Citizens who believe that their votes will have no effect on the outcome of an election have a

A referendum is a vote of the Australian people to change the Australian Constitution. This fact sheet explores the process of referendums and plebiscites – national polls – in Australia.

In Australia, a referendum is a vote used to approve a change to the Australian Constitution. Section 128 of the Constitution sets out certain rules that must be followed in order for a change to be approved.

A proposed change to the Constitution must start as a bill – proposed law – presented to the Australian Parliament. If the bill is passed by the Parliament, the proposal must then be presented to Australian voters in a referendum. The referendum must take place between 2 and 6 months after the bill is passed.

Before the referendum is held, members of parliament prepare arguments for or against the proposed change. These are sent to the Australian Electoral Commission (AEC), which is in charge of running federal elections and referendums. The AEC arranges for the 'Yes' and 'No' cases, along with a statement of the proposed change, to be posted to every Australian on the electoral roll.

On polling day, the voting process is similar to that used for federal elections, in which polling places are set up at schools and other public buildings around the country. Each voter's name is marked off the electoral roll and they are given a ballot paper. Voters then write 'Yes' or 'No' in a box opposite the proposed change on their ballot paper.

A referendum is only passed if it is approved by a majority of voters across the nation and a majority of voters in a majority of states—this is known as a double majority. Territory voters are only counted in the national majority.

If a referendum is successful, the change is made to the Constitution.

Plebiscite

In Australia, a plebiscite (also known as an advisory referendum) is used to decide a national question that does not affect the Constitution. It can be used to test whether the government has enough public support to go ahead with a proposed action. Unlike a referendum, the decision reached in a plebiscite does not have any legal force.

Australia has held 2 national plebiscites, in 1916 and 1917, relating to the introduction of conscription during the First World War. Both were defeated. No specific rules exist about the running of a plebiscite. If another plebiscite is conducted, the Parliament will decide on how it is run.

History of referendums in Australia

Since 1901 there have been 19 referendums, proposing 44 changes to the Constitution; only 8 changes have been agreed to. The AEC has more information about each of these referendums.

Parliamentary Education Office (peo.gov.au)

This image shows how the Australian Constitution can only be changed with the support of the majority of Australian voters and the majority of voters in at least 4 states. The following scenarios are shown as examples.

Scenario ONE: change the Constitution: the majority of Australian voters have said yes; the majority voters in at least 4 states have said yes.

Scenario TWO: don't change the Constitution: the majority of Australian voters have said no; the majority voters in at least 4 states have said yes.

Scenario THREE: don't change the Constitution: the majority of Australian voters have said yes, the majority voters in at least 4 states have said no.

Parliamentary Education Office (PEO.GOV.AU)

This graphic explains the steps that need to be taken before the Australian Constitution can be changed:

1. Bill passed

• A bill is introduced into Parliament and PASSED by an absolute majority in bother House of Representatives and the Senate.

2. The factors

• Members of parliament who support the proposed change prepare the 'YES' case and members of parliament who don't support it prepare the 'NO' case.

3. AEC

• the Australian Electoral Commission produces and sends out a pamphlet explaining both the 'YES' and the 'NO' cases.

4. Referendum

• Australians vote 'YES' or 'NO'.

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to take part in public affairs and elections?

The right to take part in public affairs and elections guarantees the right of citizens to stand for public office, to vote in elections and to have access to positions in public service.

Unlike other rights in the International Covenant on Civil and Political Rights (ICCPR), the right to take part in public affairs and elections applies only to Australian citizens.

Where does the right to take part in public affairs and elections come from?

Australia is a party to seven core international human rights treaties. The right to take part in public affairs and elections is contained in article 25 of the International Covenant on Civil and Political Rights (ICCPR).

See also article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 7 and 8 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and article 29 of the Convention on the Rights of Persons with Disabilities (CRPD).

The CRPD requires countries to ensure that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use for people with disability.

CEDAW requires countries to all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right to participate in non-governmental organisations and associations concerned with the public and political life of the country.

When do I need to consider the right to take part in public affairs and elections?

You will need to consider the right to take part in public affairs and elections if you are working on legislation, a policy or a program that:

• limits the ability of a category of individuals to stand for office or to vote in elections
• regulates the conduct of elections and the electoral process, including funding of and expenditure by political parties and the drawing of electoral boundaries
• regulates the communication of information and ideas about public and political issues, or
• regulates eligibility for employment in the public service or appointment to public office.

This list should not be regarded as exhaustive.

When working on a measure that restricts the right to take part in public life and elections, you should ensure that any restrictions can be reasonably and objectively justified.

What is the scope of the right to take part in public affairs and elections?

While the other rights and freedoms recognised by the ICCPR apply to all individuals within the territory and subject to the jurisdiction of Australia, the rights in article 25 only apply to Australian citizens.

The UN Human Rights Committee has stated that the conduct of public affairs, referred to in article 25(a), relates to the exercise of legislative, executive and administrative powers, and covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. Citizens participate directly in the conduct of public affairs when they are elected to public office. They also do so when they vote to decide public issues through a referendum or other electoral process. Indirect participation takes place when people elect bodies such as parliaments to represent them.

The Committee has also stated that:

• reasonable limitations on election campaign expenditure may be justified where necessary to ensure that the democratic process is not distorted by disproportionate expenditure on behalf of any candidate or party
• the drawing of electoral boundaries should not distort the electoral process, and within the framework of the country's electoral system, the vote of one elector should be equal to the vote of another.

The term 'public service' in article 25(c) is understood to extend to all positions within the executive, legislature and judiciary.

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Can the right to take part in public affairs and elections be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to take part in public affairs and elections 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

Limitation

Conditions may be applied to the exercise of the rights in article 25, but they should be established by law and should be based on objective and reasonable criteria. The Human Rights Committee has stated that mental incapacity may be a ground for denying a person the right to vote or to hold office. The Committee has stated that physical disability, literacy, educational or property requirements would not be reasonable conditions. The Committee has also stated that if conviction for an offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence. Similarly, the Human Rights Committee has stated that minimum age limits for the right to vote (which should be available to every adult citizen) and to stand for public office must be based on objective and reasonable criteria.

Which domestic laws relate to the right to take part in public affairs and elections?

Sections 16 and 34 of the Constitution make provision for the qualifications to be members of Parliament. Section 44 of the Constitution provides that certain categories of persons, including those holding 'any office of profit under the Crown', shall not be entitled to be elected to Parliament. The Human Rights Committee has stated that the exclusion of a police officer from eligibility for election to public office was permissible.

The right to vote in Commonwealth elections is governed by the Commonwealth Electoral Act 1918. Section 93 sets out the categories of persons who are eligible to vote and provides that persons in certain categories are not eligible. Those categories include the holders of temporary visas under the Migration Act 1958 or unlawful non-citizens under that Act, persons who by reason of being of unsound mind are incapable of understanding the nature and significance of enrolment and voting and persons who have been convicted of treason or treachery.

In Roach v Electoral Commissioner (2007) 233 CLR 162, the High Court held that amendments to the Commonwealth Electoral Act in 2006 that prohibited all persons serving a sentence of imprisonment from voting were inconsistent with the system of representative and responsible government mandated by the Constitution. The Court accepted that the right to vote could be limited where there are substantial reasons for doing so, for instance on the basis of citizenship. The Court also upheld the pre‑2006 position under the Commonwealth Electoral Act whereby persons serving sentences of longer than three years were not entitled to vote. The Act has been amended since that decision to provide that a person who is serving a sentence of imprisonment of three years or longer is not entitled to vote.

The rights under article 25 are enjoyed by citizens. Entitlement to Australian citizenship is governed by the Australian Citizenship Act 2007. Note, however, that some APS agencies may choose to employ non-citizens with the relevant work entitlements, subject to those applicants having a traceable history, including employment and background checks for security clearance purposes.

The National Congress of Australia's First Peoples provides a national platform for Aboriginal and Torres Strait Islanders to have a say on important issues and creates a national voice for the opinions of for Aboriginal and Torres Strait Islanders to be heard by all Australians.

What other rights and freedoms relate to the right to take part in public life and elections?

The right to take part in public affairs and elections may also be relevant to:

• the right to self-determination in article 1 (ICCPR)
• the right to freedom of opinion and expression in article 19 (ICCPR)
• the right to peaceful assembly in article 21 (ICCPR)
• the right to freedom of association in article 22 (ICCPR).

The Human Rights Committee has stated that the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies the freedom to engage in political activity individually or through political parties and other organisations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticise and oppose, to publish political material, to campaign for election and to advertise political ideas. The right to freedom of association, including the right to form and join organisations and associations concerned with political and public affairs, is essential to the rights protected by article 25.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

• To take part in the conduct of public affairs, directly or through freely chosen representatives;
• To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
• To have access, on general terms of equality, to public service in his country.

See also: CERD article 5; CEDAW articles 7, 8; CRPD article 29.

Where can I read more about the right to take part in public affairs and elections?

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