The Australian Marriage Law Postal Survey (Marriage Survey) was a
fulfilment of the government's election commitment to hold a popular vote on
the issue of same-sex marriage. Given that the Australian Parliament had
previously tried a number of times to resolve the issue of same-sex marriage
without a clear resolution, the Government decided that the best course of
action was for the Australian people to have their say first to inform any
future legislative decisions.
The Government has always been clear that if a public vote were to
result in a Yes vote, then it would facilitate parliamentary consideration of a
Private member’s Bill. As the Prime Minister said, "the consequence of a
'yes' vote in the plebiscite will be that same-sex marriage will be legal in
Following the 15 November 2017 announcement of an emphatic Yes result,
the Government honoured its commitment to provide a free vote on a Private
Members Bill to its Members and Senators. This allowed parliamentarians in both
houses to work across party-lines to resolve details of legislative reforms,
informed by the public results of the survey.
The Government gave precedence for this bill to be introduced in the
Senate and debated ahead of Government legislative business and parliamentary
hours were extended to allow the passage of the bill before the end of sittings
in 2017. On 7 December 2017, the Marriage Amendment (Definitions and
Religious Freedoms) Bill 2017, was passed by the House of Representatives,
legalising same-sex marriage in Australia.
As the Prime Minister, the Hon Malcolm Turnbull MP, stated following the
passage of the bill, although the Labor Opposition has recently led criticism
of the Marriage Survey process, the previous Rudd/Gillard Labor government had
six years to make this legislative change and did nothing about it.
Passage of legislative reform is a success that belongs to the whole
parliament. But commentators have rightly observed that the parliamentary majority
that legislated same-sex marriage was greater than could have been achieved if
members and Senators had not known the weight of public opinion in their
respective electorates and states.
Some parliamentarians who had personally voted against same-sex marriage
in the survey, subsequently pledged to vote for the Private Members Bill in
parliament out of respect for the views of their constituents.
The legitimacy and legality of a Postal Survey approach
Government Senators strongly reject the contention in the majority
report that it was inappropriate to use a voluntary postal survey as a means to
provide the Australian public with its say on the issue of same-sex marriage.
The postal survey did not of course actually change the law, but it provided an
unquestionable public mandate for change that allowed for the passage of
legislation after successive previous bills had failed.
Unlike other forms of polling that are susceptible to error, this survey
collected the views of all Australians who wanted a say on the matter and
definitively revealed the geographic dispersion of support, down to an
individual electorate level.
The idea of asking the Australian public for their view is one that, at
different times, has had attraction to parliamentarians on both sides of the
chamber. In 2013 prior to the federal election that year, future Labor Leader
Bill Shorten told the Australian Christian Lobby that:
Personally speaking, I'm completely relaxed about having some
form of plebiscite...in terms of a plebiscite, I would rather that the people of
Australia could make their view clear on this than leaving this issue to 150
During the 2017 Marriage Survey Labor Senator Patrick Dodson expressed
the view on radio that:
We've just spent $122 million surveying people on the
question of Same-Sex Marriage. Now that’s a good thing to do and it’s a
necessary thing to do.
In 2017 Australia celebrated the 50th anniversary of the 1967 referendum
that removed two discriminatory references to Indigenous Australians in the Constitution.
That referendum saw the highest 'Yes' vote ever recorded in a Federal
referendum, with 90.77 per cent voting to give parliament the power to support
better conditions for Indigenous Australians and to recognise Indigenous
Australians in the census. This result was never taken for granted by those who
supported the change. This resounding support for reform was the result of a
very significant period of public discussion on the treatment of Indigenous
Australians and active mobilisation of support in the community to build
momentum towards a yes outcome.
Government Senators note that the government's preference was to have
the issue of same-sex marriage decided by a compulsory attendance plebiscite.
However, the Labor and Greens parties, rather than working with the Government,
chose to be play politics and block the government's bills which would have
provided for the conduct of a plebiscite under the auspices of the Australian
Electoral Commission (AEC) and within the usual Electoral laws framework for
In the face of political obstruction, the Government opted for a
voluntary postal survey, conducted by the Australian Bureau of Statistics (ABS)
and funded through an Advance to the Finance Minister. It was Labor and the
Greens' own actions which lead to the choice of a postal survey, and it is
therefore difficult to take seriously their protestations about the
appropriateness of the mechanism or their belated preference for the usual
Electoral Laws framework. The majority report argues that a survey is not a
substitute for an electoral process. Justice Edelman addressed this
misconception during the High Court's hearing of two challenges to the legality
of the survey process. He observed that:
It does not really matter, then, whether it is a vote or not
because it may be possible that something could be characterised as both a vote
and as being a collection of statistical information.
The High Court unanimously agreed with the view that the postal survey
had a dual character, concluding:
One strand of the [plaintiff's] argument sought to draw a
dichotomy between a 'vote' or a 'plebiscite', on the one hand, and the collection
of 'statistical information', on the other. The dichotomy is false.
There is precedent for the ABS being tasked as the responsible agency by
the executive arm of Government, to test public opinion on a policy question of
national significance. In 1974 the Whitlam Government used the same
constitutional powers and authority under relevant legislation to fund and conduct
an ABS survey of 60,000 randomly selected Australians, to ask them about their
opinion on whether Australia's National Anthem should be changed. This poll
found that 51.4% of Australians surveyed expressed an opinion in favour of
changing Australia's National Anthem to "Advance Australia Fair" and
the Whitlam Government then acted consistent with the public preference to
change the National Anthem.
The Marriage Survey used a more comprehensive data collection, to ensure
reliable results at an electorate level. The head of the Marriage Survey
Taskforce and Deputy Statistician Mr Jonathan Palmer explained that:
This is not really a sample survey. We're, effectively,
conducting a census of people who are in that subpopulation of eligible voters.
As I said, I had some discussions with our chief methodologist around the
approach we're taking in this. If we tried to conduct it as a sample survey, in
order to produce quality results at the individual electoral division level, we
would need to have an extremely large sample in the millions. So, it's just not
a viable approach.
Contrary to suggestions in the majority report, the ABS was able to
apply their relevant statistical methods and experience to the exercise:
The methodology used by the ABS for the survey was consistent
with standard statistical processes for any collection. ... The statistical
methodology that was applied was essentially the same as that used for the
voluntary Religious Affiliation question asked in the Australian Census of Population
and Housing. This question was not adjusted for non-response as the ABS was not
confident that the characteristics of those who didn’t respond were the same as
those who did respond. For the same reason, the AMLPS was not adjusted for
non-response. ... In total over 20,000 data fields were published by the ABS on
15 November 2017.
Government Senators also point out that the legal mechanisms providing
for the conduct of the postal survey, namely the Treasurer's direction to the
Australian Statistician, and appropriations allocated through the Advance to
the Finance Minister, were upheld by the High Court as valid. The High Court
challenge raised every theory that could be conceived, for arguing that the
survey lacked legal legitimacy. But the High Court confirmed that the
Government had both the constitutional power and appropriate statutory
authority to commission the postal survey.
Up to $295 million had been made available by the parliament to the
Government through Appropriation Act (No. 1) 2017-18, from which the
Finance Minister could make appropriate commitments of money, using a
non-disallowable instrument. The Advance to the Finance Minister is able to be
used when there are urgent expenditure requirements that were either omitted or
understated, or unforeseen at the time that the Budget was delivered.
Under the former Labor government, $891 million has been dispensed using
the Advance to the Finance Minister, through 32 Advances over the years from
2008-09 to 2012-13. These advances were used for a range of initiatives,
ranging from new budget decisions, through to fixes for erroneous omissions in
Budget papers. By contrast the current Government had made only one other
Advance to the Finance Minister in four years before the Marriage Survey, which
was to implement Senate voting reform in 2015-16 ($101.2m to the AEC to
implement systems changes).
No one at that time questioned the validity or appropriateness of that advance
The High Court has now upheld the validity of funding for the Marriage
Law Survey, ruling against every aspect of two legal challenges.
Although the Marriage Law Postal Survey was an unusual exercise held in
special circumstances, it was a most appropriate solution given the need to
test the public mandate for a major social change.
Conduct of the survey
Government Senators note that the ABS provided extensive evidence to the
committee about the risk register for the postal survey.
Risk management was an ongoing focus for the ABS as it responded to
developments throughout the Marriage Survey period.
Government Senators are of the view that the ABS's proactive approach to risk
management significantly contributed to the success of the postal survey. In
this context, Government Senators also note the ABS's Report on the conduct
of the Australian Marriage Law Postal Survey 2017, which sets out the
quality assurance measures, including risk management and issues management
framework for the postal survey.
In the view of Government Senators, the risk strategies adopted by the ABS were
well-managed and comprehensive.
The majority report cites a small number of discrete examples from media
articles of people alleging that Marriage Survey forms had been stolen.
Government Senators agree with the conclusion of the majority that these
examples appear to be isolated incidents and not indicative of any systemic
The ABS had very effective arrangements in place to issue replacement
forms and invalidate the barcodes for forms that had potentially been stolen or
been sent to an incorrect address. Indeed the ABS immediately remedied the most
significant incident cited in the majority report, after damaged envelopes were
found at Mona Vale. The Survey Taskforce took all the damaged Mona Vale mail
into their possession and sought contact with each affected voter, to issue new
forms while invalidating old ones.
Likewise abandoned mail found in Brunswick, referred to in the majority report,
was also notified to the ABS, allowing for an effective intervention and
The final ABS report on the survey observes that the number of perceived
cases of mischief was effectively statistically insignificant:
Throughout the survey period, issues reported to the ABS
accounted for fewer than 500 individual survey forms (less than 0.0032 per cent
of over 16 million forms issued). These issues related to allegations of mail
theft, attempts to offer survey forms for sale, persons attempting to influence
the response of vulnerable people, and the intention to respond to the survey
on another person’s behalf without their authorisation to do so. There are
no known incidents of fraudulent responses being counted in the survey.
The ABS went on to report that the subset of cases warranting referral
for investigation was even smaller:
All allegations of fraud or criminal actions were
investigated by the ABS and where appropriate referred to the relevant
authorities for investigation. A total of 18 matters were referred to police
These are very insubstantial numbers in the context of a survey open to
16 million eligible Australians.
Participation and enrolment
At the start of the survey process, some commentators cautiously
suggested that there should be low expectations for the achievable turnout for
the Marriage Survey. Psephologist Antony Green observed that Australia does
have some experience of conducting voluntary elections by post and summarised
the historic benchmarks. The 1997 Constitutional Convention election recorded a
participation rate of 46.9%, while the most recent rounds of local government
elections using voluntary postal voting had recorded average participation
rates of 54.6% in Tasmania (2014), 32% in South Australia and 27.5% in Western
According to the Australian Bureau of Statistics (ABS), 12,727,920
people, or 79.52 per cent of the eligible population, participated in the
Marriage Survey. As the Australian Statistician noted in announcing the results
of the survey, this is an exceptionally high rate of participation for a voluntary
This high response rate far exceeds expectations and compares
extremely favourably with other voluntary exercises conducted around the world
thanks to the strong interest and engagement of eligible Australians in this
The high participation rate in the Marriage Survey attests to the vast
majority of Australians wanting to have their say on this matter. Moreover,
given that awareness of the survey was almost universal at 99 per cent in
tracking research conducted for the ABS, it could be reasonably presumed that
most of the non-participants had consciously chosen not to express a view.
The 79.52% participation by Australian voters is a resounding
endorsement of the Government's decision to give them their say. This is almost
20% higher than the Irish referendum on same-sex marriage (60.5%) and over 7%
above the participation in the Brexit referendum (72.2%).
It is more than 10% higher than the last general election votes in the
UK (68.8% in June 2017) and Canada (68.3% in October 2015). It is almost level
with the recent New Zealand general election (79.8%). It is higher than
Presidential votes in the US (60.2% in November 2016) and France (74.6% in May
2017). This is a remarkable performance, given that this was a single issue
The ABS and its partner agencies made extensive efforts to achieve the
highest participation possible:
Australia Post has handled over 28.6 million mail articles,
delivering the survey forms to the public ahead of schedule.
DHS ran an Information Line that answered 208,894 phone calls
with an average answer time of seven seconds, providing members of the public
clarity and confidence on the process.
Some 34,447 Australians expressed their views online using a
secure access code including Australians living overseas and people with
disabilities. While all eligible Australians who were travelling or living
overseas had the opportunity to use this mechanism, a very high proportion of
those who were overseas at some point during the two month survey period chose
to respond by post before or after their overseas travel.
Of those who expressed a view on the survey question, 99.7% provided a
clear response, demonstrating that the Government and the ABS had implemented a
very sound process for people to express their views in unambiguous terms. This
clear result gave the parliament a strong mandate to give effect to legislation
to decisively resolve the protracted policy debate.
The majority report focuses much attention on participation in remote
areas, and in particular, the electorate of Lingiari. Government Senators note
the evidence, cited in the majority report, from the Deputy Australian
Statistician about the measures for the despatch of survey forms to rural and
This included assistance from the ABS for 244 Aboriginal and Torres
Strait Islander Communities and visits to 191 remote communities to help
While Government Senators support the recommendation in the majority
report that the AEC actively engage remote communities and Indigenous peak
bodies to increase the enrolment of people in remote electorates, it is also
important to acknowledge that the ABS's inclusiveness strategy was well
received by the broader public.
Government Senators particularly refer to the submission of the
Federation of Ethnic Communities' Councils of Australia (FECCA):
FECCA was impressed with the seriousness and importance that
the ABS placed on the ability for all Australians to be able to participate
fully in the postal survey regardless of their background. It was gratifying to
see the ABS put into practice the solutions to access and equity challenges
which face many Australians from migrant and refugee communities.
FECCA would like to commend the ABS for their role in
ensuring that Australians from [culturally and linguistically diverse]
backgrounds were able to fully participate meaningfully in what has been a
Further, Government Senators believe that the majority report has failed
to acknowledge that the Marriage Survey has, in fact, had a very positive
effect on electoral enrolment.
Over 3.3 million people visited the AEC website in the two weeks leading
up to the close of rolls, compared to an average fortnight of around 90,000
visitors. The Electoral Roll closed 15 days after the Government announced the
Marriage Survey, and for comparison purposes, for a federal election, the
period before the close of rolls is 7 days from the issuing of the writs.
The Government spent over $5 million in a first phase of advertising,
primarily to inform the public about the importance of being on the Electoral
Roll and the opportunity to get address details up-to-date on the Roll. The
Department of Foreign Affairs and Trade also assisted by promoting enrolment
information on their communication channels for Australians overseas.
Mr Jeff Pope, Deputy Electoral Commissioner, AEC, advised the committee
that the electoral roll is "in the best shape it's ever been in since
Federation" as a result of the postal survey.
The Electoral Roll increased by over 98,000 people between 8 August and the end
of 24 August. We have seen largest electoral enrolment event in Australian
history with a total of 933,592 electoral roll updates (including updates to
addresses). This was a historic record and was 36% higher than the
approximately 687,000 enrolment transactions during the close of rolls period
for the 2016 federal election. At the Senate Finance and Public Administration
Legislation Committee's Supplementary Estimates hearings in October 2017, Mr
Tom Rogers, Australian Electoral Commissioner, informed the committee that the
roll was 96.3 per cent complete.
Mr Rogers and Mr Pope explained that, at that time, the AEC was working
with ABS on a protocol to determine whether postal survey envelopes marked
'Return to Sender' and sent to the ABS could be used to further 'cleanse the
Marriage Law Survey (Additional
Safeguards) Act 2017
Australia's constitutional democracy means that people are entitled to
their views on major social change, as long as they operate within our legal
framework. The Government did not accept the proposition that Australians were
unable to have a civil debate on same-sex marriage, or that it was impossible
to add appropriate additional safeguards to complement existing legal
Spreading material or information that undermines Australia's cohesive
society, including ideologies that encourage violence or discrimination on the
basis of sexuality, is unacceptable and a strong framework was already in place
for the prevention incitement to violence, including under state and federal
The Government consulted across party lines and with other interested
parties on further temporary legislated protections that would be appropriate
to ensure the process was fair and that Australians got the opportunity to hear
differing views in an appropriate environment. The views of other parties
helped determine what detail was included in a safeguards bill and when debate
on that bill commenced in the parliament. Government Senators disagree with the
majority report's characterisation that the Marriage Law Survey (Additional
Safeguards) Act 2017 (Safeguards Act) was "insufficient to curb much
of the offensive material distributed by mail and throughout social
This partisan comment does not accord with the constructive and bipartisan
spirit of the safeguards legislation.
In announcing the introduction of the Australian Law Survey (Additional
Safeguards) Bill 2017 to Parliament, the Minister for Finance, Senator the Hon
Mathias Cormann noted the purpose of the legislation:
We have been exploring in good faith how we can complement
existing legal protections under current laws further – principally by ensuring
that all of the usual relevant safeguards under our Electoral Laws apply to
this process as appropriate.
This includes provisions to ensure relevant authorisations on
advertisements, reasonable opportunity to have opposing views broadcast,
offences against bribery and threats and the prohibition of misleading and
deceptive conduct in relation to the completion of survey forms....
This Bill will also propose a further safeguard against
vilification, intimidation and threats to cause harm because of the views
expressed or believed to be held in relation to the Survey, or because of the
religious conviction, sexual orientation or gender identity or intersex status
of a particular person or group.
The Safeguards Act was passed with cross-party support.
The Safeguards Act contained provisions for a person to apply for a
civil penalty order with the consent of the Attorney-General, to ensure that
claims of vilification are not brought frivolously or otherwise without
Both the Yes and No campaigns designated legal organisations as a 'notifying
person' under the Safeguards Act, to refer any vilification complaints to the
Attorney-General for his consideration. However as the majority report notes,
in October 2017, the then Attorney-General advised that no requests for consent
had been received.
The apparent absence of such formal complaints suggests that those who doubted
Australians could have a respectful debate about the issue of same-sex marriage
without widespread vilification were ultimately mistaken.
The majority report favourably quotes a suggestion that the Safeguards
Act should have allowed for legal action on a public-funded basis, to avoid
potential costs to members of the community who cannot afford the risk of costs
being awarded against them. The Safeguards Act was in fact designed to allow
the Commonwealth to carry the substantial costs of pursuing a matter in the
courts, where appropriate. Section 23 specifically allows the Attorney
General to intervene in proceedings for an injunction and the Attorney-General
may also institute an appeal.
The Safeguards Act contains meaningful penalties, including criminal
sanctions, to deter those who might consider doing the wrong thing. Some of the
more serious offences proscribed in the Safeguards Act attract a maximum
penalty of 120 penalty units ($25,200), consistent with Electoral law. The
maximum penalty for other offences in the Act is 60 penalty units ($12,600).
The majority report concludes that the survey provided an excuse for
people to ventilate views that may be regarded as objectionable, or even be
intended to cause offence. This claim ignores the historic fact that debate
about same-sex marriage had been prominent and sustained over several years
before the survey. The debate was indeed one of the dominant political issues
through most of 2017, ahead of the Government's final decision on the approach for
giving the Australian public a say on the matter.
By resolving an already heated debate through the Marriage Survey and by
enacting the Safeguards Act, the Government was able to ensure that a debate
that had effectively already been under way for some time could come to its
conclusion in an appropriate environment of legal protections.
While Government Senators acknowledge that there were instances of
people disseminating offensive material, it is our view that in overwhelming
numbers, Australians who participated in the debate did so in a courteous and
Care should be taken in accepting assertions that there was widespread
inappropriate conduct that went beyond the pale. A number of regulators had
responsibility for considering and acting on reports of wrongdoing, so the
complaints they received provide an objective evidence base for testing
assertions about the tenor of overall debate or debate at the extremities. The
Committee heard from the regulators that much of the public contact with them
during the survey process involved inquiries about lower level matters, in
particular complaints about the due form for authorisations. But the AEC found
that a number of complaints on authorisations were without substance - for
instance complaints that text messages or sky writing had not been compliant
with the law. In relation to websites, the AEC had nearly a 100 per cent
success rate in having authorisation details added after contacting webpage
Government Senators believe that the majority report raises no
substantive issues in relation to the conduct of the Marriage Survey.
Importantly, the majority report recognises the excellent work of the ABS and
Government Senators commend the leadership of the ABS and the Taskforce staff
from all the government agencies involved who contributed to the success of the
The ABS and its partner agencies have received insufficient
acknowledgment for their accomplishment in delivering the survey substantially
under the project budget, at a final cost of $80.5 million, or two-thirds of
what was estimated.
The Committee observed nothing short of dedication and professionalism from all
the officials they interviewed.
Government Senators do not agree with the characterisation of the survey
which is implicit in Recommendation 1 of the majority report. Public debate can
be healthy, constructive and help the community come to terms with changes in
In relation to Recommendation 2 of the majority report, Government Senators
support and recognise the importance of ongoing funding for mental health
treatment for all Australians. Government Senators note the funding that this
government has provided significant funding to mental health treatment
programs, including a boost to funding in the 2017 Federal Budget.
Commonwealth funding already includes support to the National LGBTI Health
Alliance, for a number of programs specific to the ongoing mental health needs
of lesbian, gay, bisexual, transgender and intersex people.
As noted above, Government Senators support, in principle
Recommendation 3 of the majority report. We agree with that governments
should always make the strongest endeavours to assist our most disadvantaged
communities in having a say in electoral processes and we recognise the
importance of making a targeted effort in Indigenous communities to overcome
language barriers and other obstacles to civic participation.
The majority report correctly identifies that there is a long-standing
participation challenge in the Division of Lingiari in particular, as evident
in successive federal elections.
The AEC established the Indigenous Electoral Participation Program in
2010, to help close the gap in Indigenous electoral participation. The AEC works
with communities to improve enrolment, turnout and formality in electoral
Government Senators consider this is an appropriate model to build upon, in
driving any future efforts to enhance political participation in Indigenous
communities, especially in remote areas.
During the Marriage Survey the Government advertised across Indigenous
media in remote areas, to ensure awareness of the survey. The ABS produced
materials translated into a number of Aboriginal and Torres Strait Islander
languages which were distributed through existing networks and available at a
large number of pick up locations. Although the ABS made a focussed effort to
support Indigenous participation, assisted by a range of partner agencies at
federal, state and local government level, the Marriage Survey experience
demonstrates that the challenges remain very significant. There is no simple
set of solutions and these challenges continue to demand our best efforts.
Senator James Paterson Senator
Deputy Chair Senator
for South Australia
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