By Imogen Crump, University of Melbourne
Before Australians even have a chance to have their say on the issue of same-sex marriage, the legality of the whole exercise is being challenged in the High Court.
But in trying to understand why it’s being challenged, many of us have got lost in the twists and turns of the legal and legislative maze that has delivered us to this point.
We put some key questions about the legality of the survey and its outcome to four of the University of Melbourne’s top constitutional law experts – Professor Adrienne Stone, Director of the Centre for Comparative Constitutional Studies; Laureate Professor Cheryl Saunders; Professor Michael Crommelin, and Dr William Partlett – all from Melbourne Law School.
Given the legal issues – why is the survey being conducted by the Australian Bureau of Statistics and not the Australian Electoral Commission?
The Government’s promise to give Australians a say on whether same-sex marriage should be legal has changed from a planned compulsory plebiscite to a non-compulsory voluntary postal survey. This procedure is very unusual.
The Australian Marriage Law Postal Survey isn’t a plebiscite. A plebiscite is a “vote by citizens on a matter of national significance, but one which doesn’t affect the Constitution”. They are also normally advisory, and don’t compel a government to act on the outcome.
But for a national vote to take place in the case of a plebiscite, the Government must first produce provide legal authority. The Australian Electoral Commission (AEC) is set up by legislation (the Electoral Act) so it can only do what it is empowered by that legislation to do.
Typically, the AEC’s powers are limited to the conduct of federal parliamentary elections, referendums and other activities ancillary to those purposes (such as maintaining the electoral roll and determining seat boundaries and redistributions). To extend the AEC’s powers to the kind of plebiscite contemplated here, the Parliament would need to pass additional legislation. However, in relation to a plebiscite on same-sex marriage, this legislation has already been rejected twice by the Senate.
The job of conducting the survey has instead been given to the Australian Bureau of Statistics (ABS) mainly to get around this need to pass legislation in parliament. But while giving the survey to the ABS is an attempt to ensure the legal validity of the process, it also has the effect of undercutting the plebiscite’s political legitimacy. There are real doubts as to whether a survey of this kind can authoritatively represent the ‘voice of the people’.
So, the Government has changed it to become a survey which stands a stronger chance of being legally valid but undercuts the idea that it is truly representative of the voice of the people in an authoritative way.
What exactly is the government asking the people in terms of marriage equality?
The question is straightforward. The question in the survey is: Do you support a change in the law to allow same-sex couples to marry?
The question in the postal survey can only be answered with a ‘Yes’ or ‘No’.
What’s the difference between a referendum, a plebiscite and what we’re voting in – a postal survey? And how will it affect the results?
Firstly, a referendum only happens when the Australian Constitution needs to be changed. In a referendum, it is compulsory for every Australian to vote and the Government is bound by the result. But because the Marriage Act (1961) and the Marriage Amendment Act (2004) are actually not part of the Constitution, there cannot be a referendum on the issue of same-sex marriage.