Exclusive: Observers of the process powerless to challenge disputed responses and cannot speak out about any irregularities

Observers tasked with maintaining the integrity of the same-sex marriage postal survey count are subject to a confidentiality agreement that bans them from ever speaking about it publicly.

Vote counting for Australia’s voluntary non-binding same-sex marriage postal survey is under way at a Fuji Xerox office in Moorebank in Sydney’s south-west.

But representatives from the yes and no campaigns who are observing the counting are powerless to challenge disputed survey responses, and face prosecution if they speak out about irregularities in the process.

Guardian Australia has obtained copies of the confidentiality deed that all observers are required to sign, as well as guidelines that spell out their role assuring “the integrity of the count”.

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The deed stipulates that an observer “must not make any public comments” about the conduct of the survey until “after the Australian Bureau of Statistics has announced that the records it holds of responses to the survey have been destroyed”.

It states that any breach of the deed may “constitute a criminal offence under Commonwealth law”.

The ABS has said it will destroy survey material within 60 days of publishing the results, but there is no end date for the confidentiality agreement.

The deed states that an observer’s obligations under the agreement “continue indefinitely beyond the publication of the results of the Survey”.

Australian Marriage Equality co-chair Alex Greenwich said confidentiality provisions to protect privacy were “entirely appropriate”, but it was important there was a “robust process for dealing with any integrity concerns”.

“It’s important that there are robust internal reporting processes and that there is confidence that if there is a problem it’s being dealt with,” he said.

“If there is a problem with those internal reporting avenues, that is when there would be some issue with observers being limited by a confidentiality agreement.”

The confidentiality guidelines state that the observer’s role is to “advise agreement or disagreement” with the interpretation of votes during the count, and “provide feedback” to the ABS on “their observations of the survey process”.

But unlike scrutineers in an election who can see the entire vote count and dispute ballots, observers will see only a tiny fraction of responses and will “not have the ability to seek a review of the survey form result validity”.

Instead, the guidelines explain that yes and no observers will view scanned images of about 230,000 returned surveys, or 1.4% of the possible vote, weighted to responses where the voter’s intention is deemed unclear.

The ABS will then hold separate “de-briefing sessions” with both sides “for observers to provide their feedback on the observation process including the number of times observers disagreed or agreed with the coding applied by the ABS and any other feedback”.

That “feedback” will then be reported as a “quality and integrity” statement alongside the survey result.



When the limits on observers were questioned during a Senate inquiry into arrangements for the postal survey held in September, the deputy statistician, Jonathan Palmer, said the ABS didn’t “want anyone in the process to be in a position to estimate the result, or to be seen to be credible in their estimation of the result”.

An equal number of observers for the yes and no campaigns were selected by parliamentary committees established for both sides.

Guardian Australia understands the yes committee has split its observer roster along party lines, and that Liberal party representatives are currently filling the roles.

Labor senator Louise Pratt, a member of the yes committee, said that because there was no court of disputed returns for the ABS to report to, there was no means for traditional ballot scrutiny.

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“We don’t support this process and we’ve expressed concern every step of the way,” she said. “We’ve pushed for scrutiny and we don’t have the scrutiny level that we’d like, but we have to push on in the interest of taking what we can get.”

The observer guidelines also spell out the standards for accepting a ballot. While ABS officials have warned voters not to put “extraneous material” such as glitter into their survey envelopes, people who alter the survey question will still have their vote counted if their “intent” is clear.

The guidelines give the example of a yes voter who crosses out “same-sex marriage” and writes “marriage equality” or a no voter who adds “and not allow them to adopt children”.

Unlike an election ballot form, responses in which voters identify themselves will still be counted.

Palmer said during the Senate hearings there would “never” be a situation where the identity of a respondent and their response could be matched, but the observer guidelines state that “there may be circumstances where an individual respondent makes themselves known by making statements or signing their name on a survey form”.

“In these cases, the observer must not divulge this information to any other person,” the guidelines state.

In a statement, the ABS said it was “carrying out the Australian Marriage Law Postal survey with a high level of transparency and integrity to provide assurance in the accuracy of the data”.

“The ABS has engaged Protiviti to provide external assurance for the Survey. Protiviti will monitor a number of processes such as the survey preparation, dispatch of survey forms, survey receipt and counting, and destruction of forms,” a spokeswoman said.