Just to establish background, the Senate has blocked the government’s proposal for a same sex marriage plebiscite. There is talk of some kind of postal ballot, but it would not be compulsory and therefore statistically unconvincing. Furthermore, given this impasse the Liberal meeting scheduled for Monday could conceivably lead to the fall of the government. So perhaps an alternative approach is in order.
I believe that there may be a way, without requiring any legislation, for a compulsory plebiscite on the matter.
Note: I am not a lawyer, nor am I pretending to be one. But I shall now present the relevant legislation which I believe gives the government authority to conduct such a plebiscite.
My proposal involves using the authority of the Australian Statistician. A wag might suggest that he or she owes the community a little something after the recent fiasco.
First, the authority of the Statistician. Subsections 10(1) and (4) of the CENSUS AND STATISTICS ACT 1905:
(1) The Statistician may prepare forms relating to the collection of statistical information in relation to any matter referred to in section 8 or 9.
(4) For the purposes of section 8 or 9, the Statistician may, by notice in writing served either personally or by post on a person, direct the person:
(a) to fill up and supply, in accordance with instructions contained in or accompanying a form accompanying the notice, within such period after the service of the notice, being not less than 14 days, as is specified in the notice, the particulars specified in that form; and
(b) to cause the form so filled up to be furnished to the Statistician, or to an authorized officer, in accordance with those instructions.
[NOTES: Subsection 10(3) cannot be used because compliance with it is not compulsory. The Section 8 referred above is not relevant because it is concerned with the Census.]
The form would, of course, be the question to be asked in the plebiscite, along with such any necessary ancillary information.
So, the arising questions are, (1) is this really compulsory, (2) would the plebiscite fall within the “purposes of section 9”, (3) would the Statistician actually issue such a direction (given his or her apparent reluctance to use SS10(4))?
Yes. it is compulsory
(1) A person commits an offence if:
(a) the person is served a direction under subsection 10(4) or 11(2); and
(b) the person fails to comply with the direction.
(2) Subsection (1) is an offence of strict liability.
(3) Subsection (1) does not apply in relation to a person’s failure to answer a question, or to supply particulars, relating to the person’s religious beliefs.
Some will inevitably argue that subsection (3) would invalidate the compulsory nature of the direction because the question of same sex marriage is itself a proxy for religious belief. That is false. There are many faithful of many faiths who support marriage equality. There are many without faith who oppose it. As an example, I am an atheist. I am somewhat opposed to SSM because I think it damages an incredibly important institution which emerged through the Hayekian spontaneous order.
Yes, such a plebiscite would seem to fall within the ambit of Section 9 of the Act
(1) The Statistician:
(a) may from time to time collect such statistical information in relation to the matters prescribed for the purposes of this section as he or she considers appropriate; and
(b) shall, if the Minister so directs by notice in writing, collect such statistical information in relation to the matters so prescribed as is specified in the notice. (my emphasis)
What matters are prescribed for the purposes of the section? For that we go to Section 13 of the Census and Statistics Regulation 2016:
13. For section 9 of the Act, the matters mentioned in the following table are prescribed.
Thereafter follows a table listing those matters. The first few: 1. Accidents and injuries; 2. Agricultural, apicultural, poultry, dairying and pastoral industries and related service industries; 3. Assets, liabilities and financial operations and transactions of a natural person or an organisation; 4. Banking; 5. Births, deaths, marriages and divorces …
Bingo! There are actually 52 matters on the list, one for each week of the year.
Again, a point of attack on the proposal, probably the strongest, is that the form would not be asking about marriages, but about people’s views or opinions on marriage, or indeed, their views or opinions on the law (whether or not the Marriage Act should be changed). But Law is covered (item 30), so the only remaining issue is whether opinions can be sought. Perhaps the Statistician has never asked such a question before. Perhaps a court would hold that it’s beyond his or her power. But given the extremely wide range of things prescribed, it would seem worth a shot.
Yes, the Statistician would indeed ask such a question, if the government has the will
Look again at Section 9 of the Act. Paragraph 9(1)(a) provides for the Statistician to collect information on his or her own initiative. But Paragraph 9(1)(b) requires the Statistician to collect prescribed information if the Minister directs it in writing.
But what about the concept of secret elections?
Subsection 19(1) or the Act:
(1) A person commits an offence if:
(a) the person is, or has been, the Statistician or an officer; and
(b) the person, either directly or indirectly, divulges or communicates to another person (other than the person from whom the information was obtained) any information given under this Act.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
So the process would be: the Minister directs in writing the Statistician to collect statistical information from all members of the voting age citizenry (and, yes information on an entire population is still statistical information) on whether or not they support a change to the Marriage Act. A reasonable period is allowed for the Statistician to make the necessary arrangements — two or three months perhaps. I’d suggest proceeding with a paper vote rather than rushing to create a new online system of which Australians might be justifiably suspicious. The Act requires the Statistician specify a response period of not less than 14 days. The government would need to decide that and accompany the whole thing with an advertising campaign emphasising the secret nature of this novel voting system, urging compliance.
It would also need to pre-establish rules for judgement. What will it do in the case of a close vote? There will be some non-compliance, of course. Let’s say there is a 95% response and the vote is 51% for change vs 49% for the status quo. Will that be accepted even though it’s short of an actual majority for change.
But those are details. This proposal would, it seems to me, be a way out of the present impasse, and would make it more difficult for potential Liberal defectors to jump straight to a parliamentary vote.
But, of course, they may anyway. And one could be certain that there would be legal challenges every step of the way.