Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Commonwealth Electoral Amendment (Democratic Plebiscites) Bill 2007

CHAIR —I now welcome by teleconference Dr Graeme Orr, Associate Professor from the University of Queensland, and Professor Brian Costar from the Swinburne University. Dr Orr, would you like to make a short opening statement?

Dr Orr —Yes I would, thank you, Chair. I thank the committee for the chance to appear, albeit by phone rather than from beautiful Cairns. I will give a very brief summary of my submission because it was reasonably legalistic and also so that you know what my voice sounds like. I appreciate that both on the Queensland and the Commonwealth sides the legislative gambits have been driven by the rather heated political nature of the issue and that is not necessarily a good climate for sound policy or drafting sound law. My criticisms of the law should be taken in that context.

The Commonwealth bill you are considering is beyond power and in that Professor Gerard Carney and I have come to the same conclusion using the same route. The bill is not incidental to the Commonwealth electoral power that may justify the AEC taking on private electoral work. More importantly, it breaches the longstanding principle of federalism that Commonwealth law cannot override matters at the heart of the existence other states as polities. If the Senate were still a states’ house, that would be an especially powerful political argument.

The bill might be partly saved by the corporations power, which is a very vexed issue as you may know. I did not address it in the written submission but I am happy to consider it orally. Where Professor Carney and I part ways is on the now probably moot question of whether the Queensland laws were unconstitutional themselves. I am far from convinced that they breached the implied freedom of political communication. Even if they did, contrary to Professor Carney’s submission, I do not see how that enlivens an external affairs power. The international covenant sets a very low threshold, as you would expect; it is a treaty meant to guarantee basic democratic rights in emerging democracies.

I did not give a definitive opinion on whether the Electoral Commission is properly empowered to run non-Commonwealth polls generally. It is a difficult question of general concern to the Commonwealth and I am happy to consider that orally if you like. I included some suggestions in my submission that the Commonwealth could in any event hold a general amalgamation poll across all or part of Queensland whenever it likes simply by contracting itself with the commission. Under the current law it would be up to the commission whether to enter such contracts.

In finishing, I will make two quick policy comments. One is that I was very concerned about the possibility that these ballots might be held on federal election day. The Commonwealth Electoral Act specifically guards against mixing state and federal polls, particularly for reasons of confusing voters. It is a very wise rule that we would ignore at our peril as it would create potentially a US-style precedent. So I am quite reassured to read statements by the Local Government Association that the proposed ballot should be over and done by 20 October.

The second and deeper policy issue is that if we are to go down the path of holding plebiscites, we should do so in a less ad hoc way. Why are we having polls in Queensland shires but not, say, in Northern Territory Indigenous communities? Why are our political leaders talking about plebiscites on specific hot issues and not others? Does the electorate realise that such polls have no binding effect, and what cynicism will be generated when they realise that they are no more than expensive opinion polls, however good they are for participatory democracy? We had a debate about citizens’ referenda in the late 1990s. If we want direct democracy, let us consider trialling it in a considered, comprehensive, legally sensible and meaningful way but steer clear of the current obsession of ad hoc plebiscites, which are little more than politicking on single issues. As Professor Brian Costar argues in his submission, this approach has the potential to damage the independence of the Australian Electoral Commission.

I note Antony Green has blogged similarly about the independence of the commission concerns. Just imagine if a future Liberal government decided to hold plebiscites on the siting of nuclear power stations and, at the same time, the states wanted to hold plebiscites about nuclear power and waste using different wording. What is the electoral commission meant to do when asked by both levels of government to hold what are essentially push polls?

CHAIR —Dr Orr, have you concluded?

Dr Orr —Yes, that is the end of my spiel.

CHAIR —We just cannot see the expression on your face—thank you. Professor Costar, would you like to make a brief opening statement?

Prof. Costar —Thank you. I would like to join with my colleague Dr Orr and thank the committee for the opportunity to make what in my case was a rather brief submission. I am not going to talk about the substantive issue as to whether it is a good or a bad piece of public policy to amalgamate local government regions; that is outside my expertise. I also will not repeat the number of constitutional concerns that Dr Orr and Professor Carney have, though I note them and I think they are of substance.

I made three points I made in my submission. The first one was the one Dr Orr has just ended on—that is, concerns about reducing the independence of the Australian Electoral Commissioner by in effect requiring that person to conduct these politically charged plebiscites. My second point was that the Australian Electoral Commission is currently preparing for the federal election, which I am sure all senators know is a mammoth task. It has also been made more demanding by the requirement for the commission to run a public advertising campaign to seek to bring young people onto the roll, which is in itself a good piece of public policy.

The third point I want to expand on is the possibility—this now seems to have retreated, though we do not have any authoritative statements on it—of holding the plebiscite on the same day as the federal poll. While we can understand that this might be done for cost reasons, as Dr Orr has said, it breaches the intent of section 394 of the Commonwealth Electoral Act. I want to add an additional point here: it seems from the submissions of Dr Orr and Professor Carney that the Commonwealth would find it very difficult to compel persons to vote in these plebiscites, so we will assume that it is going to be optional voting. These plebiscites are not going to be conducted in every region of Queensland. As I understand it, it will be very selective—for example, the largest local government area will not have any evidence of these plebiscites, notably because Brisbane was to use the term ‘greaterised’ in 1924. My concern is that in certain random places of the state there will be two different messages going out to voters: one is the normal one—that it is compulsory for persons whose name is on the electoral roll to vote; and then another one stating that the voting in this plebiscite is voluntary. My concern is that it may well confuse a number of voters who think that the entire election is voluntary. You might think that is somewhat unlikely—and I hope it is.

My second point, however, is that some voters in Queensland on polling day—if the plebiscite is to be held in conjunction with the federal election—will be confronted with three different ballot papers. Along with the usual two, a Senate ballot paper and a House ballot paper, there will be a plebiscite ballot paper. As we know, on the House ballot paper they will be required to give a full set of preferences—and more and more candidates are running in House of Representatives elections these days. They will be presented with a Senate ballot paper, and we know that 94 per cent of them will take the option of just voting ‘1’ above the line. Then they will be presented with a plebiscite ballot paper, where presumably they will have to tick a box saying yes or no.

The last time a combination of a novelty—by ‘novelty’ I mean an innovation in terms of a different type of ballot paper—came together with a plebiscite was in 1984, and we know what happened: it spiked the informal vote, though ironically Queensland had the lowest spike in informal voting. I understand that was because the then local electoral commission became worried about this possibility and did extensive advertising. But I think you can see my point: given that the plebiscites are not going to be held in every jurisdiction, there is a possibility that the informal vote in certain jurisdictions will be higher than in others, and that could have an effect on the outcome of House of Representatives divisions and will certainly have an effect in the Senate. As I understand it from this distance, the contest for the sixth Senate place in Queensland is going to be particularly hot. So, for a lot of reasons, including that reason, I cannot see much benefit in this proposed legislation. That concludes my statement.

CHAIR —Thank you, Professor Costar. We will now move to questions.

Senator IAN MACDONALD —Professors, thank you very much for your advice. I wonder whether both of you have read the legislation that we are dealing with. The legislation we are dealing with says nothing about conducting plebiscites or polls. What the legislation does is override Queensland law which says it is an offence for people to have a say on an issue, including a plebiscite. You made a comment about the Australian Electoral Commission becoming politically charged and some councils not doing it. The administrative arrangements in relation to the AEC are a government administrative decision; they are nothing to do with the legislation. The Prime Minister has said that the AEC can conduct a poll if a council wants it and asks the AEC to do it, and the Australian government will pick up the bill. But that is an administrative issue; that is not mentioned in the bill. The bill simply overrides the Queensland law that says that it is an offence to conduct a plebiscite.

Professor Costar, you raised the issue of not having a plebiscite in the Northern Territory. The Commonwealth is not running a plebiscite. The Commonwealth is simply overriding a Queensland law which prevents a Queensland council from running a plebiscite. If councils in the Northern Territory want to run a plebiscite on Indigenous children or nuclear waste dumps or anything else, they are able to do it. But if a Queensland council wants to run a plebiscite on its own future and what its own people think about the future of local government then it is prohibited by Queensland law, on pain of penalty—and if you do not pay the fine I guess you would be thrown in jail. That is what the Commonwealth law is doing, simply overriding that. It is not saying that anyone has to have a plebiscite. It is not the Commonwealth running a plebiscite. It has nothing to do with that. I put those issues to you and ask for comments from you.

You also seem to be concerned that the AEC is becoming involved in a political issue. Good heavens, what is an election if it is not a political issue? The AEC runs that every three years, and more often with the states. I found myself struggling to understand the import of both of your submissions. Having made those comments, could I get your comments on my comments?

Dr Orr —The reality is that the Commonwealth is funding these plebiscites, as I understand it. My written submission, as you may realise is, first and foremost, directed to the constitutionality of the plebiscites bill. The Commonwealth certainly has no power to override state law on this, even if I personally think the state law is heavy-handed and regrettable. In reality, elections, which come up periodically, are written into our Constitution. We are talking about ad hoc plebiscites that are being driven by one side of politics against another side, and about one side of politics trying to stop them against another side. So it seems to me that Professor Costar has a point when he talks here about not just the administrative independence of the commission but the potential for this to become a precedent for the commission to be caught up in a whole lot of US-style ballot initiatives.

Prof. Costar —I would concur with Dr Orr on that point. This is just a minor point, but it was Dr Orr who raised the Northern Territory issue, not me. The amending bill is very brief and the second reading speech did not give us much assistance, either, as to what the purport of the legislation is. But we read it in the context of the time, and I think you are taking a slightly narrow view of what the effect of the legislation will be. We need to give account to the political context of the time. I think Dr Orr has underscored the point—and I am not criticising this; I am all for partisanship in politics and that is what it is about—but I think it can reasonably be seen as part of the partisan pre-election activities that we expect. My only concern about it, as I said, is that the legislation and the minister do not use the term, ‘The Australian Electoral Commissioner will be directed.’ The legislation talks about ‘making available’ in material ‘the electoral roll’ and I presume staff and other facilities that the commission has. But, in terms of the way that the matter has been put to the public, I think there is only one conclusion that can be drawn—that is, in certain circumstances the Electoral Commission will effectively be required to carry out these plebiscites. I have two concerns about that. One is that it is beyond a routine administrative activity and, whether or not the plebiscite is held by postal ballot before polling day or by attendance voting on polling day, it diverts the Australian Electoral Commission from what I think we would all agree is its major three yearly task—that is, efficiently running the federal election which, in my opinion, it does very well.

Senator IAN MACDONALD —The act is very simple. I can tell you in four lines what it says:

A law of a State or Territory has no effect to the extent to which the law in any way prohibits a person or body from, or penalises or discriminates against a person or body for:

(a)   entering into, or proposing to enter into, an arrangement under subsection (1)—

which is about plebiscites, or—

(b)   taking part in or assisting with, or proposing to take part in or assist with, the conduct of an activity …

It has nothing to do with the Commonwealth running plebiscites; it is simply about removing a law of Queensland which says you cannot have a democratic say on an issue. That is what the act is all about. You are reading a lot more into it than you could possibly get from the bill before us.

Prof. Costar —With great respect, I have to differ on that. I think the bill has to be seen in the context that it is an amending piece of legislation to a rather ancient, complex and venerable piece of legislation. I think it beggars belief to suggest that its only purport is to override the law of a state.

Senator IAN MACDONALD —That is what the bill says. I am absolutely surprised but, anyhow, I have had my say.

Senator FORSHAW —I was certain that you had read the bill before you lodged your submission—I would not be so bold as to suggest that you had not. From reading your submission, I found it quite clear that you had read the bill and looked at the provisions of the bill and the use of the external affairs power upon which it is said to rely. I will take up the issue of the intention of the bill. I would also like to ask you: what is the current position under the Australian Electoral Act as against what the position would be under this legislation? I note in the second reading speech that it starts with the minister saying:

The bill gives effect to the Prime Minister’s announcement on 7 August 2007 to allow the Australian Electoral Commission to undertake any plebiscite on the amalgamation of any local governing body in any part of Australia.

The Prime Minister has said that this would be done at the request of a local council and that the government would fund the AEC to run that plebiscite. I do not see anything in the bill that would prevent the AEC from being directed to run a plebiscite on any matter, either this one or in the future. Could you comment on the impact of the bill generally in terms of directing the AEC, as distinct from requesting the AEC.

Dr Orr —It seems to me that there was no need for this bill unless it was considered that local councils themselves had to initiate and supply, for instance, roll information. It seems to me that the current electoral act is quite clear: the Commonwealth could contract with itself, or one agency to another, to run an amalgamation ballot, and I deal with that in my written submission. There is nothing in the current Commonwealth Electoral Act or in this bill that really deals with the question of the independence of the commission. Currently it is up to the commissioner to say, ‘We have the resources and we feel comfortable with contracting for these essentially private services, even though it is a public matter.’

Senator FORSHAW —It has been said on a number of occasions throughout this inquiry that it is already available to local councils or state governments, I assume—certainly local councils—to run plebiscites on this matter or any matter at all. Of course, in respect of amalgamations in Queensland the state government amended its initial legislation to prevent councils from doing that. Can you elaborate, because I want to clarify the position: what is the current position with a local council being able to utilise the services of the Australian Electoral Commission to run a plebiscite or, say, an election for local councils? Can the AEC do that without charge, utilising funds appropriated by the parliament, or do they have to charge for those services?

Prof. Costar —Could I give a response to that? I am sure Dr Orr wants to—

Senator FORSHAW —Certainly. My questions are to either of you or to both of you—whoever would like to comment.

Prof. Costar —As I understand it, the Australian Electoral Commissioner and state electoral commissions regularly conduct elections for all sorts of organisations. For example, I have watched it happen on the campus of Swinburne university in the days when we had effective student unions. They had their elections tendered out, but I think the state electoral commission conducted their elections. That is a quite common purpose. It is quite clearly there in the act, and it is there in various forms in the state acts, as I understand it. Therefore, it is quite appropriate for electoral commissions to tender for this work. As I understand it, a bit of healthy competition goes on between the Commonwealth commission and the various state commissions to gain some of these contracts.

It is quite clear, as I understand it, that those contracts are in fact contracts that the Australian Electoral Commission charges for the purpose. I presume that that is part of the contest of the tender—that each commission, if it wants to conduct the election, puts in different cost schedules. And of course, as we know, for many years the Australian Electoral Commission has conducted industrial elections. In fact, that predates the commission. I have no problem with—

—Can I just interrupt there. That is in respect of trade unions, for instance, which are registered—

—Yes, indeed.

Senator FORSHAW —under the federal legislation. There is no constitutional issue about them doing that.

Prof. Costar —No. I would make the point that those two activities—that is, industrial elections and the tendering for elections—are materially different to what we are seeing in front of us now. As Professor Orr pointed out, if we leave aside the industrial elections, the electoral commissions—I will use the plural—can choose whether they want to tender to conduct an election or not. In fact, as I understand it, we have had situations here in Victoria where private firms have conducted the elections. I think law firms have done it. It really is a matter for the council or the organisation as to how it wants to do it.

It does not seem to me that it raises any constitutional issues. It certainly does not impinge in any way on the independence of the electoral commissioners, both federal and state; whereas I think, to the contrary, I would simply have to disagree with Senator Macdonald, in that I think these ad hoc, policy driven plebiscites do compromise the authority of the commissioner. I would assume that the commissioner could simply say, ‘No, we won’t do it.’ I know that a former commissioner, for example, refused point-blank to hire additional staff to count the first ACT assembly election. He basically said, ‘No, you’ll simply have to wait for the ballot to be counted,’ because it was a very complicated issue.

Of course, a commissioner could do that, but remember the context that we are in that I was speaking to Senator Macdonald about. We are within a couple of months of a federal election. This matter is an election issue. It is putting enormous pressure, and I think undue pressure, on any federal electoral commissioner to be put in a situation, after the Prime Minister has announced his intentions and after the minister in his second reading speech, which I have in front of me, draws attention to that—that a commissioner would say, ‘No, we’re not going to do it.’

Senator FORSHAW —Thank you. Time is running short, unfortunately.

Dr Orr —I have just one comment around that.

Senator FORSHAW —Yes, certainly.

Dr Orr —Senator Forshaw, I think your question ultimately is about whether it is constitutional to have the Electoral Commission running these essentially private or non-Commonwealth polls.

Senator FORSHAW —Not so much that, but whether or not they can do it utilising Commonwealth funds rather than as a contract for a service.

Dr Orr —As the act is currently written, they may charge a fee for service. That implies that they may provide the service at a discount or free, I suppose, but the Commonwealth I assume is going to provide extra funds. But Professor Carney has dealt with the question of the potential unconstitutionality of the Electoral Commission running these private polls. If that were true, unless the Commonwealth were relying on the trading corporations power—and that may not apply to certain small rural shires—then there are doubts about the broader issue.

Senator FORSHAW —Thank you. I might say that I recall, as a member of the electoral matters committee—and I think you certainly gave evidence to that—that one of the reasons for the change to close the rolls early was to take pressure off the Australian Electoral Commission in the lead-up to an election.

You raised the issue about who can vote and whether it is voluntary voting. One of the issues that has not been really raised or discussed as yet is just who can vote. If it is left simply to people who are on the Australian electoral roll, what happens in regard to those people who are residents of a local council area who may have an interest in the issue but are not on the roll or are not entitled to be on the roll? Secondly, what happens to other ratepayers such as businesses, which of themselves may have a right to vote in a local government election but not necessarily in a plebiscite?

Prof. Costar —I am not familiar with the Queensland local government legislation—Professor Orr could answer that, I am sure—but I know that in Victoria, for example, there is still an element of plural voting in the Victorian local government elections. It is not a terribly large element, but there is an element. But the big issue in Victoria often is that people who are not citizens are nevertheless compelled to be on the municipal electoral roll and are required to vote. Many of them get very upset when they get a fine or a request for an explanation because they have not voted in a local government poll. I think what is happening here is that we are just getting a cascade of unwanted complications that have the potential to disrupt us from the very important task of conducting this federal election.

Senator FORSHAW —Thank you, gentlemen.

Senator JOYCE —You would believe that the inception of a state is a boundary that includes a certain community of interests? Would you agree to that as a fair statement?

Prof. Costar —Sorry, Senator; could you explain that a little bit more?

Senator JOYCE —The states that make up the Federation were defined by a community of interests—that is, a state is not just an arbitrary line on the map; it was based on a premise of a certain community of interests and certain settlements that were in that area.

Prof. Costar —I think I would defer in the detail to Professor Orr on that one, but remember that early on, pre Federation almost, the colonial boundaries did move around a bit. They were often lines on maps, even though you did have, say, in Victoria, the Murray River dividing New South Wales and Victoria—it is a natural boundary, I guess. But I have seen maps from the pre-Federation period where the various states had reasonably different boundaries. But I will leave that to Professor Orr.

Senator JOYCE —Professor Orr?

Dr Orr —I am not an expert in the history of federalism. I think it is fair to say that states today are an approximation of continuing community of interests, in the sense that Queensland has different interests than Western Australia and so on, yes.

Senator JOYCE —I refer to the Federation debates and the position taken by Barton, before he was Prime Minister. He talked specifically about community of interests. He said that the primary building block is the community of interests of local groups from which the states evolve, and from the states becomes the Federation. Is that your understanding of it?

Prof. Costar —The question of community of interests, as you know, is a very complex one. You notice when we look at states—and I would agree with Professor Orr that since Federation, yes, there have been notions of states that are slightly different from each other; not as much as in the US, but there is some evidence of it—that there are also substate communities of interests. You will know, senators, that whenever we come to an electoral redistribution—I think of the one that abolished Gwydir and created Flynn—these matters are what are known as the qualitative issues to be taken into account when drawing, in this case, federal electoral boundaries. The one that is always the most contested and argued about is community of interests.

Senator JOYCE —Going back to what Professor Orr said just prior to that, Professor Orr has stated that a community of interests has developed within the state boundaries. That was your statement about two minutes ago—is that correct?

Dr Orr —I would have thought that communities of interests are constantly changing; that is why it is a difficult concept. But, to short-circuit this, if the issue is whether I agree that the amalgamation issue is a difficult one and an unhappy one, I personally—even though I taught Minister Fraser only a couple of years ago—disagree with the way that the Queensland government has gone about this.

Senator JOYCE —Would you say that what the plebiscite would do—and I concur with Senator Macdonald that there is no statement about when it would be, but I will go back to that issue—is no more than discerning a view inside the state, rather than holding the state to change a position? Really all you are doing is discerning the view. It is a plebiscite, not a referendum.

Dr Orr —It is not binding. In that sense, it is not a referendum. It is like a referendum in the sense that all you are doing is asking people to vote on essentially whether they want to keep the status quo of their boundaries. You cannot give people 10 different options for potential future boundaries.

Senator JOYCE —No, I disagree. It is intrinsically different to a referendum because a referendum is a binding principle that changes legislation or changes a process of law. This has no power to effect change. That is correct, isn’t it?

Dr Orr —Absolutely, I just meant that it is like a referendum in the sense that you are being asked to vote, if you like, for the status quo. I assume these ballots will not be giving people 10 different maps and saying, ‘Would you prefer to be in these slightly tweaked boundaries?’

Senator JOYCE —But that might not be the referendum. This just talks about the legality of holding a plebiscite.

Dr Orr —Yes.

Prof. Costar —I would not run your argument about community of interest—that is, that the state is a community of interest—too far because would this not then allow some people to say—

Senator JOYCE —Do you think we should look at the boundaries of states then?

Prof. Costar —No, hear me out. I was just thinking that if that view is aboard—that the state is a community of interest—could not people then argue that the structure of local government within that state is a matter of interest for the entire community and let’s have a state-wide plebiscite as to the structure of local government in Queensland, or anything else?

Senator JOYCE —Alternatively you could have a plebiscite to determine whether they wanted another state.

Prof. Costar —That is provided for in the Constitution of course. But plebiscites are not involved.

Senator JOYCE —The majority of people in the majority of states, so it is stacked against it.

Prof. Costar —We have not had a—

Senator JOYCE —Going back to the issue of when plebiscites are held. There has to my knowledge been no statement at all by the coalition that has stated a position or a time for a plebiscite; however, there has been a statement by the Leader of the Opposition, Mr Rudd, as to when a referendum would be held, which was that it would be at the following election. Does that not inherently agree with your statement that there would be a confusion of state and federal issues?

Prof. Costar —Yes. I think the spirit and, more, the intent of section 394 of the Commonwealth Electoral Act should hold. I do not care what government is doing it. I think it should not happen. That is the clear intent of that section.

Senator JOYCE —So that statement by Mr Rudd contravenes section 394 of the Commonwealth Electoral Act?

Prof. Costar —I used the term ‘intent’. Section 394, which I have in front of me, does give an out. It says basically that there will not be state elections—or referendums, as it calls it—on federal polling day ‘without the authority of the Governor-General’. That is why I have been careful to say that it does not breach the law because there is the out. As far as I can remember, that out has never been used but you can see that it is there for special circumstances.

Senator JOYCE —You have made the statement that you believe the Queensland Labor government’s position is ‘heavy-handed’. Noting that they have basically got local government officials in a position where a propensity for doing their jobs will turn them into criminals, how would you deal with that issue?

Dr Orr —I made the statement ‘heavy-handed’. What I am saying is that, from a purely democratic perspective, I think they clearly should have allowed the plebiscites, and now they are backing down on that. If nothing else, it would have allowed a letting off of steam and more natural development of the debate. But they were acting constitutionally. I think the federal bill is heavy-handed, particularly in the way it is overriding what are effectively a state’s rights and interests—namely, the structure of local government within that jurisdiction.

Senator JOYCE —So you are saying that the Constitution allows you to be somewhat heavy-handed and in fact tyrannical, if you want to be.

Dr Orr —We do not have a bill of rights. If you want to join the battle and support a bill of rights, I will give you the number for Professor George Williams.

Senator JOYCE —You have clearly spelled out some issues there. Thank you.

Senator McLUCAS —I want to go to the question of the potential for confusion in the community. In your understanding, which local governments will be able to request a plebiscite and how will they do so? Also, is there any discussion about councils that are being amalgamated being asked to partake in that plebiscite?

Prof. Costar —I will have to leave you as an alarm is ringing and I have been ordered to evacuate the building. Thank you for the opportunity to speak to you.

CHAIR —Dr Orr, are you still with us?

Dr Orr ——I am. I guess I will have to answer that question. Senator McLucas, I do not know any of the factual background about which councils will be taking part in these polls. It does seem to me that there is the problem with the adhocery in all of this that you end up with something a bit like the Florida election fiasco where Senator Gore was trying to pick and choose certain areas where he wanted to have polls. It does seem to me that in any more rational, reasonable system you would have what I guess the original Queensland legislation was—which was to have a referendum proposal on the amalgamation of shires. That was the original Queensland law, and it is set out in the local government association submission.

Senator McLUCAS —My other question is to clarify the point I think you made about this particular proposal not setting a precedent—that it does not allow for community consultation for broader issues other than the current issue that we are dealing with. For example, if there was a community which was particularly opposed to a development application in its area then this legislation would not enable a plebiscite to be held in that community about whether or not that community supported that development application.

Dr Orr —This legislation is unconstitutional, but it applies, as Senator Macdonald pointed out, to any potential situation where a state or a territory tried to stop or oppress citizens or even a state government agency or body from holding such a vote by going along to the Australian Electoral Commission and trying to contract with them to hold such a non-binding plebiscite. It does seem to me that the original Commonwealth Electoral Act was never written with this kind of ad hoc, highly politically charged plebiscite in mind. We have already had Premier Beattie threaten to hold plebiscites on issues that the Commonwealth might find uncomfortable. I really think that if we want to go down the path of direct democracy then we need to go back to the debates about binding citizens referenda rather than this kind of adhocery, which is driven in large part by warring political parties.

Senator McLUCAS —In terms of binding citizens referenda, have we have had a referendum on that question in Australia at all?

Dr Orr —Norfolk Island is the only jurisdiction where there are citizens referenda. We have not had a referendum on it, but it was actually debated in the constitutional debates in the 1890s. The Swiss model was considered attractive by some.

Senator McLUCAS —In your view, given your knowledge not only of electoral law but also of the Australian politic, what is your view in terms of what Australia thinks of binding referenda of that nature?

Dr Orr —I think we saw in the late nineties that there are some groups where there is a lot of interest in and support for it, particularly from people who might consider themselves excluded from the mainstream political debate. It really is a difficult question because you are effectively reworking a representative democracy into a direct democracy. I think we would have to go and look at the American model to see some of the issues and problems with that, particularly if you have lobby groups or political parties trying to get initiatives on the ballot really to manipulate the political process.

Senator FORSHAW —Is Professor Costar still on the line?

CHAIR —No, he has been evacuated.

Senator FORSHAW —Perhaps Dr Orr might like to comment on this then. I am seeking clarification, and I think we will probably put this on notice to Professor Costar as well. As I read it, section 394 of the Commonwealth Electoral Act as I read it is intended to prohibit the holding of a state referendum on the same day as federal polling day not to prohibit the holding of a constitutional referendum by the federal government on the same day as federal polling day. Can you comment on that, Dr Orr?

Dr Orr —It does say that no vote of the electors of part of a state shall without the authority of the Governor-General—i.e. acting on the advice of the Prime Minister—shall be held or taken under a law of the state. Clearly these plebiscites are not being held under a law of the state, but Professor Costar is right as to the intent of that provision; it was intended to avoid confusion by mixing what are local government and state issues with federal issues.

Senator FORSHAW —The reason I raise this is that Senator Joyce was putting the proposition that Kevin Rudd’s proposal to hold a constitutional referendum would be—

0Senator Joyce interjecting

Senator FORSHAW —Excuse me.

Senator JOYCE —I have the right of reply now.

Senator FORSHAW —The proposition was put that Kevin Rudd’s proposal to hold a constitutional referendum to amend the Australian Constitution, if held on the same day as the next federal election—not this coming one—would contravene section 394. I was seeking clarification whether that was correct.

Senator JOYCE —He just answered you. He said it goes against the intent of it.

Senator FORSHAW —Chair, Senator Joyce tries to—

Senator JOYCE —You are always having a go at me.

CHAIR —Excuse me. Senator Forshaw has asked his question.

Dr Orr —I did not comment on Senator Joyce’s remarks about Mr Rudd’s proposal because I do not know the detail of Mr Rudd’s proposal. If all he is proposing is a local government constitutional referendum under section 128 of the Constitution, we have had such a thing before back in 1988 to entrench local government in the Constitution. Obviously that does not formally breach either the letter or the intent of section 394. If we did have parliament routinely raising referenda questions on issues that were really for the states—for example, the gay marriage one in the United States—then, I think, we would be breaching the intent of section 394.

Senator JOYCE —You have just changed your position. You just talked about this being a problem because it has an implied intent that it is a partisan state issue and now you are saying that, if you have a referenda on the whole issue, it is not contravening an implied intent. Which is your position?

Dr Orr —I do not know Mr Rudd’s proposal, but if it is to amend the Australian Constitution then, of course, it is an issue that is valid and formally within the intent of section 394. But if you have proposals for individual parts of individual states to vote on local issues that are driven in the context of a state government amalgamation of local government then that does breach the intent of section 394, if it is held on polling day.

Senator JOYCE —Therefore, if the position is to deal with a partisan state issue then it is in breach of section 394 of the Electoral Act.

Dr Orr —No, if the constitutional referendum is about dealing more power, for example, to the Commonwealth over local government then that is formally within the intent and purpose of section 394 for it to be on polling day. It may not be desirable.

Senator FORSHAW —Exactly Mr Rudd’s proposition.

Senator IAN MACDONALD —Perhaps on notice, could you direct me to the provision of this amending bill where the Commonwealth is saying anything about conducting a plebiscite? As I understand it, the bill simply removes a state law that says you cannot have a plebiscite. If you are suggesting that in some way the Commonwealth is to conduct a plebiscite, could you please direct me to the provision of the amending bill which actually says that?

Dr Orr —This bill is unconstitutional for reasons you will find clearly stated in my submission and Professor Carney’s. The Queensland government certainly has power to stop local governments using local government resources to contract with the AEC to run these, essentially, private polls. This bill is in the context of the Commonwealth having said it will fund these polls—the reasons for which the Commonwealth is better aware than I. This is the context in which this bill arises.

Senator IAN MACDONALD —You are a professor of law. Please refer me to the provisions of the amending bill which support what you are saying.

Dr Orr —This bill is unconstitutional, as I have explained. No-one has asked me a question about that issue. This bill is unconstitutional and the Queensland government has power to stop the councils using council resources to contract with or run these polls. This bill is obviously necessary to attempt to override the Queensland government’s position and to allow councils to run those polls. In that sense, it is indubitably an act by the Commonwealth to give the councils money and to try and free them of the shackles of what I agree is a draconian Queensland law.

CHAIR —I was going to put this question to Professor Costar, but in his absence I will put it to you. It is similar to Senator Macdonald’s question. Could you point to the provision in the bill that gives the government a power to direct the Australian Electoral Commission to conduct a plebiscite?

Dr Orr —I did raise that matter before. The current Electoral Act permits the Commonwealth—

CHAIR —No, a new power or an additional power over and above what they already have.

Dr Orr —As I said earlier, this does not give the Commonwealth any new powers to direct the Australian Electoral Commission; it is just a question of political or administrative expectations and pressure under which the commissioner might find himself. That, as I understand it, is Professor Costar’s point.

CHAIR —Could you point to a provision in the bill that gives the government a new power to direct the Australian Electoral Commission as to the timing of a plebiscite?

Dr Orr —No, that is not covered by this bill.

Senator FORSHAW —Doesn’t the bill refer to removing impediments that may currently exist constitutionally in the act and, therefore, by writing an amending bill which removes what could be an impediment to the AEC, you ensure that the provisions in the act can be applied to local government plebiscites. Isn’t that what this legislation attempts to do?

Dr Orr —This bill attempts to remove the Queensland government’s powers to block the plebiscites. That is the reality of it.

CHAIR —Correct, but my two questions were: does this give an additional, new power to the Commonwealth to direct the AEC as to the timing of the plebiscite and does it take away the independence of the AEC to determine such a matter?

Dr Orr —No. Ultimately it is up to the Australian Electoral Commission itself to decide not to enter into such a contract.

CHAIR —So the answer is no to both of those questions. Professor Orr, thank you very much for your time. We appreciate you appearing today.

Dr Orr —You are welcome.

[10.21 am]