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Australian parliamentarian calls for plebiscite on immigration levels

An Australian parliamentarian, Senator Hansen, has called for a plebiscite on immigration levels to this country. "In the decade to 2016 the Australian population increased by 3.5 million, 60% of which was from overseas migration. Given the impact a continuing population growth of this same order will have on already over-stretched infrastructure particularly, in our major cities, a national plebiscite should be held at the time of the next general election to allow the people of Australia to express their opinion.  The plebiscite will ask Australian their views on continuing with the current high rate of migration. The Plebiscite (Future Migration Level)Bill 2018 (the Bill) would establish the legislative framework for a compulsory, in-person vote in a national plebiscite that would ask Australians, in view of the level of population increase from migration in the ten years to 2016: “Do you think the current rate of immigration to Australia is too high?”"

Title

Plebiscite (Future Migration Level) Bill 2018

[Source of original document is http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fs1138_ems_1c67dd91-e787-4a21-90ce-1726d0200315%22]

EXPLANATORY MEMORANDUM

 

 

 

(Circulated

by authority of Senator Hanson)

                                                                                                                                  



Plebiscite (FUTURE MIGRATION LEVEL) Bill 2018

general

Outline

In the

decade to 2016 the Australian population increased by 3.5 million,

60% of which was from overseas migration. Given the impact a

continuing population growth of this same order will have on

already over-stretched infrastructure particularly, in our major

cities, a national plebiscite should be held at the time of the

next general election to allow the people of Australia to express

their opinion.  The plebiscite will ask Australian their views

on continuing with the current high rate of migration.

The

Plebiscite (Future Migration Level) Bill 2018 (the

Bill) would establish the legislative framework for a compulsory,

in-person vote in a national plebiscite that would ask

Australians, in view of the level of population increase from

migration in the ten years to 2016: “Do you think the current

rate of immigration to Australia is too high?”.

The Bill

is not a standalone piece of legislation. It would apply a number

of provisions from the

Referendum (Machinery Provisions) Act 1984

(the Referendum Act) and the

Commonwealth Electoral Act 1918

(the Electoral Act), as well as other pieces of

Commonwealth legislation. The effect of this would be that the

plebiscite would be conducted in much the same way as a

referendum.

Conducted

at the same time as the next general election, the framework for a

referendum includes: the ‘one vote per person’ rule;

formality rules for ballot-papers; provision for the appointment of

scrutineers; and compulsory voting. This framework would apply to

the plebiscite. As in referendums, individuals would have access to

alternative options for voting, such as pre-poll voting, postal

voting and absent voting, if they are not able to vote in their

Division on polling day.

In

summary, the Bill would:

·         

provide

that people who are entitled to vote at elections would be asked to

vote on the following question at the plebiscite: “Do you

think the current rate of immigration to Australia is too

high?”

·         

require

the plebiscite to be held in conjunction with the next general

election

·         

specify

that the outcome of the plebiscite would be determined by a simple

majority; that is, more than 50 per cent of the votes cast. Any

informal ballot-papers (as determined by the Australian

Electoral Commission in accordance with the

Referendum Act) would not be included in the count of the

number of votes cast

·         

extend the

application of broadcasting rules in the

Broadcasting Services Act 1992 and the

Special Broadcasting Service Act 1991 to

conduct relating to the plebiscite. This would include the

requirement for a blackout period in which broadcasters are

prohibited from broadcasting advertisements about the plebiscite.

Broadcasters would also be required to provide reasonable

opportunities to any person or organisation wishing to broadcast

plebiscite material for 30 days prior to the blackout

period.    



NOTES ON

CLAUSES

Part 1 - Preliminary

Clause 1 - Short title

1.                  

Clause 1

would provide for the short title of the Act to be the

Plebiscite (Future Migration Level) Act 2018 .

Clause 2 - Commencement

2.                   

Clause 2

would provide for the commencement of each provision in the Bill,

as set out in the table. Clauses 1 and 2 of the Bill, and anything

in the Bill not covered elsewhere in the table, would commence the

day after the Bill receives Royal Assent. Clauses 3 to 33 and

Schedule 1 of the Bill would commence the day after the day on

which the Consolidated Revenue Fund is appropriated for the

purposes of paying or discharging the costs, expenses and other

obligations incurred by the Commonwealth in relation to the

plebiscite.

Clause 3

- Simplified outline of this Act

3.                   

Clause 3

would provide a high level overview of the Bill.

4.                   

This

overview states that the Bill would provide for a national

plebiscite to ascertain the views of the Australian people on the

level of migration, with the plebiscite broadly to be held in the

same way as a referendum held under the Referendum (Machinery

Provisions) Act 1984 , and the result to be determined by a

simple majority of votes cast.

Clause 4 - Definitions

5.                   

Clause 4

would define the terms used throughout the Bill.

6.                   

There are

six new definitions provided for in subclause 4(1):

 plebiscite , plebiscite matter,

plebiscite period, plebiscite proposal,

Referendum Act and Referendum

Regulation .

Definition

of ‘ plebiscite

7.                   

Subclause

4(1) would provide that the term plebiscite is

defined as the national plebiscite that will be held in accordance

with the provisions of this Act, as enacted. Clause 5 of the Bill

would set out the details of the plebiscite to be held in

accordance with this Act, being a plebiscite on the question

‘Do you think the current rate of immigration to Australia is

too high?’. The Bill would not provide a legislative

framework for plebiscites to be held on other issues.

Definition

of ‘ plebiscite matter

8.                   

Subclause

4(1) would provide a definition of plebiscite matter .

The definition generally would provide that plebiscite matter means

matter which relates to the level of migration to

Australia.

·         

Definition

of ‘ plebiscite period

9.                   

Subclause

4(1) would provide that the term plebiscite period

means the period that starts 33 days before the voting day for the

plebiscite and ends at the close of voting on that day.

10.               

Definition

of ‘ plebiscite proposal

11.               

Subclause

4(1) would provide that the term plebiscite proposal

means the question to be submitted to electors set out in subclause

5(2).

Definition

of ‘ Referendum Act

12.               

Subclause

4(1) would provide that the term Referendum Act

means the

Referendum (Machinery Provisions) Act 1984.

Clause 9 of the Bill would apply the majority of the

Referendum Act provisions to the plebiscite, which would

enable the plebiscite to be held in much the same way as a

referendum.

Definition

of ‘ Referendum Regulation

13.               

Subclause

4(1) would provide that the term Referendum

Regulation means the

Electoral and Referendum Regulation 2016 .

As with the Referendum Act, the Bill would apply the majority

of the Referendum Regulation provisions to the plebiscite, to

enable the plebiscite to be held in much the same way as a

referendum.

Expressions

defined in the Referendum Act

14.               

Subclause

4(2) would provide that expressions used in the Bill that are

defined in the Referendum Act have the same meaning in the

Bill as they have in that Act. This is intended to capture

expressions that are defined in subclause 3(1) of the

Referendum Act (‘Interpretation’), as well as

expressions which are defined elsewhere in that Act.

Expressions

defined in this Act

15.               

Subclause

4(3) would provide that, where this Bill modifies all or part of a

provision of another Act or instrument, and an expression used in

the modified provision is defined in subclause 4(1), then the

expression would have the same meaning in the modified provision as

it would have in this Act. As mentioned in the note under subclause

4(3), the term ‘modifications’ is defined in section 2B

of the Acts Interpretation Act 1901 . That section defines

‘modifications’ as ‘including additions,

omissions and substitutions’.  

Part 2 -

Plebiscite on migration to Australia

Clause 5 -

Plebiscite on migration to Australia

16.               

Clause 5

would set out the key aspects of the plebiscite that would be held

in accordance with the Bill.

17.               

Subclause

5(1) would provide the Governor-General with the power to cause the

plebiscite to be held. This would be achieved by the

Governor-General issuing the Electoral Commissioner with a

writ setting out the details for the plebiscite, including the

voting date for the plebiscite and the question that people would

be asked at the plebiscite. The Governor-General’s act of

issuing a writ would trigger the process for the

Electoral Commission to establish the mechanisms for, and

conduct, the plebiscite. This process would mirror the process used

in a referendum.  The writ is Form A in Schedule 1 to the

Bill. 

18.               

Subclause

5(2) would set out the question that people would be asked to vote

on at the plebiscite: “From December 2005 to December 2016

Australia’s population grew from 20.5 million to 24.4

million; 62% of this growth was from net overseas

migration.

Do you

think the current rate of immigration to Australia is too

high?”

Clause 6 -

Result of the plebiscite

19.               

Clause 6

would provide that the result of the plebiscite would be determined

by a simple majority. That is, the result of the plebiscite would

be determined on the basis of whether, across all of Australia,

more people vote in favour of the plebiscite proposal or more

people vote not in favour of (against) the plebiscite proposal

(disregarding informal ballot-papers).

20.               

Subclause

6(1) would provide that the result of the plebiscite would be in

favour of the plebiscite proposal (i.e. believe the current level

of migration is too high) if more than 50 per cent of the votes

cast in the plebiscite are given in favour of the plebiscite

proposal (‘yes’ votes). Subclause 6(2) would provide

that the result of the plebiscite is not in favour of the

plebiscite proposal if more than 50 per cent of the votes cast in

the plebiscite are given not in favour of the plebiscite proposal

(‘no’ votes).

21.               

Both

subclauses 6(1) and 6(2) would provide that any informal

ballot-papers cast in the plebiscite would be disregarded from the

vote count and would not affect the plebiscite result. As set out

in the note at the end of this clause, section 93 of the

Referendum Act, which would apply to the plebiscite by

operation of clause 9 of the Bill, would set out when a

ballot-paper would be informal . An example of an informal

ballot-paper is where a voter does not mark the ballot-paper. This

clause would provide certainty about the basis upon which the

plebiscite result would be declared.

22.               

This

process for determining the result of the plebiscite is different

to the process for determining the result of a referendum under the

Referendum Act. In a referendum, the proposed alteration to

the Australian Constitution must be approved by a double

majority. That is, both a national majority of votes cast, and a

majority of votes in a majority of the States (for example, at

least four out of six States), are required for a referendum to be

carried. In determining the result, the ballot-papers rejected as

informal ballot-papers are not included, as would be the approach

for the plebiscite.

23.               

The legal

effect of a ‘yes’ vote in a referendum is to change the

Australian Constitution. By contrast, the plebiscite is

intended to provide a broad indication of the public’s view

on whether the current level of migration is too high.  Given

this difference between the two, it is appropriate that the result

for the plebiscite be determined by a simple majority.

Clause 7 -

Functions of the Electoral Commission

24.               

Clause 7

would provide that certain subsections and paragraphs of section 7

of the Electoral Act apply in relation to the

plebiscite.

25.               

Subclause

7(1) would provide that, for the purpose of paragraph 7(1)(g) of

the Electoral Act, the Electoral Commission has the function

conferred on it, in relation to the plebiscite, by this Act and by

the Referendum Act.   

26.               

Paragraph

7(1)(g) of the Electoral Act provides that the functions of

the Electoral Commission include functions conferred on it by or

under any law of the Commonwealth. Subsection 7(3) of the

Electoral Act provides that the Electoral Commission may

do all things necessary or convenient to be done for or in

connection with the performance of its functions.

27.               

Given that

subclause 7(1) of the Bill would make it express that conducting

the plebiscite is a function of the Electoral Commission,

subsection 7(3) of the Electoral Act would be engaged.

This would ensure that the Electoral Commission has the

authority to perform all necessary functions relating to the

conduct of the plebiscite.

28.               

The note

at the end of subclause 7(1) confirms that the

Electoral Commission has other functions relating to the

function provided for by paragraph 7(1)(g) of the

Electoral Act. The note identifies these functions as those

contained in paragraphs 7(1)(b)-(f) of the

Electoral Act. These functions include considering and

reporting on electoral matters, promoting public awareness of

electoral matters, providing information and advice to the

Parliament and the Government, conducting research, and publishing

material relating to its functions.

29.               

Subclause 7(2) would provide that the

Electoral Commission can perform its functions relating to the

plebiscite (provided for in subclause 7(1)) in conjunction with the

electoral authorities of a State, the

Australian Capital Territory and the

Northern Territory. Allowing this cooperation is

administratively necessary for a national plebiscite.

    

Clause 8

- No offence to vote informally

30.               

Clause 8

would provide certainty that, for the purpose of the plebiscite, an

offence is not committed under the Referendum Act (as it would

apply to the plebiscite by operation of clause 9 of the Bill)

merely because a person’s ballot-paper is determined to

be informal.

31.              

The effect

of this clause would be to clarify that the obligation to vote,

provided for by section 45 of the Referendum Act, which

would apply to the plebiscite by operation of clause 9 of the

Bill, is not an obligation to lodge a formal

vote.   

32.               

Note 1

would provide that section 93 of the Referendum Act, which would

apply to the plebiscite by operation of clause 9 of the Bill, sets

out when a ballot-paper would be considered to be informal.

These are the same formality rules as apply in a

referendum.

33.               

Note 2 to

this clause would provide clarity that a person may still commit an

offence, under subsection 45(14) of the Referendum Act, if they

fail to vote in the plebiscite. For example, if a person fails to

attend a polling place on voting day, and fails to otherwise

participate in the vote by pre-polling, postal voting or

voting by electronically assisted voting.

Part 3 -

Application of the law in relation to the plebiscite

Division 1 - Application of the

Referendum Act

Subdivision A -

General

Clause 9 -

Application of the Referendum Act

34.               

Clause 9

would provide that the Referendum Act applies to the

plebiscite, with any modifications to that Act set out in Division

1 of Part 3 of the Bill.

35.               

This

clause would mean that Referendum Act provisions do not need

to be replicated in the Bill. The effect of this clause would be to

enable the plebiscite to be held in much the same way as a

referendum, using the same well-established processes. This

approach would provide certainty and integrity to the plebiscite

framework, as plebiscites are not defined in the Australian

Constitution, the Electoral Act or the

Referendum Act.

36.               

The

modifications to the Referendum Act, as it would apply in

relation to the plebiscite, are set out in clauses 10 to 22. Any

modifications the Bill makes to the Referendum Act would apply

only in relation to the plebiscite held in accordance with the

Bill. These changes would not apply in relation to any future

referendums held under the Referendum Act.

Clause 10 -

References to referendum

37.               

Clause 10

would provide for references to referendum in the Referendum Act to

include references to the plebiscite (subclause 10(1)), with some

exceptions (subclause 10(2)).

38.               

Subclause 10(1)

would provide that wherever the words ‘referendum’ or

‘referendums’ appear in the Referendum Act, they

would include a reference to the plebiscite. As set out in the note

following subclause 10(1), the Referendum Act uses the term

‘referendum’ in many ways, such as ‘a

referendum’, ‘the referendum’, ‘each

referendum’, or ‘a particular

referendum’. 

39.               

Subclause

10(1) is required to give full effect to clause 9. The effect of

this subclause would be that the existing Referendum Act

provisions would apply to the plebiscite, covering procedural

aspects such as creating the writ, voting (including postal and

pre-polling, and the requirement for compulsory voting), and

formality rules for ballot-papers, subject to other modifications

set out in this Division.

40.               

Subclause

10(1) would also ensure that offences relating to referendums would

apply to the plebiscite (see Part X of the Referendum Act).

Examples of offences include failing to vote, misleading or

deceptive publication, fraudulently tampering with ballot-papers,

and engaging in certain activities within six metres of the

entrance of a polling booth. This would enable the plebiscite to be

held in much the same way as a referendum under the

Referendum Act.

41.               

Subclause

10(2) would provide for exceptions to subclause 10(1) in relation

to certain provisions in the Referendum Act that use the term

‘referendum’. These references to referendum would not

include a reference to the plebiscite. Each of these provisions are

set out below.

42.               

Paragraph

10(2)(a) would provide that subclause 10(1) would not apply to the

definitions of referendum and referendum

period in subsection 3(1) of the Referendum Act.

References in these definitions to ‘referendum’ would

not need to include a reference to the plebiscite, as the Bill

would define ‘plebiscite’ in clause 4, and replace the

definition of ‘referendum period’, for the purpose of

the plebiscite, in clause 13 (as set out in the note at the end of

clause 10). Paragraph 10(2)(a) would also provide that any other

references to ‘referendum period’ in the

Referendum Act would not include a reference to the

plebiscite. The effect of this would be to ensure that the revised

definition of ‘referendum period’ provided for by

clause 13 is applied wherever the term appears in the

Referendum Act. The referendum period is relevant to

determining when certain types of conduct would constitute an

offence under the Referendum Act.

43.               

Paragraph

10(2)(b) would provide that subclause 10(1) would not apply to the

reference to ‘last referendum’ in paragraph 16(2)(b) of

the Referendum Act. Paragraph 16(2)(b) of the

Referendum Act requires the Electoral Commissioner

publish a list of all polling places that have been abolished since

the last referendum or election, which ever occurred last. The

purpose of paragraph 16(2)(b) is to inform voters about the changes

to polling locations since last time they voted. Since Australia

has not held a plebiscite since 1977, extending the operation of

paragraph 16(2)(b) of the Referendum Act to include a

reference to the plebiscite would have no effect for the purpose of

the plebiscite. 

44.               

Paragraph

10(2)(c) would provide that subclause 10(1) would not apply to the

definition of referendum in subsection 62B(6) of the

Referendum Act. Section 62B of the Referendum Act

restricts the use and disclosure of information in relation to a

referendum. It would apply to the plebiscite by operation of clause

9 and subclause 10(1) of the Bill. Subsection 62B(6) provides that

any reference to ‘referendum’ in section 62B includes

referendums conducted under State or Territory law, in addition to

federal referendums. This definition does not need to include a

reference to the plebiscite as the term referendum used in the

substantive subsections of 62B would include a reference to the

plebiscite by operation of subclause 10(1) of the Bill.

 

45.               

Paragraph

10(2)(d) would provide that subclause 10(1) would not apply to the

second reference to ‘referendum’ in section 143 of

the Referendum Act. Section 143 of the Referendum Act

provides that, on the voting day for a referendum, no election or

referendum or vote of electors of any State or Territory, or any

part of a State or Territory, shall be held or taken under a law of

a State or Territory without the authority of the Governor-General.

By operation of clause 9 and subclause 10(1) of the Bill, this

section would prevent a State or Territory election or referendum

from being held on the same day as the plebiscite without the

authority of the Governor-General. The effect of paragraph 10(2)(d)

would be that the second reference to referendum in section 143,

being a reference to a referendum held or taken under a law of a

State or Territory, would not include a reference to the plebiscite

as this is not a scenario that could occur.

46.               

Paragraph

10(2)(e) would provide that subclause 10(1) would not apply to any

references to ‘referendum’ in section 11 of the

Referendum Act. Section 11 of the Referendum Act provides for the

distribution to electors of arguments in favour and not in favour

of the proposed law to change the Australian Constitution. As a

result of this paragraph and subclause 11(2) of the Bill, it will

not be necessary for formal arguments in relation to the plebiscite

to be distributed to electors.

47.               

Paragraph

10(2)(f) would provide that subclause 10(1) would not apply to any

references to ‘referendum’ in section 145 of the

Referendum Act. Section 145 of the Referendum Act deals

with the repeal of Acts specified in Schedule 2 of that Act, and

the interaction between existing regulations and the

Referendum Act. Given section 145 refers to referendums in the

context of historic Acts and regulations, it is not necessary for

these references to include a reference to the plebiscite that

would be provided for by the Bill.

48.               

Paragraph

10(2)(g) would provide that subclause 10(1) would not apply to all

references to ‘referendum’ in Schedule 2 to the

Referendum Act. Schedule 2 to the Referendum Act lists

the Acts that are repealed by the Referendum Act. All

references to ‘referendum’ in Schedule 2 are in

the titles of repealed Acts. It is not appropriate for those

references to include a reference to the plebiscite.

49.               

Paragraph

10(2)(h) would provide that subclause 10(1) would not apply to the

reference to ‘referendum’ in paragraph 13(c) of

Schedule 4 to the Referendum Act. Schedule 4 to the

Referendum Act relates to the preliminary scrutiny of

declaration votes. Paragraph 13(c) defines the term

‘election’ in relation to the scrutiny of a declaration

vote of someone who was not registered in a Division due to an

error, where there has been more than one election since the

mistake was made or a redistribution of Divisions has occurred.

Paragraph 13(c) provides that ‘election’ includes a

referendum for the purpose of this scrutiny provision. This

provision refers to past elections (i.e. whether, at the time of

the scrutiny to which the rules are being applied, more than one

previous election or referendum has occurred since the error or

mistake was made that caused the person not to be registered in a

Division). Given the plebiscite proposed by the Bill is not a past

plebiscite, it is not necessary for this reference to referendum to

include a reference to the plebiscite.   

Clause 11 -

References to proposed law

50.               

Subclause

11(1) would provide that the Referendum Act applies to the

plebiscite as if references in that Act to ‘proposed law for

the alteration of the Australian Constitution’ (paragraph

11(1)(a) of the Bill) and ‘proposed law’ (paragraph

11(1)(b) of the Bill) also included references to the plebiscite

proposal (as defined in clause 4). This subclause is required to

give full effect to clause 9. The effect of this subclause would be

to enable the plebiscite to be conducted in much the same way as a

referendum.

51.               

Subclause

11(2) provides that subclause 11(1) of the Bill does not apply in

relation to section 11 of the Referendum Act. For the purpose of a

referendum, section 11 of the Referendum Act provides for the

distribution to electors of arguments in favour and not in favour

of the proposed law to change the Australian Constitution. As a

result of this subclause and paragraph 10(2)(e) of the Bill, it

will not be necessary for formal arguments in relation to the

plebiscite to be distributed to electors.

Clause 12 - References to the

Referendum Act, the Referendum Regulation or provisions of the

Referendum Act

52.               

As with

clauses 10 and 11, clause 12 would provide that the

Referendum Act applies as if references in that Act to

that Act (paragraph 12(a)), a provision of that Act

(paragraph 12(b)), or the Referendum Regulation

(paragraph 12(c)), would include references to those things as

they apply in relation to the plebiscite (i.e. as applied, with

modifications, by the Bill).

53.               

This

clause is required to give full effect to clause 9. The effect of

this provision would be to ensure that self-referencing provisions

of the Referendum Act would apply, as modified by the Bill, to

the plebiscite. This means that the plebiscite would be conducted

in much the same way as a referendum.

54.               

The note

to this clause provides an example of the application of this

clause to a reference to ‘that Act’ in section 116 of

the Referendum Act.

Clause 13 -

Meaning of referendum period

55.               

Clause 13

would replace the definition of referendum period in

subsection 3(1) of the Referendum Act with a revised

definition for the purpose of the plebiscite. The referendum period

is relevant to when specific types of conduct would constitute an

offence (see Part X of the Referendum Act for the majority of

the offence provisions, which include conduct such as making

misleading or deceptive statements).

56.               

For the

purpose of the plebiscite, paragraph (a) of the definition would

specify that the referendum period commences at the start of the

day the Act commences. By contrast, for referendums, the referendum

period commences on the day of the issue of the writ for the

referendum. Paragraph (b) of the definition would specify that the

referendum period ends at the latest time on the voting day for the

plebiscite at which an elector in Australia could enter a polling

booth for the purpose of voting at the plebiscite. This is the same

as it is for referendums.

57.               

The effect

of this replacement definition would be to extend the referendum

period for the plebiscite so that it begins earlier than it would

for a referendum. This would ensure the relevant offences apply for

the full duration of the period between when the Bill commences,

and when the plebiscite is held.

Subdivision B

- Holding the plebiscite

Clause 14 - Writ

and forms for the plebiscite

58.               

Clause 14

is relevant to the writ (Form A) and ballot-paper (Form B) in

Schedule 1 to the Bill. Clause 14 would set out modifications to

the Referendum Act, as it would apply to the plebiscite, to

remove references to documents that would not be required for the

plebiscite, and to replace the writ and ballot-paper for the

purpose of the plebiscite.

59.               

 Subclause

14(1) would provide that the Referendum Act applies to the

plebiscite as if subsection 8(1) were replaced with a new

subsection. Subsection 8(1) of the Referendum Act sets out

requirements for the writ for a referendum, including that the writ

may be in accordance with forms set out in Schedule 1 of that Act,

shall be signed by the Governor-General and appoint days for

the close of rolls, taking votes and for the return of the

writ.

60.               

The

replacement subsection 8(1) modifies these requirements to require

that the writ for the plebiscite be issued on the same day that the

writs are issued for the next general election and that the days

for the close of rolls and voting are the same as for the next

general election.

61.               

Paragraph

14(2)(a) would omit subsection 8(2) and paragraph 12(a) from the

Referendum Act as it would apply to the plebiscite. Subsection

8(2) of the Referendum Act requires the Governor-General to

attach a copy of the proposed law, or a statement setting out the

text of the proposed law and the proposed textual alterations to

the Australian Constitution, to the writ for a referendum.

This subsection is not required for the purpose of the plebiscite

because the plebiscite, if carried, would not result in an

automatic change to the law.

62.               

Paragraph

12(a) of the Referendum Act requires the Governor-General to

cause a copy of the writ and a copy of the proposed law or of the

statement (if any) attached to the writ to be forwarded to the

Governors of the States, the Chief Minister for the

Australian Capital Territory and the Administrator of the

Northern Territory. This paragraph is not required for the purpose

of the plebiscite because the plebiscite does not affect the States

and Territories in the same way that a referendum would. On this

basis, it is not necessary for the Governor-General to

forward a copy of the writ for the plebiscite to the States and

Territories.

63.               

Paragraph

14(2)(b) of the Bill would remove the reference to ‘and a

copy of the proposed law or of the statement (if any) attached to

the writ’ from paragraphs 12(b) and 13(b) of the

Referendum Act. Paragraph 12(b) of the Referendum Act requires

the Governor-General to, after issuing a writ, forward the

original writ and a copy of the proposed law or statement (if any)

to the Electoral Commissioner. Paragraph 13(b) of the

Referendum Act requires the Electoral Commissioner to publish

the particulars of the writ and the copy of the proposed law or

statement in the Gazette .   

64.               

Paragraph

14(2)(c) of the Bill would omit paragraph 14(1)(a) and

subparagraphs 14(1)(b)(ii) and (iii) from the

Referendum Act as it would apply to the plebiscite. Paragraph

14(1)(a) of the Referendum Act requires the Australian

Electoral Officer for each State and Territory to cause copies of a

statement setting out the text of the proposed law and the text of

the particular provisions (if any) of the

Australian Constitution proposed to be altered by the proposed

law to be made available at offices of the

Electoral Commission in that State or Territory, and at such

other places as the Electoral Commissioner directs. Paragraph

14(1)(b) of the Referendum Act requires the

Australian Electoral Officer for each State and Territory

to cause a notice setting out, inter alia , a copy of

the proposed law or of the statement (if any) attached to the writ

(subparagraph 14(1)(b)(ii)), and the places at which copies of

the statement referred to in paragraph 14(1)(a) are available

(subparagraph 14(1)(b)(iii)) to be inserted in not less than

2 newspapers circulating generally in the State or

Territory.

65.               

The effect

of paragraphs 14(2)(b) and 14(2)(c) of the Bill would be to remove

references to the proposed law, statements setting out the text of

the proposed law, and text of the particular provisions of the

Australian Constitution proposed to be altered by the proposed

law from the Referendum Act as it would apply to the plebiscite.

References to these documents would not be relevant to the

plebiscite, as the public would be asked to vote on a simple

question, not on a specific proposed law or change to the

Australian Constitution. This is different to the process in

referendums, where people are asked to vote on whether they support

a proposed change to the law which has been passed by at least one

house of Parliament already. This difference in approach is because

referendums are legally binding and, if a referendum was

successful, the proposed law to change the

Australian Constitution would be implemented automatically.

Conversely, the result of the plebiscite would not result in an

automatic change to the law.

66.               

Subclause

14(3) would replace Forms A and B in Schedule 1 to the

Referendum Act with forms developed specifically for the

plebiscite. The replacement Forms A and B are in Schedule 1 to the

Bill. The differences between the forms for a referendum and the

replacement forms for the purpose of the plebiscite are outlined in

the explanatory material relating to Schedule 1.

Subdivision

C -

Determining

the result of the plebiscite

Clause 15 - Appointment of scrutineers for

voting  

67.               

Clause 15

would provide that the Referendum Act applies to the

plebiscite as if section 27 of that   Act were replaced with a

new section.

68.               

Existing

section 27 of the Referendum Act sets out who may appoint

scrutineers for the purpose of scrutineering the voting on polling

day in a referendum. Subsections 27(1) to (3) provide for the

Governor-General, the Governor of a State, the Chief Minister

for the Australian Capital Territory, and the Administrator of the

Northern Territory, or a person authorised by one of those people,

to appoint scrutineers for polling day. Subsection 27(4) provides

that the registered officer of a registered political party may

appoint persons to act as scrutineers during voting.

69.               

The effect

of clause 15 would be that none of those people would be

authorised to appoint scrutineers for the purpose of the

plebiscite.

70.               

Instead,

the replacement subsection 27(1) would provide that a member of the

Parliament of the Commonwealth may appoint persons to scrutineer

the vote on polling day. Replacement subsection 27(1) would

restrict the ability of a member of Parliament to appoint

scrutineers to the polling places in the member’s State or

Territory.

71.               

To avoid

overcrowding at polling places, and so that

Electoral Commission officials can perform their duties, it is

important that there be a restriction on the number of scrutineers

able to be appointed at each polling place. The replacement

subsection 27(2) would provide that the Special Minister of

State may limit the number of scrutineers allowed at a polling

booth by making a legislative instrument.

72.               

Replacement

subsection 27(3) would define the term State or

Territory for the purpose of the replacement

section 27. Replacement subsection 27(3) would define the

State or Territory of a member of the Parliament

of the Commonwealth as being the State or Territory in

which the Division for which the member is elected is located (for

Members of the House of Representatives)(paragraph 27(4)(a)),

or the State or Territory of a Senator (paragraph 27(4)(b)). This

effect of this would be that, for example, a Member of the House of

Representatives whose Division is located in New South Wales would

be able to appoint people to scrutineer the vote in every polling

place in New South Wales, as would all Senators elected

for New South Wales.

73.               

Scrutineers

perform an important function in ensuring the integrity of the vote

is maintained. In a referendum, the legal effect of a

‘yes’ vote is to change the Australian Constitution. In

such circumstances, it is appropriate that the Commonwealth and the

States and Territories, as contracting parties to the Australian

Constitution, are able to appoint scrutineers. By contrast,

the plebiscite is intended to provide a broad indication of the

public’s view on whether the rate of immigration to Australia

is too high. As such, this function is most appropriately performed

by individuals appointed by members of the Parliament of the

Commonwealth, who represent the views of their constituents across

Australia.

74.               

There is

no requirement that each and every member of the Parliament appoint

scrutineers, or that scrutineers be appointed to scrutineer both

sides of the debate at every location.

75.               

Subregulation

21(2) of the Referendum Regulation (which would apply to the

plebiscite by operation of clause 23 of the Bill), provides that a

person who may appoint a scrutineer under section 27 of the

Referendum Act may also appoint scrutineers to attend

authorised call centres to scrutineer electronically assisted

voting. Therefore, clause 15 would also have the effect of allowing

a member of the Parliament of the Commonwealth to appoint

scrutineers for the purpose of scrutineering electronically

assisted voting.

Clause 16 - Appointment of scrutineers for pre-poll

voting  

76.               

Clause 16

would provide that the Referendum Act applies to the

plebiscite as if section 73CA of that Act were replaced with a

new section.

77.               

Section

73CA of the Referendum Act sets out who may appoint

scrutineers for the purpose of scrutineering pre-poll voting in a

referendum. Subsections 73CA(1) to (4) provide for the

Governor-General, the Governor of a State, the Chief Minister

for the Australian Capital Territory, and the Administrator of the

Northern Territory, or a person authorised by one of those people,

to appoint scrutineers for the purpose of scrutineering

pre-polling in a referendum. Subsection 73CA(5) of the

Referendum Act provides that the registered officer of a registered

political party may appoint persons to act as scrutineers for

pre-poll voting.

78.               

The effect

of clause 16 would be that none of those people would be authorised

to appoint scrutineers for the purpose of pre-poll voting in the

plebiscite. 

79.               

Instead,

the replacement subsection 73CA(1) would provide that a member of

the Parliament of the Commonwealth may appoint persons to

scrutineer the vote at pre-poll voting offices. Replacement

subsection 73CA(1) would restrict the ability of a member of

Parliament to appoint scrutineers to the pre-poll voting

offices in the member’s State or Territory.

 

80.               

To avoid

overcrowding at pre-poll voting offices, and so that

Electoral Commission officials can perform their duties, it is

important that there be a restriction on the number of scrutineers

able to be appointed at each pre-poll voting office. The

replacement subsection 73CA(2) would provide that the Special

Minister of State may limit the number of scrutineers that may be

appointed by members of Parliament by making a legislative

instrument.

81.               

Replacement

subsection 73CA(3) would define the term State or

Territory for the purpose of the replacement

section 73CA. The replacement subsection 73CA(3) would mirror

the replacement subsection 27(3) provided for by

clause 15 above.

82.               

As with

clause 15 above, it is important to retain the scrutineering

function for the plebiscite to ensure that the integrity of the

vote is maintained. As above, it is appropriate for members of the

Parliament of the Commonwealth, who represent the views of their

constituents, to perform the scrutineering function for the purpose

of the plebiscite.

83.               

There is

no requirement that each and every member of the Parliament appoint

scrutineers, or that scrutineers be appointed to scrutineer both

sides of the debate at every location.

Clause 17

- Ascertainment of result of

plebiscite  

84.               

Clause 17

would provide that the Referendum Act applies to the plebiscite as

if section 89 of that Act were replaced with a new

section.

85.               

Section 89

of the Referendum Act provides that the result of a referendum is

determined by scrutiny (counting), and sets out who may appoint

scrutineers for the purpose of scrutineering the counting.

Subsections 89(2) to (4) provide for the Governor-General,

the Governor of a State, the Chief Minister for the Australian

Capital Territory, and the Administrator of the Northern Territory,

or a person authorised by one of those people, to appoint

scrutineers for the purpose of the scrutiny. Subsection 89(4A) of

the Referendum Act provides that the registered officer of a

registered political party may appoint persons to act as

scrutineers during scrutiny at counting centres.

86.               

The effect

of clause 17 would be that none of those people would be authorised

to appoint scrutineers for the purpose of the scrutiny.

87.               

The

replacement section 89 would provide for alternative arrangements

for the scrutiny for the purpose of the plebiscite. The replacement

subsection 89(1) would provide that the result of the

plebiscite shall be ascertained by scrutiny. This provision mirrors

the existing provision in the Referendum Act.

88.               

The

replacement subsection 89(2) would provide that a member of the

Parliament of the Commonwealth may appoint persons to scrutineer

the vote during scrutiny at each counting centre. Replacement

subsection 89(2) would restrict the ability of a member of

Parliament to appoint scrutineers to the counting centres in the

member’s State or Territory.

89.               

To ensure

that Electoral Commission officials can perform their duties,

it is important that there be a restriction on the number of

scrutineers able to be appointed to each counting centre. The

replacement subsection 89(3) would provide that the Special

Minister of State may limit the number of scrutineers that may be

appointed by members of Parliament by making a legislative

instrument.

90.               

The

replacement subsection 89(4) would define the terms

counting centre and

State and Territory for the purpose of the

replacement section 89. Replacement subsection 89(4) would

define the term counting centre as any premises at

which a scrutiny or counting of ballot-papers for the

plebiscite is to be, or is being, conducted. This

definition mirrors the existing definition in section 89 of

the Referendum Act.

91.               

The

definition of State and Territory in the replacement

subsection 89(4) would mirror the definitions set out in the

replacement subsections 27(3) and 73CA(3), as provided for by

clauses 15 and 16 above.

92.               

As with

clauses 15 and 16 above, it is important to retain

the scrutineering function for the plebiscite to ensure that the

integrity of the vote is maintained. As above, it is appropriate

for members of the Parliament of the Commonwealth, who represent

the views of their constituents, to perform the scrutineering

function for the purpose of the plebiscite.

93.               

There is

no requirement that each and every member of the Parliament appoint

scrutineers, or that scrutineers be appointed to scrutineer both

sides of the debate at every location.

Clause 18

- Recount

94.               

Clause 18

would provide that the Referendum Act applies to the

plebiscite as if subsection 95(2) of that Act were replaced with a

new subsection.

95.               

Subsection

95(2) of the Referendum Act sets out when the

Electoral Commissioner may direct a recount of

ballot-papers. The replacement subsection 95(2) would

provide that the Electoral Commissioner may direct a recount

of any ballot-papers if requested to do so by the a member of

the Parliament of the Commonwealth, or on his or her own motion.

This is different to the current provision for referendums. The

current subsection 95(2) of the Referendum Act provides

for the Electoral Commissioner to direct a recount at the

request of the Governor-General, the Governor of a State, the

Chief Minister for the Australian Capital Territory or the

Administrator of the Northern Territory, or of his or her own

motion. The effect of this clause is that the

Electoral Commissioner would not be able to direct a recount

at the request of any of those individuals, but instead would be

able to do so at the request of any member of the Parliament of the

Commonwealth.   

96.               

This

clause is consistent with clauses 15, 16 and 17, which would amend

the Referendum Act to restrict who can appoint scrutineers for

the purpose of the plebiscite to a member of the Parliament of the

Commonwealth. Only the scrutineers appointed by a member of the

Parliament would have the necessary knowledge of the counting

process to initiate a request for a recount of the votes in the

plebiscite.

Clause 19 - Return of the

writ       

97.               

Clause 19

would provide that the Referendum Act applies to the

plebiscite as if subsection 98(1) of that Act was replaced with a

new version, and section 99 of that Act was omitted.

98.               

Subsection

98(1) of the Referendum Act sets out the requirement for the

Electoral Commissioner to certify the results of a referendum

and return the writ to the Governor-General. For the purpose

of the plebiscite, the replacement paragraph 98(1)(a) would require

the Electoral Commissioner to certify the number of votes

given in favour of the plebiscite proposal

(subparagraph 98(1)(a)(i)), the number of votes given not in

favour of the plebiscite proposal (subparagraph 98(1)(a)(ii)),

and the number of ballot-papers rejected as informal

(subparagraph 98(1)(a)(iii)), for the whole of the

Commonwealth only. This is different to the existing paragraph

98(1)(a), which requires the results to be certified for each State

and Territory, as well as for the whole Commonwealth. The

replacement paragraph 98(1)(a) would also require the

Electoral Commissioner to attach the certificate to the

original writ, which is the same as for a referendum.

99.               

The

replacement paragraph 98(1)(b) would require the

Electoral Commissioner to return the writ and the paragraph

98(1)(a) certificate to the Governor-General.

100.           

The effect

of this clause would be to only require the

Electoral Commissioner to certify the result of the plebiscite

in relation to the whole of the Commonwealth, not by each State and

Territory. This is because, according to clause 6 of the Bill, the

plebiscite would be determined by a simple majority of more than 50

per cent of the votes cast in the plebiscite (disregarding informal

ballot-papers), as opposed to the double majority required for a

referendum. On this basis, it is not necessary for the

Electoral Commissioner to certify the results by each State

and Territory.

101.           

This

clause does not replace or modify subsection 98(2) of the

Referendum Act, which applies to the plebiscite because of the

operation of clause 9 of the Bill. Subsection 98(2) requires

the Electoral Commissioner to publish in the Gazette a

copy of the certificate provided for by paragraph 98(1)(a),

and provides that, subject to the terms of Part VIII of the

Referendum Act (as modified by the Bill to apply to the

plebiscite), the certificate is conclusive evidence of the result

of the plebiscite.

102.           

Section 99

of the Referendum Act requires the Electoral Commissioner

to forward copies of the certificate attached to the writ, which

sets out the results of a referendum, to the Governors of the

States and the Chief Minister of the Australian Capital Territory

and the Administrator of the Northern Territory. This provision is

included in the Referendum Act because of the relevance of a

referendum to the States and Territories.

103.           

Given that

the plebiscite will be determined by a simple majority (by

operation of clause 6 of the Bill) and would not result in a

change to the Australian Constitution, it is not necessary for

the Electoral Commissioner to forward a copy of the certified

attached to the writ to the Governors of the States or the

Chief Minister of the Australian Capital Territory or the

Administrator of the Northern Territory for their information

or otherwise. As such, section 99 of the Referendum Act would

not apply for the purpose of the plebiscite.

Clause 20

- Disputing validity of submission or return

104.           

Clause 20

would provide that the Referendum Act applies to the

plebiscite as if section 100 of that Act were replaced with a new

section.

105.           

Section

100 of the Referendum Act sets out who may dispute the

validity of a referendum or a return or statement showing the

voting at a referendum. The replacement section 100 would provide

for a member of the Parliament of the Commonwealth to dispute the

validity of the plebiscite or of any return or statement showing

the voting at the plebiscite, by petition addressed to the

High Court. This is different to the existing provision for

referendums. Section 100 currently allows the Commonwealth, any

State, the Australian Capital Territory, or the Northern Territory

to dispute the validity of a referendum by petition to the High

Court.

106.           

The effect

of this clause would be to remove the right of the Commonwealth and

the States and Territories to dispute the validity of the

plebiscite. This is consistent with clauses 15, 16, 17, and 18,

which limit who can appoint scrutineers for the purpose of the

plebiscite, and who can request a recount, to a member of the

Parliament of the Commonwealth (and the Electoral Commission

for the purpose of recounts). It is appropriate for the

Commonwealth and the States and Territories to be able to dispute

the validity of a referendum about a change to the

Australian Constitution, as contracting parties to the

Australian Constitution. However, the same nexus does not

exist in relation to the plebiscite as the outcome of the

plebiscite would not result in a change to the

Australian Constitution.

107.           

Replacing

the Commonwealth and States and Territories with members of the

Parliament of the Commonwealth for the purpose of section 100 is

appropriate in light of the nexus between scrutineering the

plebiscite process and disputing the validity of the process. Those

entitled to scrutineer the vote are most likely to be aware of

issues that might give rise to a petition disputing the validity of

the plebiscite, such as counting errors or mishandling of

ballot-papers. Together with clauses 15, 16, 17, and 18, this

clause would ensure that there would be an appropriate level of

oversight of the plebiscite process, without the unnecessary

involvement of the Commonwealth and States and

Territories.

108.           

The

Electoral Commission would retain its right to dispute the

validity of the plebiscite by operation of section 102 of the

Referendum Act, as applied to the plebiscite by clause 9 of

the Bill. It is important to retain the right of the

Electoral Commission to dispute the validity of the

plebiscite, in particular in the event that there is an

administrative or logistical error which may affect the validity of

the plebiscite.

Clause 21

- Requirements for petition by member of

Parliament

109.           

Clause 21

would provide that the Referendum Act applies to the

plebiscite as if paragraph 101(1)(c) of that Act required a

petition by a member of the Parliament of the Commonwealth under

section 100 of that Act (as amended by clause 20 of the Bill) to be

signed by the member.

110.           

This

clause is required as a consequence of clause 20, which would

provide that only a member of the Parliament of the Commonwealth

may dispute the validity of the plebiscite under section 100

of the Referendum Act (as it would apply to the plebiscite),

removing the right of the Commonwealth and States and Territories

to do so. Given this change, current paragraph 101(1)(c) of the

Referendum Act, which sets out who must sign a petition

disputing the validity of a referendum, would not be

applicable.

Clause 22

- Notice of petition and joinder of parties

111.           

Clause 22

would provide that the Referendum Act applies to the

plebiscite as if sections 105 and 106 of that Act were replaced

with new sections. This clause is required as a consequence of

clause 20.

112.           

Section

105 of the Referendum Act provides for notice to be given

where a petition is filed disputing the validity of a referendum.

The replacement section 105 would require a member of the

Parliament of the Commonwealth to notify the

Electoral Commission of the filing of a petition by that

member under the replacement section 100 (provided for by

clause 20 of the Bill).

113.           

This is

different to the existing provision for referendums. The existing

section 105 provides for the Commonwealth, the States and

Territories, and the Electoral Commission to notify each other

if any of them files a petition. Clause 20 of the Bill would

replace section 100 with a new section for the purpose of the

plebiscite, to remove references to the Commonwealth and the States

and Territories filing petitions, and to refer to members of the

Parliament of the Commonwealth instead. It is therefore necessary

to replace section 105 with a new section for the purpose of

the plebiscite, to provide for notice to be given where a petition

is filed by a member of the Parliament of the Commonwealth in

accordance with the replacement section 100.

114.           

The effect

of this clause would be to ensure that the

Electoral Commission (the only other entity entitled to

dispute the voting in the plebiscite under section 102 of the

Referendum Act) must be notified if a member of the Parliament of

the Commonwealth files a petition disputing the validity of the

plebiscite.

115.           

Section

106 of the Referendum Act provides that the High Court may

order other entities to be joined as parties petitioning or

responding to a petition on application. The replacement section

106 would allow the High Court to order that the

Electoral Commission or a member of the Parliament of the

Commonwealth be joined as a party petitioning or responding to a

petition filed under the replacement section 100, or

section 102, of the Referendum Act.

116.           

This is

different to the existing provision for referendums. The existing

section 106 provides that the High Court may, on application, order

the Commonwealth or a State or Territory to be joined as a party

petitioning or responding to a petition. Clause 20 of the Bill

would replace section 100 with a new section for the purpose of the

plebiscite, to remove references to the Commonwealth and the States

and Territories filing petitions, and to refer to members of the

Parliament of the Commonwealth instead. It is therefore necessary

to replace section 106 with a new section for the purpose of the

plebiscite, to provide for the joining of a member of the

Parliament of the Commonwealth, as persons who would be entitled to

dispute the validity of the plebiscite, to a petition filed by

another person or the Electoral Commission.

117.           

Replacement

subsection 106(2) would expressly provide that replacement section

106 would not limit the High Court’s power to join other

persons as a party petitioning or responding to a

petition.

Division 2

- Application of the Referendum Regulation

Clause 23 -

Application of the Referendum Regulation

118.           

Clause 23

would provide that the Electoral and Referendum Regulation

2016 (the Referendum Regulation) applies to the plebiscite,

with any modifications to the Regulation set out in the remainder

of the proposed Division 2 of Part 3 of the Bill (paragraph 23(a)),

and any regulations made under subclause 33(2) of the Bill

(paragraph 23(b)).

119.           

As a

result of this clause, the Referendum Regulation provisions do not

need to be replicated in the Bill. The effect of this clause would

be to enable the plebiscite to be held in much the same way as a

referendum, using the same well-established processes. This

provides further certainty and integrity to the plebiscite

framework, together with the application of the Referendum Act

to the plebiscite as provided for by clause 9 of the

Bill.

120.           

The

modifications to the Referendum Regulation, as it would apply in

relation to the plebiscite, are set out in clauses 24 and 25. Any

modifications the Bill makes to the Referendum Regulation would

apply only in relation to the  migration level plebiscite held

in accordance with the Bill. These changes would not apply in

relation to any future referendums held in accordance with the

Referendum Act.

Clause 24 -

References to referendum

121.           

Clause 24

would provide that references to the term ‘referendum’

in the Referendum Regulation would also include references to the

plebiscite. This clause is required to give full effect to clause

23. The effect of this clause would be to enable the plebiscite to

be conducted in much the same way as a referendum. In particular,

it would allow registered sight-impaired voters to vote

through electronically assisted voting, as is provided for in the

Referendum Regulation.

122.           

There are

two exceptions provided for by this clause. Subclause 24(1) would

provide that references to the term ‘referendum’ where

it appears in a reference to the ‘Referendum Act’

would not include a reference to the plebiscite. This is because

the Bill would already apply relevant provisions of the

Referendum Act to the plebiscite, but without incorporating

them directly into the Bill or altering the name of the

Referendum Act. By operation of clause 25 below,

references to the Referendum Act in the

Referendum Regulation would include a reference to the

Referendum Act as it would apply in relation to the

plebiscite.

123.           

Subclause

24(2) would provide that subclause 24(1) does not apply in relation

to the definition of referendum in section 5 of the Referendum

Regulation. Section 5 of the Referendum Regulation defines

referendum as having the same meaning as it does in

the Referendum Act. This use of the term

‘referendum’ should not include a reference to the

plebiscite because the term ‘plebiscite’ is defined in

clause 4 of the Bill, not in the Referendum Act.

Clause 25 -

References to the Referendum Act or provisions of the

Referendum Act

124.           

Clause 25

would provide that references in the Referendum Regulation to

‘the Referendum Act’ or ‘a provision of the

Referendum Act’ would include references to the

Referendum Act or its provisions as they apply to the

plebiscite. This clause is required to give full effect to clause

23.

125.           

The effect

of this provision would be to ensure that relevant provisions of

the Referendum Regulation apply, as modified by the Bill, to the

plebiscite. This clause would enliven Referendum Regulation

provisions governing any court proceedings held in relation to a

prosecution against an elector for failing to vote at the

plebiscite (see sections 27 and 28 of the Regulation). This would

mean that the plebiscite would be conducted in much the same way as

a referendum.

Division

3 -

Application of other

laws

Clause 26 -

Application of other laws

126.           

Subclause

26(1) would provide that certain provisions of the Commonwealth

laws referred to in clauses 27 to 32 apply to the plebiscite, with

modifications set out in the remainder of Division 3 of Part 3 of

the Bill.

127.           

As a

result of this clause, the provisions of Commonwealth laws referred

to in clauses 27 to 32 do not need to be replicated in the Bill.

The effect of this clause would be to enable the plebiscite to be

held in much the same way as a referendum, by ensuring that a range

of laws would apply to the plebiscite in much the same way that

they apply to a referendum. This approach provides certainty and

integrity to the plebiscite framework.

128.           

Any

modifications the Bill makes to these Commonwealth laws, as set out

in clauses 27 to 32, would apply only in relation to

the plebiscite held in accordance with the Bill. These changes

would not apply in relation to any future referendums held under

the Referendum Act, or elections held under the

Electoral Act.

129.           

Subclause

26(2) would provide that instruments made under an Act, or

provisions of an instrument made under an Act, apply in relation to

the plebiscite, with modifications set out in the remainder of

proposed Division 3 of Part 3 of the Bill (paragraph 26(2)(a)) and

any regulations made for the purposes of subclause 33(2)

(paragraph 26(2)(b)). The effect of this clause would be to apply

relevant parts of instruments made under Commonwealth laws for

federal elections or referendums to the plebiscite.

Clause 27 -

References to referendum

130.           

Clause 27

would set out the specific provisions from Commonwealth laws that

apply to the plebiscite. To ensure these provisions would apply to

the plebiscite, this clause states that any references to

‘referendum’ or ‘referendums’ in the

provisions outlined below include references to the plebiscite.

This clause is required to give effect to clause 26. The effect of

this clause would be to selectively apply some of the same laws to

the plebiscite as apply to referendums or elections.

131.           

Paragraph

27(a) would apply clause 27 to references to

‘referendum(s)’ in paragraph (d) of the definition

of election period in clause 1 of

Schedule 2 to the

Broadcasting Services Act 1992 (the

Broadcasting Services Act). Relevantly, clause 1 of

Schedule 2 to the Broadcasting Services Act defines

the election period for a referendum as being the same as the

election period for any federal election being held on the same day

This definition is relevant to the requirement for broadcasters to

give reasonable opportunity for the broadcasting of plebiscite

matter to any person or organisation that wishes to broadcast

plebiscite matter for the duration of the election period

(clause 3 of Schedule 2 to the

Broadcasting Services Act as modified by subclause 30(1)

of the Bill).  

132.           

Paragraph

27(a) would also apply clause 27 to references to

‘referendum(s)’ in paragraph (b) of the definition of

required period in clause 1 of Schedule 2 to the

Broadcasting Services Act. Clause 1 of Schedule  2

to the Broadcasting Services Act defines the required

period as being six weeks from the day on which matter was

broadcast, or the period commencing on the day on which the matter

was broadcast and ending at the end of the election period (as

defined above), whichever is longer. This definition is relevant to

the requirement to keep a record of political matter broadcasted

during the election period for a required period (clause 4 of

Schedule 2 to the Broadcasting Services Act). The effect

of paragraph 27(a) would be to apply the same required period for

the plebiscite as applies for a referendum.

133.           

As set out

in the note at the end of clause 27, further modifications are made

to the Broadcasting Services Act in clause 30 of the Bill

(see below).

134.           

Paragraph

27(b) would apply clause 27 to references to

‘referendum(s)’ in certain provisions of the

Electoral Act. The main purpose of this is to apply certain

provisions of the Electoral Act that apply to referendums,

including the application of provisions relating to the use of the

electoral Roll, to the plebiscite to allow the plebiscite to be

held in much the same way as a referendum. The relevant provisions

of the Electoral Act are:

(i)     

The

definition of electoral matters in section 5. Section

5 defines electoral matters as matters relating to Parliamentary

elections and, inter alia , referendums. This definition is

relevant to Part II of the Electoral Act only, which deals

with administrative arrangements for the Electoral Commission.

In particular, the definition is relevant to section 7 of the

Electoral Act. Section 7 sets out the functions of the

Electoral Commission, which include considering, providing

advice on and researching matters relating to electoral matters.

The effect of applying clause 27 to the definition of electoral

matters in section 5 would be to include the plebiscite as an

electoral matter in relation to which the Electoral Commission

can exercise relevant functions and powers as set out in section 7

of the Electoral Act.  

(ii)   

Subparagraph

35(1)(a)(i), which enables the Electoral Commission to employ

temporary staff to conduct referendums. The effect of this would be

to enable the Electoral Commission to employ temporary staff

to conduct the plebiscite, in the same way it employs temporary

staff for referendums.

(iii)

Paragraphs

91A(1A)(a), (2)(a) and 2A(a), which allow the use of information

from the electoral Roll and habitation index for specific purposes,

including any purpose in connection with a referendum. This

provision is limited to use of the Roll and habitation index by a

Senator, Member of the House of Representatives, or a political

party. The effect of this would be to allow the same use of

information by Senators, Members of the House of Representatives,

or political parties, for the purpose of the plebiscite as is

allowed for a referendum.

Paragraph

91A(2B)(a), which enables State or Territory electoral authorities

to use information on an electoral Roll, or other information

provided for under a specific arrangement, in connection with a

referendum. The effect of this would be to enable those authorities

to use information, including information on an electoral Roll, in

connection with the plebiscite.

Paragraphs

189B(4)(a) and (5)(a), which allow the use or disclosure of

information obtained from an electronic list of postal vote

applicants (provided by the Electoral Commissioner) by a

candidate in a Senate or House of Representatives election or a

registered political party, where the use or disclosure is for a

permitted purpose including, inter alia , any purpose

connected with a referendum. The effect of this would be to allow

the same use or disclosure of information by candidates or

registered political parties for any purpose connected with the

plebiscite.

(iv)

Subsection

202A(4), which requires anyone employed by the

Electoral Commission to perform duties in connection with the

conduct of an election or referendum held on the same day as an

election to sign an undertaking in an approved form before

beginning the performance of duties. Amended subsection 202A(4)

would impose the same requirement to sign an undertaking before

Electoral Commission employees begin the performance of their

duties relating to the plebiscite.

Subsection

202A(5), which provides that the failure of a person to sign an

undertaking, as required by section 202A, is not grounds for

setting aside the result of an election or referendum. Revised

subsection 202A(5) would extend this application to the plebiscite

result.

Subsection

203(7), which provides that polling booths and ballot-boxes

provided for the purpose of an election may be used for the purpose

of other elections or a referendum being held on the same day, as

long as the ballot-papers for each election and the referendum are

distinctively coloured. Revised subsection 203(7) would allow the

same polling booths and ballot-boxes to be used for the

plebiscite as for the election being held on the same day as the

plebiscite, as long as the ballot-papers for the plebiscite and the

election/s are distinctively coloured. 

(v)   

Clause 22

of Schedule 3, which provides that, for the purpose of paragraph 17

of that Schedule, an envelope that contains a ballot-paper for a

referendum shall be dealt with as if it did not contain that

ballot-paper. Paragraph 17 provides that the relevant electoral

officer shall withdraw ballot-papers from envelopes, without

examining them, for those votes that are to be included in the

counting for House of Representatives and Senate elections held

concurrently or separately. The effect of this clause would be that

envelopes containing ballot-papers for the election and the

plebiscite would be dealt with in the same way as they would be

dealt with where the election is run concurrently with a

referendum. This means that rules relating to the preliminary

scrutiny of declaration votes that apply to a referendum would also

apply to the plebiscite.   

135.           

Paragraph

27(c) would apply clause 27 to references to

‘referendum(s)’ in subparagraph 80.2(3)(a)(ii) and

subsection 80.2(4) of the Criminal Code .

Subparagraph 80.2(3)(a)(ii) creates an offence of

intentionally urging another person to interfere, by force or

violence, with lawful processes for an election or referendum,

where they do so intending that force or violence will occur.

Subsection 80.2(4) states that recklessness applies to the element

of the offence under subsection 80.2(3) relating to what is a

lawful process for a referendum. The effect of these changes would

be to apply these offences to the plebiscite, so that if a person

does an act that falls within subparagraph 80.2(3)(a)(ii), in

relation to the plebiscite, they may be found guilty of a criminal

offence punishable by up to seven years’ imprisonment.

Section 80.3 of the Criminal Code would apply to provide, as

a defence, that it was an act done in good faith.

  

136.           

Paragraph

27(d) would apply clause 27 to references to

‘referendum(s)’ in paragraphs 7C(1)(b) and (4)(b) and

subparagraph 7C(2)(b)(ii) of the Privacy Act 1988 (the

Privacy Act). Paragraph 7C(1)(b) and subparagraph 7C(2)(b)(ii)

provide that political acts and practices done for any purpose in

connection with a referendum are exempt from the application of the

Privacy Act. Subsection 7C(1) relates to acts done by a member

of a Parliament or a councillor of a local government authority,

and subsection 7C(2) relates to contractors for political

representatives. Paragraph 7C(4)(b) provides that an act done

voluntarily by an organisation for or on behalf of a registered

political party and with the authority of that party is exempt from

the Privacy Act, where those acts are done for any purpose in

connection with a referendum. The effect of this would be that

members of a Parliament, councillors of local government

authorities, contractors for political representatives, and

organisations acting voluntarily for or on behalf of a registered

political party would be subject to the same exemptions from the

Privacy Act for the plebiscite as they are for acts done in

connection with a referendum.

Clause 28 -

References to the Referendum Act

137.           

Clause 28

would set out provisions from other Commonwealth legislation in

which references to the Referendum Act, or a provision of that

Act, include references to the Referendum Act or its

provisions as they would apply in relation to the plebiscite. This

clause is required to give full effect to clause 26. The effect of

this clause would be to enable the plebiscite to be conducted in

much the same way a referendum.

138.           

Paragraph

28(a) would apply clause 28 to the reference to the

Referendum Act at item 41 of the table in Schedule 1 to

the Age Discrimination Act 2004

(the Age Discrimination Act). Schedule 1 to the

Age Discrimination Act lists the Acts, regulations and

other instruments to which subsection 39(1) of that Act applies.

Subsection 39(1) provides that Part 4 of the Age

Discrimination Act (which sets out what constitutes unlawful age

discrimination) does not make unlawful anything done by a person in

direct compliance with the Acts and other instruments mentioned in

Schedule 1. The effect of this would be to apply the exemption

provided for by subsection 39(1) of the

Age Discrimination Act to acts done in direct compliance

with the Referendum Act as it applies in relation to the

plebiscite. Consistent with the approach in federal elections and

referendums, the purpose of this provision is to ensure that

limiting the right to vote in the plebiscite to people aged 18 or

above does not offend the Age Discrimination Act.

 

139.           

Paragraph

28(b) would apply clause 28 to references to the

Referendum Act in paragraph 105(4)(b) of the

Electoral Act. Paragraph 105(4)(b) of the Electoral Act

states that the Electoral Commissioner may enter the name of

an elector who is not enrolled, and who has made a declaration

vote, on the Roll for the subdivision the elector was living in at

the time of voting if, for a declaration vote made under the

Referendum Act, the ballot-paper was properly issued

according to Schedule 4 to the Referendum Act, and the person

was omitted from the Roll due to error or mistake. The effect of

this would be that the same rules relating to the inclusion of

people who have made declaration votes on the electoral Roll would

apply to the plebiscite as apply to a referendum. 

140.           

Paragraph

28(c) would apply clause 28 to references to the

Referendum Act in the Schedule to the

Jurisdiction of Courts (Cross-Vesting) Act 1987

(the Jurisdiction of Courts (Cross-Vesting) Act).

The Schedule to the

Jurisdiction of Courts (Cross-Vesting) Act

lists the Acts to which section 7 of that Act apply. Subsection

7(5) of the

Jurisdiction of Courts (Cross-Vesting) Act

provides that appeals of matters decided by a single judge of a

Supreme Court of a State or Territory can only be determined

by the Full Court of the Federal Court or the

Family Court, or by the High Court (with special leave),

if the matter arises under an Act specified in the Schedule. The

effect of this would be to provide that an appeal of matters

arising from the application of the Referendum Act to the

plebiscite may be determined only by the Full Court of the

Federal Court, or with special leave of the High Court.

This is the same approach as for appeals of matters arising from

referendums.

141.           

Paragraph

28(d) would apply clause 28 to references to the

Referendum Act in item 2A of the table in subsection

355-65(8) of Schedule 1 to the

Taxation Administration Act 1953

(Taxation Administration Act). The table in subsection

355-65(8) of Schedule 1 to the

Taxation Administration Act sets out the types of records

or disclosures to which section 355-25 of the Schedule to

that Act does not apply. Item 2A of the table provides that records

made for, or disclosures to, the Electoral Commissioner where

the record or disclosure is of information disclosed to, or

obtained by, the Commissioner of Taxation on or after the

commencement of the table item, and is for the purpose of

administering the Electoral Act or the Referendum Act,

are exempt from section 355-25.

142.           

Section

355-25 of Schedule 1 establishes offences for disclosure of

protected information by taxation officers. By operation of

subsection 355-65(8) of Schedule 1, these offences would not apply

to the types of records relating to the Electoral Commissioner

described above. The effect of this would be to enable taxation

officers to disclose protected information to the

Electoral Commissioner for the purpose of administering the

Referendum Act as it applies to the plebiscite. This would

mean that taxation officers would have the same protections in

relation to information disclosure for the purpose of the

plebiscite as they would in relation to a referendum.

143.           

Paragraph

28(e) would apply clause 28 to references to the

Referendum Act in Item 120 of Schedule 1 to the

Electronic Transactions Regulations 2000

(the Electronic Transactions Regulations).Regulation 4

of the Electronic Transactions Regulations states that

specific provisions of the Electronic Transactions Act

1999 (the Electronic Transactions Act) do not apply

to specific provisions in other Commonwealth laws. The relevant

provisions in the Electronic Transaction Act and other

Commonwealth laws are specified in Schedule 1.

144.           

Item 120

of Schedule 1 of the Electronic Transactions Regulations

provides that subsection 8(1), Division 2 of Part 2, and sections

14, 14A, 14B and 15 of the Electronic Transactions Act do not

apply to Parts III (other than subsections 16A(1), (2), (4) and

(5)), IV, IVA, and V of the Referendum Act. The relevant

provisions of the Electronic Transactions Act

are:

  • Subsection

    8(1)—for the purpose of a Commonwealth law, providing that a

    transaction is not invalid because it is made by electronic

    communication. 

  • Division

    2 of Part 2— permitting the use of electronic communication

    in certain circumstances where Commonwealth laws require or allow a

    person to give information in writing, provide a signature, provide

    a document, record information in writing, retain a written

    document, or retain an electronic communication.

  • Sections

    14, 14A, 14B and 15—establishing rules relating to the

    accepted time and place of dispatch of an electronic communication,

    the time and place of receipt, and the attribution of an electronic

    communication.

145.           

The

relevant parts of the Referendum Act to which these provisions

do not apply are Part III (‘Voting at a Referendum’

- except for the purpose of Electoral Officers signing

an undertaking before commencing work at a Referendum according to

section 16A), Part IV (‘Postal voting’), Part IVA

(‘Pre-poll voting’) and Part V (‘Special

provisions relating to voting in Antarctica at a

Referendum’). This covers the majority of voting procedures

under the Referendum Act (with the exception of Part IVB

‘Electronically assisted voting for sight-impaired

people’). This has the effect that, at a referendum,

electronic transactions would not be considered valid written

communications for the purpose of voting in the referendum (except

for sight-impaired individuals using electronically assisted

voting). This is to ensure that most voting in a referendum must be

done in writing on paper. The effect of paragraph 28(e) of the

Bill would be to apply the same rules to the plebiscite as apply to

a referendum.

146.           

Item 120

of Schedule 1 to the Electronic Transactions Regulations

only excludes specific provisions of the Referendum Act from

the application of specific provisions in the

Electronic Transactions Act, as outlined above. The

Electronic Transactions Act would continue to apply to

provisions in the Referendum Act, as that Act would apply to

the plebiscite.

Subdivision B—Broadcasting

Clause 29 -

Identification of certain political matter and records of matters

broadcast

147.           

Clause 29

would set out provisions from the

Broadcasting Services Act 1992

(the Broadcasting Services Act) and the Special

Broadcasting Service Act 1991 (the SBS Act) in which

references to ‘political matter’ and ‘political

subject’ would include references to plebiscite matter. The

effect of this clause would be to make it clear that the provisions

below would apply for the purpose of the plebiscite during the

plebiscite period. The terms plebiscite matter and plebiscite

period would be defined in clause 4 of the Bill.

148.           

Subclause

29(1) would set out provisions from these Acts that use the term

political matter, and provide for those references to political

matter to include a reference to plebiscite matter. Paragraph

29(1)(a) would apply subclause 29(1) to the reference to political

matter in clauses 1 and 4 of Schedule 2, and subclause 24(4) of

Schedule 6, to the Broadcasting Services Act.

149.           

Clause 1

of Schedule 2 defines political matter, for the purpose of that

Schedule, as meaning any political matter, including the policy

launch of a political party. Clause 4 of Schedule 2 places

obligations on broadcasters who broadcast political matter at the

request of another person. Subclause 4(2) requires those

broadcasters to, immediately afterwards, cause the required

particulars in relation to the political matter to be announced in

a form approved in writing by the Australian Communications and

Media Authority (ACMA). The required particulars are defined in

clause 1 of Schedule 2, and are categorised depending upon whether

the broadcasting was authorised by a political party, by a person

other than a political party or by the name of every speaker who,

either in person or by means of a sound recording device, delivers

an address or makes a statement that forms part of that matter.

Clause 24 of Schedule 6 to the Broadcasting Services Act sets

out the conditions to which datacasting licences are subject. The

effect of applying subclause 29(1) to these provisions would

be to apply them to the broadcast of plebiscite matter for the

purpose of the plebiscite.

150.           

Paragraph

29(1)(b) would apply subclause 29(1) to the reference to political

matter in section 70A of the SBS Act. Section 70A of the SBS Act

relates to the broadcasting of political or controversial matter.

Subsection 70A(1) of that Act maintains the SBS’s discretion,

subject to the SBS Act, to determine to what extent and in what

manner political matter or controversial matter will be broadcast

by the SBS. Subsections 70A(2) and (3) set out

specific requirements for the SBS to announce or transmit required

particulars in relation to political matter it broadcasts at the

request of another person, to keep details of the person or company

that requested it to broadcast political matter, and to give those

details to the ACMA upon request. The effect of applying

subclause 29(1) to section 70A of the SBS Act would be to

apply the same requirements to the broadcast of plebiscite matter

by the SBS for the purpose of the plebiscite.

151.           

Subclause

29(2) would set out provisions from the Broadcasting Services Act

and the SBS Act that use the term political subject, and provide

for those references to political subject to include a

reference to plebiscite matter. Paragraph 29(2)(a) would

apply subclause 29(2) to the reference to political subject in

clause 5 of Schedule 2 to the Broadcasting Services Act. Clause 5

specifies when a broadcaster who broadcasts matter relating to a

political subject or current affairs must cause a record of the

political subject to be made in a form approved in writing by the

ACMA. The effect of applying subclause 29(2) to clause 5

of Schedule 2 to the Broadcasting Services Act would be to

apply the same requirement to the broadcast of plebiscite matter

for the purpose of the plebiscite.

152.           

Paragraph

29(2)(b) would apply subclause 29(2) to the reference to political

subject in section 70B of the SBS Act. Section 70B of the SBS Act

provides that, if the SBS broadcasts matter relating to a political

subject or current affairs, the SBS must cause a record of the

matter to be made. Subsections 70B(2)-(6) state the time

period within which the SBS is required to retain the record,

including if the record is admissible as evidence in a court case.

The effect of applying subclause 29(2) to section 70B of

the SBS Act would be to apply the same requirement if the SBS

broadcasts plebiscite matter for the purpose of the plebiscite.

 

153.           

Subclause

29(3) would provide that the obligations in subclauses 4(2)

and (3) and clause 5 of Schedule 2 to the Broadcasting

Services Act, and subsections 70A(2) and (3) and

section 70B of the SBS Act, would apply in relation to

plebiscite matter only if the matter is broadcast during the

plebiscite period. The obligations in these clauses are outlined

above. The plebiscite period would be defined in clause 4 of the

Bill, and would mean the period that starts 33 days before the

voting day for the plebiscite and ends at the close of voting on

that day. The effect of this subclause would be to limit the time

period in which the obligations on broadcasters would apply in

relation to the broadcast of plebiscite matter.

No

requirement to lodge annual return

154.           

Subclause

29(4) would refer to the annual returns relating to political

expenditure, for the purpose of the plebiscite. This subclause

would provide that a person would not be required to provide a

return for a financial year under

subparagraph 314AEB(1)(a)(iv) of the Electoral Act merely

because that person incurred expenditure for the purposes of

broadcasting plebiscite matter in relation to which particulars

were required to be announced under subclause 4(2) of

Schedule 2 to the Broadcasting Services Act (as it would apply

to the plebiscite by operation of subclause 29(1) of the

Bill).

Clause 30 -

Obligations on broadcaster in relation to plebiscite

matter

155.           

Clause 30

would apply specific provisions from the

Broadcasting Services Act to the plebiscite, with minor

modifications.

Requirement

to give a reasonable opportunity

156.           

Subclause

30(1) would provide that subclause 3(2) of Schedule 2 to the

Broadcasting Services Act applies to the plebiscite as if

it required a broadcaster that, during the election period,

broadcasts plebiscite matter that is in favour of the plebiscite

proposal to give a reasonable opportunity to a representative of an

organisation that is not in favour of the plebiscite proposal to

broadcast plebiscite matter during that period, and vice

versa.  Plebiscite matter would be defined in clause 4 of

the Bill.

157.           

The note

to subclause 30(1) would note that the definition of

election period in clause 1 of Schedule 2 to

the Broadcasting Services Act would be modified by

paragraph 27(a) of the Bill (see above). As a result of

that paragraph, the election period would mean the period that

starts 33 days before the voting day for the plebiscite and ends at

the close of voting on that day. The reference to the election

period would have the effect of limiting the time period in which

the obligations on broadcasters would apply in relation to the

broadcast of plebiscite matter.

158.           

The effect

of subclause 30(1) would be to require broadcasters to give

representatives from both sides of the debate a reasonable

opportunity to broadcast material in the lead up to the voting day.

This requirement is consistent with the requirement in relation to

federal elections and referendums.

Limitation

on broadcasting during blackout period

159.           

Subclause

30(2) would provide that clause 3A of Schedule 2 to the

Broadcasting Services Act applies to the plebiscite as if

that clause created a blackout period in which broadcasters would

be prohibited from broadcasting any advertisement that contains

plebiscite matter during the defined blackout period. Paragraph

30(2)(a) would define the blackout period as commencing at the end

of the Wednesday before the polling day, and paragraph 30(2)(b)

would define the blackout period as ending at the close of the poll

on that polling day. The effect of this clause would be to give

people time in the days leading up to the voting day to consolidate

their thoughts without being exposed to continuous advertising. The

blackout period for the plebiscite would be consistent with the

blackout period for federal elections. There are no blackout

periods for referendums.

References

to clauses 3 and 3A of Schedule 2

160.           

Subclause

30(3) would provide that paragraphs 7(1)(j), 8(1)(i), 9(1)(i),

10(1)(i) and 11(1)(d) of Schedule 2, and paragraph 24(1)(a) and

subclause 24(4) of Schedule 6, to the

Broadcasting Services Act would apply to the plebiscite

as if references in those paragraphs to clauses 3 and 3A of

Schedule 2 to that Act included references to those clauses as they

would apply in relation to the plebiscite (i.e. as amended by

subclauses 30(1) and 30(2) of the Bill).

161.           

Paragraphs

7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and 11(1)(d) of Schedule 2

require the holders of commercial television, commercial radio,

community, subscription television, and class licences,

respectively, to comply with the requirements of, inter alia,

clauses 3 and 3A of Schedule 2. Clause 24 of Schedule 6 sets out

general conditions on datacasting licences. Paragraph 24(1)(a)

requires the holder of a datacasting licence to comply with, inter

alia, clauses 3 and 3A of Schedule 2, and subclause 24(4) provides

that those clauses apply to datacasting services in the same way as

they apply to broadcasting services. The effect of

subclause 30(3) would be to require all broadcasting and

datacasting licence holders to comply with clauses 3 and

3A of the Broadcasting Services Act, as amended by

subclauses 30(1) and (2) of the Bill for the

purpose of the plebiscite.

162.           

This means

that licence holders would be required to comply with special

conditions relating to broadcasting plebiscite matter during the

election period for the plebiscite, including the requirement to

give a reasonable opportunity to broadcast plebiscite to

representatives of organisations on both sides of the debate, and

to adhere to the media blackout period. This provision is required

to give full effect to the modifications in subclauses 30(1) and

(2) of the Bill.

Clause 31 - SBS

to give a reasonable opportunity to broadcast plebiscite

matter

163.           

Clause 31

would provide that the SBS Act applies to the plebiscite as if a

new section 70BA was inserted after section 70B of that

Act.

164.           

The new

section 70BA would require the SBS to give a reasonable opportunity

to broadcast plebiscite matter to organisations in favour and not

in favour of the plebiscite proposal. The new section would provide

that if, during the plebiscite period, SBS broadcasts plebiscite

matter that is in favour of the plebiscite proposal, SBS must give

a reasonable opportunity to a representative of an organisation

that is not in favour of the plebiscite proposal to broadcast

plebiscite matter during that period, and vice versa. The new

subsection 70BA(2) would provide that the new

subsection 70BA(1) does not require the SBS to broadcast

any matter free of charge.

165.           

Clause 4

of the Bill would define the terms ‘plebiscite matter’

and ‘plebiscite period’. The plebiscite period would

mean the period that starts 33 days before the voting day for the

plebiscite and ends at the close of voting on that day. The

reference to the plebiscite period would have the effect of

limiting the time period in which the obligations on the SBS would

apply.

166.           

The effect

of the new section 70BA would be to require the SBS to give

representatives from both sides of the debate a reasonable

opportunity to broadcast plebiscite matter via paid advertisements

on the SBS in the lead up to the voting day for the plebiscite.

While the effect of the new section 70BA may limit the SBS’s

discretion under section 70A of the SBS Act in relation to

determining to what extent and in what manner it broadcasts

political or controversial matter, this requirement is consistent

with the approach taken in federal elections and referendums. It

would also be consistent with the requirement that would be imposed

on broadcasters covered by the Broadcasting Services Act. It

would ensure that Australian voters receive information from both

sides of the debate to enable them to make an informed view on the

plebiscite proposal.

Clause 32 - SBS not to broadcast advertisements containing

plebiscite matter during the blackout period

167.           

Clause 32

would provide that section 70C of the SBS Act applies to the

plebiscite as if that section created a blackout period in which

the SBS would be prohibited from broadcasting any advertisement

that contains plebiscite matter during the defined blackout period.

Paragraph 32(a) would define the blackout period as commencing at

the end of the Wednesday before the polling day, and paragraph

32(b) would define the blackout period as ending at the close of

the poll on that polling day.

168.           

The effect

of this clause would be to give people time in the days leading up

to the voting day to consolidate their thoughts without being

exposed to continuous advertising. The blackout period for the

plebiscite would be consistent with the blackout period for federal

elections. There are no blackout periods for referendums. The

blackout period imposed on the SBS by operation of this clause

would be consistent with the blackout period imposed on

broadcasters operating under the

Broadcasting Services Act provided for by

subclause 30(2) of the Bill.

Part 4 -

Miscellaneous

Clause 33 -

Regulations

169.           

Clause 33

would provide a power for the Governor-General to make regulations

under the Bill.  Subclause 33(1) would enable regulations to

be made which prescribe matters either required or permitted by the

Bill (paragraph 33(1)(a)); or necessary or convenient for carrying

out or giving effect to the Bill (paragraph 33(1)(b)).

170.           

Subclause

33(2) would provide that, without limiting the operation of

subclause 33(1), the Governor-General may make regulations

modifying the operation of any instrument or part thereof made

under any Commonwealth Act.

171.           

Subclause

33(3) would provide that the terms of the Bill do not limit the

regulations that the Governor-General may make under this

regulation-making power.

172.           

This

clause is necessary to ensure the Bill can be implemented

effectively.   

Schedule 1 -

Forms

173.           

Schedule 1

to the Referendum Act contains the forms for the writ for a

referendum (Form A) and for the ballot-paper (Form B).

Subclause 14(3) of the Bill would provide that, for the purpose of

the plebiscite, Schedule 1 to the Bill would replace forms A and B

in the Referendum Act with new forms for the

plebiscite.

Form A

- the writ

174.           

The

replacement Form A is the writ the Governor-General would issue to

the Electoral Commissioner to direct that the plebiscite be

conducted. The structure and text of the writ largely mirrors that

used in the Referendum Act, but has been modified as

follows:

  • The

    replacement Form A would compel the Electoral Commissioner to

    submit the plebiscite proposal (as defined in clause 4 of the Bill,

    above) to electors. It would not compel the

    Electoral Commissioner to submit a proposed law for the

    alteration of the Australian Constitution. This is because the

    plebiscite would be a vote on a simple question - the

    plebiscite proposal - rather than a vote to approve a

    proposed law for the alteration of the Australian Constitution

    like a referendum.

  • The

    replacement Form A refers to the plebiscite proposal being

    submitted to the electors who are entitled to vote at an election,

    rather than the electors who are qualified to vote at referendums.

    This is because electors are defined in the Referendum Act, as

    it would apply to the plebiscite by operation of clause 9 of

    the Bill, as a person whose name appears on a Roll of electors kept

    pursuant to the Electoral Act.

  • The

    replacement Form A removes the reference to laws in States and

    Territories.

175.           

The effect

of these changes to Form A would be to create a writ specific to

the plebiscite context, which would allow the Governor-General to

command the Electoral Commissioner to submit the plebiscite

proposal to all persons entitled to vote at elections.

Form B

- the ballot-paper

176.           

The

replacement Form B is the ballot-paper that people would complete

on the voting day for the plebiscite. This form would set out the

question to be submitted to voters, which would be: ‘From

December 2005 to December 2016 Australia’s population grew

from 20.5 million to 24.4 million; 62% of this growth was from net

overseas migration.  Do you think the current rate of

immigration to Australia is too high?’

177.           

This form

has been revised to create a form specific to the plebiscite on the

level of Australian migration. The replacement Form B does not

refer to the State or Territory of the voter, as this is not

relevant to the plebiscite.

 



 

Statement of

Compatibility with Human Rights

Prepared

in accordance with Part 3 of the Human Rights (Parliamentary

Scrutiny) Act 2011

 

Plebiscite

(Future Migration Level) Bill 2018

 

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

This Bill

proposes that a plebiscite be held at the time of the next general

election to allow the people of Australia who are entitled to vote

at elections to provide their view on the rate of

immigration.

 

Human rights implications

This Bill

does not engage any of the applicable rights or

freedoms.

 

Conclusion

This Bill

is compatible with human rights as it does not raise any human

rights issues.