Conclusions and Recommendations
The committee is pleased that legislation legalising same-sex marriage
has now passed the parliament. The committee is deeply disappointed, however, in
the process that led to this.
The government's approach suggested that it was more concerned in
resolving its own internal political problems than it was in delivering a good
policy result for any of the affected groups, or indeed for the Australian
community as a whole.
Statistical surveys serve a fundamentally different purpose with
fundamentally different processes from an election. A survey is not a
substitute for an electoral process. The events leading up to the announcement
of the postal survey suggest that the government was not genuinely interested
in obtaining statistical information – it was trying to conduct a public vote
by another means. This was reflected in the terms of the directions given to
the ABS, and placed the ABS in the difficult position of having to deliver what
was functionally a national vote without any of the experience, practices or
institutions that would ordinarily be available.
Masking a vote as a survey devalues the ABS as an institution, and
heightens the risks to the integrity of the process.
There was considerable public criticism of the proposal for a public
vote on same-sex marriage since it was first proposed by the government. The
criticism spanned a gamut of concerns – from constitutional conservatives
worried about the erosion of parliamentary democracy, to advocates concerned
about an intolerant campaign, and ordinary Australians who just wanted
politicians to do their job. The government never properly addressed any of
these concerns either in its initial proposal for a plebiscite, or its
subsequent proposal for a postal survey.
These concerns were valid. A non-compulsory, non-binding postal survey has
never been used previously to inform parliamentary processes on a matter of
human rights for a minority group. It is the committee's view that it should
not be used in this way in the future.
The committee recommends that questions of human rights for minority
groups should not be resolved by a public vote.
The government was warned by mental health experts and same-sex marriage
advocates that a public vote on same sex marriage could have deleterious
effects on the LGBTIQ community. It is now clear that those warnings were well
This committee has received evidence from a large number of submitters
about offensive and misleading behaviour and material that has been deeply
distressing to the LGBTIQ community and highly divisive within the community
more broadly. It is the committee's view that this behaviour and material is a
direct result of the postal survey process and would not have occurred had the
parliament simply debated and voted on legislation to legalise same-sex
The passage of the Marriage Law Survey (Additional Safeguards) Bill 2017
provided a mechanism for individuals to make complaints about material they
perceived to be offensive, which contributed to a relatively civil debate
within the traditional media landscape. However, ultimately this legislation
proved insufficient to curb much of the offensive material distributed by mail
and throughout social media.
The committee believes that much of this material was offensive not by
accident but by design. It doubts that the authors intended to contribute
constructively to the public debate, and instead aimed to cause offence and
hurt to others. It is disappointing that the government gave them an excuse to
do so by pursuing a public vote on the question of same sex marriage.
The committee recognises the hurt and distress experienced by much of
the LGBTIQ community during the course of the postal survey.
The committee recommends that the Australian Government consider how further
funding and support could be offered to mental health and LGBTIQ organisations
to help address the consequences of the postal survey.
Having announced the postal survey on 9 August 2017, the committee
considers it to be unreasonable of the government to require the Australian
Bureau of Statistics (ABS) and other government departments and agencies to
undertake the postal survey with deployment of postal forms little more than a
month later. In the face of such a challenge, the committee commends the ABS
and other government departments and agencies on their professional approach to
undertaking and delivering the postal survey. The committee is satisfied that
the high participation rate of 79.5 per cent validates the resounding yes vote
of 61.6 per cent.
The committee were troubled to hear about alleged instances of postal
survey form theft and of postal forms being despatched to incorrect addresses,
however, the committee is satisfied that these appear to be isolated cases.
The committee were concerned to hear about the low participation rates
amongst remote and predominantly Indigenous electorates such as Lingiari in the
postal survey. Taking into account Lingiari's voter turnout at the last six
federal elections suggests a trend of voter disengagement. The committee
considers that there needs to be an increased participation of eligible
unenrolled and enrolled people in remote locations to ensure they can
participate in the democratic process more broadly.
The committee recommends that the Australian Electoral Commission
actively engage with remote communities and Indigenous peak bodies to increase
the number of enrolled people in remote electorates and to increase the
participation of enrolled people in local, state and federal elections.
Senator Jenny McAllister
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