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Thursday, 7 June 1984
Page: 2730


Senator GARETH EVANS (Attorney-General)(11.32) —I move:

Page 7, after clause 10 insert the following new clause:

Commonwealth to provide funds for arguments against proposed law in certain cases

'10A. (1) Where-

(a) a proposed law for the alteration of the Constitution has been submitted to the electors; and

(b) the Commonwealth has incurred expenditure in promoting the case in favour of the proposed law,

the Minister shall, as soon as practicable after the submission of the proposed law to the electors, prepare a notice in writing stating that that expenditure has been incurred by the Commonwealth and setting out the amount of that expenditure or, if more than one proposed law was submitted to the electors on the same day, setting out the total amount of the expenditure incurred by the Commonwealth in promoting the cases in favour of all the proposed laws, and shall cause a copy of the notice to be published in the Gazette.

'(2) A notice under sub-section (1) is conclusive evidence for the purposes of this section of the amount of the expenditure incurred by the Commonwealth in promoting the case in favour of a proposed law, or the cases in favour of proposed laws, for the alteration of the Constitution.

'(3) Where-

(a) a proposed law for the alteration of the Constitution has been submitted to the electors;

(b) the number of members of the Parliament who voted against the proposed law is equal to or exceeds 5 per cent of the number of members of the Parliament who voted either for or against the proposed law;

(c) the Commonwealth has incurred expenditure in promoting the case in favour of the proposed law; and

(d) a person who is a prescribed person in relation to the proposed law has incurred expenditure in promoting the case against the proposed law,

a person who is a prescribed person in relation to the proposed law may, by notice in writing in an approved form given to the Electoral Commission, request the Commonwealth to make a payment in accordance with this section.

'(4) Where-

(a) a request is made to the Electoral Commission under sub-section (3) in relation to a proposed law for the alteration of the Constitution; and

(b) the Electoral Commission is satisfied that-

(i) the person who made the request is a prescribed person in relation to the proposed law; and

(ii) a person who is a prescribed person in relation to the proposed law has incurred expenditure (in this sub-section referred to as the 'relevant expenditure') in promoting the case against the proposed law,

The Commonwealth shall pay to the person who made the request an amount calculated in accordance with the formula

A B, where-

C

A is the amount of the expenditure incurred by the Commonwealth referred to in paragraph (1) (b) or, if more than one proposed law was submitted to the electors on the same day, the amount ascertained by dividing the total amount of the expenditure incurred by the Commonwealth in promoting the cases in favour of all the proposed laws by the number of proposed laws so submitted;

B is the number of members of the Parliament who voted against the proposed law ; and

C is the number of members of the Parliament who voted for the proposed law,

or the amount of the relevant expenditure, whichever is the lesser amount.

'(5) Where-

(a) an amount would, but for this sub-section, be payable to a person under sub -section (4) in relation to a proposed law for the alteration of the Constitution;

(b) that amount is less than the amount referred to in that sub-section as the relevant expenditure; and

(c) the number of members of the Parliament who voted against the proposed law is less than 10 per cent of the number of members of the Parliament who voted either for or against the proposed law,

sub-section (4) does not apply in relation to the person and the Commonwealth shall pay to the person an amount equal to the sum of the amount that would, but for this sub-section, be payable to the person under sub-section (4) and the amount calculated in accordance with the formula

AB (10-D), where-

200C

A is the amount represented by the symbol A in the formula in sub-section (4);

B is the number of members of the Parliament who voted either for or against the proposed law;

C is the number of members of the Parliament who voted for the proposed law; and

D is the number obtained by dividing 100 times the number of members of the Parliament who voted against the proposed law by the number of members of the Parliament who voted either for or against the proposed law,

or the amount of the relevant expenditure, whichever is the lesser amount.

'(6) Where the Electoral Commission is satisfied that an amount will become payable to a person under sub-section (4) or (5), the Electoral Commission may, by notice in writing given to the Attorney-General, authorize the making of advances to the person on account of the amount that is expected to become payable to the person under that sub-section and, where such an authorisation is given, advances shall be made accordingly.

'(7) Advances authorized by the Electoral Commission shall be made subject to the condition that the amounts advanced are expended in promoting the case against the relevant proposed law for the alteration of the Constitution.

'(8) Payments under this section shall be made out of moneys appropriated by the Parliament for the purposes of this section.

'(9) Where a request is made to the Electoral Commission under sub-section (3) in relation to a proposed law for the alteration of the Constitution by a person who is a prescribed person in relation to the proposed law, no subsequent request may be made under that sub-section in relation to the proposed law.

'(10) In this section-

(a) a reference to members of the Parliament who voted for, or voted against, a proposed law shall be read as a reference to members who voted in favour of, or in opposition to, as the case may be, a motion in the Senate or the House of Representatives that the Bill for the proposed law be read a third time;

(b) a reference to a prescribed person, in relation to a proposed law, shall be read as a reference to a person acting on behalf of those members of the Parliament who voted against the proposed law or on behalf of a majority of those members; and

(c) a reference to expenditure incurred in promoting the case in favour of, or against, a proposed law shall be read as not including a reference to-

(i) expenditure incurred in the preparation, printing and distribution of the pamphlets referred to in section 11, or in the preparation and distribution of translations into other languages of material contained in those pamphlets;

(ii) expenditure incurred in respect of the provision by the Electoral Commission of other information relating to, or relating to the effect of, the proposed law; or

(iii) expenditure incurred in respect of the salaries and allowances of members of the Parliament, of members of the staff of members of the Parliament or of persons who are officers or employees within the meaning of the Public Service Act 1922.'.

This amendment, which has been circulated, deals with the question of funding for promotional expenditure in relation to referendums. The Government's preferred position is that there be no statutory limit placed on promotional expenditure for referendum campaigns. By promotional expenditure, I mean expenditure over and above that which is required in the presentation of the official Yes and No cases, and which is required by statute to be even-handed, and has traditionally been so, in the way in which public moneys have been allocated. The reasons for the Government's preferred position were fully explained by me in this place in December last year when this matter was debated in the context of the then proposed five referendum items.

There are three points that are relevant and bear quick repetition. The first is that the No case tends traditionally to be predominant in media reporting of referendum campaigns, simply by virtue of the stridency with which it is usually advanced and the ease with which opposition to proposals, as distinct from reasoned support, can capture the airwaves. The Yes case traditionally starts with a disadvantage, as has been acknowledged by most commentators over the years. Promotional expenditure on the Yes case to that extent is justified to redress the inherent imbalance that tends traditionally to be associated with the conduct of referendum campaigns. The second reason that has been advanced by the Commonwealth in support of promotional expenditure is that it enables proposals which are the product of genuine cross-party consensus or intergovernmental consensus-in particular those worked out in the context of the Constitutional Convention-to be properly and effectively communicated to the Australian people and assists the cause of consensual constitutional reform thus being advanced.

The third reason advanced for allowing the Commonwealth in appropriate circumstances to spend promotional moneys is that by that means one overcomes the effect of expenditure from public money by the States-all too often a situation that has existed in the context of referendum campaigns. It is a matter not of creating an imbalance, but of redressing an imbalance in expenditure of public money which exists by virtue of the States ploughing in, as Queensland obviously was anxious to do in the last referendum campaign.


Senator Crichton-Browne —What if States support the Yes case?


Senator GARETH EVANS —The tradition has been not to support the Yes case with the expenditure of money. What is a fair thing by way of promotional expenditure will obviously differ from time to time, depending on the circumstances of a particular referendum campaign. Obviously it is much fairer, on the kinds of arguments I have been advancing, for promotional money to be expended in the context of a proposition which has been the product of genuine cross-party consensus and genuine intergovernmental support than it would be to apply Commonwealth money in support of something which has been won by only the narrowest of party majorities in this place, and which has clearly aroused a great deal of antagonism among other governments within the Federation. Clearly, the policy reasons that could be advanced in support of promotional expenditure in those circumstances would be much less strong in the case of division and strife about something than in the case where it is genuinely consensual.

That brings me to the text of the proposition I now advance. Because it appears that the Government's preferred position which is that of being able to expend money without formal statutory constraint, appears to be not one that attracts majority support in this place, the Government has reconsidered its position and now brings forward a modified version of our original position. It brings forward a proposal for a system of proportional allocation of promotional funds in proportion to the degree of parliamentary support for or against a particular proposal. This is the substance of proposed new clause 10A that is now before the Committee.

In support of this, I point to a few brief and straightforward matters. Funding in proportion to the votes cast in Parliament seems to the Government to be fair and equitable. After all, Parliament represents, or is supposed to represent, the will of the people. Votes in Parliament are a fair indication of the interests that are lined up in support of, or in opposition to, any proposal for amending the Constitution. That has traditionally been the case one way or the other. Opposition to a particular referendum will emerge and be articulated within the Parliament. Such was the case even with the proposals that commanded obviously broad cross-party and intergovernmental support that were advanced by the Government last year. Nonetheless, opposition was still expressed by a significant minority of voices in both Houses of this Parliament.

The second point to appreciate is that none of this would cut across the place of the traditional and statutory funding for the Yes and No cases. It is not proposed that that would in any way be affected by the kind of proportionate funding that is here contemplated. To the extent that people look to the traditional Yes and No pamphlet and associated argumentation for an explanation of the arguments for and against the proposal, they will continue to be able to do so. It is worth making the point-it seems to be constantly ignored by people in this debate-that last year the Government was proposing to spend some $5m of public money on the even-handed Yes-No pamphlet: $2.5m, in effect, on the Yes case, and $2.5m on the No case. The argument on promotional expenditure was about an additional $1m or $1.25m on top of what the Government was proposing to spend in promoting the cross-party supported referendum Yes proposals. That context has been continually overlooked by those who have argued about the supposed uneven-handedness of the Government's approach last year.

The third and obvious point is that the proportionate funding proposal here advanced would not interfere in any way with the rights of political parties and private interests to campaign for or against a particular proposal, nor would it interfere in any way or could it interfere with the rights or the capacity of State governments to campaign in their own way, using whatever funds they wanted to mobilise in the context of the particular referendum campaign.

As to the details of the particular proposal, I have circulated around the chamber an explanatory memorandum. I think it might be helpful for anyone who is subsequently interested in this debate if I incorporate it in Hansard. It is brief and I seek leave to do so.

Leave granted.

The statement read as follows-

The amendment would insert a new clause 10A in the Bill which would require the Government to make funds available to opponents of a referendum proposal where the Government intended to spend money in support of the proposal.

Sub-clause (1) requires the Minister to publish a notice in the Gazette setting out the amount of Commonwealth expenditure. This statement is the basis upon which the entitlement of the opponents of a proposal is to be calculated.

Sub-clause (2) provides that a notice published under sub-section (1) is conclusive evidence of the amount of expenditure incurred by the Commonwealth. A provision of this kind is necessary for the smooth administration of the scheme.

Sub-clause (3) sets out the preconditions to a grant in paragraphs (a) to (d) and the procedure to be followed by a spokesperson for the opponents of a referendum proposal in making a claim. The conditions are that:

the proposal must have been put to referendum;

the number of opponents equals or exceeds a threshold of 5% of total votes cast ;

the Government has spent money in promoting the 'Yes' case; and

members of Parliament who are opposed to the proposal have incurred expenditure in promoting the 'No' case.

Sub-clause (4) is the substantive provision for payments to be made to a spokesperson for the opponents of a referendum proposal.

Where the Electoral Commission is satisfied that the claimant is an appropriate person (i.e. one of the members of Parliament who voted 'No') and that he has incurred expenditure in promoting the case against the referendum proposal, the Commonwealth is required to pay to the person an amount proportionate to the votes against the proposal in the Parliament but if the amount spent is less than that amount the claimant only receives reimbursement of the amount spent.

The effect of the formula is that the proportion of funds for the 'No' case to total funds corresponds to the proportion of 'No' votes to total votes.

Sub-clause (5) provides that where the opposition in Parliament is between 5% and 10% of the total votes cast, the opponents are entitled to a weighted percentage of the funds. In effect, opponents would get a ''bonus'' of a few thousand dollars to ensure that the amount provided is commercially practicable for the purpose of mounting a 'No' case. The proportionate rule applies at 10% and above.

Sub-clause (6) allows advance payments to be made to the opponents of a referendum proposal. The mechanism adopted is that the Electoral Commission would notify the Attorney-General by letter that an amount was expected to become payable and a payment could thereupon be made out of moneys appropriated for a referendum information program. The approximate entitlement of the opponents of a referendum proposal could be calculated, once the votes had been taken in the Parliament, by reference to the amount appropriated for a referendum information program.

Sub-clause (7) imposes the condition that amounts advanced must be spent on promoting the case against the relevant referendum proposal. For example, an entitlement in respect of one proposed constitutional alteration could not be spent on promoting opposition to another proposed alteration.

Sub-clause (8) provides that payments are to be made out of moneys appropriated for the purpose.

Sub-clause (9) precludes the making of more than one claim in respect of a particular referendum proposal.

Sub-clause (10) defines:

the opponents of a referendum proposal by reference to the votes at the Third Reading stage;

who may make a claim on behalf of opponents of a referendum proposal as any member who voted against the particular proposal; and

expenditure incurred in promoting a referendum proposal as not including expenditure on the official Yes/No pamphlet or salaries and allowances of members of Parliament, ministerial staff and public servants.


Senator GARETH EVANS —Just speaking briefly to the content of it so that the force of it can be appreciated in this place, it is proposed that there be a threshold of 5 per cent of the total votes cast in Parliament before the proportion funding would apply. That means to say that opponents of the measure who are unable to attract at least 5 per cent of the total votes would not in fact under this proposal receive anything.


Senator Hill —Why choose 5 per cent?


Senator GARETH EVANS —It seems to be an arbitrary figure. We could take 4 per cent to bring it closer into line with the electoral public funding provisions, but the intention was to put forward an order of magnitude beyond which it seemed that the kinds of funds that would be produced would be unlikely to be such as to sustain or support a useful media campaign anyway. It just reflects the reality that there are some proposals which have such overwhelming majority support and such idiosyncratic opposition that public funds really ought not be advanced to that idiosyncratic, eccentric, perhaps tendentious-to anticipate Senator Withers's inevitable interjection-fringe, but conversely--


Senator Walters —Did you say 5 per cent for any funding?


Senator GARETH EVANS —Under 5 per cent the proposal being put forward is that there be no funding, but that is counterbalanced by a proposal for a weighted funding advantage for the number of votes which is in the range of 5 per cent to 10 per cent. It is proposed that opponents of the proposal who can marshall something between 5 per cent and 10 per cent of the total votes cast would attract a weighted percentage of the available funds. For example, if opponents of a measure could get 5 per cent of the votes they would not get just 5 per cent of available funds. They would get a weighted additional percentage. They would get 7.5 per cent of the additional funds and so on up through 8 per cent or 9 per cent, a weighted extra advantage, with the object, basically, of giving a reasonable pool of funds to a significant minority in this place to play with.


Senator Crichton-Browne —Are they votes cast in public that you are talking about?


Senator GARETH EVANS —I am talking about votes cast in the two chambers added together.


Senator Crichton-Browne —No, I am talking about the weighting factor.


Senator GARETH EVANS —The weighting factor is just a percentage formula that is built into the terms of the particular proposal before the chamber. It means, in effect, that if opponents of a measure get between 5 per cent and 10 per cent of the votes in the whole Parliament, they get pretty close to 10 per cent of the available funds on the principle that it is only likely to be really significant and really useful if they have that amount of money. If they got much less than 10 per cent, the amount of money we are talking about would be so small as to be of no particular use to anybody. A significant minority voice, as distinct from an insignificant minority and 5 per cent, I acknowledge, is a pretty arbitrary figure to choose as a measure of significance, but perhaps not a reasonable one- gets a weighted additional advantage. A group which gets a percentage of 10 per cent and beyond gets an exact proportion of the available funds matching the percentage of the votes that are in question.


Senator Crichton-Browne —Some 4 1/2 per cent of the money spent in a State like Western Australia might be just enough to stop the referenda going through.


Senator GARETH EVANS —It is possible no doubt that with the support of Lang Hancock and all the rest of the tiros of reaction who have been traditionally inclined to oppose referendum proposals the honourable senator could make a very good fist of some such exercise. But just let me follow that through by saying that that produces the situation that if the Opposition as a whole were opposed to a proposal, it would end up receiving approximately 45 per cent of the available funds. That is very close to equality. The proposal is designed to reflect, to the extent that votes in this Parliament can reflect and ever do, differences of opinion in the community at large and give the additional funds to be spent in that way.

I will quickly give some illustration of how that would work in practice. On voting figures in this Parliament for the February 1984 proposals, funds for a No case would be available in respect of those wanting to fight for simultaneous elections and the advisory opinions matters. In each case about 10 per cent of the available funds would have gone to the No proponents. Because opposition to the other three proposals-four-year terms attracted a 4.3 per cent vote in this place, interchange of powers, 3.7 per cent and obsolete provisions, 3.1 per cent -was less than 5 per cent they would not in fact attract any funds. The amounts to which the opponents of simultaneous elections and advisory opinions would have been entitled, given the kind of money the Commonwealth is proposing to expend, would have been approximately $26,000 in respect of each of those proposals, which is better than a poke in the eye with a burnt stick, as I think might be appreciated. I believe and the Government believes that this proposal is a fair and reasonable one. We commend it accordingly to the Senate.