Jane Hume (Victoria, Liberal Party, Shadow Minister for the Public Service) Share this | Hansard source

In its current form, the opposition will be opposing this bill, and we will be seeking to amend it. This bill is profoundly important. It's profoundly important because it will determine the processes around the most significant decision that voters will have confronted in over two decades: changing their Constitution, our nation's foundational document.

Constitutional referenda are governed by section 128 of the Australian Constitution and the Referendum (Machinery Provisions) Act 1984. This bill, the Referendum (Machinery Provisions) Amendment Bill 2022, will prepare and update the Referendum (Machinery Provisions) Act 1984 ahead of a referendum on an Indigenous Voice to Parliament, which is expected during this term of parliament. More importantly, it will set a precedent for all future referenda on the Constitution.

As difficult as this may be, this parliament should treat the changes to the machinery of referenda without consideration of what the referendum question might be, this time or the next. On principle, the principle must be that in any referendum everyone should be able to put their case and the parliament should facilitate a balanced and fair debate of that question, whatever the question is. In the debate that we've had on this bill and on the proposed referendum on the voice, we've had many references back to the last referendum on a republic. People have referred to how this particular operation was conducted or how the framing of the question was done in such and such a way.

That referendum occurred more than two decades ago, but there is a strong reason why people remember that event and have very strong views on how it was conducted. They are fundamental to how we govern ourselves as people, and people are passionate about these issues. Certainly, rules need to be updated—we have no question about that—but this isn't like an AFL game, which might see a rule change between seasons to address issues of flooding or tanking. These are rules that keep balance, fairness, legitimacy and trust in how we change our founding document.

Evidence presented to the Joint Standing Committee on Electoral Matters referred to the conduct of referenda from right back to the beginning of the last century. Since the introduction of the referendum pamphlet back in 1912, there have been only three occasions where a pamphlet has not been provided. A pamphlet has been distributed in every referendum since 1928. The three referenda without an official pamphlet, in 1919, 1926 and 1928, had good reason. In 1919 there was insufficient time to produce a pamphlet prior to the conduct of the referendum post World War I. In 1926 there was no agreement on how to argue or produce the yes argument. In 1928 there was overwhelming agreement between the parties and governments of all levels.

The AEC provided evidence to the Joint Standing Committee on Electoral Matters that a pamphlet for all households would be expected to cost around $10 million and noted that around 40 per cent of Australians rely on the printed material that the commission provides to households in the conduct of their vote at every election. The government initially said that this was a bad, outdated idea and that we should provide voters with information about the issue on which they were voting. To their credit, the government did listen to the arguments put forward by the opposition, and we note that they have now announced that they will move amendments to restore this pamphlet.

The reasons for this are simple. How we change our Constitution is as important as the change itself. How we change our Constitution should be blind to what that change might be. In the other place, the Attorney-General told members:

The government intends for voters to have an experience at this upcoming referendum that is consistent with their experience at the last federal election.

This bill reflects that, in the time between our last referendum and today, we've seen updates to donation regimes and disclosure regimes, and the introduction of a foreign donation ban and foreign interference laws. We all agree that these changes are now part of our electoral process and the expectations of voters at every election, but this bill doesn't address some of the core structural elements that are present at elections—elements that have not been provided by government. Just as the retention of the pamphlet will strengthen this bill, we need to recognise that for any referendum to be successful we need to provide the tools for the system to operate with integrity. We should certainly not divert from past practice where it would create uncertainty and when it would create mistrust. And we should take all measures available to us to ensure that the process is as robust as it can be and that voters have as much information as needed, and trust in the system, and about the choice that they are being asked to make.

We do support the modernisation of the act insofar as it updates regulations on donations and expenditure for referendum campaigns and imposes reporting obligations. We support the legislative modernisations campaign contained in the bill. We support the ban on foreign donations, the ban on foreign campaigners—measures we introduced into the electoral system when we were in government. However, making these changes to the referendum act without understanding what is needed to operate them successfully is at best hopelessly optimistic and at worst ignorant of the consequences that it will cause. At any electoral event there are structures in place to manage the regulation of our new donations in foreign interference regimes. We have registered political parties, we have significant third parties and we have other participants who are required to register with the AEC, and all of this helps our regulators within our agencies manage the pressures that are placed upon our systems as we go through the often impassioned process of public debate. But because referenda occur so infrequently and occur on matters that aren't often consistent across party lines we don't have these reliable structures for these systems to work. This is why the opposition will move to include provisions for the nomination of official yes and no organisations for a referendum. Again, we approach this not with reference to the question that may be put later this year, but with a reflection on the fact that all referenda may need this provision and this mechanism going forward.

The regulatory auditing process to administer these regulatory schemes would be assisted greatly by having official campaigns to provide a starting point for enforcement and education by the AEC. For a process that's as important and for an outcome as significant as what the government itself is calling for, this is a minimal provision to assist in a strong process for change. We are supportive of the regulatory framework for our elections to apply to our referenda, so let's not then leave regulators with a free-for-all process, impossible to supervise and monitor—with the rigor that Australians expect of them at an election.

Under the government's model we would see that free-for-all of participants who will be captured by the donations and disclosures regime at the referendum. As the joint standing committee heard, there is potential for organisations and individuals to be unaware that their current or previous activities relating to the Voice will be captured under that regulatory scheme. The AEC stated in evidence that donations and disclosure regimes remain one of the most complex areas of the Electoral Act. It is complex enough that even the regular participants, political parties that are active at every election, still get it wrong. What's worse we will see that the regulatory regime is applied to a one-off electoral event and we'll only find out the extent of the success of that regime after the event, potentially months after the event and certainly after the outcome has been implemented.

As the AEC has said to educate the number of participants on their responsibilities and obligations will be a significant body of work. An official campaign structure will at the very least provide a starting point for the AEC's efforts in coordinating education on the responsibilities of organisations and individuals participating in the referendum campaign, as well as providing a head start on the integrity measures that Australians should expect from a properly conducted electoral event.

The requirement to guard against foreign interference is also paramount. Only recently Canada's government announced an inquiry into allegations that a state actor interfered in their 2021 election. We should remember that we're not immune to this in Australia. It has been publicly reported that our own major political parties were hacked by state-sponsored actors. We shouldn't wait to wonder what could have been done after that happens at a referendum. We should act now and provide the structure that will ensure that our agencies can work with participants against foreign interference.

It's clear that if we're to have strong processes for this referendum we should be ensuring that there is a structure in place for those processes and the regulatory bodies to start their work. In doing so, we should fund official 'yes' and 'no' campaign organisations to ensure that they have the administration in place to be able to adhere to the laws that we're about to pass. That's why the opposition will move amendments to require that the nominated official 'yes' and 'no' organisations be provided equal funding to operate and administer themselves under the regime—note that the words are 'operate' and 'administer', not 'advertise' and not 'campaign'.

As the current Attorney-General stated in his final report on the referendum machinery provisions in 2009, when he argued for equal funding of the 'yes' and 'no' cases, irrespective of parliamentary support, he said:

This is in line with the original intention of the Yes/No pamphlet as well as consistent with democratic ideals of informed debate.

That's from the current Attorney-General. We would encourage the minister and the government to consider these very reasonable changes that the coalition has put forward to ensure a referendum that has informed voters and a system that has integrity and trust, a system that will return a referendum that Australians deserve, whatever the outcome may be.

This bill represents a very significant update to the Referendum (Machinery Provisions) Act, and the parliament should consider that these changes reflect how we go about changing our national document, not only today but also in the future. This was the lens through which the coalition looked at the referendum machinery bill—not what the question being asked is going to be but what questions may be asked in the future and what Australians expect and deserve in a referendum process.

To that, I move:

At the end of the motion, add "and further consideration of the bill be made an order of the day for the first sitting day after the Government:

(a) establishes official 'yes' and 'no' campaign organisations for the purpose of the referendum on an Aboriginal and Torres Strait Islander Voice; and

(b) puts into place financial arrangements to provide for equal funding for those organisations".

This amendment would delay the consideration of the bill until such time as it reflects a stronger and more balanced approach to conducting a referendum. This is something that the Senate should consider carefully. The decisions on this bill will set the precedent for all referenda into the future. It's what Australians expect. It's what Australians deserve. It's a referendum machinery that is separate from the question that is being asked. It's a referendum machinery that puts legitimacy and trust into the electoral process. It minimises the chances of foreign donations appearing in a referendum. It minimises the chances of electoral laws that we expect, that we require and that we demand being broken. It minimises the chances of foreign interference in a process that is so important, not just in elections but particularly so when we are changing our foundation document, the Constitution.