Why referendums fail

Go to churches, different associations, the chamber, to the YMCA — wherever these audiences are, go to them rather than expecting them to come to you.

Also, how are you going to leverage social media to get your message out? How are you going to respond to inquiries? Social media has changed everything — Facebook, Twitter, even Instagram. These are great tools to provide two-way communication opportunities, but there needs to be a process set up. Social media has to be strategically managed. In most referendums, the district cannot advocate for a positive vote. So local communities will establish their own vote-yes committees.

The vote-yes committee must work hard to find the right voters and provide the right value proposition in front of the community in order to be successful.

There is a formula that has been successfully developed by vote-no groups to help defeat referendums. And if they get more than 50 percent of the public to believe it, the referendum will fail. Then, they start bombarding the school district with lots of questions.

They want to take as much time away from the school district, who are trying to focus on the right things and shift that focus to the wrong things. If the district can quickly answer their questions and get back on topic, then the vote-no group will move to their next phase — they start handing out flyers to the public. And yet referendums are on the rise. As often as not referendums do not produce the result the politicians intend. So what explains their popularity? A sharp increase in referendums is typical in periods of change and political uncertainty, according to Matt Qvortrup, professor of applied political science at Coventry University and author of Referendums Around the World.

A second aspect of the deliberative deficit is the belief that Parliament should restrain the impulse to referendum through rules designed to keep matters alive within Parliament until they are ready for popular ratification. In this conservative view, referendums should be seen as passive ratifications of the results of parliamentary deliberation and not as opportunities for the community to reopen the policy deliberation.

In contradiction, proponents of referendums argued that Parliament should have few restraints and should certainly not restrain the referendum impulse until a parliamentary consensus has emerged. Proponents did not want to confine referendums to policy preferences already determined by elected members, and so they resisted the imposition of barriers which would confine referendums to formal ratifications of policy preferences already settled within Parliament.

An example of this aspect of the deliberative deficit was the framers' debate over the size of the parliamentary majority that should be required for the passage of a referendum proposal: should it be a simple majority or some sort of super-majority? Proponents of referendums wanted an ordinary majority; opponents of referendum wanted a super-majority to check the impulse for rash referendums.

The framers made two fateful decisions that opened up the possibility for wider public deliberation. First, they ensured that the Constitution did not put the bar too high, certainly not as high as the US Constitution's requirement that a proposed amendment must obtain a two-thirds majority in each House of Congress.

The Australian Constitution requires that a proposed change normally requires an absolute majority in each House. But our framers made a second fateful decision.

The Constitution also permits either House to initiate a referendum if the two Houses of Parliament are deadlocked over three months. Under such conditions, the initiating House may request the Governor-General to submit a referendum question to the people. At first glance this looks very similar to the provision in section 57 of the Constitution which regulates the procedure for resolving deadlocks over ordinary legislation which leads to double dissolutions.

But there is one very important difference: unlike the case in section 57 which really only deals with the rights of a government when facing an obstructive Senate, here it is the case that section protects the right of the Senate to go to the people. What would happen if the Senate did not pass a government's referendum proposals?

This was a real possibility in given the determination of the Opposition parties to prevent the passage of Prime Minister Howard's original Preamble. The only time that the Senate has tried to put a referendum over the protest of the House of Representatives was in when the conservative Cook government ensured that the Governor-General declined the kind offer from the Opposition or Labor Party-controlled Senate.

And the only time that the House of Representatives proceeded to hold a referendum on a proposal that had been refused by the Senate was in when the Whitlam government unsuccessfully tried to get voters to approve changes which would have broken the famous nexus in the Constitution regulating the relative size of the two Houses.

There is a remarkable alignment between promoters of the referendum like Isaacs and Deakin, who also demonstrate their support for other forms of popular legislative control like the citizens' initiative and the right of the states as a group to initiate referendums.

Indeed, conservatives demanded to know whether the right of an initiating House to seek a referendum was really a back-door form of the initiative. A third aspect of the deliberative deficit in our constitutional foundations for referendums is the thinness of support for the dual majorities approach to securing a referendum majority.

As I mentioned earlier, approval of a referendum proposal requires the dual majority test: obtaining a national majority, which is a majority of votes on an Australia-wide basis; and also what was originally termed a federal majority, which is a majority of the votes in a majority of the states.

My comments on this dual majority requirement will be comparatively brief, as this aspect has attracted extensive commentary in the referendum literature, and in the Australian analysis of the institutions of federalism.

Looking more generally at this federal dimension to referendums, one can see the provision for the double majority in negative terms: as a sign of the power of states' rights to block national majorities. Thus far five referendum proposals have won a majority of national votes but failed to secure a majority of states.

It is certainly possible that this second requirement could itself be altered through a referendum, as the Whitlam government unsuccessfully attempted to do in , when it sought to reduce the number of states requiring a popular majority from four to three—half rather than a majority of states. If the majority was reduced from four to three, then three additional referendum questions would have been carried: two for Labor in and one for the Coalition in But what counts for a majority at the state level?

It is a majority of those voting, which before the introduction of compulsory voting could have resulted in a minority of those entitled to vote. But there was an even murkier problem. What happens when two of the original states South Australia and Western Australia have women's suffrage? Does that give those two states some sort of unfair advantage over the others, a kind of double-dipping system which might give them disproportionate influence when it comes to counting a national majority?

A contemporary version might be a protest over the rights of territory voters to participate in referendums, on the ground that our votes might give an unfair boost to a national majority, even though we are not strictly part of the federal compact.

The same framers who finally accepted the requirement for a majority of States lost their nerve over women's rights. On the dark side of the Constitution we find included in the referendum provision one of the document's few explicit references to women's rights. Our constitutional framers knew that at some time after Federation, the national Parliament would adopt a uniform national electoral law for elections and referendums. But while they were prepared to allow the two progressive states to permit women to vote at elections for members of the House and the Senate, they held the line or lost their nerve when it came to referendums.

The framers included in the third paragraph of section a provision that is still there but now I hope a dead letter, which defines the constitutional situation until such time as Parliament enacts a national uniform suffrage. Instead of providing for constitutional protection of adult suffrage, the constitutional framers bent the other way to protect the rights of those states without adult suffrage.

Not that much harm came of this provision: uniform franchise for elections and referendums was guaranteed in , well before the holding of the first referendum in So much for weakness in the foundations: now for the instability in the scaffolding. The deliberation deficit does not stop with the adoption of the Constitution. It is also evident in the rules for running referendums that Parliament has developed over the years since Parliament first made rules for the administration of referendums in Parliament tried four times over a decade from to to erect scaffolding which would give voters every opportunity to make an informed choice at referendums.

In unsuccessfully and again successfully , Parliament debated the merits of an information pamphlet canvassing referendum arguments. Parliament knew that public deliberation must of necessity focus on the contending arguments and not simply the slogans of today or the background issues of yesterday.

But Parliament could find no solution to the problem of editing the contending arguments into a state fit for public consumption. What makes for political nutrition? What forms of political argument or what forums for argumentation are healthy for a democracy? It did not take long for the friends of referendums to see that much of the parliamentary wrangling over referendums is unpalatable; some of it is indigestable; and a bit even poisonous—debilitating our democratic capacities.

The friends of referendums were bold and ambitious: they wanted to bring voters into direct contact with the core arguments in constitutional contention. Parliament initially searched for some convenient external authority, such as a High Court judge, who might edit and credential the contending cases.

When that option collapsed, they turned to authorities closer to Parliament, such as the parliamentary Clerks or the Chief Electoral Officer. Think of this adoption of compulsory voting as an abandonment of the supply focus trying to supply appropriate materials to help voters and the adoption of a demand focus trying to put in place incentives to stimulate demand among voters to get them interested in finding for themselves information relevant to their referendum responsibilities.

By , the system as we now know it was pretty much in place. Let me now walk you through the construction of this referendum scaffolding in more detail. It is a wonderful case-study of a democracy attempting to promote argument in place of mere contention. Right before the first shot was fired in the original referendum campaign, the initiating government was anticipating, quite correctly, that one of the basic issues was going to be the credibility of competing statements about the likely effect of any set of proposed changes.

The Deakin government's aim, again altogether correct, was to inform the electorate with impartial advice about what would change under any given referendum: impartial here meaning free from party-political wrangling involving all sorts of allegations about the partisan purposes of disputed policy proposals.

The provision was rejected. The aim was to provide voters with direct access to the core arguments for and against referendum proposals. Instead they arrive at conclusions in a rough and ready way upon general principles. What better options could Parliament have considered? Where could they have turned to provide electors with advice about the textual integrity of proposed constitutional changes?

Three emerged in debate: one internal—in the Attorney-General of the day; one external—in the High Court as a whole; and finally a turn to independent professionalism—the two chief parliamentary Clerks. All three were discussed and discounted: the Attorney-General, then as now, faced a gulf of credibility given that he was normally the chief legal adviser to a government proposing a referendum; the High Court would jeopardise its own integrity if it played the part of expositor to the executive; and so too the parliamentary Clerks might well lose their party-political independence if they were drawn into partisan controversy.

It took the Parliament the experience of three referendums , , and another six years before it amended the referendum legislation to include within it the provision for distribution of the Yes and No pamphlet to all electors. The origins of the official pamphlet have been discovered in the records of the Hobart annual conference of the Parliamentary Labor Party, where the party agreed that the experience of the failed referendum could be explained by the twin evils of popular misunderstanding and partisan misrepresentation.

The changes were introduced by Attorney-General Billy Hughes who went to great lengths to explain the innovation of providing electors with two statements of no more than words containing the Yes and No cases. These cases were prepared and authorised by a majority of those members of Parliament who voted for and against the proposed changes. The pamphlet was also designed to contain a statement showing the textual alterations and additions proposed to be made to the Constitution.

How best to reach out to the ordinary voter? Billy Hughes never rested. Therefore, they will have to cogitate and think out what are the merits of the proposal, and, having done that, make out their case against those merits. That is not fair. The government proposed to amend the legislation to establish a Board to vet the arguments coming from the two sets of parliamentary groups. And so it came to pass that the official pamphlet emerged as we now know it: at best a great opportunity for Australia Post ; at worst a missed opportunity to repair the deliberative deficit.

There have been referendums where the No case has been absent most recently in in relation to the case for Commonwealth power over Aboriginal affairs. Indeed, at three early referendums Parliament in its wisdom suspended the operation of the whole pamphlet provisions: , and —two losses followed by the first win since The view at these times was that the expenditure of public money was not worth the exercise and one suspects that parliamentarians reckoned that each side could do better when left to its own devices, especially when referendums are held at the time of general elections, when the parties struggle for the very highest stakes.

After three attempts to bring reason to bear in referendum politics, Billy Hughes had one last try at bringing reason to referendums. The Hughes government in August devised a novel approach that completes our review of the scaffolding of the deliberative design behind Australian national referendums. The usual story is that compulsory voting was introduced by the Bruce government in to try to restore the levels of voter turnout that had dropped alarmingly after the end of the Great War.

The truth is that the first experiment in compulsory voting dates from August and it began its life in the Senate, designed solely for the referendum intended for later that year but never held. The conventional wisdom about the introduction of compulsory voting is that it was introduced to make life easier for the political parties. I accept that many aspects of our electoral system have evolved precisely for this reason.

Think only of the adoption of public funding of political parties. It is important to recognise that in its very first national phase, compulsory voting was designed to repair the deliberative deficit. The idea was simple: if citizens knew that voting at national constitutional referendums was a legal duty, then perhaps they would pay greater attention to the debate over the merits of the proposals.

The stated idea behind the proposal for enforced civic responsibility was put in terms by Senator Russell when introducing the bill:. The majority are able to discuss football records, and make an accurate calculation of the time in which 6 furlongs can be done at Flemington, but, in many cases, those men have not had their attention sufficiently directed to the affairs of their country to be persuaded to exercise their franchise.

Critics have suggested that this is a device designed not so much to bolster public deliberation as to lift the approval rating which would suit reformist parties like Labor. There is a supposition that Labor voters have traditionally been among a majority of those who have failed to turn out when elections have not been compulsory. While this might be true, it is still the case that compulsory voting might simply reinforce the conventional bias against constitutional reform by ensuring that the legions of reactive Australian voters turn out to register their disapproval.

Recently, a constitutional referendum proposed to be held in to allow federal funding to local councils was abandoned due to timing problems and unexpected leadership changes.

The same proposal has already been tried and failed twice in and The best performing referendum was in to include and recognise Indigenous Australians in the official census. A plebiscite is non-binding and is used as a tool to advise politicians on altering specific legislation. Plus, voting in referendums is compulsory , while the federal parliament can determine whether a future plebiscite is compulsory or not.

Irrespective of whether a referendum or plebiscite is being called, the key point is: we should hold national votes more regularly. Last year Tasmanian Senator Jacquie Lambie stated she wanted more plebiscites - including on marriage equality, voluntary euthanasia and constitutional recognition for indigenous Australians. We should be given three votes at every federal election.

One for your local House of Representatives MP, one for the Senate, and one more for a vote on a specific policy topic.

The idea is commonly used at the state level in the United States. People are more motivated about politics when voting on a specific area of public policy.