August 12, 2015
Plebiscite or Referendum – What’s the Difference
Here’s a quick primer on plebiscites and referendums, given the same-sex marriage debate has attracted so much attention to the meaning of the two words.
What is a ‘Plebiscite’ and what is a ‘Referendum’?
According to the Budget Macquarie Dictionary, a plebiscite is ‘a direct vote of the qualified electors of a state in regard to some important public question’. (State here is used in a generic form and doesn’t mean Australian state.)
A referendum by the same dictionary is ‘the principle or procedure of referring or submitting measures proposed or passed by a legislative body to the vote of the electorate for approval or rejection’.
A quick perusal of on-line dictionaries confirms these definitions. Referendum comes to English directly from Latin where plebiscite comes to English from Latin via French. Plebiscite is forever associated with the peace treaties that ended the First World War, being used to settle a number of complex boundary drawing problems.
In Australian usage, ‘referendum’ is generally reserved for votes to amend the Australian Constitution under Section 128 of the Constitution, though the word referendum is not used in the Constitution.
To amend the Australian Constitution, a referendum requires that a proposed amendment must receive majority support in the national vote, but also receive majority of support in a majority of states.
So to pass, a constitutional referendum must have a national Yes, majority, and a Yes majority in at least four of the six states.
It is to distinguish from this constitutional double majority requirement that that word ‘plebiscite’ is sometimes used to mean a simple national vote.
Confusingly, all states hold votes that they call referendums but by the national definition are actually plebiscites.
Has Australia Held Plebiscites before?
Australia has held three national votes that were not constitutional referendums and so qualify as plebiscites. There were votes on Conscription in 1916 and 1917, and a vote on a National Song in 1977.
The conscription vote was a Yes/No answer to a question. The National Song poll was a preferential ballot complete with a two-song preferred winner.
What Have Been the Past State Referendums/Plebiscites
I run through a range of the state plebiscites since 1901 in this post. The lists does not include referendums required by entrenched provisions of state constitutions. The majority of state plebiscites have concerned hotel trading hours and daylight saving.
How Are Plebiscites Held?
To hold a plebiscite, the government could contract the AEC to conduct a poll under Section 7A of the Commonwealth Electoral Act. However, this would create problems as it would not invoke the general body of national electoral law.
More likely a special Act would be passed, or possibly regulations used, to specify the conduct of the plebiscite.
The point of an Act for a plebiscite would be to invoke the provisions of the Electoral and Referendum acts, and also to specify where the ballot would operate differently from the usual electoral legislation.
The Act should ideally specify the question, and also the mechanism to determine the winning case.
Specifying the question could be controversial. Should the question ask about restricting marriage to opposite sexes, or specifiy that same-sex marriage be allowed? Should it ask a de-gendered questions such as whether marriage should be between two persons? How about marriage should be restricted to its traditional meaning between a man and a woman? Even the horrible “Do you agree to an act to amend the definition of Marriage?” There is much scope for using the words to tilt the result one way or the other.
It would be unlikely that changes to the Marriage Act would be dependent on the plebiscite. The Parliament would still have to legislate the changes and would presumably do so dependent on the plebiscite result.
Past Plebscites and How They Happened
The 1916 Conscription referendum was brought on by the Military Service Referendum Act (1916). It defined the provisions of the Electoral and Referendum Acts to be invoked, though it included several provisions concerning the right to vote of naturalised citizens born in enemy countries.
The Act also specified the Question. “Are you in favour of the government having, in this grave emergency. the same compulsory powers over citizens in regard to requiring their military services, for the term of this War, outside the Commonwealth, as it now has in regard to military service within the Commonwealth?”
The 1917 Conscription referendum was introduced by regulations under the War Precautions (Military Service Referendum) Regulations 1917. The question asked was “Are you in favour of the proposal of the Commonwealth Government for reinforcing the Australian Imperial Force oversea?”
The 1917 regulations included many controversial provisions removing the vote from certain electors, including citizens born in enemy countries or whose father was born in an enemy country. Other war Precautions regulations were issued to censor coverage of the conscription debate.
The 1977 national song poll had a brief act invoking the electoral and referendum acts. Advance Australia Fair was the winning song, but the Fraser government did not immediately act to make it the national anthem.
Would you need to vote at a Plebscite?
The Electoral Act and the Referendum acts specify compulsory voting. If it was decided not to hold a compulsory vote on a plebiscite to change the Marriage Act, then the alternative form of voting would have to be specified in the enabling act.
In 1997 the Howard passed a special Act to conduct an election for the 1998 Constitutional Convention to draw up a republic model. The act activated various parts of Commonwealth Electoral Act, but included its own provisions to make voting voluntary, to conduct the ballot by post, and also to specify the form of voting and the method of counting.
An act for a plebiscite would either enable all the usual election and referendum provisions, or otherwise specify an alternative mechanism.
Could We Have a Constitutional Referendum Instead?
Yes, but there is no need for one.
High Court rulings have clarified that the Commonwealth parliament has the right to define the meaning of marriage under Section 51 (xxi) of the Constitution.
The only reason to hold a referendum would be to restrict the right of Parliament to define marriage.
For instance, if it was decided to restrict the power of the Commonwealth to define marriage so that it had to be between a man and a woman, then to do so the referendum would have to pass nationally and in four states. Only 8 out of 44 referendums have passed, so a referendum to ban same sex marriage would have a high hurdle to pass.
It would be easier to defeat a plebiscite on same-sex marriage than it would be to pass a referendum ruling out same-sex marriages.
The Constitution does not define marriage, merely defines it as an area where the Commonwealth can legislate and where Commonwealth law takes precedence. If you start to amend the Constitution to limit what the Commonwealth can legislate on, you begin to create areas where the states can legislate.
National and state laws on marriage, de-facto relationships and all laws related to the children of relationships are covered by over-lapping powers that have been resolved by several decades of negotiations. Western Australia runs its own parallel Family Court where all other states come under the Commonwealth Family Law system. The states have referred many of their powers over de facto relationships to the Commonwealth, except Western Australia which has its own court.
Limiting the power of the Commonwealth to define and legislate for marriage might have unintended consequences over areas of law that the states have in recent years vacated.
Could the Commonwealth Legislate for Civil Unions?
It could, but the Constitution gives the Commonwealth no power over Civil Unions, which traditionally have been covered by state law as de-facto relations. A Commonwealth Civil Union Law would require the Commonwealth to argue that a Civil Union is a marriage and can be covered by the Commonwealth. Referred state powers could be used, but that gets complex.
What no one wants is to get stuck in the problem that once dogged people in non-marriages that if they had children they came under Commonwealth law, but if they didn’t they ended up in state courts.