Wednesday, 15 May 2013
Referendum (Machinery Provisions) Amendment Bill 2013; In Committee
I want to pose a number of questions to the minister about this legislation. Before the end of the second reading debate on this legislation I was saying that the Australian people are confronted with the mechanics of a referendum being engineered for September this year where there are many unusual and, some might say, unsatisfactory elements and where we are confronted with an increasing possibility, indeed a likelihood, that because of the problems associated with this process the referendum itself, the proposal to amend the constitution to provide for recognition in the Australian constitution—
The problem here is that we have a referendum being set up to amend the Constitution in circumstances where one does not need to be especially cynical to come to the view that the entire exercise is designed to produce a rejection by the Australian people of the proposal.
Haven't we got a revealing interjection there—'Sort out your internal position.' It begs the question: why is the government putting forward to the Australian people a referendum question which it knows in its heart of hearts is almost certain to fail. Why? Because it has other reasons for putting this forward. The reasons are to do with creating distractions and engineering wedges. That is what this is all about. That interjection from the minister was very telling in that respect.
Well, if you are serious—
The TEMPORARY CHAIRMAN: Minister, Senator Humphries has the right to be heard in silence when he is on his feet, and Senator Humphries you will not respond to interjections.
I acknowledge you admonition, Mr Chairman. I put it to the Senate that there must be a reason that the government is proposing to run a referendum campaign at great expense when it knows that its chances of success are very limited. The reasons are entirely political. I mentioned cost a moment ago. I would be interested if the minister could provide the Senate with any information about the likely cost of this referendum to be held in conjunction with the election in September of this year. I note by way of background that the referendum conducted in 1988 to amend the Constitution was conducted at a cost to the Australian taxpayer of almost $35 million. But a decade or so later, when a referendum—also a freestanding referendum, not in conjunction with an election—was held on whether Australia should become a republic, the cost of the referendum had escalated to almost $67 million. I think it would be fair to assume that the cost of a referendum this year could be approaching $100 million.
But of course the details of how that cost might play out are made more complex by the government's amendments to subsection 11(4) of the act, which apparently provide a capacity for the Commonwealth to spend money in relation to the referendum disproportionately between the yes case and the no case. Some indication of the extent of that disproportion between the yes case and the no case might give us a clue as to what the total cost of a referendum of this kind might be. Given that we are talking here, in relation to this Referendum (Machinery Provisions) Amendment Bill 2013, about provisions that will be unique to the referendum of 2013, I think the specific questions about the referendum would be appropriately answered by the minister at the table, Senator Collins.
So I put it to the Senate what I think any reasonable person with a little knowledge of this matter would suppose, which is that the government has motives for wanting to put the Australian community to the cost and trouble of a referendum with a price tag of perhaps $100 million other than simply amending the Australian Constitution to recognise local government. As a person with a background connected with local government, as I detailed earlier today, I can see the reasons for such a clarification of the status of local government within Australia's constitutional arrangements. But I cannot see how the government is advancing that proposition by the confused case it is putting to the Australian people for action in this way, underpinned by the legislation the government is putting before the Senate now.
So I ask the minister to answer those questions and clarify once and for all the bona fides of the conduct of this referendum. And I invite the minister, if she wishes to, to back up her claims here by making a quiet wager about what she actually thinks is going to happen in this referendum. I somehow doubt much is going to hang on that question at the end of the day.
While listening to Senator Humphries go through some of the other questions he raised I was reflecting on what he said at the outset. I must admit I am disinclined to respond to—and surprised by—such relatively cheap retorts coming from Senator Humphries. He is claiming that this is just about a wedge, that it is just a political exercise and, indeed, that it is a 'confused process'. Senator Humphries is well aware of the very clear process that this has been through—the inquiries involved, the detail of what is being considered. Indeed, some of those issues will I think be addressed when we look at the amendments that have been circulated in relation to this legislation.
With respect to Senator Humphries's questions about cost, I can indicate that it is reasonable to expect that the cost involved will be roughly comparable. Some of those details are still being worked through. The question of the split of the funding between the yes case and the no case also fits within that category, but I am not aware of any indication that decisions around that split are going to have significant cost implications—which did seem to be implied by Senator Humphries's question.
I have a couple of questions about the bill that I would like to pose to the minister before I move my first amendment. The explanatory memorandum to the bill reads—and it is quoting from recommendation 11 of the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs in 2009—on page 2:
“The Committee recommends the Australian Government introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 (Cth) and include provisions to ensure that spending is directed to referendum education and to equal promotion of the Yes/No arguments.”
Subsection 11(4) generally limits the capacity of the Commonwealth to spend money in relation to a referendum other than on the production and delivery of the Yes/No pamphlet.
Those are both statements of fact. The EM goes on to say:
The Bill implements the Government response to Recommendations 3 and 11 by:
which is a reference to recommendation 3, but with recommendation 11, which I just quoted—
Recommendation 11 was quite explicit. In fact, the last words in it were 'equal promotion of the yes/no arguments'. So how does this bill implement that part of the recommendation, when all this bill does is lift the prohibition on Commonwealth government expenditure? It does nothing at all whatsoever, does it, to ensure equal promotion of the yes and no arguments?
That is an interesting example. The difference in 1999, as I outlined in my speech in the second reading debate, was that in 1999 there was a separate appropriation to fund an education campaign and a yes campaign and a no campaign. It was a different sort of environment, as I outlined. There had been elections for convention delegates and a long convention held at Old Parliament House. I will go on to some questions specifically about the campaign proposed by the government, but that is the first issue I wanted to raise in response to that. This is not dealt with in the same way as 1999, because, as I understand it, there is no proposed appropriation for yes and no campaigns.
In the budget brought down last night in the other place—
it was tabled here, technically, I suppose—as an expenditure measure in the Department of Regional Australia, Local Government, Arts and Sport, there is the referendum on the financial recognition of local government in the Australian Constitution. The appropriation for the Department of Regional Australia, Local Government, Arts and Sport is $1.1 million this year and $10.5 million next year. The description is as follows—taking the AEC part out of it, because I think we are all clear on what that funding is for:
… the Department of Regional Australia, Local Government, the Arts and Sport will receive $11.6 million to undertake a national civics education campaign to provide information to the general public on the referendum and reform process.
Does the minister have any more details around what sort of campaign that will be? Who is it aimed at? What will it be saying? I am unclear as to whether it is going to be a campaign that is advocating for a particular position or whether it is going to be a classic civics education program that proponents and opponents of the proposal at the Commonwealth and state levels would have no problem with. Is there any clarification on that at all, or can the government give a guarantee that it will purely be a civics education program as opposed to advocating one side of the argument or the other?
I think the difference is perhaps not quite as clear as the senator proposed there. Certainly we will be looking at a broad education campaign, but a component of that campaign will be a position where the government seeks to advocate that there are strong benefits in accepting what is proposed in this case. If I recall, the senator was asking some other questions in relation to more details about the actual funding allocations, but, as I think I indicated to Senator Humphries, some of that detail is still being worked through.
Just to clarify: part of this proposed appropriation, and therefore one of the reasons we are debating the suspension of this provision of the Referendum (Machinery Provisions) Act 1984, is to facilitate the Commonwealth advocating its preferred view in this campaign. I am assuming that, because it is not the government's view, it does not plan to fund an alternative view, whereas in 1999 there was public funding for a yes campaign and a no campaign. In 1988 there was no public funding for any campaign, I understand. It did end up in the High Court, if my memory serves me correctly—I was a bit younger then. The publicity that the Commonwealth was able to fund was limited to, effectively, the yes/no booklet. I just want to achieve real clarity around this. I think this is a critical point in debating this particular provision.
The advice I have is that some of the considerations around the promotion of a yes campaign and a no campaign reflect, in part, the debate that occurs in the parliament and the nature of support indicated in the parliament itself around the proposition. Looking at the progress of this matter as it stands, I think that there is fairly clear support for a general civics education type campaign, where the government in that context promotes the benefits of the change to the Constitution and why we recommend it, but how the yes and the no propositions will be supported will in part be determined by representing the nature of the debate that occurs here.
Minister, if what you are referring to is the booklet, my understanding of the operation of the referendum act is that, where there are people who vote against it in the parliament and a yes/no booklet is produced, as is normally the case in such a situation, the act—and I think it is section 11—outlines that the yes case is submitted by a majority of those who voted in favour of the constitutional amendment proposal and the no case is submitted by a majority of those who voted against the proposed constitutional amendment in the parliament. Then the AEC commissioner signs off on it and the AEC produces the particular booklet. That is the production of the yes/no booklet. No-one is questioning that. That is a longstanding practice. I note that some people seemed to devalue it in the earlier debate, but I think the processes around doing that are basically over a century old. There is not much doubt about that.
Minister, when you talked about the preparation of the yes and no cases there, you alluded to reflecting the debate in the parliament. As far as I am aware, that is the only mechanism that reflects the debate in the parliament. What we were presented with last night was an appropriation for the Department of Regional Australia, Local Government, Arts and Sport of $10.5 million, of which $9.5 million is administered expenses and just under $1 million is departmental expenses. What I am seeking clarification on is: is that, or any portion of that, going to be used for advocating a position? I got the impression, from what you said, that it will be—that we will be advocating, effectively, a yes position. I am assuming, and I am happy to be corrected, that the government has no intent of providing similar resources for people—whether they are in this place or elsewhere—who would have a different view. I am just seeking a factual response to that issue.
The senator refers to the process around the AEC's role with respect to the production of the booklet, but the principals involved there also will assist and guide us with respect to how we deal with any wider advertising campaign. The principles about a fair reflection of the nature of the parliamentary debate are here. That will be part of the consideration, in terms of how the funds that have been appropriated support a wider advertising campaign in relation to a referendum.
Minister, in that case, you are not willing to guarantee that it will be in any way like it was 1990, with effectively a level playing field, you might say, for particular yes and no cases with Commonwealth money. I appreciate that this situation is slightly different, but then who will be making this decision? Is it the minister? Because there is a lot of money here: $10 million buys a few ads and this government seems to know a bit about that. I am seeking clarification here, because it is clear that the money is mainly going to be used for education and advocating the benefits of reform—I think that was the phrase that you used—which is effectively a yes vote. Who will be making that decision? Have any criteria been developed for how you will make that decision and—I cannot remember the exact words you used—will they assess or reflect the vote? Is it only a vote in the two chambers of parliament that you will be using as a measure for that? Will there be proportionality? One committee recommendation from the House, I believe from a long time ago, was for proportionality, but that has not been floated in this bill. So I am seeking clarity around the decision makers and the criteria, lest, as I think is becoming obvious, this be an appropriation to fund one side of an argument in a referendum.
My understanding is that, as was the case in 1999, this is an issue of government prerogative. The minister, in consultation with other senior ministers, will weigh the factors around the issue. Yes, the parliamentary debate will be one of those, and the general community will be another element that assists those senior ministers in working out what is a fair and reasonable balance.
I understand—and I am happy to be corrected on the facts because I was not in this place then; I think you might have been, Senator Collins—that, unlike in 1999, due to the fact that these arrangements were dealt with after the form of the proposal was presented in parliament, we do not have the section 128 bill before the House or the Senate yet. But there was also an explicit arrangement beforehand. I agree that the yes and no cases were clearer, but it was not based on proportionality in parliament and it was not based on the media. There was a simple fifty-fifty divide between the appointed 'yes' campaign and the appointed 'no' campaign.
You are not doing that. There are no criteria that have been determined for the government to be measured against. It will be a ministerial decision. Australia is a sporting nation, Minister, and I do not think that trying to tilt the playing field is a good start in dealing with a referendum, as, historically, getting the Australian people to sign off on referenda in my view has been more difficult than most of the proponents ever realised.
Senator Ryan does make the point that dealing with referendums has been a difficult and fraught process throughout our history. The decision for a fifty-fifty split was a decision of government. That is my understanding.
The decision on this occasion—the government can make clear—will be a fair representation of the parliament's and the community's views as we approach this question.
I take this opportunity to move the first amendment standing in my name. I indicate that clause 4 will be opposed in the following terms:
What we have just heard, in my view, confirms the coalition's view that the case has not been made to suspend this provision. I say that on a number of levels. It is fair to say that people on this side of the chamber have been more constitutionally conservative. Most of the proposals to amend the constitution have come from the left of Australian politics. That reflects the fact that the Labor movement had no involvement in the Federation of Australia. There was only one Labor delegate at all the constitutional conventions; it was one of the great Liberal projects of the 19th century.
The constant wish of the progressive side to change our Constitution has led to various techniques, some of which are to keep putting up proposals and others of which are to have a lot going ahead on one particular day. Other techniques are to have them in conjunction with elections or take advantage of other opportunities.
I am not a person who thinks that the fact that only eight out of 34 referenda have succeeded is in any way a condemnation of our electorate or our constitutional process. It is a reflection of the will of the people. By their very nature, constitutional amendments proposed by the Commonwealth parliament have had a centralising tendency, and the constant wish of the Australian people has been to vote against such proposals. So if you keep putting up a proposal and the people keep voting no to it then the lesson is not that there is a problem with the process but that the people are saying no, no, no because they do not like what is being put up.
This is the third time this proposal is going forward generically. It is more akin to the 1974 proposal put forward by Gough Whitlam. It is true to say that on this occasion there is a greater degree of support across the parliament for the principle behind this proposal. There is, however, from this side of parliament a great deal of criticism of the process the government has used and there is scepticism about whether it has generated consent in the community and scepticism of the perceived need. In this particular case, the government is trying to suspend this provision, which I think we could call a fair play provision. It simply says that the Commonwealth cannot spend money on the referendum, arguing for or against, other than the booklet that is prepared by the proponents and opponents of the proposal.
Can I respectfully suggest to all the people who care passionately about this matter that this will not get the campaign off to a good start. This will not give the Australian people a sense of faith in the process, a process that the Labor Party has already failed at demonstrably by announcing it only last week, despite having a year to do so, despite bringing this bill in before we have even seen the other bill.
Some of my friends would call me a little bit obsessive about constitutional issues. I have studied these issues a great deal. I make this statement with all positive intentions: this is being put up for the third time—I think this will be the first time in the history of Australian referenda that something has gone up for the third time—and the Labor Party has shown itself to be lacking in mounting the case for change; there has been a lack of tilling the soil, of generating community need and explaining how this proposal fills that need. In a press conference held in Brisbane last week, the Prime Minister did not tell the coalition Premier—the only coalition Premier who had expressed support for the proposal—that she was going to do it. She did not tell the opposition spokesperson Senator Joyce that she was going to do it, and he has been an advocate for this. That betrays the agenda of this government, because if they were interested in success those are two of the first phone calls that would have been made. It is no secret that, at the state level, other coalition premiers are not supportive. So, given that bipartisanship is a necessary but not sufficient condition for a referendum to pass, those would have been the two first phone calls anyone trying to generate support would have made. One of the great lessons from history is what happened in the 1977 referendum, where Malcolm Fraser worked with the Labor opposition to generate bipartisan support and community consent. That was the most successful referendum in Australian history.
The opposition moves this amendment for several reasons. It is unjustifiable to borrow more money to spend on ads for this campaign when we have a deficit of the size that we do. It is unjustifiable to do so when you are seeking to restrict the mailing of information for and against the proposal to individual electors. Do not come to us saying that you want to save $4 million on sending the only thing that an elector will get about this that is directly addressed to them and then say you want to spend $10 million on ads.
The history of referenda is: do not let people become cynical. From what we have heard tonight it is clear that the government will not give the commitment that John Howard gave in 1999 that the yes and no case would be supported equally. If there had been funding based on proportionality of parliament in 1999, I do not think it would have been fifty-fifty, given that the Labor Party were basically en bloc supporting the republic proposal, along with some coalition people, but John Howard knew, after having had years of debate and an elected convention putting forward a proposal—partly a pointed convention— that the fairest way to deal with it and the best chance it had was in people perceiving that it was fair.
The government propose to suspend the fair play provision of the referendum act and appropriate money, all in the same day and the same week basically, and there is no commitment that it will be fairly used. We do not have criteria for how it is going to be spent and we do not have key performance indicators to see if the campaign is working. As far as I am aware, there has been no commitment given to the opposition that they will be involved in this process, despite the express bipartisan support for the principle underlying this referendum. It is not going to do the case for change any good. Anyone who says otherwise has no awareness of the history of referenda in this country. You could spend four times this amount, but if people do not think it is a fair process then their natural protection of the Constitution will come through. In all seriousness, this amendment should be supported by the advocates in order to ensure that cynicism does not start.
Senator Rhiannon made a few comments earlier today about the opposition that I have to address. I have been as clear as I can about the motivation for this amendment. Nothing that we are doing today would preclude a further amendment next month if these criteria were met. But the fact that this government will not give any details around the criteria, the targeting, the spending, the content and the distribution is a sign that it is not interested in that. Senator Rhiannon tried to assign motives to the opposition for this. It is true that some members of the opposition have a different view. They should not be condemned for that. It is outrageous to condemn someone for exercising their judgement and what they think is in the best interest of their community and their country and their conscience in voting on any issue, let alone on a constitutional amendment. But there has always been a frustration from the other side of politics that politicians cannot do this. You can fix a pre-selection if you are in the Labor Party, you can do a deal with the Greens to get into government, you can guillotine 150 pieces of legislation, some of which never had a word of debate uttered in this chamber, but the one thing you cannot do in this country is do that to the constitution. It has always frustrated you. I tell you now: if you think that you are going to address that by having an unlevel playing field, the Australian people will prove to you what they have proved to everyone else who does not engage them in constitutional reforms successfully. They will not support it.
To all the advocates—if any advocates are listening to this—I urge you to convince the government that this amendment is meant to strengthen the process, not weaken it, and that if this amendment fails, as I suspect it will, given what Senator Rhiannon said, then use every endeavour you have to prevent it starting the campaign unhappily only for the purposes of the proponents. That is an approach that in my belief—this is a prediction—will not lend this proposal any support.
The government will not support this amendment. First up, I am not frustrated to work within the constitution and Senator Ryan's suggestion that that is so demeans this whole proposition. We could go to the layer below that and talk about who fixes what pre-selections in what party, but I think all of us in this place know that it is not a party-specific matter and indeed raising it in that fashion cheapens this very proposition. That said, I should stress that you can get behind the proposition and support it. Senator Ryan did suggest that there was some level of bipartisan support. By the same token you can stand here and you can ask questions until the cows come home, but that is not getting behind the proposition and supporting it.
But let us deal with some of the detail that is raised with respect to this amendment. The Referendum (Machinery Provisions) Act 1984 describes the type of things that the Commonwealth can spend money on in the lead up to a referendum under section 11(4). In 2009 the House of representatives Standing Committee on Legal and Constitutional Affairs made certain recommendations in the report, A Time for Change: Yes/No?Recommendation 11 was that the limitation on spending be suspended. As the Legal and Constitutional Affairs Committee found in its 2009 report, the restriction on Commonwealth expenditure is a barrier to the development of a better and more effective referendum process. The amendments to subsection 11(4) implement this recommendation. This amendment is identical to the approach taken by the parliament in the last referendum in 2009 and, yes, there are some differences in the proposal but, that said, the approach taken is identical. This provision was wholeheartedly supported by the coalition when this was put forward by the very last referendum held.
The coalition is of the view that if there is to be spending there need to be criteria—caps that give people a sense of faith that the money is going to be spent appropriately and fairly. Nothing the minister said, I would contend, addressed the points I raised. Coalition members in the House of Representatives expressed a point of view on a committee report. I respect that, but I also disagree with it. The fact that there has been disagreement by some members of our party some years ago is not something that we shy away from. This was talked about in the first term of the Labor government and nothing was done. The Spiegelman committee came together and said, 'Here are all these problems you haven't dealt with.' They did not deal with them. They brought this up last week, the week before the budget, as another attempt to divert attention from their disasters—fiscal, financial and policy-wise. I am not going to have people who question the flawed process of this government be accused of not getting behind the proposal, as if we have to be some mindless daleks or drones and do everything this government says. I know some of the passionate advocates for this proposal on my side of the chamber would have done it so much better than the people in government at the moment.
The prospects for this referendum are statistically not so great. I cannot remember the last time that a referendum was successful on a day it was held conjointly with an election. The last two successful referenda were 1977 and 1967, neither of which were election days. That takes in beyond my lifetime, and, if I can recall correctly, Sir Robert Menzies, who I note passed away 25 years ago today, put only one referendum in his time, in 1951. We are almost back to the era of Chifley at that point, but my memory does not go back that far. Senator Collins, the government wants to bully people when they provide advice or respectfully disagree on the process so it is not only the way you have done this bill or the way you have failed to lay the groundwork or the way you have failed to engage with the states—important stakeholders—or the way you continually fail to engage with the opposition, as you did last week but it is also this additional barrier you are putting in the way of success for this proposal.