National survey to gauge support for legalising same-sex marriage in Australia
The Australian Marriage Law Postal Survey was a national survey by the Australian Government designed to gauge support for legalising same-sex marriage in Australia. The survey was held via the postal service between 12 September and 7 November 2017. Unlike voting in elections and referendums, which is compulsory in Australia, responding to the survey was voluntary.
The results of the survey were published on 15 November 2017. The survey returned 7,817,247 (61.6%) "Yes" responses and 4,873,987 (38.4%) "No" responses. An additional 36,686 (0.3%) responses were unclear and the total turnout was 12,727,920 (79.5%).
A survey form, instructions, and a reply-paid envelope were mailed out by the Australian Bureau of Statistics (ABS) to every person on the federal electoral roll, asking the question "Should the law be changed to allow same-sex couples to marry?" The ABS established processes to ensure eligible Australians lacking access to post could participate.
Prior to the survey, the Liberal–National Coalition government pledged to facilitate a private member's bill to legalise same-sex marriage in the Parliament in the event of a "Yes" outcome. Had the survey returned a majority "No" result, the government said it would not allow a parliamentary debate or vote on legalising same-sex marriage.
The "Marriage Amendment (Definition and Religious Freedoms) Act 2017", which legalised same-sex marriage, was debated in and passed by Parliament following publication of the survey results. The Coalition government allowed its parliamentarians a conscience vote on the legislation. The opposition Australian Labor Party supported the legislation, but exceptionally, also granted its parliamentarians a conscience vote.
Many same-sex marriage proponents were critical of the postal survey, viewing it as a costly delaying tactic and an unnecessary hurdle to a conscience vote on same-sex marriage in the parliament. The survey was subject to two legal challenges questioning the authority of the ABS to conduct the survey and the government's right to fund the cost of the survey from funds designated by law for "urgent" and "unforeseen" circumstances. Both legal challenges failed and the High Court of Australia found that the survey was lawful.
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Background.
History.
Marriage in Australia is the constitutional province of the federal parliament. Its original legal definition was established by common law as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life." This definition was codified by the "Marriage Amendment Act 2004", which inserted it verbatim into the "Marriage Act 1961".
At the time of the survey, same-sex unions in Australia were treated as de facto unions under federal law. These unions provide couples with most, though not all, of the legal rights of marriage, although those rights may be difficult to assert and are not always recognised in practice. Aside from the legal aspects, de facto relationships do not have the same symbolic significance as marriage. Before the July 2016 federal election, the Malcolm Turnbull-led Coalition government promised to hold a national vote on same-sex marriage in the form of a compulsory attendance plebiscite. Opposition to this idea centred on its criticism as an expensive delaying tactic and that it was the duty of the parliament, rather than a matter related to the Australian Constitution.
While the Coalition won 76 of the 150 seats in the lower house in the 2016 election and managed to form a majority government by one seat, they failed to pass the necessary legislation for a (compulsory attendance) referendum/plebiscite. The legislation passed the House of Representatives on 20 October 2016 by a vote of 76–67, but was rejected by the Senate on 7 November 2016 by a vote of 33–29. The idea of a postal plebiscite was originally proposed by Liberal MP Warren Entsch and later endorsed by government ministers Peter Dutton and Mathias Cormann. Dutton pointed out that a postal vote would not need legislation to operate. A staffer of Attorney-General George Brandis came up with the idea of a survey as an alternative way to fulfil the government's commitment in mid-July. In August 2017, following an attempt by five Liberal Party MPs to change party policy and have a free vote in the parliament on same-sex marriage legislation, the government announced it would move for a voluntary postal survey to be held later that year. It stated that the postal vote would only occur in the event the government's (compulsory) referendum/plebiscite legislation was again rejected by the Senate. That occurred on 9 August 2017, when a government-initiated motion in the Senate to debate the "Plebiscite (Same-Sex Marriage) Bill 2016" was tied at 31–31; resulting in the motion being defeated.
Following the result in the Senate, the government directed the Australian Statistician (head of the Australian Bureau of Statistics) to begin the process of surveying the views on same-sex marriage of all Australians on the electoral roll. The government asserted that this proposal did not require legislative approval from the parliament, arguing that the provisions of the "Appropriations Act" and the law governing the Australian Bureau of Statistics (ABS) enabled it to use the ABS for such a purpose. This was argued by the government to be similar to the process by which God Save the Queen was replaced by Advance Australia Fair as the Australian national anthem. The government announced the ABS would be assisted by having staff seconded from the Australian Electoral Commission (AEC), the organisation responsible for elections in Australia and managing the electoral roll. The cost of the survey to the Australian taxpayer was forecast to be $122 million, however the total amount spent ended up being $80.5 million. This expense, as well as the notion that the debate would activate ideological extremists and that normal electoral rules would not apply, were criticised in Parliament. By 7 September, the date the high court challenges against the survey were heard, a total of $14.1 million had already been spent by the ABS on the postal survey – $8 million on advertising for the survey, $5.3 million on printing costs, and $600,000 for staff.
The AEC reported that about 68,000 enrolment transactions were completed on 10 August, compared with an average of 4,000 per day. In the period 8–14 August over 16,000 people had enrolled, and over 200,000 had updated their details. By 20 August, over 36,000 had enrolled, and over 434,000 had updated their enrolment details. By 22 August, over 54,000 had enrolled. By 25 August the roll achieved a record high with over 16 million Australians on the roll (an additional 90,000 people had joined with a further 165,000 transactions still to be processed). 65,000 of these new voters are between the ages of 18 and 24. With 933,592 enrolment transactions completed by the AEC at the end of processing, more than 98,000 people were added to the roll, and the total number of Australians eligible to participate in the survey was 16,005,998. However, after the results of the survey were released, the ABS revealed that in fact 16,006,180 surveys were mailed out to eligible Australians.
The Senate Finance and Public Administration References Committee opened a Public Inquiry into the arrangements around the postal survey on 14 August with a submission made and evidence given by the ABS at hearings on 17 August. Further hearings involving the ABS, AEC, Australia Post, Department of Finance and Department of Human Services occurred on 7 September and 15 September 2017. The committee handed down the final report on 13 February 2018. The report recommended that the survey process should not be used again for matters of human rights, encouraged the government to further fund mental health and LGBTIQ organisations to mitigate the impact of the postal survey, and recommended that the Australian Electoral Commission increase its voter registration and education efforts in remote communities and work with Indigenous peak bodies to achieve greater participation.
Key dates.
Key dates relating to the survey were:
The results of the survey (including participation rates) were released at a national level, at a state and territory level and at an electorate level.
Legal challenges.
Two legal challenges were lodged contesting the legality of the survey with the High Court of Australia, both on the grounds of unlawful funding from legally-specified funds and unlawful operation by the ABS. The first was by same-sex marriage advocates Shelley Argent (national spokeswoman of Parents and Friends of Lesbians and Gays) and Felicity Marlowe (member of Rainbow Families), along with independent MP Andrew Wilkie. They announced they would challenge the postal survey in the High Court on 9 August 2017 and seek a temporary injunction. The second challenge was by Australian Marriage Equality and Greens Senator Janet Rice.
An additional complaint was lodged by a 17-year-old boy with the Australian Human Rights Commission in August 2017, on the basis that the rules did not allow provisionally enrolled 16- and 17-year-old Australians the right to participate in the survey. The complaint could have led to a federal court case to argue for the right of about 50,000 Australians aged 16 and 17 on the electoral roll to vote, however the boy dropped his complaint on 22 September, after a Greens amendment to the "Marriage Law Survey (Additional Safeguards) Act 2017" was rejected by the Parliament earlier in the month. Legal counsel to the boy advised that the rejected amendment would make the age discrimination complaint much more difficult to argue, because parliament had considered and rejected extending the vote to enrolled 16- and 17-year-olds.
High Court ruling.
The High Court pronounced its orders in both cases on 7 September 2017. The court determined that the survey was lawful, allowing it to proceed as scheduled. The challengers were ordered to pay costs. The High Court handed down its unanimous reasons on 28 September 2017, finding that $295 million had been appropriated by parliament, and that whether the expenditure was unforeseen was a matter for the Minister's satisfaction and there was no error of law in either his reasoning or his conclusion. The information to be collected was "statistical information" of matters prescribed in the "Census and Statistics Regulation" 2016 (Cth). As the court had considered and rejected the grounds of the application, there was no need to decide whether the plaintiffs had standing.
Survey process.
The survey was conducted on a voluntary basis, with no requirement on the part of the eligible Australian to mail back the survey form. This led to concerns over a potentially low voter turnout/response rate and the prospect of Indigenous Australians in remote communities being unable to complete a survey. Concern had been expressed regarding: electors whose addresses were not visible on the electoral roll (known as silent electors); disenfranchisement in remote communities; Australians overseas; prisoners; non-English speakers; and young people. Early criticism was also levelled at issues of privacy, with the recent census problems of 2016 being cited. The ABS advised that survey responses would be anonymous and protected under the secrecy provisions of the Census and Statistics Act 1905. Prior to the survey commencing, former Privacy Commissioner Malcolm Crompton independently reviewed the ABS's privacy approaches and mitigations and announced he was suitably satisfied. The ABS also worked to address concerns with special strategies like paperless options (telephony and online form) and form drop off and pick up points in remote and capital city locations. Additionally, the bureau noted that Australians could also authorise a "trusted person" to complete the survey on their behalf. While any person could be appointed a "trusted person", the Chief Minister of the ACT, Andrew Barr offered to fulfil the role for any citizen. Auditors and an external observer process were established to assure the integrity of the process, though the observers are subject to a lifetime confidentiality agreement. A quality and integrity report was published by the ABS alongside the release of the survey results. During the survey period, online sellers were contacted by the ABS asking them to remove ads by people offering to sell their postal survey or answer. The ABS advised that such an action would likely constitute an offence under the Census and Statistics Act 1905, the Commonwealth Criminal Code and the survey safeguards legislation passed by Parliament. The Digital Transformation Agency assisted the ABS with the paperless options for the survey, though due to the compressed timescale of the survey, concerns were anonymously raised by staff that the normal processes were not completed, such as sufficient user testing. AWS was brought in on a tender process to