LOCATING PLEBISCITES IN THE AUSTRALIAN CONSTITUTION.

• Date: 01 December 2022
• Author: Psycharis, Matthew

CONTENTS I Introduction II Foundations of the Plebiscite A How Are Plebiscites Procured? B Plebiscites as a Democratic Device 1 The Status of a Plebiscite Result 2 A Constraint on Government and Parliament's Legal Powers 3 A Political Circuit-Breaker for Constitutional Rigidities 4 The Substance of Plebiscites C Plebiscites as a Form of Participation under the Constitution III The Efficient Use of the Plebiscite A Conscription Plebiscites: 1916 and 1917 1 The Need for a Vote 2 Features of the Vote 3 The Need for an Additional Vote B The National Song Poll: 1977 1 The Need for a Vote 2 Features of the Vote C Marriage Equality: 2017 1 The Need for a Vote 2 A Challenge to the Vote's Legality IV Constraints on the Plebiscite's Efficient Use A Norms of Responsible Government B Norms of Representative Government 1 An Irreducible Minimum Content? 2 A Constitutional Limit on Plebiscitary Politics? C Representative Norms and Federal Concerns V Plebiscites in the Constitution I INTRODUCTION

The shape of government and society has changed since the time of Australia's Federation. The law has recognised this change, with decisions of the High Court addressing the expansion of the franchise (1) (and efforts to limit the franchise), (2) the nature and effect of implied constitutional rights, (3) and the meaning of the constitutional 'people'. (4) In so doing, successive decisions of the Court have affirmed that the Australian Constitution allows a large margin for experiments, and sometimes an 'evolution', in how the people of Australia engage with their government. (5) However, the Court has also held that there are constitutional constraints on this competence (6)--both in respect of the exercise of Parliament's powers and of the executive power. (7) One product of this democratic experimentation, which finds no direct textual provision in the Constitution, (8) is the 'plebiscite'--understood, in Australia, as a legally nonbinding poll of electors which does not cause a constitutional amendment. (9) Four plebiscites have been held, at the federal level, since Federation. (10) These have been authorised pursuant to ordinary legislation, or funded and executed under the executive power alone. (11) While legally non-binding, the result of these exercises may still be understood to impose strong political pressure on government or Parliament. (12)

At a time when the public may expect greater opportunity for participation in the decision-making that affects them, (13) and in a global era of populist politics, (14) there is a potential case for the future use of the plebiscite in Australia. (15) As a simple matter, unless the provision is repealed, legislation now provides that the Australian flag may only be changed by a plebiscite. (16) Among recent proposals for plebiscites on a range of other matters of more substantive policy, (17) it has also been suggested that a series of plebiscites might precede any later referendum on an Australian republic. (18) The question is how the constitutional function and effect of these democratic exercises is to be understood.

The Constitution, which establishes a system of representative government and responsible government, (19) says little of exercises which go directly to 'the people'. (20) While the states enjoyed a tradition of referendums (or plebiscites) pre-Federation, (21) a choice was made by the framers of the Constitution to restrict the use of legally binding, direct democratic exercises to proposals for constitutional change under s 128. (22) A decision was further made by the framers to reject the use of a referendum as a means of resolving deadlocks between the House of Representatives and the Senate (23) on ordinary legislation (24) --in part because it was thought that a referendum for deadlocks would 'weaken the deliberative processes of Parliament and diminish ministerial and parliamentary responsibility'. (25) Instead, a double dissolution mechanism was provided in s 57. (26) Proposals for the constitutional provision of citizens-initiated referendums were also rejected at the time of Federation and on later occasions in the 20th century. (27)

Despite the use of legally non-binding plebiscites in subsequent practice and broad proposals for their expanded use from various political actors, (28) no complete account of the plebiscite's function within the Constitution has been given, nor has there been, to date, any detailed judicial treatment of the topic. It has been posited by some commentators that these polls can be democratically useful in resolving moral controversies that divide parties or society, (29) or in building a case for constitutional change. (30) Politically, these observations may be apposite. However, existing legal analyses have revolved around the narrower concern of how executive government might fund a particular poll or the head of power under which any enabling legislation may be enacted. (31) While these narrower questions of legal competence are important, the anterior question of these polls' function within a codified constitution, and their normative desirability within that architecture, remains doctrinally underexplored. (32) Four years after a 'plebiscite' on the matter of equal recognition of same-sex marriages transmuted to a 'survey' on the same question, (33) the question of characterising the substance of these exercises still begs a fuller description. This article is directed to that problem.

First, it will be observed that despite the different means by which a plebiscite may be procured (by legislation or under the executive power alone), plebiscites exhibit the common function of generating powerful political commitments, if political actors choose to opt into the process. Importantly, those commitments may have the practical effect of constraining the exercise of the legal powers of government or Parliament. In this way, while a plebiscite result is not legally binding, these robust political commitments generate outcomes which can impose a burden or benefit on the system of representative government and responsible government.

Second, a closer survey of past plebiscites is given, to better understand the contours of these outcomes. Here it is observed that, while plebiscites can be used cynically as pieces of political theatre, they have also tended to serve the constitutional function of resolving political deadlocks between the Houses (by supplying a politically decisive veto or approbation from the people), or otherwise of procuring by the executive power a political mandate for a policy in a manner which, by design or accident, imposes political barriers to effective parliamentary scrutiny or a Senate veto. This is where the machinery of government and the logic of the Constitution have tended to lead these votes.

Third, the posited danger of this function, which this article explores, is that by resolving certain institutional deadlocks or offering an efficient route around modes of parliamentary accountability, the plebiscite might, in some instances, pose a threat to established constitutional norms of responsible government and representative government. In trying to understand the consequences of this function, and the outer limits of government's and Parliament's capacity to engage in plebiscitary politics, it is suggested that the High Court's decisions on measures which cause a burden (or benefit) on the system of representative government offer guidance. There, perhaps, might be situated a more complete doctrinal explanation of the plebiscite in its past and future usages.

II FOUNDATIONS OF THE PLEBISCITE

There are at least two problems in writing on the plebiscite in Australia. The first is empirical. Very few plebiscites have been held at the federal level, with only four since Federation (34) (though many others have been proposed). (35) There have been few opportunities for the law to develop a response to what these exercises are and how they ought to function. Moreover, plebiscites have often been held at times of national emergency or under conditions of political urgency, when either by coincidence or by design the opportunity for debate about their merits, or for a detailed judicial examination, has been limited. (36) However, similar exercises have been held in the United Kingdom ('UK') and New Zealand; (37) and while these do not offer perfect comparisons, they do supply helpful points of contrast.

The second problem is doctrinal. In 2017, the High Court held that what might be 'statistical information' might equally be understood as a 'vote' or a 'plebiscite'. (38) While that characterisation is likely confined to a construction of the legislation that the Court had before it (the Census and Statistics Act 1905 (Cth)), the thinness of counsel's reasoning on that point (39) speaks to the general difficulty in characterising the substance of what is a relatively novel, and potentially flexible, political activity. There also remains an unresolved tension in the normative desirability of this activity. Few would say that regular elections are a bad thing, but many might dispute the need for regular plebiscites. (40) As Anne Twomey observes, the current understanding decomposes to the view that '[w]hile it is important that governments take responsibility for governing, plebiscites remain a useful tool for resolving contentious ... issues'. (41) Yet, as Twomey implicitly acknowledges, there are conflicting assumptions in that position. (42) If it is to be at all possible for those assumptions to be evaluated, then some understanding of the plebiscite, in substance, must be approached: not only to describe how they are procured, but also what work they do, and where limits on that work apply.

A How Are Plebiscites Procured?

In ordinary language, the terms 'referendum' and 'plebiscite' might be used interchangeably. In Australia, however, they have acquired different meanings. The...