Bills Digest no. 22,
2016–17
PDF version [677KB]
Mary Anne Neilsen
Law and Bills Digest Section
11
October 2016
Contents
Purpose of the Bill
Structure of the Bill
Background
Same-sex marriage
Parliamentary
Library publications on same-sex marriage
A popular vote by
plebiscite
Exposure Draft of the Marriage
Amendment (Same-Sex Marriage) Bill
Committee consideration
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Plebiscite on same‑sex marriage
The plebiscite proposal and the
plebiscite question
Timing of the plebiscite
Determining the result of the
plebiscite
Role of the Electoral Commissioner
Application of the Referendum Act
Forms for the writ for the plebiscite
and the ballot-paper
Committee for the Yes Case and
Committee for the No Case
Comment
Broadcasting
Other provisions
Scrutineering
Recount of the ballot papers
Return of the writ
Postal and pre-poll voting
Advertising
Disputed returns
Concluding comments
Date introduced: 14
September 2016
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
Purpose of the Bill
The purpose of the Plebiscite (Same-Sex Marriage) Bill 2016 (the
Bill) is to establish the legislative framework for a
compulsory vote in a national plebiscite that would ask Australians ‘Should the
law be changed to allow same-sex couples to marry?’. The Bill would also
authorise federal spending on this plebiscite.
Structure of the Bill
The Bill is unusual in that it is not a stand-alone piece
of legislation but, rather, incorporates a number of provisions from other
legislation. In particular the Bill would apply provisions from the Referendum
(Machinery Provisions) Act 1984[1]
(the Referendum Act). The effect of this is that the legal
framework for a referendum would apply to the plebiscite, including: the ‘one
vote per person’ rule; formality rules for ballot-papers; provision for the
appointment of scrutineers; and compulsory voting. This would mean that the
plebiscite would be conducted in much the same way as a referendum.
The Bill also incorporates provisions from the Commonwealth
Electoral Act 1918[2]
(the Electoral Act), as well as from other pieces of
Commonwealth legislation including the Broadcasting
Services Act 1992[3]
and the Special
Broadcasting Service Act 1991.[4]
The Bill consists of four Parts and one Schedule:
- Part
1 contains commencement details, an outline of the Act and relevant definitions
- Part
2 contains clauses relating to key aspects of the plebiscite including: the
role of the Governor-General in causing the plebiscite to be held; the actual
plebiscite question to be put to the electors; the rules for determining the
result of the plebiscite; and the role of the Australian Electoral Commission
in conducting the plebiscite
- Part
3 provides the framework for how existing Commonwealth laws will apply and
includes additional or replacement provisions that will be specific to the
running of this plebiscite
- Part
4 deals with miscellaneous matters and contains a provision to appropriate
funding for the plebiscite and a regulation making provision
- Schedule
1 to the Bill contains two forms relevant to the holding of the plebiscite:
Form A is the writ for the plebiscite and Form B is the ballot paper for the
plebiscite.
Note that the Bills Digest does not describe in detail the
provisions incorporated from other legislation but highlights some of the more
significant.
Background
Same-sex marriage
Same-sex marriage has been on the political agenda in
Australia for several years, as part of the broader debate about the legal
recognition of same-sex relationships.
The right to marry remains the one significant area of
difference between the treatment of same-sex and heterosexual relationships. Advocates
of marriage equality argue it is important to move quickly to remove this last
remaining obstacle to full legal equality.[5]
However, while there has been a shift in community and political opinion, for some
the issue of same-sex marriage remains complex and controversial raising human
rights, social and religious questions.[6]
The Marriage
Act 1966[7] (Cth) defines marriage as ‘the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life’. This definition
was inserted into the Marriage Act in 2004.[8]
Since the 2004 amendments[9] 22 Bills dealing with
marriage equality or the recognition of overseas same-sex marriages have been
introduced into the federal Parliament. No Bill has progressed past the second
reading stage and, consequently, no Bill has been debated by the second
chamber. All 22 Bills have been private members’ Bills, introduced by members
of Parliament from across the political spectrum.[10] There are currently four
Bills before the Parliament.[11]
During the 44th Parliament the debate about same-sex
marriage further intensified, triggered, in part, by international developments
in the United Kingdom, New Zealand, the United States and Ireland where
same-sex marriage is now permitted.[12]
The debate was spurred on by the introduction of a raft of private members Bills
and, finally, by the Coalition party room decision in August 2015 to reject a
policy change allowing a conscience vote on same-sex marriage adopting, instead,
a proposal to put the matter to a popular vote after the 2016 election.[13]
Then Prime Minister Abbott, in arguing in support of a popular vote, said: ‘this
[matter] in the end is so personal, so sensitive, so intimate, if you like,
that it really should be decided by people rather than by Parliament’.[14]
Following the July 2016 election, Prime
Minister Turnbull stated that, in keeping with the Coalition’s election
commitment, the Government would introduce into the Parliament a Bill for the
holding of a plebiscite on same-sex marriage as soon as is practicable and most
likely in early 2017.[15]
Parliamentary Library publications on
same-sex marriage
Further detail about the history of the same-sex marriage
debate is beyond the scope of this Bills Digest. For further information about
the arguments for and against same-sex marriage, the constitutional questions,
and the various same-sex marriage Bills that have been introduced into the
Parliament the reader is referred to a range of publications prepared by the
Parliamentary Library:
D McKeown, A chronology of same-sex marriage bills introduced into the federal
parliament: a quick guide, Research
paper series, 2016–17, Parliamentary Library, Canberra,
updated July 2016.
M Neilsen, Same-sex marriage: issues for the 44th Parliament, Research paper series, 2015–16, Parliamentary Library, Canberra, 8
September 2015.
M Neilsen, ‘Same-sex
marriage’, Briefing book: key issues for the 45th
Parliament, Parliamentary Library, Canberra, 30
August 2016.
A popular vote by plebiscite
In Australia, the terms ‘plebiscite’ and
‘referendum’ have quite distinct meanings. At national level, a referendum is a
vote to change the Commonwealth Constitution,[16] subject to strict rules set out in section 128 of the Constitution
and with a binding outcome. If the electors vote yes, and the Governor
General gives Royal Assent, then the Constitution is actually changed. For
a referendum proposal to succeed at federal level it must obtain a ‘double
majority’, meaning it must win the majority of votes nationally and also win in
a majority of the states (four out of six states). Since Federation there have
been 44 proposals for constitutional change put to Australian electors at
referendums. Only eight have been approved.
Legally a referendum to decide the
Commonwealth’s power over same-sex marriage is not necessary. The High Court
has determined that, in the Same-sex marriage case,[17] the federal Parliament
has the power to legislate with respect to same-sex marriage.[18]
In contrast, a national plebiscite is a
vote by citizens on any subject of national significance but which does not
affect the Constitution. Plebiscites are normally advisory and do not
compel a government to act on the outcome. There have only been three national
plebiscites—two on conscription during World War I (both defeated) and one on the
choice of a National Song in 1977. Plebiscites have been
used by state governments from time to time, especially to deal with social
issues, such as hotel trading hours or daylight saving.
While the procedures and requirements for conducting
constitutional referendums are prescribed in detail by the Referendum
(Machinery Provisions) Act 1984, there are no overarching statutory
provisions in Commonwealth law regulating the conduct of national plebiscites.[19]
Before introduction of the Bill there was speculation on
how the plebiscite might operate. Normally the conduct of a national plebiscite
would be established by a special Act of Parliament or by regulation. The
enabling Act for the plebiscite would set out the purpose of the plebiscite and
enable a vote to be conducted by the Australian Electoral Commission. The Act
may or may not specify any actions expected of the government as a result of
the plebiscite. It may also specify whether voting will be compulsory or
voluntary and set out the rules for approval (that is whether it is 50 percent
of the vote or a greater number). An Act for a plebiscite would either enable
all the usual election and referendum provisions, or otherwise specify an
alternative mechanism. The enabling Act should also specify
whether voting will be compulsory or voluntary, although there has been debate
about whether a compulsory plebiscite may be subject to a constitutional
challenge.[20]
Some argue that the Act should specify the actual question to be put to the
electors.[21]
On 13 September 2016, the Government
announced its intention to introduce the Bill into Parliament and provided details
of the framework for how the plebiscite would be conducted:
- the
plebiscite, to be held on Saturday 11 February 2017, is to be run and managed by
the Australian Electoral Commission and will ask voters: ‘Should the law be
changed to allow same-sex couples to marry?’
- voting
will be compulsory and the result will be determined by a simple majority of
votes (50 per cent + 1 vote)
- if
the plebiscite passes, the Parliament will promptly legislate to amend the Marriage
Act 1961 to enable same-sex couples to marry (see the Exposure Draft below)
- the
Australian Government has budgeted $170 million to run the plebiscite
- ‘Yes’
and ‘No’ advertising committees will be appointed by the Attorney-General and
the Special Minister of State to run the advertising campaigns with each
consisting of members of the Government (2), the Opposition (2), Cross-Bench
(1) and the public (5). The Government will support the advertising campaigns
of the ‘Yes’ and ‘No’ committees with a grant of $7.5 million to each committee
in addition to them being afforded deductible gift recipient status up to a
limit of $1,500
- expenditure
will be limited to costs associated with advertising in the four weeks leading
up to the poll. Advertising will be submitted to the Service Delivery
Coordination Committee of Cabinet for clearance.[22]
The Bill that was introduced into Parliament the following
day is described in further detail below.
Prime Minister Turnbull has indicated
that Coalition members will not be bound by the outcome of the plebiscite,
although he is in no doubt that, if the plebiscite is carried, an overwhelming
majority of Members and Senators will vote for the subsequent Bill that would
permit same-sex marriage.[23]
Exposure
Draft of the Marriage Amendment (Same-Sex Marriage) Bill
On 10 October 2016, the day prior to the Bill’s scheduled
debate in the House of Representatives, the Government released an Exposure
Draft of the Marriage Amendment (Same- Sex Marriage) Bill, a Bill that would
amend the Marriage Act to allow same-same sex marriage. The Exposure
Draft would insert a new definition of marriage into the Marriage
Act to mean: ‘the union of two people, to the exclusion of all others,
voluntarily entered into for life’[24]
and it would repeal the existing ban on the recognition of same-sex marriages
solemnised overseas. The Exposure Draft would also provide exemptions for
marriage celebrants (both religious and civil) who may have religious or
conscience objections to solemnising same-sex marriages. Religious bodies and religious organisations would also be
able to refuse to provide facilities, goods or services for the purpose of
solemnisation of a same sex marriage.[25]
In the event that the Parliament passes the Plebiscite
Bill, the Government proposes the establishment of a Joint Select Committee to
review and report on the Exposure Draft. The composition of the Committee would
be as agreed by the Government, the Opposition, and Crossbench parties. The
Attorney-General’s press release states:
In all its dealings in this matter, the Government has acted
in good faith to acknowledge the diverse and strongly held views of all
participants. The Government recognises that it is important for Australians to
know what the effect may be of voting ‘yes’ or ‘no’ at the plebiscite.[26]
The Labor Party in response stated that the Exposure Draft
is not a Bill that that delivers equality, but rather one that entrenches
discrimination:
If the Government’s only objective was to achieve marriage
equality, these amendments would stop at removing the words “man and woman”
from the Marriage Act. But they go much further.
[...]
These amendments introduce new forms of legal discrimination
against the LGBTI community.
This exposure draft also includes exemptions to
discrimination law for civil celebrants, to permit them to refuse to marry
same-sex couples. This government needs to explain why it believes it is
necessary to allow this exemption to civil celebrants, who are authorised by
the Commonwealth to perform civil, not religious, ceremonies. Religious
organisations would also be allowed to refuse goods and services to same-sex
couples for their weddings.
[...]
If the Government truly wanted marriage equality, it would
drop this plebiscite altogether and allow a free vote on the floor of
Parliament today.[27]
Committee consideration
At the time of writing, the Bill had not been referred to a
committee for inquiry and report.
However, in August and September 2015, the Senate Legal
and Constitutional Affairs Committee conducted an inquiry into: ‘The matter of a popular vote, in the form of a plebiscite
or referendum, on the matter of marriage in Australia’ (the 2015 Committee
inquiry). Details of the inquiry and the Committee report are available
on the inquiry
website.[28]
The 2015 Committee inquiry was in part an inquiry into the
Marriage Equality Plebiscite Bill 2015, a private senators' bill, sponsored by
Senators Rice, Lazarus, Leyonhelm, Lambie, Muir and Xenophon. The Bill was a
response to the Coalition’s announcement that it proposed to put the matter of
same-sex marriage to a popular vote after the 2016 election. The purpose of
this Bill was to provide for a national plebiscite on the issue of same-sex
marriage, to be conducted at the 2016 general election. The question to be put
at the plebiscite was: ‘Do you support Australia allowing marriage between 2
people regardless of their gender?’.
The majority report by the Committee did not endorse a
plebiscite, but instead recommended that ‘a bill to amend the definition of
marriage in the Marriage Act 1961 to allow for the marriage between two
people regardless of their sex is introduced into the Parliament as a matter of
urgency, with all parliamentarians being allowed a conscience vote’.[29]
Submissions to this inquiry are referred to below.
Senate Standing Committee for the Scrutiny of Bills
At the time of writing the Scrutiny of Bills Committee had
not reported on the Bill.
Policy position of non-government parties/independents
The Australian Labor Party is opposed to
a plebiscite, stating:
Labor wants marriage equality right now - and a free vote is
the fastest, least expensive, least harmful way to achieve that.[30]
On 12 September 2016 Mr Shorten introduced into Parliament
the Marriage Legislation Amendment Bill 2016[31]
that would amend the Marriage Act to bring marriage equality.[32]
Under current party rules, members of Parliament would
be allowed a conscience vote on this Bill or any other Bill legalising same-sex
marriage. While opposed to the holding of a plebiscite, the Labor Party will
finalise its position on the Government’s Bill at the caucus meeting when
Parliament first sits in October.
Independents and minor parties have
expressed a range of views.[33]
The Australian Greens have consistently supported same-sex
marriage and have sought to legislate in support of their position. The Greens state they will vote against a plebiscite arguing that questions of human rights should never be put to an opinion poll.[34]
Senator Nick Xenophon, Mr Andrew Wilkie,
Ms Cathy McGowan and Senator Derryn Hinch support same-sex marriage,
preferring a parliamentary vote rather than a plebiscite.[35] Mr Wilkie and Ms McGowan
have co-sponsored a private member’s Bill with Mr Adam Bandt that would provide
marriage equality.[36]
Senator David Leyonhjelm, who has also introduced private
bills that would legalise same-sex marriage, supports a plebiscite saying it
would be the fastest route to same-sex marriage.[37]
Mr Bob Katter, Senator Jacqui Lambie and Senator
Pauline Hanson oppose same-sex marriage. Senator Lambie had argued that the
Coalition should have held the plebiscite at the 2016 election so that the
matter could be decided. She supports a plebiscite on the basis that it gives
‘power back to the people’.[38]
Senator Hanson supports a referendum rather than a plebiscite arguing that by holding a referendum on the matter, ‘it provides a fresh and
clear definition of marriage, that can be enshrined into the Australian
Constitution’.[39]
Position of major interest groups
Public attitudes, gauged in a recent opinion poll, suggest
that support for a plebiscite has waned, due in part to the realisation of its
non-binding nature and the cost involved.[40]
Those in favour argue that social issues like marriage
should be resolved by means of direct democracy such as a plebiscite. For
example, Professor Jim Allan explained to the 2015 Committee inquiry that he
believed social policy issues ought to be resolved by means of a democratic
process, such as a plebiscite:
Such processes have the great advantage of counting all
electors as equal, so that a plumber or secretary's moral views count for as
much as a lawyer's or someone working for some United Nations agency. This, in
my view is the appropriate way of resolving all divisive social policy issues.[41]
The Ambrose Centre for Religious Liberty also favoured a
plebiscite arguing it would deliver a clear picture of the belief of the
Australian population on the question of marriage.[42]
Those opposed to a plebiscite argue it is
an expensive opinion poll (with a Government appropriation of $170 million) and
with no guarantee that Parliament will heed the result.[43] Opponents point to its
potential to be divisive and incite homophobic hatred.[44] They also argue human
rights issues affecting a minority should be decided by a representative
Parliament and that Parliament has not in the past and should not now, abrogate
its responsibilities on important human rights issues.
For example, Liberty Victoria in their submission to the
2015 Committee inquiry condemned a popular vote:
To seek to put ordinary legislation to a popular vote,
especially legislation about discrimination against one group long subject to a
history of discrimination, is to misunderstand the nature of representative
democracy. Members of the public delegate their power to make laws to
parliamentary representatives. It is the duty of [Members of Parliament] and
Senators to act, to the best of their ability, without fear or favour, honestly
and diligently, in carrying out the responsibility so delegated. They betray the
people's trust if they shirk that responsibility. Putting marriage equality to
a glorified opinion poll is just such a dereliction of duty.[45]
In more recent weeks the strongest opposition to the
plebiscite has been expressed by those concerned about the impact of a public
vote on the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.
Professor Patrick McGorry, Professor of Youth Mental
Health at Melbourne University and former Australian of the Year, has warned a
public campaign on same-sex marriage could increase the risk of self-harm and
suicide in the already-vulnerable LGBTI community. He was quoted as saying:
Things will be said which will hurt people. Many of them are
already vulnerable. There’s definitely risk involved.[46]
Professor Anne Twomey has recently added a new perspective
suggesting the plebiscite debate has demonised what she argues is a powerful
source of democratic legitimacy:
A surprising casualty of the debate about marriage laws has
been the democratic legitimacy of the plebiscite as a tool for making decisions
on highly fraught contentious issues.
Suddenly, its use has been demonised as being
constitutionally suspect, contrary to our system of representative government, undermining
the ability of members of parliament to do their jobs and creating a pernicious
precedent that will destroy parliamentary democracy.
While people may legitimately and passionately dispute
whether or not it is a good idea to hold a plebiscite on this particular issue,
many of the arguments have gone too far in attacking the use of plebiscites
altogether, in a manner that may damage their future use.
A plebiscite is primarily used to resolve contentious social
issues where there are divisions within political parties, and a vote of parliament
alone would probably not be sufficient to quell social disagreement on the
issue.
Its purpose is to ensure that those with strongly held views
on one side of the argument receive definitive evidence that their view is not
supported by a majority. This allows them to accept the outcome and gives
greater democratic legitimacy to the action of the parliament when it
legislates to implement the view of the majority.
It is therefore a very useful democratic mechanism to resolve
such passionate conflicts in a peaceful manner.[47]
Expressing a different view, High Court justice Michael
Kirby has stated that a plebiscite is against the spirit of the Constitution:
"The fact that we haven't had a plebiscite in a hundred
years is an indication that it’s just alien to our constitutional
tradition," he said.[48]
Mr Kirby was reported as pointing out that ‘other social
issues had not been voted on in a plebiscite, such as abolishing the White
Australia Policy, advancing women's rights and disability issues.’ [49]
It therefore raised the question as to why the LGBTI community is being singled
out.
For further information on the arguments for and against a
plebiscite the reader is referred to the 2015 Committee inquiry report. That
inquiry received 77 submissions and chapter three of the report canvasses a
selection of the different arguments put to the Committee.
Financial implications
The Explanatory Memorandum states that the Bill would have
a financial impact of $170 million.[50]
Clause 40 of the Bill provides that the Consolidated Revenue Fund would
be appropriated for the purposes of paying or discharging the costs, expenses
and other obligations incurred by the Commonwealth in relation to the plebiscite
and for the cost of expenses of the Committee for the Yes Case and the
Committee for the No Case.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[51]
Parliamentary Joint Committee on Human Rights
At the time of writing the Committee had not reported on the
Bill.
Key issues and provisions
Plebiscite on same‑sex
marriage
The plebiscite proposal and the
plebiscite question
The plebiscite proposal is defined to mean the proposal for
the law to be changed to allow same-sex couples to marry (clause 4).
Clause 5 of the Bill provides
that the Governor‑General may cause a plebiscite to be held in
accordance with this Act. The question to be submitted to electors at the
plebiscite is:
Should the law be changed to allow same‑sex couples to
marry?
Timing of the plebiscite
Subclause 5(3) provides that the writ for the
plebiscite must be issued within 120 days after the day this Act commences.
However, the voting day may be deferred in accordance with other provisions in
the Referendum Act.[52]
The Explanatory Memorandum explains the mechanics of those provisions and
states that the practical effect is that the plebiscite would need to be held
between 33 and 178 days after the day this Act commences.[53]
The Government has stated that the plebiscite is to be
held on 11 February 2017.[54]
Determining the result of the plebiscite
Clause 6 of
the Bill provides that the results of the plebiscite will be
determined by a simple majority. This means that the result of the plebiscite
is to be in favour of the plebiscite proposal if, more than 50 per cent of the
votes cast are given in favour of the plebiscite proposal. The result is not in
favour, if more than 50 per cent of the votes cast are given not in favour of
the plebiscite proposal. Informal votes are to be disregarded.[55]
Clause 8 of the Bill confirms that it is not an offence to vote
informally in the plebiscite.
Role of the Electoral Commissioner
Section 7 of the Electoral Act sets out the
functions of the Electoral Commission and paragraph 7(1)(g) provides that the
functions include those conferred on the Commission by any law of the
Commonwealth. Subclause 7(1) of the Bill provides that the Electoral
Commission will have the functions in relation to the plebiscite conferred on
it by the Bill and the Referendum Act as it applies. The effect of these
provisions is that the Electoral Commission will conduct the plebiscite.[56]
Application of the Referendum Act
Clause 9 is central to the Bill. It provides that
the Referendum Act applies in relation to the plebiscite subject to the
modifications set out in Division 1 of Part 3 of the Bill. Subclause 10(1)
provides that references to the term referendum or referendums in the Referendum
Act include references to the plebiscite subject to the exceptions in subclause
10(2). Clauses 9 and 10 are key provisions, their effect being that the
existing Referendum Act provisions would apply to the plebiscite,
subject to certain modifications. The Referendum Act provisions include covering
procedural aspects such as creating the writ, voting (including postal and
pre-polling, and the requirement for compulsory voting) and formality rules for
ballot-papers. As the Explanatory Memorandum also explains, subclause 10(1)
would also ensure that offences relating to referendums would apply to the
plebiscite. Examples of offences include failing to vote, misleading or
deceptive publication and fraudulently tampering with ballot-papers. The
practical effect of clauses 9 and 10 therefore is that they would enable
the plebiscite to be held in much the same way as a referendum is held under
the Referendum Act.
Forms for the writ for the plebiscite and the ballot-paper
Schedule 1 to the Referendum Act contains the forms
for the writ for a referendum (Form A) and for the ballot paper (Form B). Subclause
14(2) of the Bill has the effect of replacing those forms with the Forms A
and B in Schedule 1 to the Bill. Form A is the writ for the plebiscite
and Form B is the ballot paper for the plebiscite.
Form A would allow the Governor-General to command the
Electoral Commissioner to submit the plebiscite proposal to all electors who
are entitled to vote at elections.
Form B sets out the question to be submitted to voters:
Should the law be changed to allow same-sex couples to marry? It would also
allow electors to write ‘yes’ or ‘no’ in the box provided.
Committee for the Yes Case and Committee for the No Case
Section 11 of the Referendum Act deals with
distribution to electors of arguments for and against a proposed law for the
alteration of the Constitution. It sets out strict rules about how the
‘yes’ and ‘no’ cases are to be prepared, printed and circulated to voters. In
addition, under subsection 11(4), the Commonwealth may only expend money on
specific activities in relation to the presentation of the ‘yes’ and ‘no’
arguments for proposed constitutional amendments.
Clause 15 of the Bill replaces section 11 of
the Referendum Act with new sections 11 and 11A for the
purposes of the plebiscite. By comparison the replacement provisions provide a
quite different and more flexible framework for how the ‘yes’ and ‘no’ campaign
for the plebiscite will operate. Replacement section 11 provides for the
establishment of a Committee for the Yes Case and a Committee for the No Case
(the Committees). The purpose of the two Committees is to conduct the campaign
in favour and the campaign against the plebiscite proposal. The Committees may
do all things necessary or convenient to be done for the purposes of the
Committee. Each Committee is to consist of up to five members of Parliament
(including up to two members of Government; up to two Opposition and one other
member) and up to five other individuals. Committee appointments would be made
by the Attorney-General and the Special Minister of State and the Chair of each
Committee would be one of the Government members. The functions and other
matters to do with the Committees may be provided by notifiable instrument from
the Special Minister of State.
Replacement section 11A deals with the management
of funding and gifts to the Committees. It provides that the Special Minister
of State may, on behalf of the Commonwealth make a total payment of up
$15,000,000 to the Committees and must ensure that the total amounts paid to
each Committee are equal. The Chairs of the Committees must establish bank
accounts for the purposes of receiving such payments as well as any deductible
gifts or other payments. Deductible gifts are gifts of money made to the
Committees that are tax deductible (replacement subsection 11A(10)).
Gifts of money of $2 or more, up to a maximum of $1,500 to each Committee would
be deductible under Subdivision 30-A of the Income Tax
Assessment Act 1997[57]
(clause 39 of the Bill).[58]
The Special Minister of State may by notifiable instrument issue directions to
the Committees relating to the use and governance arrangements for these
payments and gifts (replacement subsection 11A(5)).
Comment
The Explanatory Memorandum does not spell out why it has
chosen to suspend the operation of section 11 for the purposes of the
plebiscite, however, it would seem that the intention is to remove the strict
regime that applies to funding the ‘yes’ and ‘no’ campaigns in a referendum and
to instead allow the Committees considerably more flexibility in how they spend
the $15,000,000 and the other funding and gifts received. As Gilbert and Tobin
have explained:
Section 11(4) of the Referendum Act provides that the
Commonwealth "shall not expend money in respect of the presentation of the
argument in favour of, or the argument against , a proposed law" unless
that spending is in relation to the production and distribution of the official
"Yes/No" information pamphlet, or ancillary activities. This
provision therefore stands in the way of any federal government that wishes to
fund Yes and No committees. It also prevents the Commonwealth from spending
money to promote referendum arguments via mass media outlets such as
television, radio and newspapers, even if it wishes to do so in an even-handed
manner. The expenditure limits further pose a barrier to government spending on
education campaigns, as such spending will be vulnerable to challenge where any
information materials produced could be perceived as crossing the fine line
between neutral information and "argument".[59]
The Gilbert+Tobin Centre of Public Law argued that the
restrictions in subsection 11(4) of the Referendum Act, are 'unsuited to
a modern-day campaign environment':
Rather than apply the Referendum Act's overly strict
expenditure limits to a future popular vote on same-sex marriage, the [bill]
should set down rules that provide the Commonwealth with a greater degree of
spending freedom, as is appropriate in today's campaign environment.[60]
At the 2015 Committee inquiry, Professor Anne Twomey
referred to concerns that she has about yes/no campaigns during referenda and
suggested it may be possible to conduct a plebiscite without a yes/no campaign:
For some time I have been disturbed by yes/no cases in
referenda because I think, for the most part, they are misleading, emotive and
unhelpful. I would be quite happy, personally, if there was no yes/no case in
relation to a plebiscite. I do not think it is necessary. Because it is not concerning
detailed constitutional technical issues that do need an explanation, I think
most people can understand the question of whether you want same-sex marriage
or not. I really do not think it is a matter that you ought to have a yes/no
case.[61]
Professor Twomey also expressed reservation about the
Commonwealth funding of yes/no campaigns:
I am also not even sure that we should have funding at the
Commonwealth level for it. I suspect that, again, these are issues that people
have their own personal views about and you do not need to have massive
campaigns to convince people one way or another.[62]
Broadcasting
The Broadcasting Services Act and the Special Broadcasting
Service Act include provisions regulating the broadcasting of ‘political
matter’ at the time of elections.[63]
Clauses 35 to 38 in the Bill modify these provisions for the purposes of
the plebiscite so that similar broadcasting rules will apply during the
plebiscite period.[64]
For example subclause 3(2) of Schedule 2 to the Broadcasting
Services Act requires that a broadcaster who broadcasts election matter
during an election period must give reasonable opportunities for the
broadcasting of election matter to all political parties contesting the
election. Subclause 36(1) of the Bill would apply this provision to the
plebiscite. Its effect would be to require broadcasters to give representatives
from both sides of the same-sex marriage debate a reasonable opportunity to
broadcast material during the plebiscite period. Subclause 36(2) of the
Bill, in a similar way, applies provisions requiring a blackout period in which
broadcasters are prohibited from broadcasting any advertisement containing
plebiscite matter during a defined blackout period (commencing at the end of
the Wednesday before the polling day, and ending at the close of the poll on
polling day).
Other provisions
Scrutineering
In any election scrutineers perform an important function
in ensuring the integrity of the vote is maintained. Part V1 of the Referendum
Act provides the framework for scrutiny of a referendum. These provisions
will apply to the plebiscite but with some modifications mainly in relation to
the appointment of scrutineers. For example existing section 27 of the Referendum
Act provides that the Governor‑General, the Governor of a State, the
Chief Minister for the Australian Capital Territory, and the Administrator of
the Northern Territory, or a person authorised by one of those people, may
appoint scrutineers for polling day. The registered officer of a registered
political party may also appoint persons to act as scrutineers during voting.
In contrast, clause 21 would insert replacement subsection 27(1)
that provides that a member of the Parliament of the Commonwealth may appoint
persons to scrutineer the voting at the plebiscite at each place in the
member’s state or territory. The Special Minister of State may limit the number
of scrutineers allowed at a polling booth through a notifiable instrument (replacement
subsection 27(2)). The Explanatory Memorandum justifies this
replacement section on the basis that the legal effect of a yes vote in a
referendum is to change the Australian Constitution and in such
circumstances it is appropriate that the Commonwealth and the states and territories
are able to appoint scrutineers. By contrast:
[...] the plebiscite is intended to provide a broad indication
of the public’s view on whether the law should be changed to allow same-sex
couples to marry. As such, this function is most appropriately performed by
individuals appointed by members of the Parliament of the Commonwealth, who
represent the views of their constituents across Australia.[65]
Clauses 22 and clause 23 respectively would
make similar modifications in relation to the appointment of scrutineers for
pre-poll voting[66]
and for the counting of the results in the plebiscite.[67]
Recount of the ballot papers
Clause 24 makes a similar modification in relation
to the provision that provides for a re-count of the ballot papers. For a
plebiscite, replacement subsection 95(2) provides for the Electoral
Commissioner to direct a recount at the request of any member of the
Commonwealth Parliament or on his or her own motion.
Return of the writ
Part VII of the Referendum Act sets out the
procedure for the return of the writ for a referendum. Part VII will operate
for the plebiscite but with modification. Existing section 98 provides that the
Electoral Commission is to certify the results of the referendum and return the
writ to the Governor-General. The results are to be certified for each state
and territory as well as for the whole Commonwealth. Clause 25 will
modify section 98 with the effect that the Electoral Commission is required to
certify the results for the whole of the Commonwealth only. A state and
territory break-down of the results is not needed because the plebiscite is to
be determined by a simple majority of more than 50 per cent of the votes cast
in the plebiscite, as opposed to the double majority required for a referendum.
Postal and pre-poll voting
The framework for postal voting and pre-poll voting in a
referendum are set out in Part IV and Part IVA respectively of the Referendum
Act. Clauses 16 to 19 in the Bill make minor modifications adjusting
the timing and scope of this framework in relation to the plebiscite. These
replacement provisions are justified as providing administrative efficiencies
for the Electoral Commission.[68]
Advertising
The Referendum Act includes provisions regulating
both print and internet advertising during the referendum period (sections 121
to 122).[69]
By virtue of clauses 9 and 10 of the Bill these provisions will apply to the
plebiscite. In addition clause 20 inserts a new section 121AA for
the purposes of the plebiscite dealing with sending advertisements by voice
call and text message. It creates offences with a maximum penalty of 10 penalty
units ($1800)[70]
where such advertisements are not appropriately identified.
Disputed returns
Part VIII of the Referendum Act deals with disputed
returns for a referendum. By virtue of clauses 9 and 10 of the Bill, Part VIII
will apply to the plebiscite with modifications as provided in clauses 26 to
28. Replaced section 100 (clause 26 of the Bill) provides
that a member of Parliament may dispute the validity of the plebiscite, or of
any return or statement showing the voting at the plebiscite, by petition
addressed to the High Court.
The effect of this clause would be that a member of the Parliament
(rather than the Commonwealth and the states and territories) would be able to dispute
the validity of the plebiscite.
Concluding
comments
The right to marry remains the one significant area of
difference between the treatment of same-sex and heterosexual relationships in
Australia.
The Coalition’s decision to hold a plebiscite to gauge
public opinion about same-sex marriage has further ignited what has been and
remains for some a controversial and complex debate. At the time of writing
this Digest, the passage of the Bill through the Senate appears highly
problematic, with Professor McGorry’s warnings about the potentially
detrimental impact of a plebiscite on the LBTI community being the final
catalyst in securing opposition to the Bill. The Bill itself is technical,
the funding of the yes/no cases and the broadcasting rules possibly being its
most contentious aspects.
The irony is that those advocates most anxious to move quickly
to remove the one remaining obstacle to full legal equality for the LGBTI
community, are those most opposed to the Bill. And yet, given the Coalition’s
current policy, without a plebiscite, the likelihood of same-sex marriage being
legalised during the 45th Parliament appears slim.
[1]. Referendum
(Machinery Provisions) Act 1984.
[2]. Commonwealth Electoral Act
1918.
[3]. Broadcasting
Services Act 1992.
[4]. Special
Broadcasting Service Act 1991.
[5]. P
Wong, ‘It's time: the case for marriage equality’, The Monthly, 119, February 2016, pp. 18–23.
[6]. B
Maley, ‘Reflections on a same-sex marriage plebiscite’, Policy, 32(1), 2016, pp.30–32.
[7]. Marriage
Act 1966.
[8]. For
further detail about the 2004 amendments see: M Neilsen, Same-sex marriage: issues for the 44th Parliament, Research paper series, 2015–16, Parliamentary Library, Canberra, 8
September 2015, pp. 7–8.
[9]. Marriage
Amendment Act 2004.
[10]. For
further detail see: D McKeown, A chronology of same-sex marriage bills introduced into the federal
parliament: a quick guide, Research
paper series, 2016–17, Parliamentary Library, Canberra,
updated July 2016.
[11]. Parliament of Australia, ‘Marriage
Legislation Amendment Bill 2016 homepage’, Australian Parliament website; Parliament of Australia, ‘Marriage
Legislation Amendment Bill 2016 [No. 2] homepage’ , Australian Parliament
website; Parliament of Australia, ‘Freedom
to Marry Bill 2016 homepage’, Australian Parliament website; and Parliament of Australia, ‘Marriage
Equality Amendment Bill 2013 homepage’, Australian Parliament website. All Bills are similar in that they insert a new identical definition
of marriage into the Marriage Act to mean: ‘the union of two/2 people,
to the exclusion of all others, voluntarily entered into for life’. All four
Bills also repeal the existing ban on the recognition of same-sex marriages
solemnised overseas. The Bills differ in style and substance in relation to the
provisions dealing with exemptions for marriage celebrants who may have
religious or conscience objections to solemnising gay marriages. Senator David
Leyonhjelm’s Freedom to Marry Bill 2016 is remarkable in being the first Bill
that provides exemptions from anti-discrimination laws for wedding service
providers such as caterers or florists who wish to refuse services for weddings
on the grounds of conscience.
[12]. For
further detail see: Neilsen, Same-sex marriage: issues for
the 44th Parliament, op. cit.
[13]. D
Hurst, ‘Same-sex marriage: disappointment and anger as Coalition party room
rejects free vote’, Guardian, 11 August
2015.
[14]. T
Abbott (Prime Minister) and P Hendy (Federal Member for Eden Monaro), Visit
to Green Army river corridor and urban bushland restoration project;
Australia's 2030 emissions reduction target; same-sex marriage, transcript
of joint doorstop interview, Queanbeyan, 12 August 2015.
[15]. G
Hutchens, ‘Turnbull suggests marriage equality plebiscite may be delayed until
2017’, Guardian, 18 July 2016.
[16]. Constitution.
[17]. Commonwealth
v Australian Capital Territory (2013) 250 CLR 441, [2013] HCA 55.
[18]. For
further information see: Neilsen, Same-sex marriage: issues
for the 44th Parliament, op. cit., pp. 8–11.
[19]. The May 1977 National Song poll was conducted pursuant
to ministerial direction and occurred at the same time as four constitutional
referendums. The plebiscite was conducted by the Australian Electoral
Commission’s (AEC) predecessor, the Australian Electoral Office. The October
1916 plebiscite on military service was held under the provisions of the Military Service
Referendum Act 1916, which applied some of the provisions of the (then)
Referendum (Constitution Alteration) Act 1906–1915. The December 1917
plebiscite, also on military service, was conducted under the War
Precautions (Military Service Referendum) Regulations 1917.
[20]. R
Ackland, ‘The marriage equality plebiscite and the constitution: it may not be
plain sailing’, Guardian, 28 July 2016.
[21]. A
Green, ‘Plebiscite
or referendum - what's the difference?’, Anthony Green’s election blog,
12 August 2015.
[22]. G Brandis (Attorney-General) and S Ryan (Special
Minister of State), Plebiscite
paves way for choice on same-sex marriage, joint media release,
13 September 2016.
[23]. J
Kelly and R Lewis, ‘Plebiscite “will be honoured” despite free vote’, Weekend Australian, 25 June 2016, p. 6; G Hutchens, ‘”It will sail through”: Turnbull explains allowing free vote on
same-sex marriage’, Guardian, 24 June 2016.
[24]. This
would be done by amending the existing definition to remove the words ‘a man
and a woman’ and replace them with the words ‘two people’.
[25]. The
debate regarding possible exemptions for civil celebrants and for wedding
service providers is described in: Neilsen, Same-sex
marriage: issues for the 44th Parliament, op.
cit., pp.
15–17, 21–23.
[26]. G Brandis
(Attorney-General), Exposure
Draft of the Marriage Amendment (Same- Sex Marriage) Bill, media release,
10 October 2016.
[27]. M
Dreyfus (Shadow Attorney-General) and T Butler (Shadow Minister for Equality), Marriage
amendments entrench discrimination, joint media release, 11 October
2016.
[28]. Senate
Legal and Constitutional Affairs References Committee, Matter
of a popular vote, in the form of a plebiscite or referendum, on the matter of
marriage in Australia, The Senate, Canberra, September 2015.
[29]. Ibid., p. vii.
[30]. M
Dreyfus (Shadow Attorney-General) and T Butler (Shadow Minister for Equality), Time for Turnbull to allow a free vote on marriage equality, joint media release, 28 September 2016.
[31]. Parliament
of Australia, ‘Marriage Legislation Amendment Bill 2016 homepage’, Australian Parliament website.
[32]. Ibid. This was Mr Shorten’s second Bill supporting same-sex
marriage. The previous Bill was: Marriage
Amendment (Marriage Equality) Bill 2015 introduced on 1 June 2015.
[33]. M
Koziol, ‘Marriage plebiscite is left hanging by a thread’, Canberra Times, 4 July 2016, p. 4.
[34]. R
Di Natale (Greens Leader), Greens will vote against plebiscite legislation, media release, 26 August 2016.
[35]. D
Hinch (Leader of Derryn Hinch’s Justice Party), Hinch
will vote against a plebiscite, media release, 29 August 2016.
[36]. A
Bandt (Greens MP), Cross-party marriage equality bill introduced into Parliament, media release, 12 September 2016.
[37]. P
Riordan, ‘Plebiscite
“fastest way” to marriage equality’, Australian Financial Review, 5
August 2016, p. 5. The Leyonhjelm Bill is: Freedom
to Marry Bill 2016.
[38]. J Lambie (Independent Senator for Tasmania), Same-sex marriage needs to be dealt with by a separate vote at the
next election, media release, 12 August 2015.
[39]. J
Owens, ‘Define
marriage or risk polygamy warns Hanson’, The Australian, 13 July
2016, p. 4.
[40]. G
Williams, ‘Long walk to altar for same-sex marriage plebiscite’, Sydney Morning Herald, 27 July 2016, p.
19.
[41]. Quoted
in: Senate Legal and Constitutional Affairs References Committee, Matter of a
popular vote, in the form of a plebiscite or referendum, on the matter of
marriage in Australia, op. cit., p. 10.
[42]. Ibid.
[43]. B
Harris, ‘Marriage plebiscite is simply an expensive opinion poll’, Canberra Times, 2 July 2016, p. 7.
[44]. M
Grattan, ‘Managing same-sex marriage plebiscite would be a challenge for
Turnbull within his own ranks’, The Conversation,
22 June 2016.
[45]. Quoted
in: Senate Legal and Constitutional Affairs References Committee, Matter of a
popular vote, in the form of a plebiscite or referendum, on the matter of
marriage in Australia, op. cit., pp. 12–13.
[46]. J Massola and M Koziol, ‘Mental health leader warns of suicide danger with plebiscite’, The Age, 4 October 2016, p. 6.
[47]. A
Twomey, ‘Let's not demonise plebiscite in the heat of the debate over our
marriage laws’, The Australian, 7 October
2016, p. 28.
[48]. U
Patel, ‘Same-sex
marriage plebiscite “alien to constitutional tradition”, says former High Court
justice Michael Kirby’, ABC News, 23 August 2016.
[49]. Ibid.
[50]. Explanatory
Memorandum, Plebiscite (Same-Sex Marriage) Bill 2016, p.
3.
[51]. The
Statement of Compatibility with Human Rights can be found at page 4–9 of the
Explanatory Memorandum to the Bill.
[52]. The
note after subclause 5(3) states that the voting day may be deferred, or
voting on voting day may be suspended or adjourned, under section 10, 41A,
42 or 43 of the Referendum Act.
[53]. Explanatory Memorandum, Plebiscite
(Same-Sex Marriage) Bill 2016, op. cit., p. 14.
[54]. Brandis and Ryan, Plebiscite paves way for choice
on same-sex marriage, op. cit.
[55]. Section 93 of the Referendum Act (which
applies because of clauses 9 and 10 of this Bill) sets out when a ballot‑paper
is informal.
[56]. These functions may be performed in conjunction with
state and territory electoral authorities (subclause 7(2) of the Bill).
[57]. Income Tax
Assessment Act 1997.
[58]. That subdivision applies because of clause 39
of the Bill.
[59]. Quoted
in: Senate Legal and Constitutional Affairs References Committee, Matter of
a popular vote, in the form of a plebiscite or referendum, on the matter of
marriage in Australia, op. cit., p. 25.
[60]. Ibid.
[61]. Ibid.,
p. 26.
[62]. Ibid.
[63]. See Part 2 of Schedule 2 to the Broadcasting Services Act.
[64]. The plebiscite period means the period that starts 33 days
before the voting day for the plebiscite and ends at the close of voting on
that day (clause 4 of the Bill).
[65]. Explanatory
Memorandum, Plebiscite (Same-Sex Marriage) Bill 2016, op.
cit., p. 29.
[66]. Replacement section 73CA of the Referendum
Act.
[67]. Replacement
section 89 of the Referendum Act.
[68]. Explanatory Memorandum, Plebiscite
(Same-Sex Marriage) Bill 2016, op. cit., pp. 25–26.
[69]. Note that there is a replacement definition of
referendum period (clause 13,) which means the referendum period for the
plebiscite starts on the day this Act commences and the period ends at the
latest time on the voting day for the plebiscite.
[70]. A penalty unit is currently equal to $180, (subsection
4AA(1) of the Crimes
Act 1914).
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