The referendum rules have been decided. What does this mean for the Voice?

On Wednesday night, the Senate passed a bill to amend Australia’s referendum machinery laws, ending a long and sometimes tense debate on the rules that will govern the Voice referendum later this year.

Until this week it looked like we would embark on our first referendum since 1999 without broad consensus on the ground rules. Thankfully, the government and opposition reached agreement and the bill passed easily. The House of Representatives is expected to approve it very soon.

The machinery changes range across public education, campaigning and voting. Many of the changes make welcome improvements to our outdated referendum laws.

But there is also a sense of missed opportunity as some well-known problems were left unaddressed.

So, what changes were made and what are the implications for the Voice referendum?

Setting the ground rules

Questions about referendum machinery – that is, the rules on how a national vote on constitutional change is conducted – often take a back seat to debate about the question on the ballot paper. But getting the machinery right is crucial to ensuring that a referendum is fair, transparent and informed.

The Referendum (Machinery Provisions) Amendment Bill 2022 was introduced in December and passed the House of Representatives earlier this month. Its purpose is to modernise the nation’s referendum rules and bring them into line with election laws.

The bill deals with many technical procedural matters alongside a small number of more contentious topics. One surprise was the government’s decision to suspend the usual practice of sending an official pamphlet to each household.

In January, the parliament’s electoral committee reviewed the bill and heard from a wide range of stakeholders.

The committee recommended measures be adopted to ensure voters have access to “clear, factual and impartial information”. It also supported amendments to foster enfranchisement and participation, particularly among Indigenous peoples.

The opposition, from the outset, supported most aspects of the bill. But it pledged to vote against it unless the government agreed to reinstate the official pamphlet, and establish and fund official “Yes” and “No” campaign bodies.

Until this week, it looked like the government would need the votes of the Greens and the crossbench to pass the bill. Senators Larissa Waters, David Pocock, Lidia Thorpe and Pauline Hanson proposed numerous amendments, including measures to strengthen financial disclosure.

In the end, the major parties brokered a deal that saw the government reinstate the pamphlet and the opposition drop two of its three demands.

The bill ultimately puts in place a set of rules and processes that, in many respects, resemble those used at past referendums.

Educating voters about the Voice

One of the biggest challenges ahead of a referendum is ensuring voters have the information they need to cast an informed vote.

The bill agreed to in the Senate provides for two channels of official information: the pamphlet and a neutral civics education campaign.

The official pamphlet is a mainstay of Australian referendums, having featured at almost all referendums since it was introduced in 1912. The bill retains the design that has been in place for over a century. Later this year, we will all receive in the post a printed booklet that contains “Yes” and “No” arguments, authorised by MPs, of 2,000 words each, and a copy of the proposed amendments to the Constitution.

While the government’s initial scrapping of the pamphlet was unexpected, it is hard to get excited about its reinstatement. If history is any guide, the pamphlet’s educational value will be minimal and could even be counter-productive. The authors of the “Yes” and “No” cases are free to exaggerate, mislead, fearmonger and dog-whistle. There will be no basic factual statement about the referendum proposal.

Thorpe moved for the Australian Human Rights Commission to write the “Yes” and “No” arguments, while Pocock argued that an independent panel should vet the pamphlet for accuracy and hateful content. In the House, independent Zali Steggall pushed for a broader law on truth in political advertising. None of these suggestions were taken up.

More promising is the neutral civics education campaign. It is 24 years since our last referendum and we all need a civics refresher. In the coming months we can expect the government to circulate basic information on the Constitution, Australia’s system of government and the referendum process. The Howard government ran a similar initiative in 1999 ahead of the republic referendum.

The bill makes clear that government spending on civics education will be lawful provided that it doesn’t “address the arguments for or against a proposed law for the alteration of the Constitution”. This is sensible and is aimed at ensuring that the civics education campaign stays neutral on the Voice proposal.

What we don’t know is who will develop the educational materials and what form they will take. It is crucial that the people involved are trusted by both sides and that the information they produce is clear, factual and relevant to voters. It would be good to hear more detail from the government on this.

The ‘Yes’ and ‘No’ campaigns won’t receive public funding

The bill passed by the Senate makes no provision for the establishment and funding of official “Yes” and “No” campaign organisations. This is in line with ordinary referendum practice in Australia, with 1999 being the lone exception.

The opposition had argued that creating official campaign groups would make it easier to enforce rules on financial disclosure. But the Australian Electoral Commission has a lot of experience in educating and overseeing multiple campaigners and should be able to manage a complex campaign environment.

The opposition also called for some public funding to support the campaigns. However, both the “Yes” and “No” sides are fundraising large amounts of money, so adding taxpayer dollars on top of that was arguably unnecessary.

Shining a light on campaign money

The bill makes some long-overdue changes to the rules on referendum campaign finance. Campaigners will be required to publicly report donations and expenditure that exceed A$15,200. This is consistent with ordinary election requirements.

This change improves transparency but falls well short of best practice. The disclosure threshold is way too high and this means some large donations will remain anonymous.

Moreover, Australians will not learn who gave money to the Yes and No campaigns until 24 weeks after the date of the referendum. This is information that people should have before they enter the polling booth and cast their vote.

Both the Greens and Pocock moved amendments for tougher disclosure rules, but they were defeated.

An advertising blackout period

The bill bans referendum advertisements on radio and television in the final three days of the campaign. The same rule applies at elections. Pocock unsuccessfully sought to extend the blackout period to social media.

Maximising enrolment and voting

One concern ahead of the Voice referendum is ensuring that measures are in place to support electoral participation, especially among First Nations people.

Last October, the government committed $16 million to assist Indigenous enrolment in advance of the vote. The bill takes a further step by extending the period available for remote mobile polling from 12 days to 19 days. This will allow more time for the Australian Electoral Commission to visit hard-to-access places across the country.

Both the Greens and Thorpe argued unsuccessfully for the adoption of on-the-day enrolment. This would have allowed new voters to cast a ballot on the day and have it included in the count once their eligibility to vote is confirmed.

It is a shame that on-the-day enrolment was not included in the final bill. It would have fostered referendum participation generally but been of particular benefit to First Nations people, given their disproportionately low enrolment rate.

A robust, if imperfect, referendum process

The eve of a referendum is the worst possible time to negotiate amendments to the rules. Every proposed change is viewed through the lens of suspicion and self-interest.

It is therefore a huge relief that the government and opposition were able to reach bipartisan consensus on the referendum machinery changes. Australians can go to the Voice referendum confident that the rules in place make for a fair and robust process.

The debates in parliament nonetheless show there is room for improvement. A number of promising ideas on public education and campaign finance were not taken up and in some cases were barely debated.

The amendments passed this week are welcome but there remains a need for an in-depth review of our referendum laws, ideally conducted away from the heat of a looming vote.

Paul Kildea, Associate Professor, Faculty of Law & Justice, UNSW Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Authorised by Alison Avery for the University of New South Wales, Kensington.