The writ is issued by the administrator to the electoral commissioner who must make appropriate arrangements to conduct the referendum. Provision is made in the Act that a referendum can take place at the same time as a Northern Territory Legislative Assembly election or federal election. In the latter case, the Act provides that officers of the Commonwealth can undertake tasks detailed in the legislation and adopt election procedures and materials used at the federal election.
History of referendums in the Northern Territory Early plebiscites held in the Northern Territory were the military service plebiscites held in and In an Australian Referendum was held on 21 May and contained four referendum questions and one non-binding plebiscite.
Only electors in the six states could vote at the referendum; however, voters in the territories were able to vote on the plebiscite. As an additional question the voters were asked which song they would prefer to be played as the de facto national anthem in place of 'God Save the Queen'. Voting on this question was not compulsory. Since the amendment, voters of the Northern Territory and Australian Capital Territory are eligible to vote in referendums.
Territory votes are counted towards the national total but the territories do not count as states for the purpose of the requirement for a majority of states.
The Australian Constitution can be amended only with the approval of Australian voters. Voting in a constitutional referendum is compulsory for enrolled voters. For a referendum to pass, a double majority must be achieved. That is:. Voters in the Northern Territory and Australian Capital Territory have only had the right to vote in constitutional referendums since an amendment to the Australian Constitution was passed in Territory voters are counted towards the national total but the territories do not count as states for the purpose of the requirement for a majority of states.
Since , 19 referendums have proposed 44 changes to the Constitution; only eight changes have been agreed to. Before a referendum can take place, the proposed changes must be approved by the Parliament and put to the Australian voting public.
A referendum is only passed if it is approved by a majority of voters in a majority of states, and by a majority of voters across the nation. This is known as a double majority. Territory voters are only counted in the national majority. It also meant that the states could create their own policies for Aboriginal and Torres Strait Islander peoples. The states enacted Aboriginal Protection Acts which gave them the legal right to remove children from their families.
Aboriginal and Torres Strait Islander peoples have always protested and fought against these injustices. There was no single moment that sparked the Referendum, more a growing swell of support for change led by a range of people and organisations.
In the late s, changes in other countries toward equality and civil rights focused public attention on the injustices faced by Aboriginal and Torres Strait Islander peoples. This is not the occasion for me to canvas the merits of direct election. Professor Brian Galligan has done that excellently.
Let me put forward a minimalist position on popular support for direct election: that voters are inclined to an Australian republic but they are gripping on to direct election as a hostage or bargaining chip, which they will not release until the political elites open up the republic to the public. Whether that is through direct election of the President or some form of special purpose electoral college in place of the proposed nominating committee is an open question.
Australia faces something of a democratic deficit: I call it our deliberative deficit. I want to show that this deliberative deficit goes back a long way in our political system. Our system of parliamentary government is compatible with deliberative democracy but it does not always deliver deliberative democracy—sometimes not even democracy! This default position tolerates but is far from friendly to community participation. Opening up the deliberative process to public participation takes considerable public effort.
The aim of a deliberative democracy is not really consensus, although more often than not consensus will emerge as a valuable outcome of a deliberative process. The real aim is to encourage public dialogue, including the airing of public disagreements, as a precondition of effective government decision-making.
Think of this focus on the argumentative side of democratic politics as a defence of civil disagreement , a few steps shy of civil disobedience. Civil disagreement is one of the very important forms of political deliberation. The rules for public deliberation should encourage the give and take of open argument, even while protecting the restraints of civility. A deliberative democracy tolerates civil disagreement because it knows that good decision-making in government should be anchored in a process of shared deliberation with open discussion of options and alternatives.
So what's the link to the referendum? To my mind, the referendum provides an unusual opportunity to reconsider the design of deliberative democracy in Australia. The first element in standing back is to realise just how distinctive Australia is in having national referendums to change the Constitution. The Australian Constitution provides that the Constitution can be formally altered or amended only through popular approval of any proposed changes at a national referendum.
But the main point is that formal constitutional change can not proceed without the express approval of the Australian people. Few other democracies have such a prominent and direct role for the people in the process of constitutional change. The United States for instance requires proposed amendments to arise either through a two-thirds vote in each House of Congress or through the initiation of two-thirds of state legislatures.
Ratification is by approval of three-fourths of the states, either through their legislatures or by special conventions where the people can play their modest part as electors but not by the people through direct determination of the outcome.
The recently repatriated Constitution Act of Canada provides for amendment by resolution of national and provincial parliaments: first through a resolution from the two Houses of the national parliament, then supported by resolution of the parliaments of two-thirds of the Canadian provinces.
I note in passing that amendment to the office of the Queen or the Governor-General requires the unanimous consent of all provinces. But the main message is clear: approval of constitutional change is a matter for elected politicians—not the people as a whole. Look at the contrast with Australia. For a start, Australian governments are compelled to obtain popular approval.
And because of compulsory voting, voters are compelled to go to the polls: Australia is again distinctive in its very high voter turnout at referendums compared with other democracies. Section of the Constitution provides a very demanding test of popular approval. Think what a special opportunity the referendum provides. We know, for instance, that Prime Minister Howard is opposed to the republic, so that a Yes vote could not be interpreted as ratifying the Prime Minister's preference; just as a No vote for the proposed preamble could not be seen as ratifying the Prime Minister's preference.
What goes for the Prime Minister goes for Parliament generally: this referendum shows just how limited is the conventional wisdom which holds that the practice of referendums is reactive rather than proactive—simply ratifying proposed laws that have already won support within the elite of elected representatives. The vote might turn around the conventional wisdom because we could see the Prime Minister in effect having to ratify a popular vote in support of a republic, or having to shelve his personal support for a preamble on the basis of popular rejection of his model preamble.
But all these fascinating pressures for change rub up against the traditional system for managing referendums, with its in-built deliberative deficit.
To my mind, there are structural defects in the way we run referendums. Some of these defects are flaws in the constitutional foundations and others are limitations in the ordinary rules which Parliament has adopted for the machinery of referendums. I want to highlight aspects of the deliberative deficit as it exists in both the constitutional foundations and in the scaffolding erected for the machinery of referendums. Let's start with the constitutional foundations. The last words of the Australian Constitution are those detailing the rules for referendums.
In the records of the s constitutional conventions one repeatedly finds our constitutional framers declaring that this final provision dealing with constitutional change was one of the most challenging tasks of constitution-making. The eventual provisions of section did not emerge without hard struggle: the right for referendum had to be fought for, against well-argued opposition in defence of the rights of elected representatives, either in Parliament or in special conventions, to decide things on behalf of the community.
To appreciate just how special is this right to referendum, let me take you back in time to the s constitutional conventions and illustrate the range of objections to the practice of referendum, and the rather edgy accommodation that underpins this crucial provision of the Australian Constitution. The friends of referendums had to overturn at least three deeply-held prejudices against referendums which illustrate the default position of our political system.
I stress that the system is open to deliberative democracy, but that in the absence of repeated public pressure the system defaults back to its position of diminished interest in community deliberation, thereby displaying the deliberative deficit. There was universal acceptance of the need for some sort of change mechanism but the initial preference was for something along the American lines with indirect participation through elected conventions.
This very traditional view was that responsible government conferred power and responsibility on the government of the day, and the political role of the people, or at least those lucky enough to be invited to share in the franchise, was to stand back and watch between elections. There were champions of wider public deliberation who worked hard to reduce the deliberative deficit of the emerging national political system. Just as a jury's verdict is preceded by an impartial process of cross-examination of disputed evidence, so too the people's verdict at a referendum should be preceded by some sort of impartial process of weighing the pros and cons of each proposal.
Deliberation literally means weighing up options, as on a set of scales. Those who warmly supported the principle of referendum began to search for new ways in which Australian citizens could be assisted to participate positively: by protecting public deliberation from the sorts of debating practices common in Parliament and also by providing citizens with impartial information on the core arguments of the Yes and No case surrounding referendum proposals.
A second aspect of the deliberative deficit is the belief that Parliament should restrain the impulse to referendum through rules designed to keep matters alive within Parliament until they are ready for popular ratification. In this conservative view, referendums should be seen as passive ratifications of the results of parliamentary deliberation and not as opportunities for the community to reopen the policy deliberation.
In contradiction, proponents of referendums argued that Parliament should have few restraints and should certainly not restrain the referendum impulse until a parliamentary consensus has emerged. Proponents did not want to confine referendums to policy preferences already determined by elected members, and so they resisted the imposition of barriers which would confine referendums to formal ratifications of policy preferences already settled within Parliament.
An example of this aspect of the deliberative deficit was the framers' debate over the size of the parliamentary majority that should be required for the passage of a referendum proposal: should it be a simple majority or some sort of super-majority? Proponents of referendums wanted an ordinary majority; opponents of referendum wanted a super-majority to check the impulse for rash referendums. The framers made two fateful decisions that opened up the possibility for wider public deliberation.
First, they ensured that the Constitution did not put the bar too high, certainly not as high as the US Constitution's requirement that a proposed amendment must obtain a two-thirds majority in each House of Congress. The Australian Constitution requires that a proposed change normally requires an absolute majority in each House. But our framers made a second fateful decision. The Constitution also permits either House to initiate a referendum if the two Houses of Parliament are deadlocked over three months.
Under such conditions, the initiating House may request the Governor-General to submit a referendum question to the people. At first glance this looks very similar to the provision in section 57 of the Constitution which regulates the procedure for resolving deadlocks over ordinary legislation which leads to double dissolutions. But there is one very important difference: unlike the case in section 57 which really only deals with the rights of a government when facing an obstructive Senate, here it is the case that section protects the right of the Senate to go to the people.
What would happen if the Senate did not pass a government's referendum proposals? This was a real possibility in given the determination of the Opposition parties to prevent the passage of Prime Minister Howard's original Preamble. The only time that the Senate has tried to put a referendum over the protest of the House of Representatives was in when the conservative Cook government ensured that the Governor-General declined the kind offer from the Opposition or Labor Party-controlled Senate.
And the only time that the House of Representatives proceeded to hold a referendum on a proposal that had been refused by the Senate was in when the Whitlam government unsuccessfully tried to get voters to approve changes which would have broken the famous nexus in the Constitution regulating the relative size of the two Houses.
There is a remarkable alignment between promoters of the referendum like Isaacs and Deakin, who also demonstrate their support for other forms of popular legislative control like the citizens' initiative and the right of the states as a group to initiate referendums.
Indeed, conservatives demanded to know whether the right of an initiating House to seek a referendum was really a back-door form of the initiative. A third aspect of the deliberative deficit in our constitutional foundations for referendums is the thinness of support for the dual majorities approach to securing a referendum majority.
As I mentioned earlier, approval of a referendum proposal requires the dual majority test: obtaining a national majority, which is a majority of votes on an Australia-wide basis; and also what was originally termed a federal majority, which is a majority of the votes in a majority of the states. My comments on this dual majority requirement will be comparatively brief, as this aspect has attracted extensive commentary in the referendum literature, and in the Australian analysis of the institutions of federalism.
Looking more generally at this federal dimension to referendums, one can see the provision for the double majority in negative terms: as a sign of the power of states' rights to block national majorities. Thus far five referendum proposals have won a majority of national votes but failed to secure a majority of states. It is certainly possible that this second requirement could itself be altered through a referendum, as the Whitlam government unsuccessfully attempted to do in , when it sought to reduce the number of states requiring a popular majority from four to three—half rather than a majority of states.
If the majority was reduced from four to three, then three additional referendum questions would have been carried: two for Labor in and one for the Coalition in But what counts for a majority at the state level? It is a majority of those voting, which before the introduction of compulsory voting could have resulted in a minority of those entitled to vote. But there was an even murkier problem. What happens when two of the original states South Australia and Western Australia have women's suffrage?
Does that give those two states some sort of unfair advantage over the others, a kind of double-dipping system which might give them disproportionate influence when it comes to counting a national majority? A contemporary version might be a protest over the rights of territory voters to participate in referendums, on the ground that our votes might give an unfair boost to a national majority, even though we are not strictly part of the federal compact.
The same framers who finally accepted the requirement for a majority of States lost their nerve over women's rights. On the dark side of the Constitution we find included in the referendum provision one of the document's few explicit references to women's rights.
Our constitutional framers knew that at some time after Federation, the national Parliament would adopt a uniform national electoral law for elections and referendums. But while they were prepared to allow the two progressive states to permit women to vote at elections for members of the House and the Senate, they held the line or lost their nerve when it came to referendums. The framers included in the third paragraph of section a provision that is still there but now I hope a dead letter, which defines the constitutional situation until such time as Parliament enacts a national uniform suffrage.
Instead of providing for constitutional protection of adult suffrage, the constitutional framers bent the other way to protect the rights of those states without adult suffrage. Not that much harm came of this provision: uniform franchise for elections and referendums was guaranteed in , well before the holding of the first referendum in So much for weakness in the foundations: now for the instability in the scaffolding.
The deliberation deficit does not stop with the adoption of the Constitution. It is also evident in the rules for running referendums that Parliament has developed over the years since Parliament first made rules for the administration of referendums in Parliament tried four times over a decade from to to erect scaffolding which would give voters every opportunity to make an informed choice at referendums.
In unsuccessfully and again successfully , Parliament debated the merits of an information pamphlet canvassing referendum arguments. Parliament knew that public deliberation must of necessity focus on the contending arguments and not simply the slogans of today or the background issues of yesterday. But Parliament could find no solution to the problem of editing the contending arguments into a state fit for public consumption. What makes for political nutrition? What forms of political argument or what forums for argumentation are healthy for a democracy?
It did not take long for the friends of referendums to see that much of the parliamentary wrangling over referendums is unpalatable; some of it is indigestable; and a bit even poisonous—debilitating our democratic capacities. The friends of referendums were bold and ambitious: they wanted to bring voters into direct contact with the core arguments in constitutional contention.
Parliament initially searched for some convenient external authority, such as a High Court judge, who might edit and credential the contending cases. When that option collapsed, they turned to authorities closer to Parliament, such as the parliamentary Clerks or the Chief Electoral Officer. Think of this adoption of compulsory voting as an abandonment of the supply focus trying to supply appropriate materials to help voters and the adoption of a demand focus trying to put in place incentives to stimulate demand among voters to get them interested in finding for themselves information relevant to their referendum responsibilities.
By , the system as we now know it was pretty much in place. Let me now walk you through the construction of this referendum scaffolding in more detail. It is a wonderful case-study of a democracy attempting to promote argument in place of mere contention. Right before the first shot was fired in the original referendum campaign, the initiating government was anticipating, quite correctly, that one of the basic issues was going to be the credibility of competing statements about the likely effect of any set of proposed changes.
The Deakin government's aim, again altogether correct, was to inform the electorate with impartial advice about what would change under any given referendum: impartial here meaning free from party-political wrangling involving all sorts of allegations about the partisan purposes of disputed policy proposals. The provision was rejected. The aim was to provide voters with direct access to the core arguments for and against referendum proposals.
Instead they arrive at conclusions in a rough and ready way upon general principles. What better options could Parliament have considered? Where could they have turned to provide electors with advice about the textual integrity of proposed constitutional changes? Three emerged in debate: one internal—in the Attorney-General of the day; one external—in the High Court as a whole; and finally a turn to independent professionalism—the two chief parliamentary Clerks.
All three were discussed and discounted: the Attorney-General, then as now, faced a gulf of credibility given that he was normally the chief legal adviser to a government proposing a referendum; the High Court would jeopardise its own integrity if it played the part of expositor to the executive; and so too the parliamentary Clerks might well lose their party-political independence if they were drawn into partisan controversy.
It took the Parliament the experience of three referendums , , and another six years before it amended the referendum legislation to include within it the provision for distribution of the Yes and No pamphlet to all electors. The origins of the official pamphlet have been discovered in the records of the Hobart annual conference of the Parliamentary Labor Party, where the party agreed that the experience of the failed referendum could be explained by the twin evils of popular misunderstanding and partisan misrepresentation.
The changes were introduced by Attorney-General Billy Hughes who went to great lengths to explain the innovation of providing electors with two statements of no more than words containing the Yes and No cases. These cases were prepared and authorised by a majority of those members of Parliament who voted for and against the proposed changes.
The pamphlet was also designed to contain a statement showing the textual alterations and additions proposed to be made to the Constitution. How best to reach out to the ordinary voter?
Billy Hughes never rested. Therefore, they will have to cogitate and think out what are the merits of the proposal, and, having done that, make out their case against those merits.
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