Commonwealth Electoral Amendment (Democratic Plebiscites) Bill 2007

Date introduced:  16 August 2007

House:  House of Representatives

Portfolio:  Finance and Administration

Commencement:  On Royal Assent

Links: The 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 at http://www.comlaw.gov.au/.

Purpose

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 activity.

Background

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). [1] The brief of the Commission was to consider new boundaries for the long-term sustainability of local government across the state. [2] 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were struggling financially and that, as Australia’s fastest growing state, Queensland’s system of local government was outdated and needed ‘to be modernised to reflect the way Queenslanders live, work and interact in today’s Queensland.’ [3] They claimed these major reforms

As a consequence of the July 2007 recommendations of the QLGRC, [5] 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.

Under the 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:

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 to:

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. [6]

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:

He also ruled out any retaliatory action such as withholding of funding, and indeed guaranteed to maintain funding:

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’ [9] and in a joint press conference with the Treasurer on 8 August 2007, Mr Howard said:

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 amalgamations:

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’. [11] 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. [12] Mr Beattie is reported as commenting that he wanted to move on and that:

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 situation.

Referenda and plebiscites

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 legislation.

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 intervention:

In Australia there are legally binding mechanisms for constitutional referenda under s. 128 of the Constitution.  There is also the possibility for advisory referenda or plebiscites:

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). [16]

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). [17]

Norman Abjorensen, an ANU political scientist, provides this further background on CIR:

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. [19]

The Constitution and Local Government

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 States.

The Constitution Alteration (Local Government) 1988 sought to give such constitutional recognition to local government.

The Constitutional Commission in its Final Report (1988) [21] had recommended that a new section 119A be added to the Constitution in the following terms:

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 referendum.

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 role.

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.

Senate inquiry

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.’ [23] 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), [24] to the claim the Bill is a political stunt [25] and support for the principle of ensuring public consultation. [26]

Financial implications

According to the Explanatory Memorandum there will be a financial impact but it is not possible to quantify it at this stage.

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 Representatives:

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. [27]

Main provisions

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 section 5:

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 process.

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 mechanisms.

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 territories. 

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:

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 [29] 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:

In a 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:

According to the Explanatory Memorandum:

New subsection 7A(1G) refers to section 15A of the Acts Interpretation Act 1901 to the effect that by relying on the external affairs power of the Constitution in this Bill, section 15A is not being limited in its operation. This means that when interpreting the provision, section 15A will still allow a court to preserve parts of an enactment as valid, even if some parts are invalid by being beyond the legislative power of the Commonwealth.

Item 3 inserts a new power to make regulations as to how the Commission is to supply goods and services under an arrangement entered into under existing section 7A of the CEA.

Conclusion

Mr Beattie is proposing to remove provisions that prevent plebiscites being held in Queensland on the amalgamation of local governments. Although this Commonwealth Bill is not directed specifically towards Queensland, the policy rationale for the Bill was in the context of Queensland, and therefore the provision which tries to override state laws is now unnecessary in the short term.  Furthermore, the existing section 7 has been wide enough to encompass the holding of plebiscites and has been used in the past, so one can question if the main provisions of this Bill are necessary. If ‘referenda’ can include plebiscites, it is the case that no referenda, plebiscites or any other votes can be held on the same day as a federal election without the Governor-General’s approval.

The provisions in the Bill which explicitly refer to the external affairs power and which call on the principles of preservation contained in the Acts Interpretation Act all make it clear that the Commonwealth Government is taking steps to improve the likelihood of the legislation being found to be constitutional.  It also may indicate an element of uncertainy regarding its constitutional standing as it ventures into traditional areas of state responsibility.

Endnotes