BILLS DIGEST NO. 22, 2016–17              11 October 2016

Plebiscite (Same-Sex Marriage) Bill 2016

Mary Anne Neilsen
Law and Bills Digest Section 

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.

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[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).