13 June 2023
PDF version [512 KB]
Dr Damon Muller
Politics and Public Administration
As with a federal election, the timing of a constitutional
referendum is regulated by both constitutional and legislative requirements. This
Quick Guide outlines these requirements and how the electoral calendar relates
to the Constitution
Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill.
Legislative requirements
The Constitution
A federal constitutional referendum requires
Parliament to pass a constitution alteration Bill, provided for by section 128
of the Australian
Constitution. A constitution alteration
Bill does not gain Royal Assent until it is agreed to by a majority of voters
in a majority of states at a referendum, so the timelines for a referendum are
measured from the passage of the Bill through the Parliament, not from Assent
to the Bill.
For a law that has passed through both Houses of
Parliament, the Constitution requires that the proposed law be submitted
to the voters ‘not less than two nor more than six months after its passage
through both Houses’.[1]
Within 4 weeks of the Bill passing, the text of the Yes
and No cases, authorised by a majority of parliamentarians who voted for and
against the constitution alteration bill respectively, are to be forwarded to
the Electoral Commissioner (paragraph 11(1)(b)).
The Electoral Commissioner must distribute the pamphlet
containing the authorised cases for and against the change to the Constitution
not later than 14 days before the voting day. In 1999
and 2013
(for the local government referendum that did not proceed), the Australian
Electoral Commission (AEC) distributed instructions to parliamentarians on the
formatting of the Yes and No cases, and it is likely that it will do so
similarly for this referendum.
The writ’s timetable
The Governor-General issues the writ for a referendum,
specifying:
- The
day for the close of the Rolls, which must be the 7th day after the issue of
the writ (subsection 9(1))
- The
voting day, which must be a Saturday and between 33 days and 58 days after
the issue of the writ (subsection 9(2))
- The
day for the return of the writ, which must be not more than 100 days after
the issue of the writ (subsection 8(1A)).
As soon as practicable after the issue of the writ, voters who
are registered as general postal voters must be sent a postal ballot paper
(subsection 58(1)).[2]
Postal vote applications may also be made after the issue of the writ (subsection
55(4)) but must be received at least 3 days before voting day (subsection 55(5)).
Postal votes must be received within 13 days after voting day to be
included in the count (paragraph 89A(1)(b)).
If the referendum is not being held in conjunction with a
federal election, mobile polling may commence from 19 days before voting day
(paragraph 51(5)(b)).
The earliest date for pre-poll voting is 12 days before
voting day (paragraph 73AA(1AA)(b)). If the pre-poll office is a mobile
voting location, it can commence 19 days before voting day (paragraph
73AA(1AA)(a)).
When can the Governor-General issue
the writ?
In evidence
to Senate Estimates on 23 May 2023, the AEC stated that the writ for a
referendum cannot be issued before the minimum 2 months required by the Constitution
had elapsed. This would mean that the referendum voting day cannot be sooner
than 2 months plus 33 days after Parliament passed the Bill. In a 2013
letter published on its website, the AEC cited legal advice that
distributing postal ballots for a referendum to general postal voters as soon
as practicable after the issue of the writ, as required by section 58 of the
Act for a referendum that is not being held at the same time as a general
election, constituted submitting the proposed law to the voters.[3]
The AEC has not provided any more detail in relation to this legal advice.
In each of the three referendums since the Act came into
force (1984, 1988 and 1999), the writs for the referendum were issued between 7
and 11 days short of the 2 months since the Parliament passed of the
constitution alteration Bills (see Table 1; in 1984 the referendum was held in
conjunction with a federal election, which affects the timing requirements).
Table 1: Dates and details of referendums since 1984
| Subject/Proposal |
Date Passed Parliament |
Passed both houses |
Date Issue of Writ |
Polling Day |
Held with election |
| Terms of Senators |
4 Sep 84 |
Yes |
26 Oct 84 |
1 Dec 84 |
Yes |
| Interchange of Powers |
4 Sep 84 |
Yes |
26 Oct 84 |
1 Dec 84 |
Yes |
| Parliamentary Terms |
1 Jun 88 |
Yes |
25 Jul 88 |
3 Sep 88 |
No |
| Fair Elections |
1 Jun 88 |
Yes |
25 Jul 88 |
3 Sep 88 |
No |
| Local Government |
1 Jun 88 |
Yes |
25 Jul 88 |
3 Sep 88 |
No |
| Rights and Freedoms |
1 Jun 88 |
Yes |
25 Jul 88 |
3 Sep 88 |
No |
| Republic |
12 Aug 99 |
Yes |
1 Oct 99 |
6 Nov 99 |
No |
| Preamble |
12 Aug 99 |
Yes |
1 Oct 99 |
6 Nov 99 |
No |
Source: AEC
and Parliamentary Handbook
When is the Voice referendum
possible?
The June 2023 sitting period is the soonest opportunity
for the Constitution
Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill (the
Bill) to pass the Senate, and thus the Parliament (having already passed
the House by an absolute majority). Passage by the end of the following
sitting weeks would result in the key dates for a referendum as outlined in
Table 2.
Table 2: Key referendum dates based on the final day of
each sitting week
| Last day of sitting
week |
Two month minimum |
First Saturday 33
days later (first possible voting day) |
Last Saturday
within six months (last possible date) |
| 16 Jun 2023 |
16 Aug 2023 |
23 Sep 2023 |
9 Dec 2023 |
| 22 Jun 2023 |
22 Aug 2023 |
30 Sep 2023 |
16 Dec 2023 |
Source: Parliamentary Library calculations
While 14
October 2023 is reportedly the Government’s preferred referendum date, 7
October 2023 also a possibility. Either date would require the Bill passing
the Senate during the June sitting weeks if the Government does not intend to
change the sitting
calendar. Passing the Bill in the August
sitting period would allow the constitutionally required 2-month minimum
period, but not the additional 33 days required under the Act.
Depending on whether the Bill passes during the first or
second of the June sitting weeks, 23 or 30 September would also be viable
voting days. However the AFL and NRL grand finals are scheduled for the weekend
of 30
September and 1
October 2023, which makes that an unlikely option. The Western
Australian local government elections are also scheduled for 21 October 2023.
Following 14 October, the Parliament has sitting weeks scheduled for all
but two weeks into early December, which if unchanged would make campaigning
more difficult for parliamentarians.
A 7 October voting day requires the writ to be issued no
sooner than 10 August (or as soon as two months has elapsed from the passage of
the Bill, which may be as late as 16 August) and no later than 4 September 2023.
A 14 October polling day would require the writ to be issued between 17 August
(or two months after the passage of the Bill, which may be as late as 22 August)
and no later than 11 September 2023.
[1].
The Acts
Interpretation Act 1901 specifies that a period of 2 or more months is
a period that ends immediately before the corresponding day of the calendar
month that is that number of calendar months after the starting month (subsection
2G(2)). The Constitution also provides for a referendum where a
constitution alteration Bill has not passed both Houses.
[2].
General
postal voters are voters who meet certain requirements and who register to
be automatically sent a postal ballot each election, rather than needing to
fill out a postal vote application for each election.
[3].
This timing issue was stated by the AEC as the reason the local government
referendum could not be held in conjunction with the 7 September 2013 federal
election—the timing of the passage of the constitution alteration bill, in
conjunction with the requirements of the Commonwealth Electoral Act 1918
for postal voting, meant the referendum could not be held in conjunction with a
federal election any earlier than 14 September 2013.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
This work has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Parliamentary Library, nor do they constitute professional legal opinion.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.