Constitutions are strange things. Written hundreds of years ago, they are still considered by some with almost biblical reverence. To change them requires some sort of national consensus and is usually doomed to failure. Unfortunately for constitutions, the world changes and parts become irrelevant, superseded or just plain wrong on current values.

In America, since the constitution was written in 1789 (233 years ago) there have been 27 amendments although 10 were combined into the Bill of Rights. That is a rate of on average one amendment every eight and a half years.

The famous second amendment for the right to bear arms was in 1791. Personally, I see no real problem with the right to bear arms as seen by the draftees. Everyone should be entitled to own a musket. Muzzle loading and single shot. Somewhat of a challenge for mass killing when you need about a minute to reload. Particularly so if the police have sniper rifles and automatic weapons. Anyway…

In Australia, a referendum requires both a majority of voters across Australia, and a majority of voters in a majority of states, to approve the change. Only 8 of 44 referendums held since 1901 have passed. At the bottom is a list of the successful eight.

As an example of a failed referendum, in 1919 there was a vote to give the government power to legislate in respect of monopolies. Today, the vote would have a good chance of being passed in most western countries. Another one that was rejected happened in 1937. The referendum was to give the Federal Government control over Aviation rather than State Governments. The negative argument was that it would adversely impact rail if the federal government controlled aviation. Part of the argument was stated in a newspaper of the time.

“A “Yes” vote will wreck State railway systems, in which the electors have £311,486,688 invested, and in which 79,145 are employed. A “Yes” vote would bankrupt country towns, mean dearer freights, and dearer food, and would pave the way for an Imperial Air Trust.”

In 1951 there was a vote to give the government power to dissolve the communist party. It failed by less than one percent.

This is not meant to be a discussion of constitutional change, but you can see how hard it is to change established methods. What I did want to discuss is one aspect of how our government works. The referendum and the plebiscite.

To hold a referendum, the government of the day usually needs a topic that has near universal political support. No referendum has passed unless it had the support of all major political parties. Even then, victory was never assured until the votes were counted. A referendum is also an extremely costly exercise. It is usually, but not always, held in conjunction with a federal election.

The last referendum was in 2000 on the subject of Australia becoming a republic. It cost $66.8m to run which in today’s terms is about $115m. But that is only the start. There is all the publicity and advertising for both sides of the case. All the time required by vested parties to promote their side. We could be talking three, four or even five hundred million to get a rejection under the strict rules that apply.

All this begs the question of whether there is a better way.

The questions put to referendum tend to be the big issues of the era. Forty-four referendum over one hundred and twenty-two years says we only ask a question on average once every three years. More regularly than in the USA.

Another approach has been to use a plebiscite. This is basically a non-binding referendum. There have only been four. Two were regarding conscription in 1916 and 1917 and were rejected. One was regarding the national anthem in 1977 which inflicted our current national anthem upon us. The most recent was in 2017 when 61.6% voted in favour of gay rights.

Now to digress for a moment. I am old enough to have been in the ballot for conscription in the 1960s. The government drew out a number of dates, and if your birthday was on that date, you were conscripted into the army for two years You possibly ended up in Vietnam. Curiously, and I have spoken to a couple of people my age, most of us were not overly concerned about joining the army. If it happened it happened. I missed out.

There were some protests mainly through universities but at the time, less than 10% of those who completed high school went on to university. In 1960 the total number of university students in Australia was 53,000. Today it is over a million. The mythology about the era was one of mass protest and rejection of conscription, but for the majority of 18-year-olds, we had no understanding of politics or government and just did as our parents would have done. Never judge the past by the values or attitudes of today.

What if we applied the same approach to government decisions using an online plebiscite? There are 17.3m enrolled voters. If you divide that by 365 days in the year, you have roughly 47,000 electors having a birthday each day. It would be hard to get a more representative cross-section of the Australian voting public than by taking a slice for each day. I am not a statistician but common sense tells me that if you could split a particular referendum into 365 daily slices, the vote is not going to vary much day-to-day. If there is an unacceptable variation make it two days or five days until the variation is acceptable. Of course, if you believe Capricorns vote differently from Libras we might have a problem.

Instead of a referendum happening every couple of years, we could do a plebiscite on a particular question every few months with a different group. The result is not binding, but it gives the government a strong nudge to make a particular decision in the way the plebiscite votes.

The mechanics would work like this. An independent drafting body hears arguments from both sides. They draw up a short (e.g. one or two-page) case for and a similar case against. The language used is easy to understand but not meant to over-simplify the issue. A highly complex issue such as which nuclear submarine to purchase does not lend itself to the plebiscite approach. A question such as whether to proceed with the proposed Stage 3 Tax Cuts does.

Further information in more detail is also prepared by the drafting body and made available on a website. Information is forwarded to the selected birthday voters. They are given a phone number to call for further information and questions can be posted and answered by the voters. Only the voters and the drafting members can post information to avoid lobbying and keep the discussion as honest as possible.

By the nominated date, people vote electronically or by paper if they are not computer users. I would expect at least eighty or ninety percent will vote electronically. The results are announced, and the government can act on the result with confidence that the proposal is what the majority support or they can dismiss the result and explain why.

The obvious question is why is this any different to just doing a survey? There are a couple of reasons. Surveys often seek a particular answer. “Do you still beat your wife – Yes or No”. The answer is either ‘yes’ I still beat my wife or ‘no’, I did beat her but have stopped now.

Not all people are available to participate in a survey. There is a whole industry in providing candidates to research firms to carry out surveys. The sample may not be a good representation of national views.

Another reason is that surveys often have a gap between intention and action. I might vote yes to the question of my current phone needing an upgrade but when it comes to spending the money, I will live with it for another few years. Having an independent body draft the for and against arguments is more likely to get an honest response. Back this up with more information if I need it on a website, and a place to get answers to any questions and the result is likely to be the closest to an honest opinion you will get. Some will do their research and others will just vote after reading the question. That is how politics works in real life with real people.

Benefits. Governments can put significant changes to a public vote with minimal cost. It gives them both confidence and cover for decisions. Cover in terms of “we asked the voters and this is what they wanted. Don’t blame us.” It gives the voting public an opportunity to contribute to decision-making without waiting until the next election.

The risks are that it can be used by a government to push an agenda but they do that anyway. The presentation of the argument can be biased and the drafting body would need to be set up to withstand pressure to build in bias. Another risk is that problems too complex to understand are put to voters. A question such as ‘should we increase spending on defence’ is a multi-dimensional issue that not only requires expertise but also access to confidential intelligence information. The biggest risk to the government is that they get the answer they don’t want.

The constitution defines how the government works but the world has moved on. We need to take advantage of the social, technical and intellectual evolution and look for new ways to do things. Perhaps this is one of those ways.

Successful Referendums in Australia.

• 1906 – Changed the terms of members in the Senate
• 1906 – Commonwealth could transfer State debt to the Commonwealth
• 1928 – Changes to the debt arrangements between State and Commonwealth
• 1946 – The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.
• 1967 – An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population. This enabled the counting of Aboriginals in a census but did not give them the vote.
• 1977 – Three referendums passed. The first was about the replacement of Senators who died or left before they were due for election. The second allowed voter in Territories (ACT and NT) to vote in referendums. The third put an age of 70 as the retirement age for judges appointed to lifetime roles in the major courts.