Legislation legalising same-sex marriage completed its passage through the Australian parliament last week. This followed a strong vote in favour of the change in a postal survey, held from September to November. Paul Kildea argues that, while the survey proved effective in bringing about marriage equality, the process was deeply flawed and should not be repeated.

Australia’s political year ended on a high with the legalisation of same-sex marriage. There were jubilant scenes in the House of Representatives as it approved a change to the legal definition of marriage from ‘the union of a man and a woman’ to ‘the union of 2 people’. The first weddings will take place on 9 January.

The road to marriage equality was convoluted and messy. For many years politicians resisted growing community calls for change, and in the end opted to hold a national poll as a precursor to legislative action. This was constitutionally unnecessary and expensive, but the resounding result – 61.6% of respondents supported same-sex marriage – provided a clear endorsement that parliament could not ignore.

What is particularly noteworthy about this national poll is the form that it took: it was not a referendum or a plebiscite, but rather a public opinion survey run by the Australian Bureau of Statistics. It was non-binding, voluntary (voting in elections is compulsory in Australia), and conducted entirely by post over an eight-week period from September to November this year. The postal survey was, in design and execution, unlike any previous direct democracy exercise in Australia. Now that it is behind us, a full appraisal is necessary. This post will argue that, while the survey proved effective in clearing the political path to marriage equality, it was deeply flawed as a process and should not be repeated.

The long, winding road to same-sex marriage

It has been known for some time that the path to marriage equality in Australia runs through the legislature. In the past there had been doubts about the national parliament’s ability to legislate for same-sex marriage, but these were dismissed by the High Court in a 2013 ruling. Since then, reform has been in the hands of politicians. Advocates called on them to amend the Marriage Act 1961 (Cth) which expressly defined ‘marriage’ as ‘the union of a man and a woman’.

Yet, in August 2015, the conservative Prime Minister, Tony Abbott, resisted calls to legislate and instead announced that his government would hold a non-binding plebiscite on the matter. This was highly unusual. While Australian governments hold referendums on constitutional amendments from time to time (44 such votes have been held since 1901), they only rarely conduct plebiscites on other matters. In fact, history yields just three precedents: two votes on compulsory military service in 1916 and 1917, and one on the national song in 1977. This is consistent with Australia’s tradition of parliamentary democracy in which elected representatives are entrusted to make decisions on most issues. In line with this, Australia’s parliament has a long history of legislating on matters of marriage and divorce.

Abbott’s public rationale for the poll was that same-sex marriage is a socially contentious matter that is best left to individual voters. But political pragmatism was the primary motivator. By giving the people a direct say on marriage, Abbott was able to delay progress on a reform that he opposed, and to defuse internal government tensions on an issue that divided his party room.

The path from plebiscite to survey was a circuitous one. Malcolm Turnbull replaced Abbott as Prime Minister and put the plebiscite plan to parliament in September 2016. The Senate swiftly rejected it, with opposing senators arguing that a poll on same-sex marriage was unnecessary, expensive and potentially harmful. A year later, on 9 August 2017, the Senate rejected the plebiscite for a second time. The government, determined to hold the poll regardless, announced that the popular vote would go ahead in the form of a nationwide postal survey, conducted by the Australian Bureau of Statistics (ABS).

This was a clever legal manoeuvre. The executive government lacked constitutional power to conduct a plebiscite without parliament’s support. But its ability to direct and fund the ABS to run a survey was more legally certain – a point that was confirmed weeks later when the High Court heard and dismissed a challenge to the survey. Nonetheless, the decision to opt for a survey over a plebiscite was a consequential one. At a plebiscite, participation would have been compulsory, most voting would have been in-person, and the process would have been administered by the Australian Electoral Commission. The survey, meanwhile, was to feature voluntary participation, the receipt and return of survey forms by post, and the process was to be conducted by an institution (the ABS) that had no experience in running electoral processes. More generally, the survey seemed to reduce direct democracy to an exercise in collecting statistical information.

Evaluating the postal survey

After the survey result was announced, Turnbull described it as ‘an unprecedented exercise in democracy’. Turnbull is right in the sense that the process took a novel form that had not been tried before. But the overall experience of the postal survey was a mixed one, and the mechanism itself is so flawed that it should not be used again.

The postal survey was effective in promoting participation in a decision that would usually be determined solely by the legislature. The response rate was extremely high for a voluntary exercise: 79.5% of eligible people participated, which exceeds the turnout of both the Irish marriage referendum (61%) and the UK’s Brexit poll (72%). Moreover, the participation rate was high nationwide and across age groups. Younger voters in particular surprised with their strong response rates (including 78.2% among 18–19 year olds). There were pockets of low participation (notably in some remote areas) but overall the process managed to be inclusive as well as participatory. The survey’s effectiveness on these measures can be attributed both to the salience of the issue, and a tradition of participation that has been inculcated over almost a century of compulsory voting in elections.

One of the concerns going into the survey was that it was a poor mechanism for deciding a question of minority rights. This is a common criticism of referendums in general. They are majoritarian processes, and so they risk marginalising minority interests. Representative institutions are said to be better at accommodating and balancing a variety of interests.

Australia’s long path to recognising marriage rights for same-sex couples demonstrates the limitations of both representative and direct democracy in advancing the interests of minority groups. The parliament failed over many years to adequately debate same-sex marriage and was unresponsive to growing public demands for change. Looked at in this way, the legislative majority failed the LGBTIQ community and it took a popular majority to provide a circuit breaker and confer legitimacy on their claim to equal rights.

On the other hand, the survey experience demonstrates how direct democracy can make minority groups feel deeply vulnerable. The survey placed LGBTIQ people in a subservient position by empowering a majority to cast a verdict on whether they should enjoy equal treatment under the law. And the intense spotlight of the campaign made many feel as if their status and worth was being judged. Both the power imbalance, and the feelings of humiliation that came with it, may not have featured so prominently if same-sex marriage had been dealt with by the parliament alone.

Referendums, when run well, can create a space for public deliberation. It is difficult to know if the survey achieved this. It received extensive media coverage and the main broadcasters sought to be even-handed. As a result, it was easy to access information and a range of perspectives. At a more micro level, there were numerous stories of the survey prompting ‘kitchen table’ conversations in which different views were articulated and discussed among friends and family.

In other ways the survey failed to encourage informed, reflective and open-minded debate. Misleading and/or offensive material was distributed widely during the eight-week campaign. The ‘No’ campaign, for instance, broadcast a television advertisement that sought to link same-sex marriage to gender identity (‘the school told my son that he could wear a dress next year if he felt like it’, says a mother featured in the ad) and sex education in schools (‘kids in year 7 are being asked to role play being in a same-sex relationship’). At a local level, homophobic pamphlets were circulated and property defaced with anti-gay graffiti (such as ‘vote no to fags’, scrawled on the door of a Sydney train). Opponents of same-sex marriage reported receiving threats and abuse from ‘Yes’ supporters. Incidents of this nature tend not to happen in Australia’s constitutional referendum campaigns, but were not unexpected in the lead up to a popular verdict on a socially contentious issue.

Finally, in the wake of a decisive ‘Yes’ response, it is easy to forget the profound shortcomings of the survey process itself. It sidelined parliament, leaving key decisions – such as timing and question-setting – solely in the hands of the executive government. Its status as a voluntary survey conducted by post made it a flawed means of measuring public opinion; indeed, an ordinary, weighted opinion poll would have been both more accurate and far less expensive. This method also made the survey susceptible to various forms of fraud, including multiple voting (the opportunity to do this arose when householders received the survey forms of previous residents who had failed to update their address on the electoral roll) and profiteering (by selling survey forms online).

While the parliament did scramble to enact basic safeguards to protect the integrity of the survey, some basic protections of electoral law did not apply. The most significant omission was the establishment of an independent process for resolving disputes about the outcome. There was no Court of Disputed Returns capable of hearing disagreements about the formality of survey responses and other contentious issues. If the survey result had been close, the absence of such a body would have been hugely problematic. In fact, the procedural shortcomings of the survey were such that, had the result been close, the losing side would almost certainly have refused to accept its legitimacy.

Conclusion

Australia’s postal survey on same-sex marriage was a curious exercise in direct democracy. The decision to hold the survey, and its design, were driven predominantly by political expediency and a desire to sidestep constitutional barriers. Nonetheless, this awkward instrument managed to clear the political path to marriage equality. It is therefore tempting to argue that the end justifies the means – but this would be a mistake. We should celebrate the public endorsement of same-sex marriage that the survey enabled while committing to never run such a process again. If the people are to have their say on policy issues in the future, they should do so through more established electoral processes that require the endorsement of parliament and better promote the goals of integrity and respectful debate.

About the author

Dr Paul Kildea is Senior Lecturer in Law at the University of New South Wales and the Director of the Referendums Project at the Gilbert and Tobin Centre of Public Law.