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2010-2011-2012- 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
the Hon Gary Gray AO MP)
REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2013
OUTLINE
The Referendum (Machinery Provisions) Amendment Bill 2013 (the Bill) amends the
Referendum (Machinery Provisions) Act 1984 (the Referendum Act).
In December 2009 the then House of Representatives Standing Committee on Legal
and Constitutional Affairs reported on the machinery of referendums in the report: A
Time for Change: Yes/No? The report made seventeen recommendations.
This Bill addresses Recommendations 3 and 11.
Recommendation 3 reads:
"The Committee recommends that the Australian Government introduce amendments
to the Referendum (Machinery Provisions) Act 1984 (Cth) to require a Yes/No
pamphlet to be delivered to every household, not every elector."
Subsections 11(1), (2) and (3) of the Referendum Act provide for the printing and
posting to each elector of a pamphlet which outlines arguments in favour of the
proposed Constitutional change and arguments against the proposed Constitutional
change. These arguments are compiled and presented in one pamphlet known as the
Yes/No pamphlet.
Recommendation 11 reads:
"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.
The Bill implements the Government response to Recommendations 3 and 11 by:
amending section 11 of the Referendum Act to substitute a requirement that the
Yes/No pamphlet be sent to each address on the electoral Roll for the current
requirement that the Yes/No pamphlet is posted to every elector; and
temporarily suspending the operation of subsection 11(4) of the Referendum Act.
FINANCIAL IMPACT STATEMENT
The financial impact of implementing the provisions of the Bill has yet to be determined.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Referendum (Machinery Provisions) Amendment Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Bill implements the Government response to Recommendations 3 and 11 of the
then House of Representatives Standing Committee on Legal and Constitutional
Affairs December 2009 report on the machinery of referendums entitled A Time for
Change: Yes/No?.
Recommendation 3 of the Report relates to subsections 11(1), (2) and (3) of the
Referendum (Machinery Provisions) Act 1984 (Referendum Act) which provide for
the printing and posting to each elector of a pamphlet which outlines arguments in
favour of the proposed amendment and arguments against the proposed amendment.
The pamphlet is known as the Yes/No pamphlet.
The Bill amends the requirement for the Yes/No pamphlet to be posted to each elector
by sending one pamphlet to each residential address held by the Australian Electoral
Commission for electoral purposes. The vast majority of Australian citizens whose
names are on the electoral Roll are enrolled at an address located in one of the 150
electoral Divisions. Many people live in the company of other electors, for example,
in family units. In such cases all of the electors share the same residential address and
it is not unreasonable to anticipate that only one Yes/No pamphlet should be sent to
each address.
The second amendment allows for broader Commonwealth spending on a
Referendum by temporarily suspending the operation of a legislative limitation at
subsection 11(4) of the Referendum Act.
Human rights implications
The Bill engages Article 25 of the International Covenant on Civil and Political
Rights (ICCPR).
Article 25 of the ICCPR
Right to take part in public affairs and elections
The UN Human Rights Committee (the UNHRC) states in its General Comment 25,
Article 25 of the ICCPR ,,recognizes and protects the right of every citizen to take part
in the conduct of public affairs, the right to vote and to be elected and the right to have
access to public service. General Comment 25 provides guidance on these rights.
Paragraph 6 of General Comment 25 provides that Citizens participate directly in the
conduct of public affairs when they choose or change their constitution or decide
public issues through a referendum.
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Paragraph 19 of the General Comment goes on to state that persons entitled must be
free to vote for or against any proposal submitted to a referendum, "without undue
influence or coercion of any kind which may distort or inhibit the free expression of
the electors will."
Following on paragraph 25 requires "the free communication of information and ideas
about public and political issues" is essential to ensure the full enjoyment of the rights
protected by Article 25.
In this context the amendments in this Bill which change the approach for sending
Yes/No pamphlets to Australian citizens do not impact on any human rights. Each
Australian citizen will be able to read the arguments for and against changing the
constitution as before, except instead of a pamphlet being addressed to each "elector"
it will be sent to an address.
It is also important to note that, as allowed for by subsection 11(4) of the Referendum
Act, the Australian Electoral Commission will translate the Yes/No pamphlet into
languages other than English and prepare the pamphlet in accessible formats on the
Commissions website. Further, the Australian Electoral Commission has the
capacity to identify addresses where numerous electors are enrolled, such as nursing
homes, and provide multiple copies of the Yes/No pamphlet to these facilities.
Conclusion
The Bill engages Article 25 (right to take part in public affairs and elections) of the
International Covenant on Civil and Political Rights (ICCPR). The Bill contributes to
the realisation of Article 25 of the ICCPR by continuing to ensure that Australians are
able to receive arguments for and against changing the constitution.
The Hon Gary Gray AO MP, Special Minister of State
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NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Referendum (Machinery
Provisions) Amendment Act 2013.
Clause 2 - Commencement
2. This clause provides that the Act commences on the day this Act receives the
Royal Assent.
Clause 3 - Schedule(s)
3. This clause specifies that each Act specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule, and any other
item in a Schedule to this Act has effect according to its terms.
Clause 4 - Commonwealth expenditure during 2013 in connection with
referendum proposals
4. This clause temporarily suspends the operation of subsection 11(4) of the
Referendum Act for the period from when the amendment commences until midnight
of polling day for the general election of the House of Representatives in 2013.
5. The temporary suspension of subsection 11(4) will provide the capacity for the
Government to spend money on promoting the case for and against any referendum.
A similar amendment was made by the Referendum Legislation Amendment Act 1999
which suspended the operation of subsection 11(4) for the referendum on if Australia
should be a republic in 1999.
Schedule 1 - Amendments
Referendum (Machinery Provisions) Act 1984
Item 1 - Subsections 11(1) and (2)
6. This item omits a reference to ,,posted to each elector and substitutes ,,sent to
each address to which subsection (2A) applies. By amending these subsections, the
requirement for the Yes/No pamphlet to be posted to each elector will be replaced by
a requirement to send one pamphlet to each residential address held by the Australian
Electoral Commission for electoral purposes. The vast majority of Australian citizens
whose names are on the electoral Roll are enrolled at an address located in one of the
150 electoral Divisions. Many people live in the company of other electors, for
example, in family units. In such cases all of the electors share the same residential
address and it is not unreasonable to anticipate that only one Yes/No pamphlet should
be sent to each address.
Item 2 - After subsection 11(2)
7. This item inserts new subsections 11(2A), 11(2B) and 11(2C). Subsection
11(2A) sets out two categories of addresses that are held by the AEC, the first is
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comprised of the address shown on the electoral Roll. The second category of
addresses covers circumstances where some electors residential addresses are not
included on the electoral Roll. Some electors apply to have their residential addresses
not shown on the Roll because of security issues concerning themselves or their
families.
8. New subsection 11(2B) provides the capacity to the Electoral Commissioner to
send pamphlets to any other address that may be appropriate. Examples of such
addresses may include where electors have notified the AEC that they will be away
from their residential address leading up to polling day and given an address where
they wish postal ballot material to be sent. In such an instance it would be more
appropriate to send the Yes/No pamphlet to the same address where electors wish to
receive their postal ballot papers.
9. New subsection 11(2C) allows the Electoral Commissioner to also send out the
Yes/No pamphlet to an email address.
Item 3 - Paragraph 11(4)(a)
10. This amendment makes an amendment to paragraph 11(4)(a) consistent with the
amendments made at Item 1. It recognises that the AEC will spend money in
delivering the Yes/No pamphlet other than on posting the pamphlet.
Item 4 - Application provision
11. This item applies the amendments made in this Bill to referendums which are to
be conducted after this item commences.
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