Potato, potahto, plebiscite, survey – will we call the whole thing off?

The Federal Government attempted to pass legislation for a compulsory plebiscite bill on same sex marriage. However, it failed to pass through the Senate and this has led to a non-compulsory postal survey occurring – the Australian Marriage Law Postal Survey, as it is formally known.

So, what is a plebiscite and how does it vary from a referendum?

As most readers would be aware the Australian Constitution gives the Federal Government power over “marriage”. However, the definition of “marriage” has never been decided by the High Court of Australia. The provisions of the Marriage Act mean that currently same sex couples cannot marry in Australia.

To amend the Constitution, the proposed amendment must first pass in both Houses of Parliament by an absolute majority. After passing through a case committee and the Governor General issuing a writ for the referendum, the amendment is then put to the people to vote. For a proposed constitutional change to become law, it must be approved by an overall majority of voters in all states and territories as well as a majority of voters in a majority of states. Voting is compulsory for enrolled voters nationally in a referendum and the government is bound by the outcome.

In contrast, a plebiscite can be held by governments to test voter’s attitude to a particular issue with a view to changing the law, not the Constitution. Voting is compulsory but the result does not bind the government. The changes must still be legislated by Parliament afterwards even if the plebiscite indicates approval of the change by the majority of voters.

For the Australian Marriage Law Postal Survey, voting is not compulsory and the result will not bind the government. The Australian Bureau of Statistics (ABS) will conduct the national survey using the details of those on the electoral roll. Voters who did not enrol before 24 August will not be involved in the postal survey.

A High Court challenge to the survey will be heard on 5 and 6 September.

If the survey proceeds, ballot papers will be sent to electors on 12 September with responses due before 7 November.

Results from the survey would be published on the ABS website on 15 November.

The Government has stated that should an affirmative result arise from the survey, they will facilitate the introduction of a private member’s bill to legalise same-sex marriage.

Kaye Griffiths Kaye Griffiths 29/08/2017

Disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on epost@dsslaw.com.au.