This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
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Referendum Legislation Amendment Bill
Date Introduced: 11 March 1999
House: House of Representatives
Portfolio: Special Minister of State
Commencement: On Royal Assent
The Bill amends
the Referendum (Machinery Provisions) Act 1984 (the
Principal Act) to facilitate the conduct of Constitutional
- establish the Commonwealth of Australia as a republic, and
- insert a new preamble in the Australian Constitution.
The Bill also amends a technical error in the
Principal Act in relation the handling of ballot-papers by
Towards the end of 1999, there is to be a
referendum as to whether Australia will become a republic.
Two questions are to be put to the electorate:
one will reflect the preferred model for a republic which emerged
from the Constitutional Convention held in February 1998, the other
question will be on whether there should be a new preamble to the
In essence, the 1998 Constitutional
- supported the adoption of a republican system of government
based on a 'bipartisan appointment of President model'
- resolved that a referendum be held in 1999 and, if change is
agreed, the new republic should come into effect by 1 January
The model adopted was based on that brought to
the Convention by the Australian Republican Movement. It provides
for the nomination of a President by any Australian, with names to
be vetted by a Committee established by the Parliament. A
short-list is then forwarded to the Prime Minister. The Prime
Minister will then present a single nomination to the Parliament
for the Office of President, seconded by the Leader of the
Opposition. The nomination will then require a two-thirds majority
at a Joint Sitting of both Houses. The powers of the President are
to be the same as those currently exercised by the
Exposure Drafts for the two proposed Bills to
amend the Constitution were circulated by the Government in early
March 1999 and are available on the Government website.(2)
As summarised in the Government's Media
Release of 9 March 1999, the Constitution Alteration
(Establishment of Republic) Bill will provide for:
- a President as a head of state
- the mechanism for selecting the President, including a
committee to receive and consider nominations
- the powers of the President
- the removal of monarchical references from the
- transitional arrangements.
A second proposed Bill, the Presidential
Nominations Committee Bill, 'provides in more detail for the
establishment of a committee to invite and consider public
nominations for a President, should the change to a republic be
A mandatory procedure for amending the
Australian Constitution is set down at section 128 of that
The detailed mechanisms for conducting federal
referenda are provided for by legislation and administrative
arrangements. The Principal Act establishes procedures for
campaigning and ballot counting etc.
Before it can be put to the people, a referendum
Bill will generally secure an absolute majority in each of the two
Houses of the federal Parliament.
Section 128 does, however, allow for a
referendum proposal to be put to the people with the agreement of
only one House. For reasons of convention, ie the Governor-General
(as in 1914) will act on the advice of his Ministers, only the
House of Representatives has the option of pushing ahead with a
referendum proposal in this way.
To be enacted into law, a referendum proposal
must also secure a 'double majority' from the people: a majority of
all those voting and majority support in a majority of States.
The Explanatory Memorandum states that the
anticipated cost of the proposals associated with this Bill is
$19.5 million. Of this $4.5 million will go towards a neutral
education program and the remainder towards 'Yes/No' advertising
campaigns conducted by committees drawn from delegates to the
The Government also estimates that a further
$1.5 million will be expended as a result of having a separate
ballot paper for each of the two questions being canvassed.
This is not, of course, the full cost of the
The cost of the 1998 Constitutional Convention
to the taxpayer was less than $28 million. The current estimate of
the cost to the Commonwealth of the poll to be conducted by the
Australian Electoral Commission in late 1999 is in the order of $55
Schedule 1 - Amendments to the
Item 1 - new paragraphs 11(4)(a) and
Section 11 of the Principal Act establishes a
process for the distribution by the Australian Electoral Commission
to electors of the 'Yes/No' cases in respect of the question or
questions to be asked at a referendum. Existing subsection 11(4)
prohibits the Commonwealth from spending money in respect of the
presentation of either the 'Yes' or 'No' case, except in relation
to the matters set out in paragraphs (a) to (c). Relevantly, these
paragraphs relate to costs expended in the preparation, printing
and distribution of the Yes/No case pamphlets, and their
translation into other languages and into forms suitable for
visually impaired people.
The Bill proposes to repeal existing paragraphs
11(4)(a) and (aa), and substitute new paragraphs (a), (aa),
(ab), and (ac). The amendments will have the effect of
allowing the Electoral Commission to expend money on a wider
distribution of the Yes/No pamphlets. Among other things, the
amendments make it clear that the Yes/No case pamphlets can be
distributed by post and published on the Internet.
Items 2 and 3 - subsection 25(2) and new
Currently, subsection 25(2) provides that where
two or more referenda are held on the same day, the ballot papers
for each referendum are to be printed on the same piece of paper.
Item 2 proposes to amend subsection 25(2) so that
it operates subject to new subsection 25(3A).
New subsection 25(3A) will
provide that where two or more referenda are to be held on the same
day, the ballot papers for each referendum are to be printed on
separate pieces of paper, each of a different colour as chosen by
the Electoral Commissioner.
The requirement for separate ballot papers will
apply where the Minister gives written notice to the Electoral
Commissioner at least 28 days before the issue of the writs for the
referenda identifying 2 or more proposed laws, and the fact that
proposed referenda in relation to 2 or more of the proposed laws
are to be held on the same day.
Item 4 - paragraph
Section 36A of the Principal Act allows for a
voter to vote outside a polling place in certain circumstances (eg
illness, physical disability). Item 4 proposes to
amend paragraph 36A(3)(b) so that it states that a voter must fold
the ballot paper in such a way as to conceal his or her vote. At
present, paragraph 36A(3)(b) states that the voter must fold the
ballot paper so as to conceal the names of the candidates, a
reference which the Explanatory Memorandum states is incorrect.
It is beyond the scope of this Digest to provide
a full account of the background to the present proposals. Readers
are however directed to the following publications prepared by the
Information and Research Services of the Parliamentary Library, all
of which are available on the DPL website:
Mark McKenna, 'The Need for a new Preamble to
the Australian Constitution and/or a Bill of Rights', IRS
Research Paper No.12 1996-97, 18 March 1997.
Carolyne Hide, Karen Davis and Ian Ireland, 'The
Recent Republic Debate-A Chronology 1989-1998', IRS Background
Paper No.11 1997-98, 2 February 1998.
Anne Twomey and Rosemary Bell, 'Methods of
Choosing a Head of State', IRS Background Paper No.12
1997-98, 23 January 1998.
George Williams, 'The 1998 Constitution
Convention - First Impressions', IRS Current Issues Brief No.11
1997-98, 23 March 1998.
- Report of the Constitution Convention, Old Parliament
House, 2-13 February 1998, volumes 1-4, 1998.
- Department of Prime Minister and Cabinet, Media
Release, 'Referendum on the Republic', 9 March 1999.
Bob Bennett and Elen Perdikogiannis
22 March 1999
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
© Commonwealth of Australia 1999
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