Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

The Referendum (Machinery Provisions) Amendment Bill 2013 has been brought to the chamber unexpectedly today in a way that demonstrates the ongoing chaos that exists in the government's ranks, the ongoing chaos that exists in the government's legislative program and the chaos they are now extending to the treatment of this nation's most important document—the Constitution. I listened to Senator Conroy groan and moan across the chamber, so it should not come as any surprise that this government treats the constitution with as much contempt as it treats so many other facets of the Australian polity. In the end the Labor government has treated the Australian people with contempt throughout its reign, happily going to an election, saying one thing and then doing the opposite afterwards—happily rolling out budgets where it promises one thing and does the opposite afterwards. In this sitting week we have been reminded so vividly of their contempt for the Australian people in that regard. Whether it was the carbon tax at the last election or the surplus in the last budget, this is a government that consistently has said one thing and done another.

Equally, this is a government that treats the parliament with great contempt. We consistently see guillotines applied in this place to ram legislation through; we see a constant changing of the government program and the order of business. This bill was well down the order of business for today. I came into this chamber this morning ready to continue debate on the Environment Protection and Biodiversity Conservation Amendment Bill 2013. Indeed, until prayers were concluded this morning, that is exactly where I expected the debate would be going. Senator Ryan, who has carriage of this legislation on behalf of the opposition, only had a few more minutes' notice that in fact he was going to have to take off on the referendum bill instead.

It is a sign of contempt not just for those of us who work in this place and deal with the government's ever changing priorities but also for those people I know to be interested in the EPBC bill, whom I noticed sitting in the gallery at the time of the prayers. They had planned to be here to watch the debate occur on that piece of legislation. They had arranged their plans in accordance with the government's published schedule. Because the government operates in a constant state of chaos and contempt, it had changed its mind and decided to bring this bill on instead. It is one thing to treat the people with contempt and it is another thing to treat the parliament with contempt, but it is something altogether to treat the nation's constitution with contempt. That is what the government are doing by pushing ahead as they are with proposals to change Australia's constitution at the eleventh hour of this parliament. There are just 123 days to go until the scheduled election date at which this government wants to put a question to the people to change the constitution. In terms of having proper planning and proper processes for a constitutional debate, that is incredibly short timing. Senator Rhiannon just described the need to enact this change as an urgent issue.

That is something that can be debated and no doubt will be debated when the actual question for the referendum comes through this place, but what does beggar belief is that this is an issue that has been around for decades. It is an issue that has twice before gone to referenda and twice been rejected by the Australian people at such referenda. This government has spent inordinate time discussing this issue, setting up committees, and looking at the process of how it might bring a question forward. Every sign was there that the government was not going to go ahead this time around because the clock had ticked too far and it was running too late. But then the government changed its mind at the eleventh hour and said it would bring forward a referendum despite the incredibly short timeframe. But it is not just a contempt to bring forward that referendum: not satisfied with that in the short period of time there is for consideration, the government has also decided that in that short period of time they want to change the rules for the referendum as well.

That is what this specific bill, the Referendum (Machinery Provisions) Amendment Bill, seeks to do—it seeks to change the rules for the referendum that the government is seeking to put to the Australian people in 123 days' time. Why are we debating this bill with such urgency today when it was not the first bill listed on the Notice Paper? Because the government has realised that if it does not get the machinery provisions bill passed first, then its question will be put under the old rules. The government could have got on and dealt with this machinery provisions bill a long time ago—it has had plenty of forewarning that it was at least still thinking about having a referendum—but, because of the government's own chaotic nature and because of the shambolic approach it brings to the legislative program, it failed to do that. So today we have to come and debate this legislation to change the rules under which the referendum will be held, just 123 days before the proposed referendum.

These are serious changes to those rules. We should not doubt the fact that these are changes that could have a significant impact on the way the referendum is conducted. Australia's constitution has served us extremely well throughout the life of our federation. The Australian people have shown great reluctance to accept change to our constitution. They deserve to be treated with respect when they are asked to change our constitution. That respect should include sufficient notice for a proper debate and it should ensure that those who are required to prepare the information needed for such a debate are given appropriate time in which to prepare that information. In the discussions about this referendum, even the Australian Electoral Commission flagged that there were real risks that information would not be given in a proper manner if there were insufficient time for its preparation. It seems that that is not a priority of this government. This government, it appears, wants to subvert the way in which information has historically been given to the Australian people in referenda.

The Referendum (Machinery Provisions) Act of 1984 was actually passed by the Hawke government. It put in place incredibly fair arrangements—fair arrangements that ensure that every voter receives yes/no cases, so that people can make their own minds up based on factual information that assesses the arguments for a case to change our constitution and the arguments against it. It is a very mature and sensible approach. It also ensures that the government of the day cannot use its overwhelming resources to campaign one way or the other. We politicians are of course free to go out and argue our cases as much as we want. Political parties can spend their money on the questions, if they so wish. Lobby groups and others can spend their money. But this is one area, thankfully, where the government's hands have historically been tied—where the law says that the government itself should not use taxpayers' money to advocate a change to the Constitution; the government should simply present the cases for and against to the Australian people and let them make up their own minds. The changes in this proposed legislation subvert those traditions put in place and enshrined in legislation by the Hawke government in 1984.

There are two particular aspects of this legislation that the coalition has grave concerns about. The first relates to the redefining of certain terms within the act and to the redefining of those terms as it relates to how that yes/no case is put to voters. Those changes firstly replace the word 'elector' with the word 'household' and secondly replace the word 'posted' with the words 'sent to each address'. Those changes could sound somewhat innocuous to many people but, in fact, those changes could have quite a dramatic effect in terms of how the government complies with the act. Under the current act it is very clear: every registered voter must receive their own copy of the yes/no case and it must be posted to them. There is no room for ambiguity. There is no opportunity for the government of the day to subvert that in any way, shape or form. If you are on the electoral roll, you get the yes/no case and you have that chance to sit down and work your way through it.

If the government's proposed changes are adopted, then there is a real risk that voters will not necessarily receive a yes/no case with such certainty, because replacing 'elector' with 'household' means that rather than a direct mail piece that goes specifically to the voter in question, the yes/no case could become essentially another piece of junk mail that goes into each household. It does not have to be addressed to the voter or targeted at the voter but could simply be distributed with their Coles or Woolworths catalogues, if the government chose to take that shortcut. Indeed, as other colleagues have raised, replacing the term 'posted' with 'sent to each address' opens up the possibility of the government deciding to use email as an alternative. In time, that may well become a viable proposition. But right now the likelihood that the AEC would have the capacity to accurately send emails to ensure that every voter got a copy of the yes/no case would be very slim, because the accuracy and comprehensiveness of such lists are sorely lacking. Removing the term 'posted' and replacing it with 'sent to each address' also removes the requirement to use Australia Post—the credible, traditional and reliable pathway of getting this information into the hands of every household—and puts it in the hands of whoever the government or the AEC decides to use. That is how you could have the scenario of your yes/no case for serious constitutional change simply being enclosed between your Coles catalogue and your Toys R Us catalogue that get crammed in your letterbox and in many cases simply then get dropped straight into the recycling bin. We have very serious concerns about these particular changes to definitions. The government should be honouring the time honoured tradition of ensuring that the yes/no case is posted to every voter so that we ensure that every voter is thoroughly informed and able to make their own decision.

The other change proposed here is even more grievous and even more concerning. The other change relates to the operation of section 11(4) of the Referendum (Machinery Provisions) Act 1984. Section 11(4), it is proposed, would be suspended from operation for the period up until the end of election day on 14 September. The government is not necessarily proposing to knock it out for all time but for the particular referendum that the government wants to put up this time. That makes it an especially extraordinary change. Why would the government want to knock out a provision that has been there since 1984, when the act was passed, and just exclude it for the purpose of putting this one question.

What does section 11(4) say? It is a long one but it is important that it is put clearly on the record. It says:

(4) The Commonwealth shall not expend money in respect of the presentation of the argument in favour of, or the argument against, a proposed law except in relation to:

(a) the preparation, printing and posting, in accordance with this section, of the pamphlets referred to in this section;

  (aa) the preparation, by or on behalf of the Electoral Commission, of translations into other languages of material contained in those pamphlets;

  (ab) the preparation, by or on behalf of the Electoral Commission, of presentations of material contained in those pamphlets in forms suitable for the visually impaired;

  (ac) the distribution or publication, by or on behalf of the Electoral Commission, of those pamphlets, translations or presentations (including publication on the internet);

(b) the provision by the Electoral Commission of other information relating to, or relating to the effect of, the proposed law; or

(c) the salaries and allowances of members of the Parliament, of members of the staff of members of the Parliament or of persons who are appointed or engaged under the Public Service Act 1999.

What is the effect of this section 11(4) that the government proposes to suspend? At present, section 11(4) ensures that the government can only spend money going into the referendum to provide the yes/no case fairly to voters. That fair provision then leaves the funding of arguments in favour of or against changing our constitution to those outside of government that may wish to take it up.

It is unfortunate in many ways that we do not have this type of provision to prevent all manner of other political advertising that governments have historically undertaken and that this government has, as it has gotten closer to the election, been increasingly desperate to undertake. Such a restraint is a good thing to have, because it ensures that governments simply put the question in a fair way. If the operation of this provision is suspended—if 11(4) does not apply and the government is able to spend, finance or freelance willy-nilly in relation to the referendum question—then the government will be fully within its legal rights to offer funding to proponents or opponents of the referendum question in unequal amounts. It will be fully within its legal rights to offer that funding to only one side of the debate or to itself fund campaigns arguing for the yes case or the no case.

In the end, we should have faith that the Australian people are able to make the right judgement based on the facts. It should not take a slick marketing campaign funded by taxpayers, by voters, to argue the case for constitutional change. Constitutional change is too important to be left to slick marketing campaigns. It must be a case of trusting the judgement of the Australian people and trusting them to read and assess the arguments for and against. As is provided for, those arguments should be able to be translated into other languages and made suitable for the visually impaired and they should be accessible to people online as well as through the post. All of that is provided for to ensure that people have equitable and fair access to the yes case and to the no case. But sadly this government wants to suspend the fairness provisions of the referendum act so that they can argue a case or fund the argument of a case that suits their ends.

The handling of this bill, the timing of this bill and the content of this bill are all just examples of the contempt that this government has for the parliament. This is how it treats the Australian people and the Australian Constitution. Our constitution deserves better than this. The Australian parliament and people deserve better than this. If we are going to have a referendum on 14 September, it should be one that is fought fairly and fought in a way such that the Australian people can be guaranteed that they will be informed in an equitable, fair and reasonable manner of both sides of the argument. For those reasons, these provisions in this bill should most definitely be opposed.