Zali Steggall MP speaks on the Referendum Machinery Act

6 March 2023

The Referendum (Machinery Provisions) Amendment Bill 2022 amends the referendum machinery to align with the Commonwealth Electoral Act. I'm generally satisfied that the tidying up and modernising aspects of this bill are necessary and appropriate, and I agree with them. There are, however, three aspects of the bill about which I have serious concerns.

Firstly, they relate to the provisions relating to financial disclosure and how these will interact with the current JSCEM inquiry into disclosure thresholds and real-time disclosure of political donations generally, in relation to both federal elections and federal referenda. If we know that system is broken, why repeat it for the referendum? Secondly, I'm concerned about the government's suspension of subsection 11(4) and the lack of detail on its recently reported about face on a pamphlet for a yes and no campaign, when such pamphlets will be distributed and what fact checking will be required in relation to the content of those pamphlets. Thirdly, I wonder why this bill does not address truth in political advertising and referenda advertising—particularly the issues set out in my Commonwealth Electoral Amendment (Stop the Lies) Bill 2022. So I am surprised that this bill includes matters relating to financial disclosure, which are currently the subject of the JSCEM inquiry into the 2022 election. The JSCEM inquiry is, amongst other things, tasked with considering reforms to political donation laws, particularly the applicability of real-time disclosure and a reduction of the disclosure threshold to a fixed $1,000. I agree with Dr Paul Kildea from the University of New South Wales that the bill's regulation of referendum donations and spending is well overdue but, in replicating the political finance provisions of the Electoral Act, this bill and these amendments are adopting the problems of a high disclosure threshold and not requiring real-time disclosure, so we know there is a problem. In one of the most significant questions we're going to put to the Australian people, we are embedding and replicating the very problems we know mar our election process.

On the subject of the suspension of section 11(4), the minister claims that, instead of issuing pamphlets or funding a 'yes' or 'no' campaign, the government will fund civics education in relation to the upcoming referendum on the voice, including providing voters with a good understanding of Australia's Constitution, the referendum process and factual information about the referendum proposal. There is no detail given as to what this will entail or when it will be implemented. I note that on the 8 February this year the finance minister confirmed that existing laws requiring a pamphlet for both sides would be maintained. Despite this, the explanatory memorandum states that temporary suspension of 11(4) will ensure that there is more than one way to communicate with electors before a referendum, and it allows parliamentarians to choose how and when to engage with their relevant constituency.

The intent of the government was to offload engagement with constituents to individual parliamentarians and the private sector to navigate the maelstrom. This was and is particularly concerning for independent members of parliament in particular, whose resources are already stretched very thin. I call on the minister to give more detail about the timing of the issuing of these 'yes' and 'no' pamphlets, and the extent to which it is now intended that individual parliamentarians would bear the burden of disseminating the government's civics education as well as delivering the 'yes' and 'no' pamphlets. It does beg the broader question of how much our education system is failing in civics education when it comes to Australian people understanding the Australian Constitution and the role of a referendum. It just shows that we still have a low level of constitutional literacy and understanding of our systems of government and how they work.

What we do know about is the lack of regulation around misleading and deceptive conduct not only in political elections but also in referenda erodes trust. It means that you have a standard that is below the standard the Australian people expect. In business and commerce, we have regulation. But for these questions of elections and referendums, where we are really debating and where the Australian people are being asked to vote on incredibly important questions, there are no protections; it is a free for all. There is an opportunity before the government to ensure that there that fact checking, and it really should happen.

Prior to Christmas I tabled the bill known as the Commonwealth Electoral Amendment (Stop the Lies) Bill 2022. Various iterations of this have been debated for years. We know this is needed. This is overwhelmingly supported by conservative and progressive voters, left and right alike. They feel cheated by the system and that there is no regulation around political advertising. The bill that I presented had been drafted deliberately to extend to both elections and referenda. The stop the lies bill must be considered in scheduling the order of these bills, so that the very important issue of truth in political advertising is addressed before the consideration of the government's bill.

The terms of reference for the JSCEM inquiry into the 2022 election include the consideration of the potential for truth in political advertising laws to enhance the integrity and transparency of the electoral system. I note that the JSCEM advisory report on this bill, delivered only some weeks ago, declined to recommend establishing a truth in political advertising regime, saying that the forthcoming referendum is not the right time, given that the JSCEM inquiry into the 2022 election has not yet published its report. We know there is a problem. We are about to ask the Australian people to respond to one of the most essential questions, our next step in our reconciliation journey. This will have a mark on Australia for years to come. The government knows it needs to protect truth and is failing to do that. It is nonsensical. The government is intent on pressing ahead with this bill before the outcome of the JSCEM inquiry into the 2022 election, and it really has not delivered any information on how it is going to ensure that there is no misleading and deceptive content in either the 'yes' or 'no' pamphlets but also at large in the debate. If this isn't the right time on a question of such importance that we're putting to the Australia people, when will be? The proposed referendum is already generating a substantial amount of energetic debate, and divisions are appearing which are not only following political party lines but also occurring within and outside political parties. It's important that we have open public discussion. That is an incredibly important thing as part of a democracy. But there is clearly potential out there for passion to override moderation and for false and misleading statements to be made. We know there has really been that in relation to the referendum. Legislation like the stop the lies bill is needed more than ever, and it's needed now. We really need to address this.

Australians know they face an incredibly important question this year, one that is long overdue. We can't undo the past, but we certainly can all take responsibility for the future we want to create for Australia. What do we stand for as a nation? For my part and for many in Warringah, I know we have a deep-seated desire to ensure that there is constitutional recognition for First Nations people, that we must do better in closing the gap, that what we have done for so many years has failed to close the gap. We must address the simple question of better listening to communities and ensuring that, when policies are going to directly impact First Nations people, their advice is sought and they are listened to, with an understanding of the impact those policies will have.

So I welcome this bill to amend the referendum provisions. There's no doubt that the bill as it is currently drafted is for another century, another era, and it needs to be updated. But there are some key areas that really haven't been addressed by the government. For me, that's sloppy. At the end of the day, we don't want to be looking back, after the debate on the referendum, and saying: 'This debate has been marred by so much misleading and deceptive content. If only we had done something about fact checking, stopping false claims being made as to the effect of the amendment that's proposed to the Constitution. If only we had done that.' I call on the government to really do that at this point. It's important that we protect this process. We mustn't have an erosion of trust in the referendum. It really is so important that we get this right. It means you have to tick all the boxes, not just some or the easier one or the more obvious ones.

The process has started in Warringah. I have already distributed information about how referendums work, information about the draft motion and the draft proposed amendments to the Constitution. And people are incredibly keen to understand and engage with this debate. They want to listen to experts. They want to listen to First Nations people. That's why it's so exciting that there's going to be a forum in Warringah, coming up in April, with Dean Parkin—so we can really talk about the importance of this decision for all Australians. This is not just a responsibility for Aboriginal and Torres Strait Islander Australians. This is a responsibility for all Australians. We all have a responsibility for what kind of nation we want to be. Do we want to take that next step of reconciliation?

So I urge the government to go all the way, to make sure we have a fair and respectful debate and to make sure that we stamp out misleading and deceptive facts so that we can be proud of this referendum's process and proud of its outcome.

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House calls on the Government to:

(1)in relation to any referendum, communicate timelines for the distribution of any yes and no pamphlets; and

(2)ensure that there is an independent process of verifying the accuracy of the facts contained within said pamphlets".