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Referendum (Machinery Provisions) Amendment Bill 2013

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2010-2011-2012- 2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2013

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Special Minister of State,

the Hon Gary Gray AO MP)

 

 

 



REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2013

 

OUTLINE

The Referendum (Machinery Provisions) Amendment Bill 2013 (the Bill) amends the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

 

In December 2009 the then House of Representatives Standing Committee on Legal and Constitutional Affairs reported on the machinery of referendums in the report: A Time for Change: Yes/No?   The report made seventeen recommendations. 

 

This Bill addresses Recommendations 3 and 11.

 

Recommendation 3 reads:

 

“The Committee recommends that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 (Cth) to require a Yes/No pamphlet to be delivered to every household, not every elector.”

 

Subsections 11(1), (2) and (3) of the Referendum Act provide for the printing and posting to each elector of a pamphlet which outlines arguments in favour of the proposed Constitutional change and arguments against the proposed Constitutional change.  These arguments are compiled and presented in one pamphlet known as the Yes/No pamphlet. 

 

Recommendation 11 reads:

 

“The Committee recommends the Australian Government introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 (Cth) and include provisions to ensure that spending is directed to referendum education and to equal promotion of the Yes/No arguments.”

 

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.

 

The Bill implements the Government response to Recommendations 3 and 11 by:

·            amending section 11 of the Referendum Act to substitute a requirement that the Yes/No pamphlet be sent to each address on the electoral Roll for the current requirement that the Yes/No pamphlet is posted to every elector; and

·       temporarily suspending the operation of subsection 11(4) of the Referendum Act. 

 

FINANCIAL IMPACT STATEMENT

 

The financial impact of implementing the provisions of the Bill has yet to be determined.



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Referendum (Machinery Provisions) Amendment Bill 2013

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill implements the Government response to Recommendations 3 and 11 of the then House of Representatives Standing Committee on Legal and Constitutional Affairs December 2009 report on the machinery of referendums entitled A Time for Change: Yes/No? .

 

Recommendation 3 of the Report relates to subsections 11(1), (2) and (3) of the Referendum (Machinery Provisions) Act 1984 (Referendum Act) which provide for the printing and posting to each elector of a pamphlet which outlines arguments in favour of the proposed amendment and arguments against the proposed amendment.  The pamphlet is known as the Yes/No pamphlet. 

 

The Bill amends the requirement for the Yes/No pamphlet to be posted to each elector by sending one pamphlet to each residential address held by the Australian Electoral Commission for electoral purposes.  The vast majority of Australian citizens whose names are on the electoral Roll are enrolled at an address located in one of the 150 electoral Divisions.  Many people live in the company of other electors, for example, in family units.  In such cases all of the electors share the same residential address and it is not unreasonable to anticipate that only one Yes/No pamphlet should be sent to each address. 

 

The second amendment allows for broader Commonwealth spending on a Referendum by temporarily suspending the operation of a legislative limitation at subsection 11(4) of the Referendum Act. 

 

Human rights implications

 

The Bill engages Article 25 of the International Covenant on Civil and Political Rights (ICCPR).

 

Article 25 of the ICCPR

Right to take part in public affairs and elections

The UN Human Rights Committee (the UNHRC) states in its General Comment 25, Article 25 of the ICCPR ‘recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service’.  General Comment 25 provides guidance on these rights.  Paragraph 6 of General Comment 25 provides that Citizens participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum. 

Paragraph 19 of the General Comment goes on to state that persons entitled must be free to vote for or against any proposal submitted to a referendum, “without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector’s will.” 

 

Following on paragraph 25 requires “the free communication of information and ideas about public and political issues” is essential to ensure the full enjoyment of the rights protected by Article 25. 

 

In this context the amendments in this Bill which change the approach for sending Yes/No pamphlets to Australian citizens do not impact on any human rights.  Each Australian citizen will be able to read the arguments for and against changing the constitution as before, except instead of a pamphlet being addressed to each “elector” it will be sent to an address.

 

It is also important to note that, as allowed for by subsection 11(4) of the Referendum Act, the Australian Electoral Commission will translate the Yes/No pamphlet into languages other than English and prepare the pamphlet in accessible formats on the Commission’s website.  Further, the Australian Electoral Commission has the capacity to identify addresses where numerous electors are enrolled, such as nursing homes, and provide multiple copies of the Yes/No pamphlet to these facilities.

 

Conclusion

 

The Bill engages Article 25 (right to take part in public affairs and elections) of the International Covenant on Civil and Political Rights (ICCPR).  The Bill contributes to the realisation of Article 25 of the ICCPR by continuing to ensure that Australians are able to receive arguments for and against changing the constitution. 

 

The Hon Gary Gray AO MP, Special Minister of State

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.              This clause provides for the Act to be cited as the Referendum (Machinery Provisions) Amendment Act 2013 .

 

Clause 2 - Commencement

 

2.              This clause provides that the Act commences on the day this Act receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

3.              This clause specifies that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule to this Act has effect according to its terms.

 

Clause 4 - Commonwealth expenditure during 2013 in connection with referendum proposals

 

4.              This clause temporarily suspends the operation of subsection 11(4) of the Referendum Act for the period from when the amendment commences until midnight of polling day for the general election of the House of Representatives in 2013.

 

5.              The temporary suspension of subsection 11(4) will provide the capacity for the Government to spend money on promoting the case for and against any referendum.  A similar amendment was made by the Referendum Legislation Amendment Act 1999 which suspended the operation of subsection 11(4) for the referendum on if Australia should be a republic in 1999.

 

Schedule 1 - Amendments

 

Referendum (Machinery Provisions) Act 1984

 

Item 1 - Subsections 11(1) and (2)

 

6.              This item omits a reference to ‘posted to each elector’ and substitutes ‘sent to each address to which subsection (2A) applies’.  By amending these subsections, the requirement for the Yes/No pamphlet to be posted to each elector will be replaced by a requirement to send one pamphlet to each residential address held by the Australian Electoral Commission for electoral purposes.  The vast majority of Australian citizens whose names are on the electoral Roll are enrolled at an address located in one of the 150 electoral Divisions.  Many people live in the company of other electors, for example, in family units.  In such cases all of the electors share the same residential address and it is not unreasonable to anticipate that only one Yes/No pamphlet should be sent to each address. 

 

Item 2 - After subsection 11(2)

 

7.              This item inserts new subsections 11(2A), 11(2B) and 11(2C).  Subsection 11(2A) sets out two categories of addresses that are held by the AEC, the first is comprised of the address shown on the electoral Roll.  The second category of addresses covers circumstances where some electors’ residential addresses are not included on the electoral Roll.  Some electors apply to have their residential addresses not shown on the Roll because of security issues concerning themselves or their families. 

 

8.              New subsection 11(2B) provides the capacity to the Electoral Commissioner to send pamphlets to any other address that may be appropriate.  Examples of such addresses may include where electors have notified the AEC that they will be away from their residential address leading up to polling day and given an address where they wish postal ballot material to be sent.  In such an instance it would be more appropriate to send the Yes/No pamphlet to the same address where electors wish to receive their postal ballot papers. 

 

9.              New subsection 11(2C) allows the Electoral Commissioner to also send out the Yes/No pamphlet to an email address.

 

Item 3 - Paragraph 11(4)(a)

 

10.          This amendment makes an amendment to paragraph 11(4)(a) consistent with the amendments made at Item 1.  It recognises that the AEC will spend money in delivering the Yes/No pamphlet other than on posting the pamphlet.

 

Item 4 - Application provision  

 

11.          This item applies the amendments made in this Bill to referendums which are to be conducted after this item commences.