Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Hansard source

It is a pleasure to rise to speak on this bill, but what has happened here this morning is a sign of the lack of consideration the government has given this issue over three months. It is a sign of the lack of consideration the government has given this very important issue of amending the Constitution and proposals to do so over the last several years. It is only a matter of minutes ago that this side of the chamber was informed that this bill would be coming on right now. In fact, I had my suspicions when I saw some of the officials with whom I am familiar walking into the chamber as I was walking in here this morning.

After this bill was put to the House yesterday—after it was dropped into the House of Representatives on the day of chaos in the last day of the autumn sittings, the day of chaos on the other side when, once again, Australians did not know who they would wake up to as their Prime Minister—the government has on this occasion simply treated this important issue and the parliament with contempt. It is a bill that was presented on that last day and dropped into the House of Representatives on budget day, and no advice was provided to the opposition in this place—until less than an hour ago—that the government wanted it passed today. Compounding that, no advice whatsoever was given that it would be brought on first. Only minutes of advice have been provided to the opposition. But we are prepared—unlike the government—to deal with this issue.

This is not a bill about the proposed referendum on inserting local government into our Constitution. Indeed, I have not yet seen the words of that proposal. There may be some in the government who have, but I have not seen the words. As far as I am aware it has not been introduced into either chamber yet. It is important to remember that this is a machinery bill. This bill proposes to amend the Referendum (Machinery Provisions) Act 1984. It proposes to do so in a number of ways, not all of which have the opposition's support, and this will be reflected in a number of amendments that I will move later on in this debate.

In 2009 the House of Representatives Standing Committee on Legal and Constitutional Affairs brought down a report: A time for change: yes/no?The report assessed the effectiveness of the famous or infamous yes/no pamphlet, which was sent to every elector in Australia under the current referendum provisions, and assessed whether there were more suitable ways to engage voters in referenda. In the history of referenda in this country, it is quite famous that only eight of 44 have been adopted by the people. I might make the point that, particularly on the Left of politics, this seems to be said as if there is some flaw in the process, or some flaw in the people. I think it reflects the quality of many of the proposals put up. Of course, there have been very few proposals put up by the Labor Party that have been adopted. I think the last one might have been in 1944.

Bipartisan support for a referendum is often outlined as a necessary, but not sufficient, condition for the success of a referendum. There are those that have failed with bipartisan support. I point out that in 1967, on the same day that over 90 per cent of Australians voted to amend the Constitution to give the Commonwealth power over Indigenous affairs—and at the same time removing section 127 of the Constitution regarding counting Indigenous people in the census—a proposal to break the nexus between the House of Representatives and the Senate was only supported by just over 40 per cent of the Australian population. On the same day, more than half the people who voted yes for one proposal, voted no for another. Also, I point out that the second proposal that failed with only just over 40 per cent of the vote did have bipartisan support as well.

What we know is that bipartisan support is a necessary but not sufficient condition. The process we have seen this morning, the bringing in of this bill and its alleged urgency, reflects the government's disorganisation and, I would say, lack of consideration of the import of this process. If the government actually thought this proposal was as important as it has said over the last two weeks, if the government thought this particular bill in reflecting the needs of that particular referendum was as important as it has said in the last 10 minutes, then this legislation would not be being dropped on the chamber at such short notice, would not be being put through this parliament at such short notice.

There are two aspects of this bill that are worthy of particular discussion. The first one is in regard to the yes/no pamphlet. I am old enough to remember the 1988 referendum, although I was not a voter. The four questions put by Lionel Bowen and the Hawke government, which failed so abysmally, were outlined in that small black-and-white booklet produced by the AEC that came out to every voter. In 1999, I cannot remember whether there was a booklet—I note that one of the officials of the AEC indicated that there was—there was a much larger campaign that reflected community discussion about the issue, and reflected the fact that there had been an election and a constitutional convention that came up with the proposal that was then put to the Australian people.

My view is that the proposal in this bill to remove the requirement to send a booklet to each individual elector represents a dismantling of one of the more effective means of communication when it comes to one of the most important decisions a voter can make. Unlike many countries of the world, neither a parliament here nor a convention of politicians has the power to amend our Constitution. Almost uniquely amongst democracies of our age, we have a constitution that was developed by delegates elected by the people and that can only be amended by delegates elected by the people. As I said earlier, while that has frustrated some I think it is one of the greatest elements of our democracy, and it is one of the shining lights of our constitutional arrangements.

No matter what politicians may think, say, wish or desire, that choice remains with the people. That, in my view and the view of the coalition, makes this yes/no booklet a very important component of information to electors. I know the AEC has on occasion suggested that the yes/no booklet could either be sent to an address of a registered elector so as to save money, as it does not go to each individual elector. I contend that effectively householder mail, while it may not say 'householder' on the front, is not going to have the same attraction to voters to read—nor would it necessarily get to everyone in that house—as something individually mailed by the Electoral Commission. The Referendum (Machinery Provisions) Act does provide that the yes/no booklet is prepared by those who vote to support a proposition to be put to the people in this parliament, and those who vote against. Not all referenda have had such a booklet distributed. One of the reasons for that is that some proposals, such as that in 1967, were not contentious and were, if not unanimously supported, I am not aware of any particular dissent to affect the Commonwealth power over Indigenous people.

But the fact that the government would say, 'Let's save a couple of million dollars'—particularly when to them a couple of million dollars represents a few copper coins fallen down the back of the car seat—'by mailing a booklet about a constitutional change to households,' when a referendum costs so much and this is such a small element, to me betrays a lack of consideration for the import of that booklet. After all, there will be media discussion about this. It will of course be swamped by an election campaign. I cannot remember the last time a referendum passed on an election day—those passed in 1977 and 1967 were not on election days. So that puts it beyond my lifetime. So, particularly in this election period, having the yes/no booklet, prepared by people who do and who do not support the proposal, distributed to each elector is critical for voters and the community. To send it to households would in my view devalue it and it would not ensure that every voter got a copy.

There are also proposals in this bill that I believe would facilitate email communications. Again—and I have said this on the record on many occasions—I am not a fan of things like electronic voting and new technologies when it comes to the electoral process. There is both simplicity and transparency in pencil and paper, and in this case there is simplicity and transparency in sending people a booklet which they can read, old style. That does not necessarily preclude it being put up on iTunes so it could be accessed on iPods or Kindles—I am happy to be corrected on that—by the AEC or being put up on a website. I think the 1999 booklet was available on the AEC website. We do not want to preclude electronic communications, but no case has been made that this is the place to save money—by a government that does not know how to save money. The coalition members opposed this recommendation at the committee level in the House of Representatives, and we will be moving an amendment to reflect that later on. We believe that all voters should receive personally addressed mail with the yes/no case from the Australian Electoral Commission.

There is also a proposal in this bill to suspend subsection 11(4) of the Referendum (Machinery Provisions) Act 1984 until the end of polling day 2013. 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 that we discussed earlier. This is a provision that has been suspended before. I do not think anyone could deny that. I was not in this place in 1999, but I understand that in 1999 that provision was suspended. However, the provision was suspended with a couple of issues that I think are inextricably linked to it. There was an education campaign associated with the 1999 referendum, but also, with the 1999 referendum, there was an appropriation of money for a yes and a no case, there was a yes and a no committee appointed. I believe the members of that committee were members of the Constitutional Convention that had been elected and appointed to come up with the proposal.

That is a critical difference in the process we have had here. In 1999, after a long debate about Australia's constitutional arrangements, after an election for delegates and half the delegates being appointed, after participation by political and community leaders from all around Australia and after a proposal being agreed on by a majority of that convention—parts of which were televised, and there are also nice Hansard volumes of it—a proposal was put to the people. There was no question regarding a lack of awareness about the proposal. There was no question regarding a lack of awareness around the substantive issue, which was the arrangements around Australia's head of state and the Crown. It was the product of a long gestation. This process has been the exact opposite. The government has botched this. If the government were serious about addressing the issues, it would not have left this until the last minute. We still have not seen in the parliament their proposal to amend the Constitution. It would not have left it until budget week to bring in this bill. It would not have brought it on with so little notice.

The government proposes to suspend section 11(4) until the announced polling day on 14 September this year. Our concern with that is on multiple levels. I plan to ask in committee, and I was planning to ask in estimates, what the details around the proposed community education campaign were and whether it was an education campaign along the lines of: 'There is a referendum on; there is a yes case and a no case available; here is where you can find them.' Or is it an advertising campaign for one side of that debate? I think it is a legitimate question that people should ask when considering this element of the bill. The explanatory memorandum of this bill actually refers to the House of Representatives committee report that alluded to this provision being suspended but also that there should be funding for a yes and a no case, but the bill before us contains no such guarantee. So I am not sure as to what the government's intentions are and why the explanatory memorandum mentions that. I think it is also worthy of an explanation.

In this financial environment, the opposition are not of a mind to lift this particular prohibition on the Commonwealth spending money, and we will be moving an amendment to that effect. One of the reasons, and the prime reason for it, is that I do not know whether we should be borrowing $12 million to spend on advertising. I know that there was a special amount in the budget yesterday for $22 million on advertising for the NBN over the next six weeks, by the end of the financial year, so anyone who watches a footy game or a League game over the next few weeks can probably be expected to be bombarded with the NBN, and then they can jump online and find out that they will get it in 2019. The point I make here is: should we really be borrowing another $12 million when we do not have any details of what the campaign is for and when we do not have any metrics of its success? The explanatory memorandum implies that it is a yes/no campaign. It wants to achieve some sort of equality in the arguments, yet there is no such provision in the bill.

Also, I think it is putting the cart before the horse to say that we want to advertise something before we have got a proposal in this chamber to deal with. There is no section 128 in the bill before this chamber and, as far as I know, there is not one before the House of Representatives yet. I do not think it is necessarily good practice to say that we want to start looking at advertising for something that the members of this place have not seen and to be asking members of this place to vote for advertising or education for a proposal we have not seen. I cannot think of a better example than this of putting the cart before the horse. Can I suggest to the proponents of this, for those who have cared deeply about it for a long time, that you want to give the Australian community a sense that there is fair play. But to actually talk about education and advertising—and I think there was a line item in the budget last night for this as well for the department of regional Australia—before we have seen a proposal is, I think, not getting off on the best step. This is merely an observation as a student of constitutional history.

The history of referenda is littered with the failures of governments to mount the case for change, to generate consent, to establish a need for the change in the community. This government has failed on almost all of those, by leaving this until the last minute. I cannot help but think that this government is seeking some sort of diversion from its own record; it is seeking to talk about constitutional issues as if that will help people forget about its appalling record in government. I do remember a past Prime Minister doing this when he was behind in the polls in 1993 and 1995—Mr Keating. For some reason, whenever the unemployment rate went up and there was a scandal, discussion about the flag used to start. It was a distraction then. I do not want to assign motives to the government, but the way in which they have implemented this is reflective of their broader failure in office and reflective of their incapacity to establish a community need for something, to generate consent and to reflect that, through a process that respects the multiple views and seeks to convince people. The government have been an abject failure when it comes to the state governments. I understand there is even a Labor state government that might be opposing the referendum—which would be an interesting proposition, I imagine.

The opposition supports this referendum going to the people, but today we believe that this bill should be amended. We are not convinced but we retain open minds on the urgency of the bill. We are not convinced but we retain open minds on the advertising and education campaign, but I will be seeking further information about that during the committee stage

Could someone tell me why it is so important to lift what you might call a fair-play restriction on the Commonwealth, which simply says it cannot spend money on a yes case or a no case, in subsection 11(4), other than the booklet? Why should we facilitate education and spending on advertising before we have seen a proposal to change the Constitution? I would appreciate answers to those questions.

Absent very good answers which were not made available to the House of Representatives yesterday, the coalition will be opposing this bill, but we will be seeking to make amendments.