Bills Digest No. 139  1998-99 Referendum Legislation Amendment Bill 1999


Numerical Index | Alphabetical Index

WARNING:
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 Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Referendum Legislation Amendment Bill 1999

Date Introduced: 11 March 1999

House: House of Representatives

Portfolio: Special Minister of State

Commencement: On Royal Assent

Purpose

The Bill amends the Referendum (Machinery Provisions) Act 1984 (the Principal Act) to facilitate the conduct of Constitutional referenda to:

  • 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 electoral officials.

Background

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 Constitution.

The Model

In essence, the 1998 Constitutional Convention:

  • 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 2001.

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 Governor-General.(1)

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 Constitution
  • 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 approved.'(3)

Constitutional Amendment

A mandatory procedure for amending the Australian Constitution is set down at section 128 of that document.

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.

Cost

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 Constitutional Convention.

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 referenda.

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 million.

Main Provisions

Schedule 1 - Amendments to the Principal Act

Item 1 - new paragraphs 11(4)(a) and (aa)

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 subsection 25(3A)

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 36A(3)(b)

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.

Further reading

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.

 

Endnotes

  1. Report of the Constitution Convention, Old Parliament House, 2-13 February 1998, volumes 1-4, 1998.

  2. http://www.dpmc.gov.au/referendum.

  3. Department of Prime Minister and Cabinet, Media Release, 'Referendum on the Republic', 9 March 1999.

Contact Officer and Copyright Details

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.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

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