Stephen Dawson – How to conduct the Same Sex Marriage Plebiscite without new legislation

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

Section 14 of the Act:

(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

Section 9:

(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.

Conclusion

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.

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22 Responses to Stephen Dawson – How to conduct the Same Sex Marriage Plebiscite without new legislation

  1. A H

    How about a referendum to remove the power to define marriage from the constitution?

  2. Status quo ante remains if fewer than a majority of all the eligible voters want a change.

  3. Paul Farmer

    It would be worth going this route to send a clear message that the government can on occasions quite legally work around the senate, and would show the govt to have integrity on this issue. It is integrity that is at the heart of this. I don’t give a toss if two gay people get married or not , but I am tired of promises not being kept by politicians.

    Similarly there are plenty of ways as others have commented on here in past posts to cut spending without going through the senate also. In this age of senate obstruction anything that gives those bastards a serving of humble pie and reminds them that there is limits to their power and obstruction in the scheme of our democracy, should be pursued with vigour.

  4. RobK

    Interesting. Seems like it could be worth a try.

  5. Megan

    Quickly, send a copy to the one or two remaining liberals with integrity. Not that I can name any.

  6. Shannon Conroy

    I would love to say give it a try – but I think we all know what would happen.

    1. Massive legal shitstorm as every self appointed SJW LGBTQWERTY expert used any means necessary to obstruct the plebiscite

    2. Failing that would be a nationwide boycott of the plebiscite/referendum. Progressives and LGBTQWERTY activists would launch a social media campaign to boycott the event. There will be wall to wall speakers from said community on the ABC on every program and station harping on about how “damaging” this will be. Fairfax and the Guardian will be full of pieces enabling these dickheads who take this position.

    They want “gay marriage” but only on their terms. Needs to be rammed down everyone’s throat by a legislation Change in parliament. Anyone who wants their say needs to just “shut up.”

  7. jonesy

    To fulfill the promise of a plebescite….what a novel idea! If properly managed by the bureau it would also go a long way to restoring faith after the IBM fiasco.

  8. Robber Baron

    This concept might be extended to find out about things like immigration or even prompt elected politicians to remember their citizenship of other countries. The act allows for collection of such data as: Religion or religious denomination, Citizenship, Country of birth and so on.

    Perhaps this might eliminate the need for duplicitous politicians.

  9. Tel

    How about a referendum to remove the power to define marriage from the constitution?

    There is no such power.

    They only have the power to regulate marriage, not re-define it. The Constitution does not offer any government the power to re-define any English word… if it did then they could re-define the meaning of other words like “national defense” and change them to mean something like a war of aggression in Iraq.

  10. cohenite

    Worth a shot; the SJW’s would, with or without collaboration from any number of mincing idiots in parliament, immediately issue an ultra vires challenge in the HC, so one way or another the issue will be resolved.

  11. Suburban Boy

    It’s an interesting idea, but sadly falls foul (in practical terms) of the Legislation Act 2003.

    That Act defines a ministerial notice under section 9 of the Census and Statistics Act 1905 as a “legislative instrument”. Each such instrument is subject to disallowance by either house of the Parliament, so we can safely assume that the Senate that blocked a Bill for a plebiscite would also vote to disallow an instrument to use the Census and Statistics Act in this way.

  12. Michel Lasouris

    ” Filled up forms”? How quaint. Would not “completed” be more adult?

  13. Roger

    There are many faithful of many faiths who support marriage equality.

    Given that none of the major religions teaches anything other than that marriage is the union of a man and a woman just how “faithful” are these faithful?

  14. Hey, Suburban Boy. That would be fatal to my argument indeed. I had a quick look at the Legislation Act, and it would seem that for the notice to be disallowable, it would need to be declared to be so under regulations, either primary ones, or ones adopted from the Acts Interpretation Act. Do you have a more specific reference?

  15. 2dogs

    it would not be compulsory and therefore statistically unconvincing

    But that becomes Shorten’s problem after such a plebiscite.

    If the paper plebiscite passes, the vote then gets held in parliament, and the issue is then dead and buried.

    If if it is rejected, then “the people have spoken”. It can certainly be argued that the result was flawed, but that would be Shorten’s fault for opposing a full plebiscite. The only way to avoid being antidemocratic would be to hold a new plebiscite, an embarrassing about face for Shorten.

  16. Muddy

    I cannot offer any legal comment, but this is a well-written post.

  17. Rob MW

    This whole turnout is totally unreal. Why not just have 2 (mirrored) marriage acts with different long titles and definitions of what constitutes marriage under that act. They could have the long title ‘Straight Act” and the long title “Bent Act”, for fuck sake, what the hell is wrong with equality under constitutionally equal (mirrored) force of law.

    Making hard work out of what should be fucking simple. In the alternative, I want my fucking vote to save the definitions in the current marriage act.

  18. Diogenes

    Suburban Boy,
    can be easily got around, have the Minister issue the direction after the senate has risen for its next break, and have the whole process completed before it sits again

  19. John constantine

    The left do not care about gay marriage, or they would have rammed it home when gillard and the greenfilth controlled the Senate.

    The left are fighting to topple the racist misogynist settler Anglosphere, any weapon, any fight on any front is subsidised if it progresses this agenda.

    If the culture that replaces old Australia ends up killing gays for sport and public entertainment, the left will see it as a small price to pay for the eternal vengeance of Stalin.

  20. Tim Neilson

    How about a referendum to remove the power to define marriage from the constitution?

    There is no such power.

    They only have the power to regulate marriage, not re-define it. The Constitution does not offer any government the power to re-define any English word…

    That’s true of Parliament and the Executive.

    But while a Constitutional power over “marriage” exists, the High Court can define it to include Portnoy and his steak. Which they more or less did in the ACT gay “marriage” case.

    I know that’s ridiculous. I posted about this on some previous thread quoting Fullagar J in the Communist Party case as saying by way of example that a Commonwealth power over lighthouses isn’t a Commonwealth power over anything they decide is or should be a lighthouse. But the ACT gay “marriage” case suggests that that’s just so 20th century.

  21. kc

    Congratulations on being ahead of the curve. Someone was paying attention it would seem.

    kc

  22. .

    Suburban Boy
    #2459565, posted on August 5, 2017 at 8:44 am
    It’s an interesting idea, but sadly falls foul (in practical terms) of the Legislation Act 2003.

    That Act defines a ministerial notice under section 9 of the Census and Statistics Act 1905 as a “legislative instrument”. Each such instrument is subject to disallowance by either house of the Parliament, so we can safely assume that the Senate that blocked a Bill for a plebiscite would also vote to disallow an instrument to use the Census and Statistics Act in this way.

    Well said.

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