Australia’s postal survey on same-sex marriage: a flawed process that should not be repeated

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.

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Improving the conduct of referendums: there are better options than a ‘truth commission’

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Following the EU referendum there have been demands for a ‘truth commission’ to be set up to oversee future referendum campaigns. In this post Paul Kildea argues that there are significant practical difficulties to the establishment of such a body. These include the possibility of a ‘chilling effect’ on speech, the fact that the accuracy of many controversial campaign statements would be impossible to assess and the probability that the interventions of a ‘truth commission’ would become political flashpoints in themselves. It would therefore be better to focus on other changes that can be made to better prepare voters for their choice at the ballot box such as improving the design of official pamphlets and the increased use of deliberative mechanisms such as citizens’ assemblies.

One of the many talking points to have emerged from the EU referendum in June is whether a ‘truth commission’ should be established to oversee future referendum campaigns. Numerous commentators have expressed frustration at the misleading claims made by both Leave and Remain campaigners, and feel that something must be done to protect voters against the wilful spread of misinformation. In a high profile report, the Electoral Reform Society recommended that ‘[a]n official body – either the Electoral Commission or an appropriate alternative – should be empowered to intervene when overtly misleading information is disseminated by the official campaigns’. At around the same time, a change.org petition called for the establishment of ‘an independent Office of Electoral Integrity (OEI) to factually verify the truthfulness of claims made during political campaigns…with powers to issue fines and factual clarifications’. That petition, which attracted over 165,000 supporters, has received 49 signatures since being published as an Early Day Motion in the House of Commons.

The objectives of improving the quality of referendum debates, and assisting voters to make informed choices, are worthy ones. However, the establishment of a body to monitor the content of campaign statements would be misguided. Efforts to foster informed voting should be directed elsewhere.

Concerns about false and misleading campaign statements

It is understandable why the idea of a truth commission emerged in the aftermath of the EU referendum. In a hard fought campaign, both sides were accused of misleading voters through exaggerations, distortions or outright lies. The Leave campaign was widely criticised for claiming that the UK sent £350 million a week to Brussels, and intimating that it could instead be spent on the NHS. Remain, meanwhile, was singled out for exaggerating the economic impacts of leaving the EU, including a claim that households would be on average £4,300 worse off. Other flashpoints included the release of UKIP’s anti-immigration poster, featuring a huge queue of migrants and refugees and the tagline ‘Breaking Point: The EU has failed us all.’ A survey conducted near the end of the campaign found that nearly one-half of voters (46 per cent) thought that politicians from both sides were ‘mostly telling lies’, while only 19 per cent thought that they were ‘mostly telling the truth’.

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The Australian Senate’s reformed electoral system is a major improvement

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The most significant changes to the system for elections to the Australian Senate since 1984 received Royal Assent last week. Harry Hobbs and George Williams explain the background to the legislation, which will give voters more control over how their preferences are distributed. They argue that, in reflecting the principle that candidates should be elected based on the size of their vote rather than opaque preference deals, the changes are a major improvement.

After a marathon debate lasting over 28 hours, the Australian Senate has passed the most significant changes to its method of election since 1984. The changes are contained in the Commonwealth Electoral Amendment Act 2016, which was given Royal Assent on 21 March, just in time for the upcoming Federal election – though a quixotic High Court challenge to overturn the legislation has been launched.

The Australian Senate

The Senate differs from the House of Lords in several important respects. Australia’s upper house is an elected body. Section 7 of the Australian Constitution provides that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

Since 1949 the Senate has been elected under a proportional voting system. As six Senators are elected for each state at each normal half-Senate election, a candidate requires 14.3 per cent of the vote to be chosen. A candidate who fails to reach this quota is excluded and their votes transferred to the voters’ second preference. This process continues until all six Senators have been elected. This proportional method of selection means that the government of the day typically does not command a majority in the chamber.

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What would a minority government be like?

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As the election approaches, Peter Riddell explores the very real prospect of a minority government and considers the challenges which would be likely to arise from such a scenario.

Paul Goodman was right to argue on Conservative Home in November that a minority government may be more likely than a full-blown coalition if there is a hung parliament next May. The bruises from the current coalition and changes in party strengths since 2010 have shifted expectations against a further coalition. And a lot of thought is now under way as to how a minority government would function, and how long it might last.

First, if you thought the ‘five days in May’ of 2010 tested the political and media worlds’ patience, we could be in for an even longer wait in five months’ time. At least in 2010, the first and third parties in terms of numbers of MPs added up to a clear Commons majority.  But some recent polls suggest that the first and third parties may not pass the winning post for an overall majority, even discounting the handful of Sinn Fein MPs who will not take their seats.

That calculation makes much harder not only the formation of a coalition, but also reaching an informal arrangement. A multi-party deal is possible, but in theory only since the fourth, fifth and sixth parties, whether the SNP, DUP or UKIP have nothing to gain by allying with the larger parties.  Of course, the SNP could be ahead of the Lib Dems on some projections, which makes a deal even less likely. And that could takes us back a century to when the Irish Nationalists held the balance of power.

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