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Citizen Initiated Referendum Bill 2013

Introduced into the Senate on 12 March 2013
By: Senator Madigan

1.1        This bill seeks to introduce a process by which a person on the Australian electoral roll can apply to register a proposal for a referendum to amend the Australian Constitution. The bill provides that if an elector registers a proposal with the Electoral Commission, the Commission decides that it is a proposal for a referendum to amend the Constitution and signatures of 1 per cent of the total of all electors are lodged with the Commission, then within four months after the proposal is verified by the Commission, the Minister must introduce a bill to amend the Constitution. If that bill is passed by Parliament a referendum is to be held in relation to that proposal.

Compatibility with human rights

1.2        The bill is accompanied by a self-contained statement of compatibility that states that the bill is compatible with human rights and enhances and promotes the right to self-determination under article 1 of the International Covenant on Civil and Political Rights (ICCPR):

Closing the gap between the people of Australia and their most important legal document, the Constitution, which rules them, enhances democracy and allows for a most transparent, dynamic and free Australia assists in attaining the requirement in Article 1 of the ICCPR that all Australian citizens are able to freely participate in their political system.[1]

1.3        The committee notes that under international human rights law the right to self-determination is a right enjoyed by 'peoples' under article 1 of the ICCPR and article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right is generally understood to apply to peoples who have been under colonial occupation or foreign domination. It thus relates more to the right of people to determine their political status and their place in the international community without outside interference and to ensure minority groups have appropriate political representation. The bill does not appear to engage this right – instead, it appears to the committee that the bill is likely to engage and promote the right to political participation under article 25 of the ICCPR.

1.4        Article 25 of the ICCPR provides:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

1.5        Article 25 has been described as being 'at the core of democratic government based on the consent of the people'.[2] The UN Human Rights Committee has said that citizens not only directly participate in the conduct of public affairs when they are elected or hold executive office:

Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b).

1.6        As this bill seeks to enable citizens to have more direct ways to initiate a referendum to seek to change the Australian Constitution, the bill appears to promote the right of political participation in article 25 of the ICCPR.

1.7                 The committee considers that the bill does not give rise to issues of incompatibility with human rights.

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