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Known unknowns about the same sex marriage survey


Following its failure to reintroduce the Plebiscite (Same-Sex Marriage) Bill 2016 to the Senate Notice Paper, the Government has directed the Australian Bureau of Statistics (ABS) to conduct a survey of all electors ‘about whether the law should be changed to allow same-sex couples to marry’.

In the absence of enabling legislation, and with no historical precedent of the ABS running a national survey of all electors, there remain many unanswered questions as to how the vote will proceed, both in terms of law and logistics.

The terminology around the survey is still somewhat confusing, being referred to as a vote, or a plebiscite, or a poll. The ABS has been instructed to ‘collect statistical information’, rather than to run a ballot, so it is perhaps most correct to refer to it as a survey. The ABS have referred to the survey as a ‘postal survey’, however there appears to be nothing in the directions to the ABS to require it be conducted by post.

Referendums (and the proposed plebiscite under the Plebiscite Bill, had it been passed) are conducted under the Referendum (Machinery Provisions) Act 1984 (RMPA), and elections are conducted under the Commonwealth Electoral Act 1918 (CEA). However it is unclear at this point how much the survey will resemble an election. The Finance Minister has stated that the ‘arrangements will be broadly in line with the arrangements that are in place in the context of an election’.

In an election or referendum there are detailed laws that dictate how the vote is run (these are covered in separate pieces of legislation, but the requirements and processes for each are very similar). These include things like which votes are formal and can be counted, what happens when multiple postal votes are received from the same person, and how to verify the voter is eligible to vote while preserving the anonymity of their vote. The laws also allow scrutineers appointed by candidates to observe the vote, and avenues for appeal for any detected irregularities.

It is not yet clear how election-like the survey will be, but the Finance Minister’s statement above suggests that it will look more like an election ballot than, for example, the Census.

The Minister stated in Parliament that ‘there are offences in relation to the stealing of mail, the tampering with mail and the interference with mail. There is a strong framework already in place for the prevention of hate speech and incitement to violence.’ The Minister has also proposed drafting a Bill to apply the usual electoral rules, such as protections against bribery and malicious publications, to the survey.

The legislation for the ABS, the Census and Statistics Act 1905 (CSA), does contain some offences in relation to information provided to the ABS, such as false or misleading statements (section 15). It also contains provisions to make regulations in relation to the CSA which can prescribe penalties.

The direction to the ABS to carry out the poll states that it will survey electors on the electoral roll as of 24 August 2017, however it is not clear under what authority the ABS will have access to the roll.

The ABS is listed as a prescribed authority on the Electoral and Referendum Regulation 2016 (Schedule 1) as able to access the roll under subsection 90B(4) of the CEA for the purpose of ‘collecting, compiling, analysing and disseminating statistics and related information’. However, subsection 90B(6) provides that the Electoral Commission must not give information about a person who is registered as a silent elector. Similar issues exist for those enrolled as eligible overseas electors. The Finance Minister has since stated that silent electors will have a vote, however has not yet clarified how this will operate. An arrangement under section 7A of the CEA with the ABS, however, may be involved.

Both the ABS and the AEC have provisions for collecting statistics or votes (respectively) from homeless and itinerant people. It is not clear how these people will be able to participate in the postal survey.

There is also some uncertainty as to how election campaign finance and disclosure laws will apply to campaigns in relation to the survey. The Finance Minister has stated that ‘the authorisation provisions [for advertisements]… are obviously not in force.’ The AEC’s advice in relation to campaign advertising outside an election period that advertising that is intending to affect a person’s vote (ie, not the survey but voting in the next election) may be covered by the authorisation provisions, depending on the intention or effect of the advertising.

The Finance Minister has confirmed to the media that members of parliament would be able to use their printing and communications entitlement to campaign for the survey.

It is also worth noting that the head of the ABS, the Australian Statistician, is a member of the Electoral Commission (along with the Electoral Commissioner and a retired judge) which sits at the top of the AEC. So it would be expected that the Statistician would be both reasonably familiar with electoral practice, and have access to good advice from electoral experts, in conducting this survey. In addition, the ABS has indicated that AEC staff seconded to the ABS will be involved in delivering the survey.

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