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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Referendums in UK democracy: how should they work in practice?

The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, has now met twice. One of the issues they are considering is rules for how referendums should work in practice. The Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.

In a previous blog post I explored some principles that could be used for deciding when a referendum might be appropriate. The Independent Commission on Referendums is also considering how referendums should work in practice. The following post explores some key practical questions.

Should there be rules for when a referendum is required, permitted or prohibited?

The UK is unusual among comparable democracies in that referendums are held ad hoc: there are very few standing rules on when referendums are to be held. This means, at least in theory, that there are no restrictions on matters that a referendum may be held on: it could be held on any issue within parliament’s legislative competence.

Many other democracies have provisions in their constitutions setting out when a referendum must be, can be, or cannot be held. Constitutional issues are the most common category of issues on which a referendum is required. For example, Ireland, Australia and Japan require referendums on any bills amending the constitution. In Austria, Spain, Lithuania and Iceland amendments to certain key parts of the constitution must be approved in a popular vote. There are also examples of referendums being required on other issues: Denmark has mandatory referendums on transfers of sovereignty and changes to the voting age.

Where referendums are not required on constitutional amendments, there is often a mechanism allowing a parliamentary minority to trigger one, as is the case in Italy, Austria and Spain. In some democracies, legislation can be put to a referendum if requested by a body so empowered by the constitution. This could be the parliament, as in Denmark and Austria, the president, as in Ireland and Iceland, or groups of citizens, as in Italy and the Netherlands. Where referendums are permitted on legislation, certain types of legislation are often exempt: most commonly, finance, budgetary and tax laws or legislation implementing treaties.

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When is it appropriate to hold a referendum?

The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, is holding its second meeting today. At today’s meeting the members are focusing on whether principles can be identified for deciding when holding a referendum is appropriate. In this post the Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.

The first UK referendum, with the exception of polls at a very local level, took place in 1973 in Northern Ireland. Since then there have been three UK-wide referendums, and ten referendums covering parts of the UK. Yet the question of what role referendums should play in the UK’s system of democracy remains unresolved. This is the question for discussion at today’s meeting of the Independent Commission on Referendums.

In this post, I explore the question of whether principles can be identified for deciding when a referendum is appropriate. I do not attempt to draw conclusions, or foretell those of the Commission, but simply put forward proposals for consideration.

How are democratic decisions best made?

To answer the question of what role referendums should play in a system of democracy, one must first consider how political decisions are best made. This depends on how one conceives of democracy. Broadly speaking there are three alternative conceptions: direct, representative, and deliberative.

According to the theory of direct democracy, decisions are most democratic when preferences are expressed directly by the people; representative institutions will distort popular will. In contrast, proponents of representative democracy argue that collective decision-making requires participants to dedicate significant time and resources to the process. It is not feasible for all citizens to do that, so decisions are best made by elected representatives. The third conception is deliberative democracy, according to which decisions should be made through processes in which everyone’s voice is heard and arguments and evidence are thoroughly considered. This conception is commonly associated with citizens’ assemblies and citizens’ juries.

Although these visions of democracy are often presented as mutually exclusive, most modern democracies incorporate elements of all three. Rather than being diametrically opposed, different forms of democracy can complement each other and be used to address disadvantages or shortcomings of other methods of decision-making. Regardless of which conception of democracy one subscribes to, it may still be possible to identify certain circumstances in which referendums might be appropriate.

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A new phase for Italy’s regional system? The referendums in Lombardy and Veneto on greater autonomy

On Sunday 22 October voters in the Italian regions of Lombardy and Veneto expressed their support for greater regional autonomy in two consultative referendums. Is this the start of a new attempt at overhauling and modernising Italy’s two-track regional system, after a constitutional reform proposal that would have re-centralised Italy’s regional system (and reformed its bicameralism) was rejected in December 2016? Jens Woelk provides an overview of recent developments in Italy and suggests that despite the two referendums in favour of more autonomy, consensus and a coherent design for reforms of the Italian system are still lacking.

What kind of answer do you expect to the question, ‘Do you like chocolate?’ The answer seems obvious. The same applies to the question asked in consultative referendums held in wealthy regions in northern Italy on Sunday 22 October: ‘Are you in favour of greater autonomy (for your region)’? As widely expected, including by the organisers, the results were positive. In Veneto, the threshold of 50% established for the validity of the consultation was not a problem: with a turnout of 57.2% an overwhelming 98.1% voted in favour. Although the turnout in Lombardy, where no threshold applied, was considerably lower (38.34%), the ‘Yes’ votes were a large majority (95.29%) there too.

Narrowing the gap between the two tracks of Italy’s regional system?

The asymmetrical Italian regional system consists of five autonomous or ‘special’ regions and of 15 ‘ordinary’ regions. While the Constitution itself contains detailed regulations regarding the latter, the autonomy of each special region is individually based upon a special ‘statuto’. This Act with constitutional rank lists legislative powers and administrative functions and contains specific institutional and financial arrangements. There are peculiar features in each special region; these and their powers distinguish special regions from ordinary ones which have fewer (and no exclusive) competencies and only generic guarantees of financial resources.

A constitutional reform in 2001 aimed at narrowing the gap between the two categories by strengthening the powers of the ordinary regions (therefore the reform is widely known as ‘federalisation reform’). However, the ambitious reform did not produce positive results, due to a combination of poor and slow implementation; passivity of the regions themselves, which hardly made use of their new powers; and the activity of the Constitutional Court, which has  at times overturned the devolutionary logic of the reform in order to preserve the unity of the state and the co-ordinating function of central government.

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The Independent Commission on Referendums: issues and early ideas

The Constitution Unit has today launched an Independent Commission on Referendums, to review the role of referendums in UK democracy and consider how the rules and practice could be improved. The Commission’s members represent a range of political opinions, with expertise extending across all major UK referendums of recent years. Alan Renwick and Meg Russell highlight some of the key issues that have led to the Commission’s establishment.

The Constitution Unit is pleased to announce the launch of an Independent Commission on Referendums. The UK’s recent experience of referendums has prompted various criticisms of their use and conduct. With referendums now an established part of UK democracy, a review of their regulation and practice is needed. The Commission’s twelve members – listed in full on its webpages – include two former cabinet-level ministers, four other present or former parliamentarians, as well as senior figures from the worlds of regulation, journalism and academia. With their immense expertise and experience, and supported by international research conducted by the Constitution Unit, they will be very well placed to develop constructive and thoughtful recommendations for the use and conduct of referendums in the UK.

We make no attempt in this post to prejudge what the Commission members might conclude. Rather, we highlight some of the key issues and concerns that have led to the Commission’s creation and prompted such distinguished individuals to take part.

When and how should a referendum be called?

The most fundamental question is that of when referendums should be called – indeed, whether they should ever be held at all. Recent referendums in the UK have raised many doubts. In Wales in 2011, some queried whether voters could reasonably be expected to decide on what many saw as relatively technical changes to the devolution settlement. Turnout just above one third of eligible voters suggested that public engagement was low. Two months later, voters across the UK were asked to vote on an electoral system – the alternative vote system – that few campaigners really wanted, primarily due to bargaining between the two coalition partners. In Scotland, the question of who should have the power to call an independence referendum has been and remains contested. Since the Brexit referendum last year, some on the losing side have vowed ‘never again’, and even some of those prominent on the winning side have suggested that this was a vote that shouldn’t have been held. In its recent report Lessons learned from the EU Referendum, the Commons Public Administration and Constitutional Affairs Committee (PACAC) – chaired by arch-Brexiteer Bernard Jenkin – criticised the use of what it styled a ‘bluff-call’ referendum, initiated by the government on a proposal that it opposed in the hope of shutting down debate on the issue.

The UK currently has few agreed principles on when referendums can and should be held – parliament can, in principle, call a vote on anything it likes at any time by passing enabling legislation. In practice, some conventions have begun to emerge as to when a referendum is considered appropriate, and in 2010, the Constitution Committee of the House of Lords proposed a list of constitutional matters that might need to go to popular vote. Yet any such norms remain relatively weak.

So it is worth considering whether it would be desirable – and indeed even feasible – to stipulate more precisely when referendums should be held or how they should be called. PACAC suggested that ‘bluff-call referendums’ should stop, but is there any way of giving such an exhortation real-world weight? Many other democracies do specify the processes for triggering referendums much more tightly, and investigation of the options here will be important.

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How can we improve discourse during elections and referendums?

The Constitution Unit has recently launched a year-long project, which seeks to understand how the quality of information and public discussion during election and referendum campaigns can be improved. In this blog post, Alan Renwick and Michela Palese set out the motivations and plan for their project, along with some initial findings.

Following the 2016 EU referendum campaign, concerns over the quality of political discourse have been raised by people of all political persuasions. For example, the Electoral Commission’s report on the EU referendum found that only 34 per cent of respondents agreed that the campaign had been conducted in a fair and balanced way, with 52 per cent disagreeing and 34 per cent disagreeing strongly. The most common reasons given were that the campaign had been ‘one-sided/unbalanced/biased/partial’ and that the information provided was ‘inaccurate and misleading’. Similarly, the House of Commons Treasury Committee reported that ‘The public debate is being poorly served by inconsistent, unqualified and, in some cases, misleading claims and counter-claims’. Efforts to tackle the spread of misleading statements and so-called ‘fake news’ have recently been increasing in the run-up to the UK general election on 8 June.

Despite such widespread concerns over the prevalence of misinformation and the need for fair and balanced debate, little research has been conducted on the quality, as opposed to the quantity, of electoral participation and deliberation. Our project, which is generously funded by the McDougall Trust, aims to fill this gap by examining measures for improving the quality of public discussion during election and referendum campaigns. If appropriate, we will conclude by making reform proposals for the UK.

We have begun our work by surveying existing practice across a wide range of democracies, which will allow us to identify areas and options deserving of more detailed investigation. Through this preparatory research, we have tentatively identified three sets of options:

1/ Interventions designed to prevent misinformation by directly banning campaigners from making false or misleading statements. 

So far as we are aware, the most developed application of this approach is in South Australia, where the Electoral Act of 1985 states that ‘A person who authorises, causes or permits the publication of an electoral advertisement … is guilty of an offence if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent’. Similar measures can also be found in New Zealand and some US states, such as Oregon. This option gained some traction in the UK after the EU referendum. Last July, for example, 50 MPs signed an early day motion calling for the establishment of an ‘Office of Electoral Integrity (OEI) to factually verify the truthfulness of claims made during political campaigns, with powers to issue clarifications and fines where appropriate’.

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PACAC’s report on the EU referendum opens important questions that deserve further attention

Yesterday, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published a report (summarised here) on Lessons Learned from the EU Referendum. Media headlines have focused on the committee’s concerns about possible interference during the referendum campaign by cyber hackers but, as Alan Renwick writes, the report also raised other important issues that deserve further attention.

The House of Commons Public Administration and Constitutional Affairs Committee (PACAC) yesterday published a report on the conduct of last year’s EU referendum. The headlines in media reporting of this for the most part highlighted the committee’s concerns about possible interference during the referendum campaign by cyber hackers. But the MPs also draw out various other important lessons that might be learnt for any future referendums held in the UK. These deserve our careful attention.

Many of the proposals ought to be uncontroversial. The committee adds its weight to calls for extension of the so-called ‘purdah’ period – when state resources cannot be used in support of either side in the campaign – beyond the current 28 days. That would prevent any repeat of the pro-Remain leaflet that the government sent to all households last year at a cost of over £9 million to taxpayers. It would be a desirable step – though, as I suggest below, not the only necessary step – towards the creation of a level playing field in referendum campaigns.

The MPs also urge an updating of the purdah rules – written in 2000 – to reflect the realities of campaigning in the digital age. There was confusion last year as to whether those rules allowed a website promoting the government’s position that was created before the ‘purdah’ period to remain live during that period. The committee sensibly argues that his should be reviewed with a view to providing clarity.

Turning to the system for registering to vote, the committee – again very sensibly – argues for changes designed to minimise the danger of any repeat of last year’s website crash, which forced a last-minute extension of the registration deadline just days before the vote took place.

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