‘Not fit for purpose’: government looks to amend ‘antiquated’ referendum laws ahead of voice vote

A leading constitutional expert says Australia's century-old laws around referendums are "not fit for purpose", suggesting the government could look to amend rules around donations, funding disclosures and social media advertising before the voice to parliament vote.

Linda Burney, the minister for Indigenous Australians, said the government would propose changes to "modernise" the Referendum Act before the end of the year, and promised a civics campaign and more information about the voice campaign in early 2023.

Prof George Williams, a University of New South Wales legal academic and member of the government's constitutional expert group on the voice, said referendum rules should be updated before the vote in the next financial year.

"Some of these laws go back to the 1920s. It's just not fit for purpose," he said.

The government has set up three separate expert groups around the proposed referendum, including a working group, an engagement group, and the constitutional group. The latter - including Uluru statement from the heart co-chair Megan Davis, Indigenous leader Noel Pearson, University of Sydney academic Professor Anne Twomey and Williams among others - met for the first time on 28 October. Following a working group meeting the same day, Burney's office issued a communique saying the group supported changes to bring the Referendum Act "into line with the Electoral Act".

During a speech at the National Press Club last month, the attorney general, Mark Dreyfus, called Australia's referendum processes "very antiquated".

Williams said the current Referendum Act contains provisions dating to 1912, including limits on pre-poll voting, and the distribution of a pamphlet to all Australians containing 2,000 words written by the Yes and No campaigns to convince voters. Williams said these provisions could be considered outdated, while more recent considerations like campaign finance, truth in advertising and misinformation were not covered.

"There have been updates, but much of it remains from that time. It means we have rules that have yet to be adapted for radio or television, let alone social media," he said.

Williams said rules should be updated to allow for the provision of "neutral" campaign detail about the constitutional change, not merely "partisan" information from the respective campaigns. He added that considerations around truth in political advertising, as well as regulation of political finance related to the referendum, should also be examined.

"Will it be a free for all? Will there be caps on donations and expenditure?" Williams said.

"It's appropriate people can raise and spend money, but we don't want this to become an arms race."

Dreyfus told the National Press Club the government was examining how to achieve "transparency in donations", suggesting greater safeguards even than those in federal elections.

A spokesperson for Dreyfus wouldn't comment on what changes could be made to the Referendum Act, only saying the government was "considering amendments to modernise" it.

However, government sources suggested some provisions in the act were "archaic".

Williams could not comment on any discussions inside the constitutional group. He said he didn't believe the group would be asked to give advice on updating the Referendum Act, but to provide guidance on the constitutional ramifications of the referendum question itself.

"Technical advice on the wording implications and risk, that's what I'd anticipate. In the constitution, the choice of a single word can have a big impact," he said.

Dreyfus also declined to comment on the deliberations of the group.

"The Constitutional Expert Group has been established to provide legal support to the Referendum Working Group on constitutional matters relating to the referendum. The matters discussed by the Expert Group will be determined by the Working Group," the spokesperson said.

Burney told ABC Radio National on Monday that amendments to the Referendum Act would be introduced before year's end. Guardian Australia understands this could occur in the final week of parliament in late November.

Responding to criticisms that there was not enough detail about the voice, including its membership and functions, Burney said "there's a lot happening behind the scenes".

Burney said there would be government funding for a civics campaign, but that a decision hadn't been reached on funding for the respective sides of the campaign.

Government sources said it may be unlikely the government would fund a No campaign, suggesting no public funding for either side was a likely outcome.