Referendums and why they often fail

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Photo: (Ed: this is not Peter Dutton, says She who says Yes (in this instance)

You’d have to give the Internet prize this week to the wag who posted a photo of Opposition Leader Peter Dutton (against a background of jubilant Australian soccer players).

“Peter Dutton needs more details before he will support the Matildas,” the satirical headline read.

The Matildas meme most accurately portrays the intransigence of the Opposition Leader’s approach to the Voice referendum, saying No because he doesn’t have enough ‘detail’.

Mr Dutton, perhaps unfairly, has been tagged the poster boy for the No vote. There are many others and some far more to the right than the LNP Leader and that’s saying something. But as a friend said during a discussion last week, those who say they are going to vote No cannot mount any form of rational argument as to why.

The Voice is a national vote to change the Constitution to recognise the First Peoples of Australia. The advisory body would give advice to the Australian Parliament and Government on matters that affect the lives of Aboriginal and Torres Strait Islander peoples.

On the face of it, you’d have to wonder what all the fuss is about. After all, in 1967, 91% of Australians voted to change the Constitution so that Aboriginal and Torres Strait Islander peoples would be counted as part of the population. As such, the Commonwealth would be able to make laws for them. At the time, the thinking was that if Australians did not pass this referendum, we would be viewed as a Pariah state, as South Africa was at the time.

As of 2023, 44 nationwide referendums have been held, only eight of which have been carried. Since multiple referendum questions are often asked on the same ballot, there have only been 19 separate occasions that the Australian people have gone to the polls to vote on constitutional amendments, eight of which of which were concurrent with a federal election. There have also been three plebiscites (two on conscription and one on the national song), and one postal survey (on same-sex marriage). Australians have rejected most proposals for constitutional amendments. As Prime Minister Robertt Menzies said in 1951, “The truth of the matter is that to get an affirmative vote from the Australian people on a referendum proposal is one of the labours of Hercules.”

The sticking point with referendums is that to be passed they need to return a majority in each State, not just a majority nationally.  (Votes from those in the ACT and Northern Territory count as part of the national vote.)

Of the 44 referendums which have been held, there have been five instances where a ‘yes’ vote was achieved on a national basis but failed to win because some States voted against. Some issues arise again and again.

Votes on whether or not to adopt daylight saving time have been held in three States. Daylight saving (where clocks are wound back one hour for the summer months) is now observed in New South Wales, Victoria, South Australia, Tasmania, and the Australian Capital Territory. Daylight saving is not observed in Queensland, the Northern Territory or Western Australia.

In WA a referendum was held on 16 May 2009, the fourth such proposal put to Western Australian voters. The 2009 vote followed a three-year trial period.

After trialing daylight saving in Queensland for three years, a referendum in 1992 resulted in a 54.5% ‘no’ vote. Popular myth is that the referendum failed because ‘people out west’ feared it would fade their curtains.

In 1977, a plebiscite was held to vote for a national song. The choices included Waltzing Matilda, Song of Australia and God Save the Queen (the latter garnered only 18.78% of the vote). The dirge we now call our National Anthem topped the poll with 43.29% of the popular vote and was enshrined as the anthem.

After the Voice referendum is run and won or lost, Australians may not have an appetite for another. But surely at some stage we will be allowed to vote for I Am, You Are, We are Australian, which was not a choice in 1977, primarily because Bruce Woodley and Dobe Newton had not written it yet.

And, although Prime Minister Albanese says now is not an appropriate time to revive the Republic debate,  we do note the appointment in May 2022 of Matt Thistlewaite as Assistant Minister for the Republic, among his several ministerial appointments.

On the latest Voice polls, six of 11 are showing a ‘No’ result. This is being widely construed as a sign the referendum will fail. What the polling does not take into account is that nobody under 42 has ever voted in a referendum (the last one being the failed Republican vote in 1999). Are we game to take a gamble on which way Australia’s 4.6 million Generation Zers might vote? And how many of them are voting for the first time?

The outcome of referendums has been notoriously difficult. In the lead up to the 1999 Republican referendum, the proposition was looking like a shoo-in. But there was too much difference of opinion amongst Republican factions about how a president would be elected.

In 1916, then Prime Minister Billy Hughes was reportedly ‘devastated’ when the government’s push for conscription failed. Despite Australians not being obliged to vote in those days, the turnout was high and the vote was narrowly defeated. Perhaps it was due to the complexity of the question, which did not explicitly mention conscription.

Are you in favour of the Government having, in this grave emergency, the same compulsory powers over citizens in regard to requiring their military service, for the term of this war, outside the Commonwealth, as it has now with regard to military service within the Commonwealth?

The reference to existing military service meant the requirement for compulsory military service within Australia for all men aged between 18 and 60 (in existence since 1911).

No-one seems to be overly worried about the cost of the referendum, a figure for which has been reported as high as $169 million. If you’ll forgive a rather loose calculation, on that basis Australia has spent more than $7.5 billion on referendums, only eight of which have been won.

We both decided this weekend to throw our hat into the ring, so to speak, posting selfies wearing a Yes cap from the 1999 campaign. If you are going to vote Yes it is obvious why – you have empathy for indigenous people and the hand they have been dealt and want to stop future governments from undoing all the good work that has previously been done.

The Australian Financial Review summarised the reasons why people may vote No.

“…understanding and awareness of the Voice remains poor as the Yes campaign struggles to convince undecided voters to vote for the Voice. Polling shows many Australians still don’t understand what the Voice means, or they are concerned that it risks dividing Australians or giving Indigenous people special rights.”

After they helped write the constitution at the end of the 19th century, Sir John Quick and Sir Robert Garran sought to make sure future generations understood safeguards that would allow the document to be changed only in precise circumstances. Referendums were designed with a double majority needed, in order “to prevent change being made in haste or by stealth”.

If you are still confused about what those ‘special rights’ might be or not be, here’s some intelligent thoughts on what Albanese hopes to achieve:

And (to be fair), here’s both sides of the legal debate, including a belief it will erode a fundamental principle of democracy – equality of citizenship.

(Ed: I’m constrained to say I completely disagree with the implied notion that Indigenous people already have ‘equality of citizenship’.)

Press vote now

Combo Waterhole, source of inspiration for Banjo Paterson’s poem. Photo by Laurel Wilson.

Queenslanders who voted ‘Yes’ for four-year fixed parliamentary terms last weekend may live to rue the day. The people have spoken, although there is a vigorous debate about how well-informed they were at the time they voted. And while vote counting is not complete, critics are saying 53.1% for the affirmative is a poor result, considering it had bipartisan support.

The people certainly spoke back in 1967 when a referendum was held to count Aborigines as part of the human population − 90.77% of registered voters said ‘Yes’. (Voters were also asked to approve an increase in the number of members of the House of Representatives without increasing the number of Senators. That one got voted down.)

Sometimes politicians do that – sneak an extra question in which is arguably the real reason they are having a referendum in the first place. But the people aren’t stupid, are they?

There have been referendums held to consider questions less vital to human rights and equality than whether or not Aborigines should count as people. For example, in 1968 Tasmanians were asked if they wanted a casino in Hobart and (only) 53% said ‘yes’. In 1975 West Australians were asked to vote for or against daylight saving (No) and again in 1984 (also No). In 1992, after a three-year trial, Queenslanders were also asked to vote on this somewhat vexed question  and the ‘No’ vote got up then too.

Didn’t we get asked this question 25 years ago?

In 1991 voters were asked if they wanted the Queensland Parliament to have four-year terms. The proposal was narrowly defeated, with 51.1% voting against and 48.9% in favour.

University of Queensland Professor of Law Graeme Orr told FOMM one of the travesties of this year’s referendum was the ‘bundling’ of two separate issues, ie the question of whether to have ‘fixed terms’, but also whether to have four year terms instead of the current three. According to Professor Orr, the government of the day could have legislated for fixed (three year) terms, without the need for a referendum, as “the three-year term was entrenched in the old Constitution”.

Prof Orr said it was remarkable that this referendum could only attract a 53% ‘Yes’ vote, given both major parties backed it, there was paid advertising, high-profile support, and no organized ‘No’ case.

“It shows how less trusting people are today of the two big but dwindling parties.”

Prof Orr added that the last referenda which had bi-partisan support (in 1977 – to allow Territories to vote in referenda) attracted a 77.7% ‘Yes’ vote.

Saturday’s poll was the third ‘Yes’ result from eight Queensland referendums held since 1899. The result also defied a national trend, with only 18% of referendums passed since Federation. An astute local political observer remarked that the referendums which are won usually have bi-partisan support.

Federal referendums are much harder to win because not only do you need a majority, but at least four of the six states must also say ‘Yes’.

Only eight of the 44 referendum questions posed to the Federal electorate (38 of them were held prior to and including 1977), have been approved. Canberra has clearly lost its appetite for referendums as there have been only eight held since 1984, the last one being the failed bid (at a cost of $66.82 million) to turn Australia into a Republic in 1999.

A conscience vote would be cheaper

While a referendum in Australia is always a proposal to amend the Constitution, a plebiscite is a non-binding vote used to determine the electorate’s position regarding an important public question. So while Australia has not had a referendum since 1999, a plebiscite vote on same-sex marriage is very likely in the next year or two, unless the electorate cracks up about the mooted cost ($158.4 million), although accountants PwC distributed a press release which stated that lost productivity could push it out to $525 million.

While some political interests get mileage from playing up the unseemly cost of democracy, we calculated the per voter cost of Saturday’s exercise at just $3.73. The budget for Queensland’s 2016 referendum ($11.5 million) was relatively modest as it was held concurrently with local government elections. The State Government said this strategy saved Queensland taxpayers $5.1 million. FOMM asked Electoral Commission Queensland to identify the biggest single expense in holding a referendum. Forty percent of the budget ($4.60 million) went on postage, which tends to support the e-voting alternative discussed below.

Elections and referendums chew through serious money. Data drawn from the Australian Electoral Commission shows the five Federal elections held since 2000 cost $745+ million while another $8.26 million was spent on 10 by-elections and another $21 million on a half senate election in WA. So if PM Malcolm Turnbull makes good his threat and goes to a double dissolution in July, democracy in Australia will have cost us close to $1 billion in just 17 years.

E-voting – a good question for a referendum?

Surely in 2016 we could have our democratic say on things and spend less money? After all, hundreds of thousands of Centrelink, Medicare and ATO clients can log on to MyGov and carry out simple administrative tasks on their own behalf.

We’d only need to raise the bar a little to allow voters to vote from home, using dedicated WIFI gadgets, smart cards and ASIO-level backroom security.

Hackers, electoral fraud, I hear you say? How could it be more full of loopholes than the current system?

The long-term savings seem obvious. An online scheme would involve a large up-front cost manufacturing terminals and cards and setting up secure data management. They would also have to be installed in public libraries to ensure people who do not own a computer or a smart phone still get a vote. Special arrangements would also be needed for those who are too remote to have access to such technology.

But once the scheme was operating, it could be utilised not only for Federal elections, by-elections and referendums, but by all states and territories and local governments. The accumulated savings over, say a fixed, four-year term would be significant. This is not some random FOMM fantasy either – check out the e-voting experiences of the State of Victoria and countries like Switzerland and Estonia.

Girt by dire songs

An online system would need a trial run, preferably using a non-critical issue. May I suggest we revisit the 1977 plebiscite that asked Australians to choose one of four songs as the National Anthem? I say this on the basis that people tire of old songs that get played to death, particularly if they were sappy songs in the first place: I Go to Rio, Don’t Cry for Me Argentina and Living Next Door to Alice were all big hits in 1977.

First we’d need a national songwriting competition to come up with a short-list of songs, including one written by a person of Aboriginal or Torres Strait Island descent. Historically, 90% of the people should agree with this. You might say we’ve got plenty of existing songs to choose from – From Little Things, This is Australia, Land Down Under, True Blue, Great Southern Land.

Dame Edna Everage’s duet with Loudon Wainwright III singing C. Carson Parks’ Somethin’ Stupid is not a contender for our national song circa 2017.

I just thought since it’s a public holiday and you have time to spare, and given that this is such a turgid subject and what’s another 100 words anyway, you should know such a thing exists. Happily no video of that performance could be found. But there is this.

Should we include the runner-up from the 1977 plebiscite? Can anyone remember the names of the three songs which were not Advance Australia Fair? See if you can remember without using your favourite search engine. I realise that anyone under 40 will struggle with this question, so I’ll give you another subtle clue – one song relates to a bloke camped by a billabong in the shade of a Coolabah tree; he’s sitting, watching, waiting till his billy boils.