Process leading to the postal vote
This chapter will outline the process leading to the announcement of the
Australian Marriage Law Postal Survey (postal survey).
A timeline of key events in relation to the same-sex marriage postal
survey is outlined below in Table 2.1. Key points on this timeline are
discussed in greater detail later in this chapter.
Table 2.1—Timeline of key events leading to the postal
survey on same-sex marriage
|11 August 2015
||Special joint Coalition
partyroom meeting discussed same-sex marriage. Then Prime Minister Abbott
announced that a compulsory plebiscite would be held on the issue.
|15 September 2015
||Hon Malcolm Turnbull
replaced Hon Tony Abbott MP as Prime Minister.
|14 September 2016
Marriage) Bill 2016 introduced into
the House of Representatives for plebiscite to be held on 11 February 2017.
|7 November 2016
Marriage) Bill 2016 negatived in
|8 August 2017
||Prime Minister Turnbull
indicated that the government will seek to re-introduce the Plebiscite
(Same-Sex Marriage) Bill 2016 to the Senate notice paper. Prime Minister
Turnbull indicated the government's intention to hold a voluntary postal
survey on the matter if the bill is unsuccessful.
|9 August 2017
||Motion to restore the Plebiscite
(Same-Sex Marriage) Bill 2016 to the Senate notice paper is negatived.
|9 August 2017
||Treasurer Morrison directed
the Australian Bureau of Statistics (ABS) to conduct a voluntary postal
survey on whether same-sex marriage should be legalised with results to be
published on 15 November 2017.
|9 August 2017
||The Finance Minister issued
an advance of $122 million under the Appropriation Act (No. 1) 2017–18 to
enable the ABS to undertake the postal survey.
|16 August 2017
||The directive to the ABS is
modified to specify the type of data to be collected and published including
breakdown of result by national, state/territory, and federal electorate.
|7 September 2017
||The High Court found that
the advance to the Finance Minister is valid.
|12 September 2017
||Mailing of forms and
collection process began.
|13 September 2017
||Legislation providing additional
safeguards during the marriage law survey passed the Parliament.
|7 November 2017
||Postal survey closed.
|15 November 2017
|7 December 2017
same-sex marriage passed the Parliament.
Amendments to the Marriage Act in 2004
On 16 August 2004, the Australian Parliament enacted the Marriage
Amendment Act 2004 (Cth). This Act inserted the following definition of
marriage into subsection 5(1) of the Marriage Act 1961 (Cth) (Marriage
'marriage' means the union of a man and woman to the
exclusion of all others, voluntarily entered into for life.
Section 88EA was also inserted to the Marriage Act to state that:
certain unions are not marriages. A union solemnised in a
foreign country between:
A man and another man; or
A woman and another woman;
must not be recognised as marriage in Australia.
These amendments meant that same-sex couples were unable to be legally
married in Australia or have marriages performed overseas recognised in
Since this time, a number of private members bills seeking to repeal or
modify the definition of marriage have been introduced into the parliament.
None of these bills have passed the parliament.
The origin of the plebiscite
Since these amendments were passed, the Liberal and National parties have
had a policy to maintain this definition of marriage in the Marriage Act.
On 11 August 2015, the then Prime Minister, Hon Tony Abbott MP convened
a special joint party room meeting of the Liberal and National parties to
discuss the Coalition's policy position on marriage, in particular, towards
same-sex marriage. This meeting determined that the Coalition's official
position on marriage had not changed, and that Coalition members would continue
to be bound to support this view as policy.
Late that night, the then Prime Minister announced that the Coalition
would hold a plebiscite or referendum on whether same-sex marriage should be
legislated or not.
Little more than a month later, Mr Abbott was replaced as Prime Minister
by the Hon Malcolm Turnbull MP.
Shortly after the 2016 federal election, the Prime Minister signalled the
government's intention to hold a plebiscite towards the end of 2016.
Plebiscite to postal survey
Shortly after the 2016 federal election, the then Special Minister of
State, Senator the Hon Scott Ryan announced, pursuant to the government's
election commitment, that the government intended to hold a compulsory
plebiscite on whether to legalise same-sex marriage on 11 February 2017.
The Plebiscite (Same-Sex Marriage) Bill 2016 was introduced into
the House of Representatives in September 2016 to 'establish the legislative
framework for a compulsory in-person vote in a national plebiscite' and was
passed through the House of Representatives in October 2016. On 7 November
2016, this legislation was introduced into the Senate and negatived at the
second reading stage.
At the time, the Opposition and interest groups have argued that holding
the plebiscite may have adverse consequences on lesbian, gay, bisexual,
transgender, intersex and queer (LGBTIQ) members of the community. The Opposition
also argued that the estimated cost of $170 million to hold the plebiscite was
unnecessary and that a direct vote in Parliament was a more appropriate
mechanism to amend the Marriage Act.
On 8 August 2017, Prime Minister Turnbull indicated that the government
would seek to reintroduce the Plebiscite (Same-Sex Marriage) Bill 2016
to the Senate notice paper. In the event that this plebiscite was not supported
by the Senate the government signalled it would hold a voluntary postal survey
on the matter.
The following day, the government's motion to restore the Plebiscite
(Same-Sex Marriage) Bill 2016 to the Senate notice paper was negatived.
Directive to conduct the Australian
Marriage Law Postal Survey
Following the government's failure to establish a plebiscite, the
Treasurer, Hon Scott Morrison MP issued the Census and Statistics
(Statistical Information) Direction 2017—a directive to the Australian
Bureau of Statistics (ABS) to collect statistical information from
'participating electors...about whether the law should be changed to allow
same-sex couples to marry' and publish this information 'on or before 15
This process would be known as the 'Australian Marriage Law Postal Survey'.
Problems with the drafting of the directive lead to confusion regarding
whether 16 and 17 year olds and prisoners would be permitted to participate.
The directive was accordingly amended a week later by the Finance Minister,
Senator the Hon Mathias Cormann (under authority from the Treasurer) to specify
what information would be gathered and published on the matter.
This specific information included 'information about participating electors at
the national level, at the level of each state and territory, and at the level
of each electoral division'.
In its submission, the ABS noted that it would receive support to
deliver the postal survey from a number of 'other government departments and
agencies' including 'Australia Post, Department of Human Services, Treasury,
Finance, [and] Australian Government Solicitor'.
Funding the Australian Marriage Law Postal Survey
In announcing the survey, the Finance Minister stated that that the
survey would cost $122 million. This compared to the government's estimate of
$170 million for a full compulsory plebiscite.
Advance to the Finance Minister
On 9 August 2017, the Advance to the Finance Minister Determination
(No. 1 of 2017–18) (advance) was made by the Finance Minister. This advance
provided an additional $122 million to the departmental item for the ABS in the
Appropriation Act (No. 1) 2017–18 for the purposes of undertaking a
voluntary postal survey.
The Department of Finance defines an advance to the Finance Minister as
'provisions in the annual Appropriation Acts which enable the [Finance
Minister] to provide additional appropriation to agencies throughout the
An advance may only be issued by the Finance Minister /
responsible Presiding Officer if satisfied that there is an urgent need for
expenditure that is either not provided for or has been insufficiently provided
for in the existing appropriations of the agency. The additional appropriation
is provided by means of a determination. 
The advance stated that the government decision to hold a postal survey
was not made until after the Appropriation Bill (No. 1) 2017–18 was 'introduced
into the House of Representatives on Tuesday 9 May 2017'.
As such, the advance also stated that the expenditure was 'urgent because it
High Court challenge to the advance
The validity of the Advance to the Finance Minister was challenged by a
number of plaintiffs in the High Court of Australia.
On 7 September 2017, the High Court ruled that the Advance to the Finance
Minister was valid.
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