Electoral Process, But Not As We Know It: Postal Plebsicite V2

An article I wrote about the serious defects of a postal plebiscite (back on the annual day reserved for silly jokes) has for some unfathomable reason more than doubled its hit tally in the last 24 hours.  Now that a postal plebiscite (but run by the Australian Bureau of Statistics, not the Australian Electoral Commission) has been announced by the government, it's time to update certain aspects of my commentary.

What it appears we will have (unless it is disallowed by the courts) is something so bizarre that it was not anticipated in any of the many polls about a plebiscite.  Effectively, it is a national vote on whether the government will allow a conscience vote to be brought on in the parliament.  (If the plebiscite proceeds and the "no" side wins, then the government will block a conscience vote, presumably ending any prospects for same-sex marriage for so long as the Coalition stays in power.  This rather heavy-handed approach appears to be an attempt to prevent a mass boycott from working.)

Is it constitutional?

I don't know, but we'll probably find out soon enough.  At least two sets of campaigners against the proposed plebiscite are filing for injunctions against it.  Section 83 of the Constitution requires that appropriations must be supported by law, and no law has been passed for this plebiscite.  However there are various standing general-purpose appropriations that governments have flexibility to use for the ordinary running of government, and also in emergencies.  The question will be whether an appropriation for this purpose is valid.



Issues that might be raised include

* whether the collection of statistics about opinions rather than facts is outside the ABS's purpose (see Anne Twomey's comments)
* whether the matter is urgent and unforseen enough to justify the appropriation, especially given that the Government has already presented bills on the matter to the Senate and knew that if it presented the voluntary postal plebiscite to the Senate it too would be rejected.
* whether the plebiscite is really a quasi-vote in the guise of a statistics collection (as a transparent attempt to avoid fatal legal problems with using the AEC) and hence not what it is being claimed to be

(See the Wilkie, Marlowe and PFLAG application for an injunction here).

I may well add others to this list.  It's also possible that the scheme will be found to be legal, but in a way that makes it impossible to really function without fresh regulations (which the Senate might then disallow).

The government claims a high level of confidence that its position is legally sound, while opponents seem to be making less bullish noises about their prospects than if the plebiscite was to be a fee-for-service plebiscite conducted by the AEC.  However, that does not necessarily mean anything.

The time frame for the Court to resolve the matter is not yet known, but I may edit in comments on this as they become available.

Process Issues

Many of the process issues I canvassed in the earlier article also apply to the current model.  Absent of at least regulations, there would seem to be no legal authorisation requirements, no laws against misleading electors about the electoral process, no obvious law against vote-buying (to which postal voting is more readily prone than booth voting), and no legal process to challenge the accuracy of the result.  A section of the Census and Statistics Act 1905 may allow for the creation of regulations to enforce things but they carry only weak penalties (and could be disallowed, though I doubt that the Senate would do that).  Possibly, other sources of regulations may emerge, and information on regulations is apparently coming on Monday. [EDIT: It looks like these issues may be addressed by special legislation, which the Senate would look pretty silly if it rejected it.  But the Senate might instead amend it - more on this later.]

The lack of an authorisation requirement is a problem because while circulating gay hate material may not have been illegal in a compulsory referendum (this would actually vary by state), without an authorisation requirement no-one is forced to put their name to hate fliers.  (Note: normal AEC rules on misleading material would only have policed false and misleading statements about the mechanics of the voting process.  They are not truth-in-advertising laws.)  (Update: I have now posted detailed coverage on the issue of hate speech laws.)

Issues regarding the extent of AEC cooperation remain poorly fleshed out at this stage, as do issues regarding exactly what information the ABS can obtain and the level of AEC discretion in providing it.  The ABS is permitted by the Electoral and Referendum Regulation 2016 to access the roll for the purposes of "collecting, compiling, analysing and disseminating statistics and related information".

If It's So Ridiculous, Should We Just Boycott It?

In the event that the postal plebiscite goes ahead, my strong advice to supporters of same-sex marriage is do not boycott.  (My very strong advice to opponents, of course, is to get out of other people's lives.)

Much as this farce deserves boycotting, it is already clear to me that a boycott would be highly unlikely to be a successful mass political movement.  To be such it would need, at least, enthusiastic support from Labor and the Greens, but it is clear that politicians from these parties are already gearing up to fight for the yes vote.  This makes sense given that recent polling by Essential finds that while the current option has only 9% support as the most preferred option, it is nonetheless one of many options that more voters than not consider acceptable (43% approve to 38% disapprove, with remarkably little partisan spread).  It is basically those who care deeply about the issue who are most fussed about how it is resolved.  Those with less deeply felt views about it are likely to just want the issue resolved and out of the way soon and not to be too fussed as to how.

There would be large political risks for the ALP in supporting a mass boycott.  It would look like the Coalition was keen to get on with resolving the issue while Labor was wrecking one opportunity too many to do so in the hope of getting all the credit for itself.  It is not so long ago that large numbers of Labor MPs voted against allowing same-sex marriage, and the party's formal opposition to it (including a 2019 sunset clause for conscience votes against) is a relatively recent evolution.  Moreover, Labor cannot seriously espouse the sort of  purist commitment to quality of electoral process that a boycott would entail after its dismally clueless performance in last year's Senate reform debate.

Absent of Labor support, I believe that a small-scale boycott, even if strongly supported by leading LGBTIQ groups, would only have the effect of watering down the yes vote without affecting turnout enough to do the result's credibility any further harm.  It doesn't help here that nobody has any idea really what sort of turnout there should be, so the impact of a boycott would be very hard to gauge, unless it was on such a massive scale that it was obvious most same-sex marriage supporters were refusing to vote.

It's notable also that a recent large LGBTIQ survey found that at least 56% of respondents wanted to fight in some way to win the plebiscite (despite almost all disapproving of it) compared to 15% who wanted a boycott.  This survey was not necessarily representative of all LGBTIQ people, being conducted through opt-in methods, but is very likely to have, if anything, leaned towards including those who feel most strongly affected by the issue.  (Rodney Croome has stated a follow-up is intended given the specific details of the form of the plebiscite that have now been released.)

Supporters should however be very understanding that some people affected by the plebiscite situation may feel - initially - that they simply cannot vote.  People are right to feel deeply disgusted about having their personal lives effectively held up for public judgement in this matter.  They may be especially bemused by the words of George Brandis, who argues that marriage is an intimate relationship and politicians cannot know the secrets of the human heart.  But instead of reaching the logical conclusion (that same-sex marriage is therefore no-one's business but that of the two people who want to marry), he instead concludes bizarrely that such "intimate" details should be outsourced to the judgement of millions of strangers. Er, what? Such is the tortured and pitiful logic to which the Coalition's desperation has driven it.

The Coalition's Motives

And on that, I think a little subtlety (but not too much) in discussion of the government's motives here shouldn't go astray.

The government has got itself into the sort of mess that governments get into when they make stupid promises for short-term political gain and then find that they can't admit their error.  The plebiscite has its origins in Tony Abbott's doomed attempt to save his leadership, but then Malcolm Turnbull seems to have been held to it as a condition of his own Prime Ministership.  The policy, while always unsound in any form (and not even considered important enough to be released as a formalised election policy), was pretty successful in neutralising the issue at the last election, because at least the Coalition were offering some kind of a way forward, which was seen as an improvement on endless blocking.

If Turnbull actually stood for anything much apart from being PM for the sake of it, I suspect he could have got same-sex marriage through the parliament at various points, at a very high risk of being brought down as leader and genuinely splitting the party.  Anyway, that didn't happen, and anyone wanting to get all partisan about this should remember that Julia Gillard was at least as bad if not worse.  Now, the Coalition under a moderate leader in a very grumbly political time finds itself at enormous risk of losing votes to One Nation, Australian Conservatives and other right-wing parties, at a time when it is already polling badly.  Such votes wouldn't even reliably return as preferences.

So this is one reason the Coalition is keener to keep this ridiculous "election promise" (if it even qualifies as such) than all the better ones it's ever broken.  The less savoury one is that the Coalition contains plenty of religious extremists who would rather destroy the party than let same-sex marriage pass without giving a platform to every anti-gay bigot in the country.  I don't think it is helpful to stereotype the Coalition's motives as a whole as anti-gay.  It is rather that the moderates are in a bind and unwilling to blow up the farm to get marriage equality passed.

The endgame of this isn't, realistically, stopping same-sex marriage forever.  The main aim is to keep the religious and redneck right in the fold (or retrieve those who have strayed) by pointing to the lengths the Coalition was willing to go to to tell those people that their concerns were taken seriously.  It is not that different to the Howard playbook of roping back in Coalition voters who defected to One Nation in 1998 by throwing them symbolic red meat on issues that weren't central to anything his government cared about from time to time.

No doubt I will have more to say about this vote should it actually go ahead.  A quick note that it sometimes takes me a while to approve comments on this site because of work commitments.

A Few Postscripts

Bernard Keane's Purist Nonsense

In today's Crikey email, Bernard Keane has mounted an argument that participating in the plebiscite is legitimising the idea that the government owns human rights and that votes of this kind are a valid process.

This kind of argument was crushed decades ago by Gough Whitlam with his famous comment that "only the impotent are pure".  It is frequently necessary to use mechanisms you disapprove of in order to get a result, and it doesn't "legitimise" them at all.  A similar example is the old Group Voting Ticket system for Senate elections.  Parties had to use Group Tickets or they could not poll a significant vote, but this did not mean all parties using that system agreed with it or legitimised it by filing a Group Ticket. Indeed some fought for many years to get rid of the system, and eventually succeeded.

It is entirely acceptable to use systems you don't agree with in seeking to overthrow injustice.  The most important thing is that in such a case one should criticise that system, and given the chance seek to prevent or discourage it from being used in the future.

Anti-SSM Tactic: Distract, Distract, Distract

It is notable that the anti-SSM crowd, particularly the Australian Christian Lobby and Tony Abbott, are trying to make the debate about all kinds of distractions - free speech, Safe Schools, gender, political correctness.  They seem to have grasped that if the debate is simply about same-sex marriage then their position is obviously stupid and mean, so there is a need to make the debate look like a wedge to something else.  These tactics were also seen aplenty in the Irish referendum, where they failed.  Hopefully they will also fail here.

Anyone claiming to support free speech while opposing the right of same-sex couples to meaningfully say their wedding vows is being very selective, at best.

Identification Issues

A further issue now being raised is whether ballots will be identifiable.  I think this issue may be being misconstrued, as the ABS site says only that there will be no personal identifiers on the survey form.  However, a privacy-protected postal system is still possible via the same method used in Tasmanian local government elections.  The reply-paid envelope is user-identified using a flap with user details which the voter signs.  The signed flaps are checked against the electoral roll, then they are detached and then the envelopes are opened and votes counted.  In theory someone might steal a vote and vote on someone else's behalf, but that is a mail theft crime, and also the original voter could then complain to the ABS and have their stolen vote stopped.  There would, however, be nothing to stop someone who was given (or sold) their vote by another person from voting multiple times.