary
functions, to provide goods and services to other organisations or
individuals (for example, providing a scanning service to State
electoral authorities, or assisting in the conduct of an election
other than a federal election). 
Item 1 adds new
subsections 7A(1C) (1G) to the CEA. New
subsections 7A(1C) (1D) will enable the AEC to use any
personal information that it holds, including information contained
on the electoral roll, for the purpose of conducting an activity
arranged under subsection 7A(1), that is, the provision of goods
and services . Subsections 7A(1C) and
(1D) specifically mention the conduct of a
plebiscite by way of example. Both provisions seek to ensure that
the use and disclosure of personal information, including
information contained on the electoral roll, is taken to be
authorised by law, and subsection 7A(1D) also
states, to avoid doubt, that the disclosure will not contravene any
provision of the CEA.
New subsection 7A(1E)
provides that any law of a state or territory that prohibits,
penalises or discriminates against a person or body from entering
into an arrangement under existing subsection 7A(1) (the supply of
goods and services) will have no effect .
To address any possible constitutional
uncertainty with this particular provision, new subsection
7A(1F) seeks to assert the external affairs power  of the Constitution by
relying on Article 19 and Paragraph 25(a) of the International
Covenant on Civil and Political Rights (ICCPR).
Article 19 relates to the right to freedom of
expression and the right to hold opinions without interference.
Paragraph 25(a) refers to the right to political participation,
stipulating that every citizen has the right:
(a) To take part in the conduct of public
affairs, directly or through freely chosen representatives.
submission to an inquiry of the Joint Standing Committee on
Electoral Matters, the Human Rights and Equal Opportunity
Commission (HREOC) provided the United Nations interpretation of
Article 25 as follows:
Nations Human Rights Committee has issued a General Comment
(General Comment 25) to help interpret the meaning of article 25 of
General Comment 25 explains that article 25 of the ICCPR
requires parties to the Convention to make it practically feasible
for all people to exercise their right to vote:
States must take effective measures to ensure
that all persons entitled to vote are able to exercise that right.
Where registration of voters is required, it should be facilitated
and obstacles to such registration should not be imposed. If
residence requirements apply to registration, they must be
reasonable, and should not be imposed in such a way as to exclude
the homeless from the right to vote. Voter education and
registration campaigns are necessary to ensure the effective
exercise of article 25 rights by an informed community
(emphasis added by HREOC). 
According to the Explanatory Memorandum:
Subsection 7A(1F) reinforces subsection 7A(1E) by rendering such
State or Territory laws inoperative to the extent of any
inconsistency with Articles 19 and 25(a) of the International
Covenant on Civil and Political Rights, should subsection
7A(1E) exceed the Commonwealth s legislative powers. 
In a submission to the Senate inquiry, Prof. Gerard Carney has
observed that subsection 7A(1F)
may be supported by the external affairs power (s 51(xxix)) in
its application to State law. But it is superfluous if the State
law is invalid for infringing the implied freedom of political
. Hon. Peter Beattie, Ministerial statement: local
government reform , Queensland, Debates, 17 April 2007,
pp. 1167 8.
Hon. Peter Beattie and Hon. Andrew Fraser,
Local Government to Undergo Historic Reform, media
release, Brisbane, 17 April 2007.
. For a preliminary timeline of the reform process, see
Australian Services Union, Queensland Services Branch, ASU working
for members during the reform process of Queensland Local
Government, 26 April 2007, http://asuqld.asn.au/pdfs07/Reforms.pdf,
accessed on 24 August 2007.
. Queensland Department of Local Government, Planning,
Sport and Recreation, Stronger councils providing better services
to Queenslanders! 40% of Queensland councils are struggling
financially , http://www.strongercouncils.qld.gov.au/Whyreform.aspx,
accessed on 24 August 2007.
. Queensland Department of Local Government, Planning,
Sport and Recreation, Local Government Reform. A new chapter for
local government in Queensland, http://www.lgp.qld.gov.au/?id=4461,
accessed on 24 August 2007.
. See for example, Dennis Atkins, Merger Madness ,
Courier Mail, 12 May 2007, p. 48.
. Roberta Mancuso, Council mergers a state matter ,
Courier Mail, 16 May 2007, p. 19.
to override Beattie on merger votes , ABC News, 16
The Hon. John Howard, Joint
Press Conference with the Special Minister of State, the Hon Gary
Nairn MP, Parliament House, Canberra, interview
transcript, 16 August 2007.
Council laws rushed into Parliament, Sydney Morning
Herald, 16 August 2007.
. Local Government Amendment Bill 2007.
. Andrew Fraser, I was wrong, says Beattie, as he allows
plebiscites, The Australian, 20 August 2007, p. 4.
. Section 128 of the Constitution provides the method of
altering the Constitution. This includes that a proposed amendment
must be put to a referendum which requires the approval of a
majority of electors in a majority of the states. Following an
amendment in 1977, the Constitution now allows electors in the
territories, as well as electors in the states, to vote in
constitutional referenda. Territory votes are included in the
national total only.
. Final Report of the Constitutional
Commission, Volume One, 1988.
. AAP, Senate inquiry to examine federal plebiscite laws
, 21 August 2007.
. The caretaker conventions are required by the
principles of good public administration but there are no penalties
attached to their breach, although the Governor-General can counsel
against such a breach. See more on this in Richard E. McGarvie,
Democracy: choosing Australia s
Republic, Carlton, Vic., Melbourne University Press, 1999, p.
accessed on 23 August 2007.
. Explanatory Memorandum, Electoral and Referendum
Amendment Bill 1992.
. Section 51(xxxvi) of the Constitution.
. Human Rights and Equal Opportunity Commission,
Submission no. 34 to the Joint Standing Committee on Electoral
Matters Inquiry into Civics and Electoral Education, 2 June 2006,
. Explanatory Memorandum, p. 9.
. Prof. Gerard Carney,
Submission no. 77 to the Senate Finance and Public
Administration Committee Inquiry into Commonwealth Electoral
Amendment (Democratic Plebiscites) Bill 2007, 24 August 2007, p. 1.
He also finds subsection 7A(1E) invalid for two reasons: it falls
outside the scope of Commonwealth legislative power; and it
infringes the Melbourne Corporation principle.
Diane Spooner and Kirsty Magarey
Law and Bills Digest Section
28 August 2007
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