CITIZEN-INITIATED REFERENDA IN AUSTRALIA: LESSONS FROM NORFOLK ISLAND.

• Author: Gussen, Benjamen Franklen

1. INTRODUCTION

   Citizen-initiated referenda (CIRs) represent citizens' right to force a public vote, for example, on proposed legislation or a constitutional amendment. (1) For over 120 years, Australia has been failing to introduce CIRs. The only success story was in the territory of Norfolk Island, and even this innovation was abolished in 2015. Notwithstanding Australia's long history of referenda, CIRs were generally not put to the test as part of its democracy, although the idea of CIRs has been debated in Australia even since before federation. (2) The participants in the Constitutional Conventions leading up to the adoption of the Australian Constitution seemed to be aware of the use of CIRs in Switzerland but were unwilling to discuss them in any detail. (3) Since federation, CIR proposals have been introduced at the commonwealth level and into every state and territory's parliament except those of Victoria and the Northern Territory. (4) Notwithstanding, we still have no commonwealth or state legislation to allow citizens to initiate referenda. The first CIR bill was introduced in South Australia in 1895. (5) the early twentieth century, similar bills were introduced at the federal level and in Western Australia and Queensland. (6) Efforts to introduce CIRs continued unsuccessfully throughout the twentieth century. (7) The reasons for this legislative inertia are echoed in a 1988 Constitutional Commission report recommending against the introduction of CIRs because (1) they cannot be reconciled with the doctrines of responsible government and representative government and (2) they are open to abuse due to the risk of the tyranny of the majority and due to the influence of big business. (8)

   The failure to introduce CIRs suggests an Australian constitutional crisis arising from a democratic deficit: a conflict between the idea of government by the people, and the idea of rule by political party elite. (9) It is a crisis because it has reached a turning point, becoming a real hurdle to the long-term interests of communities around the country. In essence, loyalty to political parties now dominates loyalty to country. (10) The 'industry' of statute manufacturing now allows itself cartel-like monopolism. (11) The traversal of this critical phase cannot be informed by simplistic versions of legal positivism and the doctrines of parliamentary supremacy and ministerial accountability. There is now a need for a framework that contextualizes the applicability of these doctrines to Australia's three tiers of government.

   Some see rejecting CIRs as a theoretical necessity flowing from the nature of Australia's representative democracy, given the direct democracy origins of CIRs. Others see referenda generally, and CIRs in particular, as a system with inherent dualism which allows for successful practices as much as political abuse, a dualism that seeks increased participation in a majoritarian form of democracy, to the potential detriment of minorities. (12) Notwithstanding, this reluctance to introduce CIRs seems anachronistic given developments in other countries, including ones sharing our democratic heritage. (13) Today, this form of direct democracy is exercised in one form or another in New Zealand, Canada, and the United States. (14) CIRs can also be found in the European Union, at the Union level (in the form of European Citizens' Initiatives or ECIs) (15) and at the national level (especially in Germany). (16) Switzerland, where such initiatives were introduced as early as 1891, remains the quintessential example of CIRs. (17)

   Many scholars analyze the issues surrounding the use of referenda as a tension between two polar positions: direct democracy, where citizens have the right to participate individually in policymaking, and representative democracy (or indirect democracy), where citizens participate through elected representatives. (18) Others see referenda as a 'complement' or 'supplement' to representative democracy. (19) Some emphasize the nettling CIRs has led to in some jurisdictions. (20) However, the proper functioning of democracy in countries such as Canada and the United States suggests that (theoretical) rigid polar positions such as direct or indirect democracy are giving way to a pragmatic approach that includes CIRs.

   To inform the debate on introducing CIRs in Australia, this article investigates the pragmatic usefulness of CIRs by analyzing Norfolk Island's experience. As delineated below, this experience suggests that CIRs are as efficient as government-initiated referenda, and that both are efficient in discovering voter preferences on policy issues. This experience can help guide future designs for CIR schemes in Australia at all levels of government.

   The rest of the paper is structured as follows: The next section provides a historical note on referenda in Australia. Section III provides an analysis of Norfolk Island's experiment with CIRs. Section IV identifies how Section III can inform future CIR designs in Australia. The last section concludes with a summary of the findings.

2. HISTORICAL NOTE

   Our failure to introduce CIRs is surprising, given the political role people have played in Australia since the very early beginnings of the Federation. The Australian people chose the delegates for the 1897-98 Constitutional Conventions and endorsed the draft constitution resulting from these conventions before it was passed by the British Parliament. (21) The Australian Federation was approved and adopted through a series of plebiscites held in the 1890s at the state level. This suggests a paramount place for the principle of popular sovereignty. (22) Moreover, the role of referenda is protected in the Australian Constitution by section 128, (23) which was adopted from the Swiss Federal Constitution. (24) So far, section 128 has been invoked eight times. (25) At the sub-national level, some state constitutions also provide for constitutional amendments through referenda. (26) At the local government level, in New South Wales, South Australia, Tasmania, and the Northern Territory, councils may conduct referenda on any matter. (27) Entrenched legislation may also require referenda. (28) Other legislation also provides for referenda. (29)

   Referenda in Australia were first governed by the Referendum (Constitution Alteration) Act 1906 and later by the Referendum (Machinery Provisions) Act 1984 (Cth) (the R(MP) Act) and the Electoral and Referendum Regulations (Cth). (30) Compulsory enrolment and voting are features of Australian referenda ([section] 45 of the R(MP) Act). Commonwealth expenditure on advertising referenda is limited to the level necessary to promote the fact and procedure of the ballot ([section] 11(4) of the R(MP) Act), (31) although there is no limit on private expenditure on referenda.

   As to non-binding government-sponsored advisory referenda (plebiscites), where voting is only voluntary, the current approach is lackadaisical. These plebiscites have been federally evinced only on four occasions: (32) in 1916, 1917, 1977, and 2017. This compares to forty-four binding referenda since federation (from 1906 to 1999). The issue in 1916 and 1917 was the introduction of conscription during the First World War. Both plebiscites were defeated. In 1977, the issue was the choice of a national anthem, which was decided in favor of 'Advance Australia Fair' (defeating three other choices). The 2017 plebiscite was the Australian Marriage Law postal survey, which was carried by around 62 percent of the votes. Note that there are no specific rules on running plebiscites in Australia.

   In summary, referenda are a distinguishing feature of Australia's constitutional DNA. They have been exercised, to varying degrees of success, since federation. However, CIRs remain the exception. To better understand this anomaly, the next section analyses the operation of CIRs in Norfolk Island to elucidate their role as an incentive for political participation. Section IV explains how these CIRs can inform the issues currently raised in relation to introducing CIRs in Australia.

3. CASE STUDY: NORFOLK ISLAND

   In Australia, at the state and territory level, CIRs were available only in the Territory of Norfolk Island, under the Referendum Act 1964 (NI). The Act was repealed on June 17, 2015, by the Norfolk Island Continued Laws Amendment Ordinance 2015 (NI). (33) Norfolk Island is relevant to the analysis of CIRs in Australia given its original status as a dependency of New South Wales in 1788, its status as part of the Commonwealth since its inception in 1901, and its limited self-government under the Norfolk Island Act 1979 (Cth), (34) before its amendment under Norfolk Island Legislation Amendment Act 2015 (Cth), which entered into force on June 18, 2015. (35)

   Between 1964 and 2016, CIRs were invoked a total of eight times (with multiple questions on two occasions), compared to thirteen government-sponsored referenda, including the final referendum in 2015, just before losing self-government status. (36) Since 1968, referenda averaged one every two years. (37) See Appendix I for further details on these referenda.

   1. THE DESIGN FEATURES OF THE REFERENDUM ACT OF 1964 (NI)

      Under the Referendum Act 1964 (NI), there are three mechanisms by which a referendum can be initiated. First, the Federal Minister could direct the Administrator to conduct a referendum ([section] 4): (38)

      Referendum as directed by the Commonwealth Minister

      4. (1) Where the Commonwealth Minister considers it desirable to obtain an expression of the opinion of the electors on a matter affecting the peace, order and good government of Norfolk Island with a view to the introduction into the Parliament of a proposed law with respect to that matter, he may instruct the Administrator to direct a referendum to ascertain the opinion of the electors on any question relating to that matter.

      (2) In directing a referendum under this section...