Senate debates

Wednesday, 22 March 2023


Referendum (Machinery Provisions) Amendment Bill 2022; Second Reading

9:58 am

Photo of Susan McDonaldSusan McDonald (Queensland, National Party, Shadow Minister for Resources) Share this | | Hansard source

I continue my remarks from last night regarding the Referendum (Machinery Provisions) Amendment Bill 2022. I had started speaking about the history of pamphlets and the ability for the government to provide information on a 'yes' and a 'no' case to the Australian people. It would have been the first time since 1928 that a pamphlet was not supplied to Australians. That sets a dangerous precedent. The pamphlet has been required since 1912, and there have been three referenda that have not had a pamphlet: in 1919, when there was insufficient time to produce one; in 1926, when there was no agreement on the 'yes' argument, so a pamphlet was not produced; and in 1928, when there was agreement between parties and the government that there was no requirement for a pamphlet to be produced. Now, in 2023, none of those circumstances apply. It is important that Australians have a document produced that allows a neutral civics education program on the 'yes' and 'no' arguments for this important decision, which will change the Constitution. We have to get agreement on how to argue the cases.

I've heard it said that there shouldn't be a pamphlet produced, that it's just creating a whole lot of material to be pulped. I think that's a really strange argument, to say that the government shouldn't produce an important document because the paper that it's written on will need to be recycled. I think that's really short-changing Australians and their ability to have an informed decision. Official material is important. The AEC says that 40 per cent of voters use mailed material as information when they come in to vote. All of us who stand on booths, handing out how-to-vote cards at elections, would know that to be true because each time we see more people coming in with their material from the Australian Electoral Commission, or from the state electoral commissions if it's a state election. That's because official material has weight and gravitas. Misinformation is incredibly dangerous, and in this modern world of social media it's very easy and very fast for misinformation to be spread. Official documents give voters peace of mind that this is something which has been weighed and considered; it's being put to them and they can trust it. Parliament has a responsibility to ensure that Australians are well informed, because constitutional change is not a minor thing. Referenda can be life-changing, and the onus is on government to remain the single reliable source of information in this regard. The ACCC has highlighted public concern about online information and journalism. It has also published data, reporting:

… around 92% of the respondents to the ACCC news survey had some concern about the quality of news and journalism they were consuming.

That is a major risk to the integrity of this debate. Official material increases trust in government and increases trust in the process.

A simpler regulatory environment and better conduct of the referendum are two other issues that would make it easier for people to feel confident in the process. It would be a terrible failure of this government not to have enacted a transparent and trustworthy process for this referendum to go ahead. In the absence of that, Australians will feel that they have no choice but to vote against it. That's the responsibility of the government, to ensure that Australians are provided with suitable materials and that they feel well informed—that they can trust the process and have confidence in it. The official campaign should bring structure and clarity around the guidelines

It's very important that this education about electoral processes and enforcement of the law are carried out. That's why, with the disclosure and donation regime—the most complex part of the Electoral Act—it's important to have good disclosure for the integrity of the process to stand up. It's incredibly important that we don't risk influence by unseen players, overseas players, who may seek to influence the outcome of this referendum. So the disclosure of donations is also incredibly important. It may be that people will fall under the electoral law without their knowledge. People may be breaking the law without realising it, because they don't understand this complex part of the guidelines for disclosure of donations under the Electoral Act. That's bad for integrity, but it's also not right that people could be breaking the law unintentionally. Even the most well-informed people and political parties, who have to understand this process, don't always get it right. An official campaign reduces the risk of this happening.

Equal funding is also important, and the coalition has requested assurance of equal funding if any government funding is going to be provided. That's because equal funding provides equal footing for both campaigns. Australia is the land of a fair go, and I don't think that Australians would like to think that one side of the argument is being supported with government funding, government institutions and other processes, while the other side of the argument is not being equally supported. That doesn't seem fair. It's not right. Equal funding levels that playing field.

I've touched on the concern about foreign interference. ASIO has raised these concerns. We are facing our greatest level of interference yet. It is a serious risk to national security, to the strength of government, to online safety and to misinformation. There are simple steps that we could be taking to alleviate those risks. There are global examples of interference in elections around the world, and Australia is not immune. Despite being an island nation a long way from other places, in this digital world we are not immune to that kind of interference, and so we must guarantee integrity and trust in government processes.

I have been on the record that I do not support the Voice, but I absolutely support this referendum. I absolutely support the right of every Australian to be able to go to a voting booth and have their say. But I do think that it is equally important that this machinery-of-referendum legislation that we're talking about now does include these critical elements: having a pamphlet with the 'yes' and 'no' cases provided in an independent and impartial manner by the government, provision for both a 'yes' and a 'no' campaign, and equal funding. That is the fair thing to do. That is the right thing to do for Australians who are making this very important decision to change our Constitution—a document that has served us incredibly well and that has allowed us to be a very stable nation for the last 100 years.

I'm not speaking against this bill, but I'm raising the very real concerns that I have, and I will wait for the government's responses on these important points. I hope that they work constructively to strengthen the referendum process, because, as I said previously, the government will fail to have a successful referendum if they do not provide a transparent, trusted process of integrity that allows Australians to vote with confidence. In the absence of confidence, Australians will have no choice but to vote no. They will have no choice, because that is the conservative, cautious thing to do.

It is in the government's best interest—as they've clearly stated, as they support the Voice referendum and the change to the Constitution—to make sure this process is as fully fleshed out as possible, because I have to tell you, as I get around my parts of the country, northern Australia in particular, most people have never heard of the Voice. They've never heard that there's going to be a referendum within the next 12 months. It is not something that is on people's minds and lips, particularly given that we've just had flooding right across northern Australia. The government seems to be treating it fairly lightly. There's been a very poor response. We had floods in northern Australia in 2019. I've just had mayors from local councils in my office, and they're telling me the response then was faster, more effective and more comprehensive than this response now. I hope that, given all the advice Minister Watt has provided to government in the past, he has now learnt from his experience.

I look forward to further amendments to this legislation.

10:09 am

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Shadow Cabinet Secretary) Share this | | Hansard source

In speaking to the bill before the chamber this morning, the Referendum (Machinery Provisions) Amendment Bill 2022, I want to start by recognising the importance of this bill and the importance of the issues that will be considered, should this bill be successful and a referendum bill brought back to this parliament. I acknowledge that this is a machinery bill; it's not the substantive referendum question. But I have to say, as a number of my colleagues in the chamber have commented—and may I commend Senator McDonald for her very good remarks here this morning—I am somewhat mystified by the approach of the government, who, apparently seriously and genuinely, want to progress a referendum on this matter to a successful outcome. Personally, I'm not seeing from the government an approach to achieving that successful outcome that I find persuasive and that I think Australians find persuasive. That, frankly, concerns me, because it needs to be a constructive and positive process. I do think governments, when they are in a position of advancing a change to the founding document of our nation, need to be prepared to listen, to engage and to take on board constructive suggestions on—even criticism of—the substance of what they intend to put before the Australian people, so that it has the best chance of success.

One of the mystifying aspects of this process was even the reference of this bill to the Joint Standing Committee on Electoral Matters in the first place. It was referred on 1 December 2022, the day the parliament rose for the year. We were prepared to work and we did. The committee's deputy chair, Senator McGrath, is here in the chamber with me this morning. We had hearings on 19 December and 9 January. But really? A reference to the Joint Standing Committee on Electoral Matters of a bill as important as this over the Christmas break and the new year doesn't smack to me of seriousness from government and of government wanting it genuinely considered. But I particularly want to thank the members of the committee, including the chair and the deputy chair, and those who took the effort, notwithstanding the time of year, to make submissions and to participate in that process, because their insights were very valuable to the committee.

It is important to look at the referendum act. As the committee report observes, that act has not been substantially updated to reflect the modernisations in Australia's federal electoral framework, let alone the other challenges that we face. A number of speakers in the chamber have adverted to those, particularly in terms of misinformation, disinformation, manipulation of electoral processes, social media, technology advances and all the things that go with them. The act hasn't been updated for many years, certainly not since the last referendum was held, in 1999. I was substantially involved in that referendum in 1999, for better or for worse, and I do acknowledge that changes need to be made to contemporise the legislation. My involvement in that referendum, at the time, was as, particularly, former deputy chair of the Australian Republic Movement. I know what a negative referendum outcome feels like if you are a strong proponent of the case being put before the Australian people, and I know how important it is to try to take a constructive approach to avoid that, I would say, Madam Acting Deputy President.

One of the key matters that has been of concern to the opposition is the provision of an official pamphlet, and it was certainly a concern to the coalition members of the Joint Standing Committee on Electoral Matters as well. We produced a dissenting report to that committee report, which made certain observations about the importance of the official pamphlet. The evidence on the official pamphlet that was given to the committee was in many cases compelling. Not everybody agreed—I absolutely acknowledge that—but I found the evidence that came before us from a number of witnesses and a number of submitters to be persuasive and very strong. The Australian Human Rights Commission, for example, submitted that, while it may be appropriate to modernise the form and distribution of the pamphlet, it remains a valuable document which provides electors with the views of their elected officials. The Central Land Council, a very important body in remote Australia for Indigenous Australians, expressed their concern that:

… not providing a physical, posted pamphlet in remote areas would leave some people, particularly older people and Elders, without reliable access to information about the referendum, especially given the barriers to telecommunications access in some communities.

That is from paragraph 1.32 of the Joint Standing Committee on Electoral Matters report on this matter.

We heard a range of arguments in that committee process for improving rather than suspending the official pamphlet to address concerns about its content and method of distribution. It was not part of the government's plan when they initiated this bill in December last year to include a pamphlet, but I note that we have made progress on that. I think it is very important.

The explanatory memorandum for the bill originally said that there might be a 'more effective way to engage and inform the Australian public about the Constitution and proposed constitutional change'. I didn't find the explanatory memorandum particularly informative about those ways. That is the problem with the government's current approach to the referendum question itself as well. I don't think that Australians feel particularly well informed about the specific amendment to the Constitution that is being proposed. So the pamphlet, while not always perfect—and certainly some of the historic imperfections were highlighted in evidence given to the committee—has been an important tool.

To try to understand the government's approach to these matters of considerable substance in terms of the operation of the referendum the committee's coalition members and senators sought to ask the relevant ministers, Minister Burney and Minister Farrell, to meet with the committee and provide evidence to the committee. I will stand corrected, but to the best of my knowledge the letter sent by the deputy chair in relation to that to the chair of the committee, Ms Thwaites, did receive a response from Ms Thwaites, but I don't believe that Senator McGrath received a response to his correspondence from Minister Burney or from Minister Farrell. So they remain outstanding. I don't understand that. I don't understand why ministers with a positive disposition to try to achieve a successful outcome for this referendum question would not be prepared to talk to a committee of parliamentary colleagues.

That request was declined by the committee chair, Ms Thwaites, and we were pointed to the second reading speech. We were told by Ms Thwaites, 'The government's rationale for the proposed legislative changes is contained in the second reading speech of the bill.' Taking that advice, I went to the second reading speech. I would say that it was a remarkable speech in at least one way—not for its content but rather for its absence of content. I reread it, as directed by the chair, to try to determine the government's rationale for some of the changes they are making in this bill. But, after rereading it, I was indeed none the wiser.

There are other issues of concern to the coalition in this bill, and they have been well articulated by a number of my colleagues, particularly by Senator Hume, the shadow minister. Senator Hume said in her speech in the second reading debate yesterday that we 'should treat the changes to the machinery of referenda without consideration of what the referendum question might be' and that the rules that are established under the act and that will be established through this bill should be 'rules that keep balance, fairness, legitimacy and trust in how we change our founding document'. I absolutely concur with Senator Hume's words. Our founding document is important. It is precious to many Australians.

There are some aspects of the bill that we have supported, including in the Joint Standing Committee on Electoral Matters process, as I have outlined. I don't underestimate the importance of the substantive matter which will be the subject of this referendum—not for a moment. I want to thank the Leader of the Opposition, Peter Dutton; and the shadow Attorney-General and shadow minister for Indigenous affairs, Julian Leeser, for the considered way that these matters are being engaged with within the coalition. For my own part, I come to these matters with goodwill. I have a generally constructive disposition to this bill and on the substantive issue. But I hold very deep, serious concerns in relation to the approach being taken by the government.

In the broad, Australians respect our Constitution. We amend it rarely and sparingly. Many a referendum question has gone down, notwithstanding the best, most well intentioned efforts of its strongest advocates—and I refer again to the referendum on Australia becoming a republic. I was the deputy chair of the Australian Republic Movement before I entered the Senate. I was the strongest supporter of that constitutional change, of the formation and operation of Liberals and Nationals, for an Australian head of state. But it failed. We went everywhere. We did everything we could. We stood alongside all of our colleagues from across the parliament, Labor and coalition colleagues together, to campaign. But it failed.

From those standing in that position now, from those strongest advocates of the proposition that will be put forward through this referendum—and, again, seeking clarity on that proposition from the government is, I think, very important—the Australian people do want clarity. They want to know the answers to the sorts of questions that the opposition leader has posed to the Prime Minister. They want to know the clear wording proposed to be used in changing our Constitution. For Australians to be able to have the opportunity to express their views—we don't want to stand in the way of that process. But I do think that it is so important that those concerns that are being raised by genuine, committed Australians be taken on board by the government if it is genuinely seeking a successful outcome to a substantive referendum.

10:22 am

Photo of Sarah HendersonSarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | | Hansard source

Of the 44 referenda held in this country, only eight have passed. The last referendum proposal to pass was in 1977. This shows not only that Australians take referenda very seriously but also that, as Robert Menzies said, 'to get an affirmative vote from the Australian people on a referendum proposal is one of the labours of Hercules'.

It is of the essence in any referendum that the Australian people are presented with a question to which they answer yes or no. This seemingly simple set-up belies the complex sets of reasons people might have for choosing one answer over the other. This is why it is crucial to present voters with clear and comprehensive 'yes' and 'no' cases—so that all Australians can make an informed decision. Every government since 1928 has agreed with this and has provided pamphlets to voters.

If the referendum on an Indigenous voice to parliament succeeds, it will be one of the defining political moments of our time. The Voice has the potential to change the way our federation is governed. It does not represent a merely procedural amendment to our Constitution.

This referendum deserves fairly funded 'yes' and 'no' campaigns, and I am deeply concerned about the consequences if that does not occur. This referendum deserves 'yes' and 'no' pamphlets. It deserves the full attention of this parliament and this government. Instead, very regrettably, what this government has given the Australian people reflects a process which is undermined by a profound lack of fairness. The government has declined to fund 'yes' and 'no' campaigns, setting a dangerous precedent for future referenda and of course most significantly undermining the integrity of this referendum process. The Australian people deserve better.

It is patronising to assume that Australians do not need to receive official material associated with referenda. The Australian Electoral Commission reported that 40 per cent of recipients use its mailed material—a pamphlet setting out the 'yes' and 'no' cases—as a main source of information in casting their vote. That said, we are encouraged by indications from the government that it will reverse its decision and will agree to a 'yes' and 'no' pamphlet. This is not just a matter of fairness but critical to our democratic process. I put on the record very strongly that it is deeply concerning, however, that the government thought it could get away with a smoke-and-mirrors approach to this referendum. I hope and trust that, on this point, common sense will prevail and there will be a 'yes' and 'no' pamphlet received by all Australians.

We know—and this is a very important point to make in relation to ensuring that all Australians receive appropriate information—that electoral events are opportunities for bad actors to use misinformation to influence voters. The ACCC reports that 92 per cent of the respondents to the ACCC news survey had some concern about the quality of the news and journalism they were consuming and that analysis has identified concerning consumer and competition harms across a range of digital platform services that are widespread, entrenched and systemic.

Only weeks ago the director-general of ASIO told Australians that we are currently experiencing the greatest level of foreign interference in Australia's history. Let me just say that again—the greatest level of foreign interference in Australia's history. It would be naive in the extreme to think that foreign actors who desire to disrupt and undermine our democracy will not seek to spread misinformation in relation to the referendum on the Voice. We have seen foreign interference very openly at work in Canada and in Europe, and we know that we are not immune.

So in the name of fairness, integrity and democracy the Albanese government must fund official 'yes' and 'no' campaigns. This will give Australians confidence that the referendum is being conducted transparently, fairly and with integrity. Having official 'yes' and 'no' campaigns will minimise the risk that the referendum process is undermined by any sort of misinformation campaign, no matter the source of that misinformation campaign.

The government has said it will fund a facts campaign to the tune of $9.4 million. I am concerned that this may be an underhanded attempt to ensure that its own view on the Voice prevails. The Prime Minister, reportedly, recently told the Labor caucus that the government needs to minimise scare campaigns in relation to the Voice. Instead of doing the right thing and funding both sides equally, the government has arguably decided to fund the 'yes' case via proxy through its facts campaign. That's why it's so critically important that any factual campaign is delivered in a way that is completely neutral.

How can we trust the government to ensure a fair referendum process when—and I say this respectfully—the government has already broken so many of its promises to the Australian people: promises on power prices, on interest rates, on mortgages, on superannuation and even on registered nurses in aged-care homes. Australians deserve to have absolute, crystal-clear clarity in relation to the machinery of how this referendum will be conducted. All Australians have a right to have their say, and that's why getting this machinery bill right is so important.

Unlike the government, we do not want to stand in the way of Australians having their say with fairness and integrity. We want Australians to be free to exercise their free will and their free choice, free of foreign interference, free of foreign influence, free of government pressure and free of misinformation. This freedom is fundamental to the maintenance of our democracy and the integrity of our Constitution. Democracies are measured not only by what their citizens vote for but also by how they vote. The framers of our Constitution understood this, which is why they inserted section 128: the referendum provision. Referenda represent the soul of representative democracy in this country. They are a means by which Australians are meant to express their true view on matters of fundamental importance. It was with a referendum in 1967 that Indigenous people were counted as Australians. Once again, Australians are being called to vote on a matter of fundamental importance: the establishment of an Indigenous voice. Why does the government continue to insist, by denying the creation of official 'yes' and 'no' campaigns, that Australians not be able to make an informed decision about this?

There is no doubt that the legitimacy of the referendum result will depend heavily on the manner in which the referendum process is conducted by the government. The government needs to ensure that, especially on a matter as important as the Voice, the referendum is conducted with complete impartiality and unquestionable integrity. Why does it hesitate to do this? Surely this is counterproductive. Surely there is the risk that the government may in fact harm its own case for a 'yes' result in the referendum. Regrettably, ever since the government announced its intention to hold a referendum, it has tried to wriggle out of its responsibility to ensure a fair referendum process. I think this says a lot about trust and the way the government trusts the Australian people to make their own choices. This is too important for the government to attempt to make the choice for Australians.

I also want to flag my deep concerns about other matters concerning the referendum such as the refusal of the Prime Minister to answer 15 very reasonable questions put by the Leader of the Opposition, Mr Dutton. It is also deeply concerning that, with only a number of months before Australians are meant to vote on this referendum, we still don't know the proposed wording that will be put to the Australian people. There is also a very live debate which continues about the scope of the powers of the Voice along with many other questions. I have to say that in many respects the government has made a real mess of this and undermined this process, because it has not been able to address so many fundamental questions. The bottom line is that Australians do have a right to know the answers to those questions. Australians should not be required to answer yes or no until those questions are answered.

I stand here today to defend the right of all Australians to be presented with a real choice at this referendum, a genuine choice informed by fair and balanced information from 'yes' and 'no' campaigns that have received fair and equal funding. Like my colleagues, and, most recently, Senator Payne in her contribution, I too want to adopt a constructive approach to this bill. But the government must establish a level playing field. Getting this bill right is so important. If this this bill is not right, this is going to do this whole process fundamental damage. It has never been more important to ensure that our referendum machinery provisions are fit for purpose. Again I say to Senator Farrell, who is in the chamber: we really need to get this right.

I call the government to do the right thing by the Australian people. Let them have their say in a manner which is fair and in a manner which does not undermine the integrity of this very important process and the decision that all Australians must make.

10:35 am

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | | Hansard source

As colleagues have noted, Australians do not change the Constitution of Australia lightly. Only eight of 44 referenda conducted in Australia have been successful, and the last successful referendum was conducted in 1977. Many members of this parliament and many voters were not alive at the time the last successful referendum proposal was put to the Australian people.

Nor should Australians change our Constitution lightly. It is our foundational document, as a nation, that brought colonies and states together as states of the Commonwealth of Australia, a new and independent nation. We have been an incredibly successful nation—a successful nation that stands tall in the world in terms of the success of our democracy underpinned by our Constitution. We have been successful in terms of the harmony of our nation. We're not perfect, and indeed we have many lessons in our history that we should learn and we that we should seek to address continuously throughout our efforts as leaders.

But this important foundational document doesn't just have a proud history, it also has profound legal implications. It is the document upon which our High Court ultimately determines a range of different factors about the validity of laws passed through this parliament and their application in Australia, and it makes those determinations critically against the fundamental foundational document of our nation, the Constitution of the Commonwealth of Australia.

So to be able to change that Constitution against the backdrop of such a limited embrace of change by Australians over such a long period of time, a successful referendum has many prerequisites. The first of those is confidence: confidence in the process of that referendum. That is where this bill comes in. This bill comes in in ensuring that we have a process—if we are to approach a referendum later this year—that has integrity and that Australians recognise has integrity; a process that is fair and that Australians consider to be fair; and a process that will underpin respectful debate during the conduct of the referendum. It is against those pillars of ensuring the integrity, the fairness and the respect in the conduct of this debate that the coalition and the opposition have engaged in the debate about the Referendum (Machinery Provisions) Amendment Bill before this chamber. We've engaged through the process of committee work, which my colleagues Senator McGrath, Senator Payne and others have spoken about and engaged so comprehensively in. We've engaged through this chamber and, indeed, we've engaged, under the leadership of Senator Hume, directly in dialogue and discussions with the government to seek to ensure that integrity, that fairness and that respect through the conduct of the referendum.

We've asked particularly for there to be restoration of the traditional means of communication of a formal 'yes' and 'no' case through the pamphlet that has been part of, a feature of, those 44 previous referenda. We've asked for there to be official recognition of 'yes' and 'no' campaign organisations, and we've asked for an appropriate level of funding in relation to those organisations. It's my understanding, from the comments of the government, that they have accepted the import of providing the official 'yes' and 'no' case through the traditional means of communication with the Australian people. That is important, because it provides particularly for greater confidence that the debate will be respectful and confidence around some the guardrails that may exist around that debate. From my perspective, the fact that there will be a proper process for proper arguments to be laid out in a considered way and shared with all Australians for the 'yes' case and the 'no' case hopefully can ensure that the debate is conducted with the greatest degree of respect and the greatest degree of consideration for opposing views and in a manner that leaves the worst, sometimes, of political and democratic debate outside of this important issue and the way in which it's considered.

In terms of campaign organisations, of course there are many seeking to engage in this campaign. Some are doing so through the establishment of separate organisations, and I know the government has already provided deductible gift recipient status to an organisation committed to advocating for a voice, and I trust that they will work in an equitable way to provide the same status to a deductible gift recipient organisation who is committed to campaigning for the 'no' case, all in the interest of fairness and equity in relation to these matters.

In relation to the third of those requests that we have, around the question of funding, I am on the public record as saying I don't wish to see many millions of taxpayer dollars committed to massive television advertising campaigns for the 'yes' and 'no' case but that I do believe that some element of, at least, seed funding for organisations to be able to meet basic requirements would be sensible. I continue to urge the government to think about that carefully. But I also urge them to ensure that, in relation to the expenditure of public funds, they maintain the integrity of our electoral systems, where the government does not spend taxpayer dollars favouring one side of a debate or the other. It is important for them to do that in relation to any aspect of public spending on this matter, and it is important that they approach this in a way where, if government funds are to be spent, they are spent solely on the conduct of the referendum, on the turnout for the vote and on the basic facts that apply to this referendum, not on favouring one side or the other through this campaign.

I hope that we can, through the committee stage, hear the government address those issues and that we can reach a point where there will be bipartisan support for the terms on which this referendum will be conducted. It may not address absolutely every point that my coalition colleagues have made through this debate and in the public arena prior to the legislation entering this chamber, but I hope we can reach a point where there will be sufficient confidence that, going forward, the process has integrity, is fair and will help to enhance respect for the debate.

While speaking on this topic, I wish to touch a little on the substantive issue of the Voice to Parliament, which, of course, was a proposal put in the Uluru Statement from the Heart that grew out of initial proposals for constitutional recognition of First Australians, of our Indigenous people. I'm somebody who's long supported the concept of constitutional recognition. The Voice adds another layer to that, and—we should be honest—it adds complexity to the debate that will be had in terms of the referendum.

As I've indicated, change to our Constitution is not made easily, and change will not be easily achieved in relation to this referendum. There's that history of failure in relation to constitutional change that we should be mindful of. Australians are more likely to say no than yes—history tells us that—and that is because of a cautious approach that they bring to changes to our Constitution, changes to that foundational document.

We should not see this proposal for the Voice, and the constitutional change for it, to be directly analogous to the very successful 1967 referendum. That referendum was a remarkable point in Australian history, but, if we look carefully at the detail of it, it was a referendum that sought to remove specific aspects of discrimination against Indigenous Australians. It was right; it was proper. We as a nation can be proud that it was embraced as comprehensively as it was.

This referendum, though, will seek to apply a form of affirmative action, if you like, in relation to Indigenous Australians which, by its very means and by its very nature, will mean that fair-minded Australians supportive of equal treatment of each and every one of us will require slightly greater persuasion and slightly greater convincing to support that type of affirmative-action principle to establish a unique, differential voice—a constitutionally enshrined voice—that will provide for Indigenous Australians to have that particular right enshrined within our Constitution. That's not to say that it shouldn't occur, but it is to acknowledge that, unlike the removal of a form of discrimination, that type of approach of enshrining a form of affirmative action will require greater persuasion and convincing of Australians as to the merits of doing so and greater reassurance against any risks in doing so.

This referendum will also not be analogous to the more recent same-sex marriage plebiscite, one that we all lived through and that, indeed, most of the members of this chamber participated in in one way or another. There is an obvious difference between those, and that, of course, is that the plebiscite did not propose a change to the Constitution but was simply a legislative proposal. It was not a referendum in the full sense of the meaning of that but a postal-vote plebiscite. There is also a fundamental difference between the two in that the question of complexity is different. Changing the Marriage Act was easily understood by Australians. They all either are married or know plenty of people who are married, and there was nothing complex about the concept of enabling two people of the same sex to get married just the same as we enable two people of opposing sex to get married. People had strong views and differences of opinion, absolutely, but it was an easily understood change.

The Voice, however, raises many questions—questions of its scope, questions of its structure, questions of its construct and questions of its powers—and Australians will consider those questions during the debate on the Voice. The challenge of this referendum is shaping up to be more akin to the challenge that Australia faced in the last attempted Constitution change, which was for a republic. My friend and colleague Senator Payne spoke about her involvement in that, and I was also involved in that debate. Both of us were unsuccessful, so we recognise, as others should, the difficulty and complexity that comes with achieving that type of constitutional change, in persuading Australians to make the change. Therefore, governments and advocates need to do everything they can to make this proposal succeed. I say that as someone who has long supported constitutional recognition and I say that as someone who doesn't wish to see a referendum put to voters and fail, because I believe there would be negative consequences of that occurring.

So what does the government need to do to give it the maximum chance of success? Firstly, they need to ensure fairness in the conduct of the referendum—hence the debate we're having in this place about the way in which the referendum is structured. Secondly, they need to ensure they pursue constitutionally minimalist change. The government should be seeking to ensure that the most conservative of constitutional scholars accept the narrowness of the constitutional change that is proposed and the fact that it will purely, solely empower the parliament in the establishment of a voice, the scope of that voice, the powers of that voice and the construct of that voice so as to provide maximum confidence that, whilst this question will achieve recognition and will establish a voice, it will in absolutely no way create other legal challenges or considerations in relation to the power of the parliament or the operation of government.

Thirdly, the government needs to make sure that it provides details to give Australians confidence that those questions have been answered and that, when they vote, the details have been considered in advance. Yes, it will be a voice established by the parliament; but, in being provided the details in advance, Australians will have greater confidence than if they simply hear answers that say, 'Those are matters to be resolved later.' I urge the government to act on all three pillars, because I don't wish to see this put and fail. I do wish to see us achieve constitutional recognition, and it starts with getting this bill right.

10:50 am

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | | Hansard source

I welcome those comments of Senator Birmingham and hope that in the course of the next few minutes or hours—hopefully not days—I can answer all of the issues that you have raised in a satisfactory fashion that will result in this chamber passing the Referendum (Machinery Provisions) Amendment Bill with very strong support from the chamber. I would like to thank all of those in this chamber who have contributed to the debate on this Referendum (Machinery Provisions) Amendment Bill 2022. I would especially like to thank Senator Hume and her staff for the terrific engagement that we've had about this legislation over the last few days and weeks. I would also like to thank Senator Waters and her staff for their very constructive contribution to the debate and also thank Senators Pocock, Senator Thorpe, Senator Lambie, Senator Babet and Senator Roberts and his team for their constructive engagement in this bill. I think it's an example of how we get the best out of the Senate with as much consultation as we possibly can and as much engagement with all of the relevant groups as we can.

I would also like to thank my staff, who have worked very diligently, particularly overnight, to get the best possible result for the Australian community out of this very significant change to the referendum legislation. I also take the opportunity to recognise and thank the members of the Joint Standing Committee on Electoral Matters for their review of the bill and for their continued consideration of matters relating to electoral laws and practices, which we hope to bring back to the parliament later on this year.

Referenda are an integral part of our democracy; however, the last referendum was held over 22 years ago, Mr Acting Deputy President, as you will recall. Since that time the Referendum (Machinery Provisions) Act 1984 has not kept pace with the changes to the Commonwealth Electoral Act 1918. The bill makes amendments to replicate current electoral machinery provisions into the referendum context to ensure that the voting processes and experiences are similar to that of a federal election. The bill will also ensure that integrity and transparency measures that currently apply to federal elections will also apply to referenda. This includes the establishment of a financial disclosure framework for referenda to support transparency and accountability with respect to the funding and expenditure.

The decision to change our Constitution is a significant national event, and it has been more than two decades since a change has been proposed. It's therefore important that the government fund a civics education campaign in relation to the upcoming referendum on the Voice. I can also confirm that a 'no' campaign application for DGR status will be treated under exactly the same processes as those that will apply to the 'yes' campaign.

The government notes the recommendations of the Joint Standing Committee on Electoral Matters inquiry into the bill and intends to further consider the committee's recommendations relating to increased enrolment and participation, and the provision of information to voters. The amendments in this bill are important and necessary to deliver a modern referendum in which the voting processes and the experience are similar to those of a federal election. I once again thank my colleagues for their contribution, and I commend the bill to the Senate.

Photo of Sue LinesSue Lines (President) Share this | | Hansard source

The question is that the second reading amendment moved by Senator Hume be agreed to.

11:04 am

Photo of Sue LinesSue Lines (President) Share this | | Hansard source

There is a further second reading amendment, but I understand that it has not yet been moved. I am now going to move on to the question that the bill be read a second time.

Question agreed to.

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I have a second reading amendment.

Photo of Sue LinesSue Lines (President) Share this | | Hansard source

Senator Hanson, I did call you twice. You need to pay attention. The bill has been read a second time. I'll seek advice from the Clerk. I am happy to seek the indulgence of the Senate, Senator Hanson. We have agreement. You can now move the second reading amendment.

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I move the amendment on sheet 1857:

At the end of the motion, add ", but the Senate:

(a) notes that holding referendums separately to a federal election costs the Australian public more than holding referendums simultaneously with a federal election; and

(b) calls on the Government to manage the process to ensure that if the Voice to Parliament referendum is to proceed that it is held in conjunction with the next federal election".

Photo of James McGrathJames McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | | Hansard source

The question is that the amendment moved by Senator Hanson be agreed to.