Referendums in the United Kingdom - Constitution Committee Contents

Memorandum by Professor George Williams, Anthony Mason Professor, Faculty of Law, University of New South Wales

1.  What are the strengths and weaknesses of the referendum as a democratic and constitutional tool? What issues is it appropriate to submit to a referendum?

  Referendums can provide an outcome with a form of direct democratic legitimacy not normally obtainable through the system of representative government.

  On the other hand, referendums can greatly increase the difficulties in bringing about a change. They are expensive, and can place a sometimes insurmountable hurdle in the face of change. Referendums are also not well-suited to complex issues involving the need for compromise and high-level community education. Referendums can also be open to manipulation through the provision of misleading information and scare campaigns.

2.  How would you characterise the experience of referendums in Australia? What is the nature of the regulatory framework? What positive and negative features should we take note of?

  Would you agree with Dr Setälä that the Australian requirement of a mandatory referendum, in conjunction with its compulsory voting and double majority requirements, has proved to be a "major obstacle for any constitutional changes"? Do you agree with Professor Butler that the referendum, in the Australian experience, has essentially been "a conservative instrument"?

  Yes, I agree with the above comments. Involving the Australian people in constitutional change has undoubtedly been positive in terms of helping to generate popular ownership and legitimacy in Australia's constitutional structure. On the other hand, there is little to suggest that it has improved the level of education about that system, and has indeed made change of the system extremely difficult, and in some areas almost impossible. It is fair to say that Australia's referendum process makes its Constitution one of the very hardest in the world to alter.

  A number of witnesses have referred to the 1999 Australian referendum on the establishment of a republic. What assessment would you make of the positive and negative features of this referendum campaign?

  I believe that a referendum was an appropriate means of deciding this issue. Moving to a republic was the type of issue that required a popular mandate to bring about. On the other hand, the referendum also demonstrated some of the worst features of holding a referendum, such as the high level of misinformation, the often poor quality of the debate and the possibilities of manipulating the outcome.

3.  What kinds of information do you think that voters need to make informed decisions in referendums? Should government have a role in providing or assessing that information?

  Some witnesses have referred to the pre-referendum deliberation process that took place before the 1999 Australian referendum on the establishment of a republic. What assessment would you make of this process?

  I think that it is important, if the referendum is to succeed, that the community see that they have a level of ownership not only of the outcome but also of the question put at the referendum. Community ownership and engagement can occur through community consultations, conventions or other means. However, this does not exclude an important role for the government of the day. The government should play a major role in helping to establish the community process and also in ensuring that the referendum is held in a technically sound and appropriate manner. It would normally also be expected that the government will play a lead role in advocating a particular outcome at the referendum.

  To both witnesses: Are there any issues in your judgment that could be deemed too complex to subject to a referendum?

  Referendums work best when dealing with a discreet policy issue or change in legal direction. They are not appropriate to be used for what are essentially government decisions, such as budgetary allocations.

4.  What principles should be borne in mind in designing a referendum question? Is it appropriate for multi-option referendums to be put forward?

  To both witnesses: Should referendums ask general questions of principle, or yes/no questions on a specific course of action?

  The question should be fair and straightforward. there should be no suggestion that it lends itself to bias by being out of a particular way. I think both yes/no referendums are appropriate, as well as multi-option referendums. It depends upon the issue.

5.  What principles should be borne in mind in terms of regulating the financing of referendum campaigns?

  It can make sense to establish public yes and no committees, along with appropriate financing for those committees to engage in advocacy. However, it is also particularly important that there is a significant amount of neutral material put out during and before the actual campaign. The recent report of the Australian House of Representatives legal and constitutional committee on referendums is useful in this regard.

6.  How can it be ensured that a fair and effective referendum campaign is delivered? What role do you think it is appropriate for the government (and political parties more generally) to play in referendum campaigns?

  I do not think it is appropriate to exclude the government or political parties from extensive involvement. They have a right to be involved along with many others, and it would not make sense to exclude them. It is particularly important though that the referendum process is overseen by an independent, expert body able to adjudicate any disputes and to ensure that public funding for advocacy is spent appropriately.

7.  What are the arguments for and against the use of threshold requirements (whether in terms of turnout or vote percentage) for referendums?

  I would support a referendum being successful if a simple majority of the people voting cast a ballot in favour of the proposal.

8.  What is your opinion of other tools such as citizens' initiatives? How does the referendum relate to such tools?

  While I favour the occasional referendum, I do not support citizens initiated referendums. There is too much evidence that referendums of this latter type are open to manipulation, especially by media and money interests, and that they do not actually provide an effective community means of bringing about legal and policy change.

3 February 2010

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