Dr Rebecca Ananian-Welsh on the marriage equality postal survey.

JATL committee member Penelope Bristow recently interviewed Dr Rebecca Ananian-Welsh, lecturer at the TC Beirne School of Law, to discuss the legal and historical considerations behind the current marriage equality postal survey.

What is involved in a plebiscite and how are plebiscites different from referenda?

A referendum is a special beast. It is a vote for all electors and it may be compulsory. You can have state referenda – and we had one recently in Queensland to extend MPs terms from 3 to 4 years. But most commonly the term refers to the national vote required under section 128 of the Australian Constitution in order to change or amend that Constitution.

A plebiscite on the other hand has no constitutional basis or role. It is not binding and it may not be covered by compulsory voting rules. It is more like a national opinion poll.

Is the proposed postal survey the same as a plebiscite, or is it a novel arrangement?

At first it looked like a traditional plebiscite – the electoral commission would conduct a nationwide vote and Australians would go to the polls to vote ‘Yes’ or ‘No’ on an issue, but that vote would be non-binding and had nothing to do with constitutional change. But now the vote is not only non-binding and non-compulsory, but to be completed by post and run by the Australian Bureau of Statistics (ABS) rather than the Electoral Commission. This sets it apart from any previous plebiscites and makes it look even more like a simple survey or poll. But definitions are fluid here… perhaps it’s a ‘plebisurvey’? Though made up terms like ‘plebisurvey’ reflect just how vague and contested the whole issue has become. Officially, even the government has abandoned the term plebiscite and is opting for survey now. 

Has Australia engaged in a survey like this before? What does history tell us about surveys conducted to determine the public’s opinion on an issue?

There have been three sets of plebiscites in Australian history. The first, and most famous, were the votes held in the colonies in the lead up to federation. The ‘Yes’ vote in 1898 carried but not by a sufficiently significant margin in NSW, the largest and most powerful colony. That margin was strengthened when the question was again put to the people in 1900 – and we all know the outcome of the campaign for federation.

The second set of plebiscites concerned conscription in WWI. In 1916, as support for the War declined, Australia struggled to meet its troop supply commitments. The people voted against conscription by a narrow majority. As enlistments continued to fall, new Prime Minister Billy Hughes promised to introduce conscription only if backed by a plebiscite. So, Australians returned to the polls in 1917. Again the ‘No’ vote won the day, this time by a stronger margin.

Most recently, Australians were asked to vote on the national anthem. In 1974, the ABS conducted a poll of 60,000 people to determine whether they preferred Advanced Australia Fair, Waltzing Matilda or the Song of Australia as the national anthem. Advance Australia Fair gained the most support but views remained divided. After years of debate and controversy a voluntary plebiscite was held in 1977 and Advance Australia Fair again won the day.

What can we take away from this? Each of these examples concerned an issue of national identity – both for Australians and our place in the world. These were issues that impacted everyone. All Australians. Yes, conscription only directly impacted able-bodied men of a certain age – but that is such a large and, particularly at that time, important portion of the population that it is not difficult to see how almost every Australian could feel the impact of conscription. And this was also about our international commitments and our role in the Great War. This foundation of national identity and national concern is lacking in the current survey which concerns equality and the human rights of one, albeit significant, minority group within Australian society. Most voters will not be directly or even indirectly impacted by the introduction of marriage equality – and yet they are being asked to have their say on it. The definition of marriage is within the traditional legislative powers of federal parliament and has been the subject of numerous Acts of Parliament throughout Australian history, it is not clear to me why this change requires a national survey when, for example, lowering the voting age or changing the rules around divorce or property ownership did not.

In all previous plebiscites repeat votes simply strengthened the earlier result. In the case of the national anthem, the plebiscite merely confirmed the earlier opinion poll. There has been a wealth of polls on marriage equality, one wonders what more might be gained by a costly and non-binding plebiscite.

On a more optimistic note, history shows that the government is unlikely to ignore a non-binding plebiscite. And that this respect for the peoples’ views continues for successive governments, even if the next government runs a repeat plebiscite in the hope of introducing change.

The High Court recently dismissed a challenge to the same sex marriage survey. Who challenged the survey, and what issues did they raise?

There are legal issues and there are political issues. And at the crux of it all is the question of whether marriage equality should be dealt with in the courts, by parliament, or by society as a whole.

The legal issues were the subject of the recent High Court challenge. In the absence of a Bill or Charter of rights, those issues are fairly technical constitutional points about the power of the executive government to spend money.

In order for the government to run this survey, it needs a significant amount of money. Well over $100 million. Constitutionally, the government relies on parliament to grant it the funds to run the country – this helps to ensure responsible and representative government, that is, two of the central accountability measures that protect us from government overreach and arbitrary actions. Once a party comes to power it doesn’t simply have a blank cheque to act as it sees fit – its actions are overseen and to an extent controlled by Parliament.

The legislation to fund the survey passed the House of Representatives, but not the Senate. So, the government had to abandon the survey or gain access to the money by some other means. They decided to fund the survey from the existing ABS budget, specifically from money set aside for unforeseen and urgent matters. Independent MP Andrew Wilkie and others challenged this on the basis of the landmark constitutional case of Williams, in which the High Court confirmed that, generally speaking, executive spending should be supported by legislation. Wilkie argued that the government can’t sidestep parliament, that they need parliamentary authority to fund the survey, and that the Minister had not properly exercised his discretion when he decided that the survey was an urgent or unforeseen expense.

The High Court appreciated that the decision needed to be made quickly – after all, the ABS had already started spending money on printing materials for the mail out. So, it took the unusual step of handing down its decision but not giving a full judgment. That judgment will most likely be some weeks away. For now, all we know is that the High Court rejected Wilkie’s challenge and upheld the government’s capacity to fund the survey without Parliament’s direct approval. My feeling – and it is difficult to have more than a feeling on these issues considering how unpredictable the High Court can be, particularly in the area of executive power – is that the High Court’s decision will reflect a high degree of deference to the Minister’s decision that this spending was unforeseen and urgent. Generally, it is not for a court to step into the shoes of a Minister and question an exercise of his or her discretion. Only in extreme circumstances might one expect a court to overrule that kind of Ministerial decision. So once the Minister said that this spending – specifically, the spending of over $100 million on a non-compulsory, non-binding, postal survey on marriage equality conducted by the ABS – was unforeseen and urgent, I think the High Court was very unlikely to hold that the spending was not unforeseen or urgent. Even though there may have been some good reasons to say that spending on some kind of vote on this issue was clearly foreseen, even promised, by government. But we won’t know the real bases for the Court’s ruling until the judgment is delivered in coming weeks. As in so many constitutional decisions, different judges may have reached the same conclusion by distinct paths of reasoning.

What implications does this decision have for the future?

Constitutional lawyers will be pouring over the decision when it is handed down. Until then it is difficult to say how narrow or how far-reaching the High Court’s ruling may be. Worst case scenario, the decision could allow governments to see the phrase ‘unforeseen and urgent’ as, more or less, permission to use that financial allocation for policies that lack parliamentary support. A kind of clear path to avoiding Parliament and responsible government. That outcome is bad for democracy, bad for responsible government, bad for representative government. It grants the executive a power to spend that is largely outside the existing systems of checks and balances. But, ultimately parliament has to pass budget Bills – so that kind of outcome could be limited by Parliament simply refusing to pass Bills that earmark sizable sums for ‘unforeseen and urgent’ circumstances, determined at the Minister’s discretion. Parliament’s role in scrutinising budget Bills before they are passed becomes even more important.

In the same sex marriage debate, the decision gives a green light to the survey. It highlights the lack of constitutional protections for human rights and, the flip side of that: the lack of constitutional impediments to parliamentary control of human rights. In the areas of human rights and equality, our federal system rests on a belief in parliamentary supremacy. Here Parliament was sidelined and the executive government is running the show. But the ultimate decision will still, eventually, come down to Parliament. One is left to ask the age-old question: would human rights, particularly minority rights, be better dealt with under a human rights Act, that is, in the courts? Or can we trust Parliament and the Executive government with these important issues of equality and liberty? Australia remains the only democracy lacking a national Bill or Charter of human rights, and therefore the only democracy strongly adhering to the latter of these options. What we are all witnessing today in this same sex marriage debate should prompt us to pause and reflect on whether the parliamentary protection of human rights is the best approach for us, or whether a more systemic change – such as the introduction of rights protection legislation – is called for. Would you have liked to have seen the High Court have more legal tools at its disposal when the issue of the same sex marriage vote came before it? Or would you prefer judges stayed out of it and left it to politics? And if it is left to politics, should the civil liberties of a minority group be debated by the masses or is there a simpler, and cheaper way?