Posted 30/11/2022 by Damon Muller
With the Government committing to a constitutional referendum on an Indigenous Voice to Parliament, an important question has become whether the Referendums (Machinery Provisions) Act 1984 (Referendums Act) remains fit for purpose. Australia has two main pieces of legislation that cover the conduct of federal electoral events. The Commonwealth Electoral Act 1918 (Electoral Act) covers federal elections and election-related issues. Alongside this is the Referendums Act, which covers constitutional referendums. While the Electoral Act has seen various reforms over recent parliaments, including to the enrolment process and telephone voting, the Referendums Act may be showing its age.
In 2021 the Standing Committee on Social Policy and Legal Affairs inquired into constitutional reform and referendums and considered the state of the Referendums Act in some detail. The Committee made recommendations regarding the Act, including that the Act and its processes are ‘modernised well in advance of any referendum on the question of constitutional recognition of Indigenous Australians' (recommendation 10).
The Committee identified that (unlike the Electoral Act) the Referendums Act did not ban foreign donations being used in referendum campaigns. It also noted that the Act specifically prohibited governments spending money for referendum campaigns, beyond producing material outlining the yes and no cases. The Government legislated to suspend the public funding prohibition for education campaigns prior to the 1999 referendum, however the provision remains in the Act.
Media reports suggest that the Government is planning to reform the ‘antiquated’ and ‘archaic’ Referendums Act and suggesting changes to funding campaigns. However, the Government has not yet announced any legislation to this effect.
Not recommended by the inquiry, but perhaps worth considering, is whether we even need so detailed a Referendums Act, or whether referendums could use the Electoral Act, but with specific referendum provisions. The then-Government took a similar approach during the Australian Marriage Law Postal Survey, with the passage of the Marriage Law Survey (Additional Safeguards) Act 2017. This legislation gave the Electoral Commissioner certain election-like powers in relation to the survey.
As it stands, the Referendums Act mirrors many aspects of the Electoral Act. Governments have generally attempted to align the two Acts by amending the relevant sections of the Referendums Act when they have updated the Electoral Act. Complicated sections of the Electoral Act are essentially replicated verbatim in the Referendum Act, leading to considerable redundancy.
However, one part of the Electoral Act which remains unique is the political finance provisions (Part XX). This means that, by default, campaign donations on a referendum, or on the reporting of donations or expenditure, are unrestricted and unregulated. The political finance provisions of the Electoral Act only apply in relation to spending on electoral matters, ie. a federal election. If the government intends to restrict foreign donations from referendum funding campaigns (as reported), it would have to amend the Referendums Act.
Referendums are the only way to change the Australian Constitution. Accordingly, the extent to which the Constitution should continue to evolve to respond to as yet unimagined political, economic and societal changes is a live topic of debate. However, the days of mailed leaflets and no restrictions on campaign spending have probably long gone, and so our referendum rules should arguably be re-thought for the 21st century.