The claim

The Coalition's promise to give Australians a say on whether same-sex marriage should be legal has changed from a planned compulsory plebiscite to a voluntary postal survey, sparking anger from same-sex marriage supporters.

Michael Kirby, a former judge of the High Court, who is gay and a same-sex marriage supporter, described the postal survey as "unacceptable" and "irregular".

"This isn't a plebiscite now. It's a completely novel, voluntary, non-binding, non-compulsory vote of a few citizens and it's just something we've never done in our constitutional arrangements of Australia," he told ABC Radio's RN Breakfast.

Is it correct that Australia has never before engaged in a survey like this one? RMIT ABC Fact Check takes a look.

The verdict

Mr Kirby is correct.

The Australian Marriage Law Postal Survey — as it is formally known — is not a plebiscite.

It will ask people whether or not the law should be changed to allow same-sex couples to marry.

It is voluntary and non-binding, and, indeed, "completely novel".

Normally, Parliament would legislate on matters within its power without directly consulting the people.

But the same-sex marriage issue has been referred to the people by way of a national survey and this is unusual.



Furthermore, not only does the survey have no legislative underpinning, it is being conducted by the Australian Bureau of Statistics, a body that does not normally conduct national ballots. This too is unusual.



As in federal elections, only Australians named on the Commonwealth electoral roll will be allowed to participate.

Mr Kirby's suggestion that it is a "vote of a few citizens" cannot be tested as it remains unclear how many people will actually send in their response.

What is a plebiscite?

A plebiscite is a compulsory vote by citizens on an issue of significance, but one that does not affect the Constitution of Australia, and has no legal force.

Governments at a national or state level can hold plebiscites to gauge people's support for an idea or action, but they are not bound by the outcome.

Just to be clear, it differs from a referendum, which is a compulsory national vote to alter the Constitution.

Before being put to the people, legislation proposing a constitutional change must first be passed by an absolute majority in both houses of federal Parliament.

In some circumstances, a proposed change can be put to a referendum if it is passed on two separate occasions by only one house.

A referendum result is binding. For a proposed constitutional amendment 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.

By contrast, a plebiscite does not automatically result in a change of law. The changes must still be legislated by Parliament afterwards, even if the plebiscite indicates approval of the change by a majority of voters.

How did the planned plebiscite become a postal survey?

For a national vote to take place in the case of a plebiscite, the Government must first produce an enabling Act.

This is legislation that invokes the Electoral Act and allows for the vote to be conducted by the Australian Electoral Commission (AEC).

In mid-2015, then prime minister Tony Abbott promised a plebiscite on the issue of same-sex marriage.

In keeping with this promise, the Turnbull Government introduced into Parliament the Plebiscite (Same-Sex Marriage) Bill 2016. This was the enabling legislation.

Sorry, this video has expired Malcolm Turnbull tells the media the Government will hold a postal ballot on same-sex marriage if legislation for a plebiscite fails to pass the Senate.

But this legislation was twice rejected by the Senate, once in November 2016 and then again in August 2017, which meant there could be no compulsory plebiscite conducted by the AEC — the Government's preferred option.

The Government side-stepped the issue, asking the Australian Bureau of Statistics (ABS) to conduct the Australian Marriage Law Postal Survey.

The ABS is not the body that normally conducts official national ballots. Its job is essentially collecting and analysing statistical information, such as the census.

However, Treasurer Scott Morrison has directed the Australian Statistician to collect "statistical information" about the numbers of electors who are "for" or "against" the law being changed to allow same-sex marriage.

The intention is for this information to be collected through a voluntary postal survey.

If there is a majority "yes" response, the Government says it will facilitate the introduction of a private member's bill to legalise same-sex marriage. If there is a majority "no" response, it will not.

This is the first time the ABS has been put in charge of running a national ballot instead of the AEC.

Its right to conduct the Australian Marriage Law Postal Survey is under challenge in the High Court.

How will the Marriage Law Postal Survey be paid for?

Given there is no enabling legislation that would have authorised funding of a plebiscite, the Government has had to make separate arrangements to pay for the postal survey.

Finance Minister Mathias Cormann has declared that he has the power to make funds available.

Sorry, this video has expired Opposition Leader Bill Shorten argues against the postal plebiscite.

The Finance Minister's Advance, made under Appropriation Acts, allows the minister to make up to $295 million available under certain circumstances.

This was more than enough, he said, to pay for the survey, which he said would cost $122 million.

The Government's authority to spend money on an ABS-run postal survey is also under challenge in the High Court.

What does history tell us about plebiscites and surveys to gauge public opinion?

There have been three plebiscites in Australia, although, as the ABC's election analyst Antony Green told Fact Check, they were not called plebiscites at the time.

Two were held on the conscription of troops during World War I, in 1916 and 1917 (both defeated), and one on a national song in 1977.

All three plebiscites were carried out by Government departments that administered the Commonwealth Electoral Act.

It's worth pausing here to note the roles played by the AEC and ABS in deciding the national song and electing delegates in October 1997 to the constitutional convention.

National song

The national song involved a poll and a plebiscite.

In 1974, the ABS conducted a telephone poll of 60,000 people to determine the popularity of three songs: Advance Australia Fair, Waltzing Matilda and Song of Australia.

More than half of respondents chose Advance Australia Fair.

In 1976, debate flared over an appropriate song to represent Australia at the Montreal Olympic Games.

So, the Fraser Government asked for a plebiscite to decide the matter and this was conducted by the AEC.

The plebiscite question was tacked on the end of a set of constitutional referendums in 1977.

Of the 8.4 million people on the electoral roll, 7 million voted. Advance Australia fair was the preferred song.

Seven years later, and after a change of government, Advance Australia Fair was finally proclaimed as the national anthem.

Constitutional convention election

Delegates to the convention (to discuss whether Australia should become a republic and under what kind of model) were elected through a voluntary postal ballot.

As would be the case with a plebiscite, the ballot was underpinned by legislation and conducted by the AEC.

It was the largest non-compulsory postal ballot ever conducted in Australia.

About 47 per cent of people on the electoral roll completed and returned their ballot papers.

Why the Marriage Law Postal Survey is unusual

Fact Check consulted constitutional law experts Anne Twomey, Paul Kildea, Gabrielle Appleby and George Williams, who pointed to three main reasons why the Marriage Law Postal Survey is "novel", as Mr Kirby described it.

Firstly, it is standard practice in Australia for the Parliament to legislate on matters within its power without consulting people on individual issues through formal votes, polls or surveys.

With the same-sex marriage issue, the Government has referred a policy matter within the legislative competence of Parliament to the people by way of a national survey.

Sorry, this video has expired Attitudes on same-sex marriage have changed 'profoundly'

Secondly, unlike Australia's three plebiscites, the marriage law survey has no legislative underpinning and, therefore, no parliamentary endorsement of any kind.

Thirdly, the survey will not be run by the AEC, which would normally be expected to conduct such a survey. Instead, it is being run by the ABS.

A final twist in this case is that the AEC is "assisting" the ABS by providing the electoral roll and the mechanics of sending people their survey forms. AEC spokesman Evan Ekin-Smith told Fact Check the AEC has not performed this role previously.

A few words from the experts

It is worth noting that while plebiscites at a national level are rare, they are not unusual at the state level.

Professor Twomey, of the University of Sydney, pointed out that plebiscites have been used to deal with divisive issues such as prohibition, daylight saving time, Sunday shopping hours and pub closing times.

"[At a state level] we have a long history of using plebiscites to deal with divisive issues," she told Fact Check.

Green told Fact Check the ABS had never conducted a postal ballot like the Marriage Law Postal Survey before.

The Government's direction to collect "statistical information" was, he said, "the contrivance they've used to make use of the ABS's powers to conduct the poll".

Professor Williams, from UNSW, told Fact Check the ballot was unusual: "I'm not aware of anything of this kind. Obviously, it's been fashioned in response to particular political and legal circumstances, so yes, it's unique."

Forward or backward?

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

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

Results would be announced on November 15.

Should the ballot be ruled illegitimate, it would return the nation to "deadlock", according to Professor Williams.

"We'll get back to where we were, with the Government torn between those people who want a plebiscite and those who want a conscience vote."

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