November 2017

Comment

A travesty of process

By Judith Brett
The same-sex marriage survey sets a dangerous precedent

The Australian Bureau of Statistics website calls it the “Australian Marriage Law Postal Survey”, but lists instructions on how to participate under the tab “Have your Say”, as if it were a vote. In debates on the issue it is talked of as a vote, with sides “campaigning” as they would in an election. On ABC TV’s Lateline, the minister for finance, Mathias Cormann, described it as a “voluntary postal voting exercise”. Other times he called it a survey. Which is it? What’s the difference? And does it matter?

Yes, it does. A vote has agency, power, efficacy. It conveys authority from us, the electors, to our parliamentary representatives, who in turn transfer authority to the government. Our votes constitute our democracy. A survey has no intrinsic connection to democracy at all. It simply collects information about us: we hold these views, we earn this much money, we have this blood type. Our opinions are attributes, not actions. The government promises that it will heed our collective opinion. Maybe it will, but it is not constitutionally bound to do so. Nor are individual parliamentarians required to take any notice. Bob Hawke is right: the survey cannot produce a decision. It binds no one, has no legislative foundations, and parliament still has to vote on it anyway, as it has had the power to do all along.

Furthermore, we have not yet seen the legislation, and we know from Peter Dutton that supporters of traditional marriage in the Coalition are already preparing to fight for religious freedom to discriminate. As participants in this process, we may have unwittingly given legitimacy to legislation we oppose, which is why some people have decided to boycott the survey.

From the beginning, the plebiscite/survey had been a travesty of process. We all know that the government originally wanted a plebiscite because Malcolm Turnbull and the parliamentary Liberals could not resolve their internal differences and so outsourced the solution to the taxpayer. Billy Hughes, the only other prime minister to have thought a plebiscite a good idea, did so for similar reasons. During World War One, Hughes wanted to introduce conscription for overseas service but met strong opposition in the Labor Party. He appealed over the party to the people, the appeal failed and the Labor Party split. Our only other plebiscite was in 1977, asking us our preference among four possible national songs. It too was non-compulsory, but it had no impact on anyone’s life.

The plebiscite on marriage equality, had it happened, would already have been a highly irregular deviation from our traditions of representative democracy, though likely one with a happier outcome than Hughes experienced. But parliament, maintaining its power to decide the matter itself, rejected the plebiscite. So, the minister for immigration and border protection, and vocal opponent of same-sex marriage, Peter Dutton, pushed for an ingenious solution – to hold a postal survey. In pursuit of the maintenance of traditional marriage, conservatives have been happy to bend and twist Australia’s electoral traditions to come up with what former High Court justice Michael Kirby has described as “an improvisation which is completely irregular”. Imagine the Liberal outcry if a Labor government had held a postal survey on, say, a renewable energy target, or penalty rates, or anything else within the legislative power of the federal parliament.

I fail to see why the issue of marriage equality is a different order issue from many others that come before our parliament, and on which many of us hold very strong views. It also sets a precedent for other governments to bypass the parliament when it suits their political purposes.

Let us look more closely at the “irregular improvisations” of the survey and its deviations from Australia’s electoral traditions.

First, completing the survey is not compulsory. At a federal level, Australia has had compulsory voting since 1924. Queensland pioneered the idea in 1915 and other states gradually followed the federal government. The reasons were a particularly Australian combination of practicality and commitment to majoritarian democracy. Enrolment was already compulsory, recommended by the chief electoral officer for its bureaucratic efficiency, and many saw compulsory voting as a natural corollary. The turnout for the 1922 election had been just shy of 60%, a more than 10% decline from 1919. Parties were struggling to get out the vote. In 1918, supporting an unsuccessful attempt to make voting compulsory, Robert Menzies’ uncle Sydney Sampson, who was the federal member for Wimmera, complained that “There are those who will not go to the poll unless they are carried, preferably in a motor car.” Frank Tudor, the federal member for Yarra, added that this was true even in the city where distances were short, and for some not even a wagonette would do.

Low turnouts undermined the legitimacy of a government. The government might have won the support of those who voted, but this was not the support of the majority of voters. As one supporter said in 1915, “I feel sure that The Democracy of Australia does not recognise any virtue in minority rule.”

Compulsory voting has many benefits. Turnouts are constantly above 90% of registered voters, an achievement that comparable democracies can only dream of. At the 2016 US presidential election, the turnout was only 56%. Our governments are supported by the majority of voters, and politicians cannot afford to ignore any significant demographic, such as the poor or the young. Without compulsory voting I am sure we would not still have Medicare. And there is another benefit. Without compulsion, people have to be persuaded to participate, and one way of doing this is to ratchet up the emotional investment in the outcome, to stir sufficient fear and intolerance, or even hope, to propel people out of the house to the ballot box. Or, in this case, the postbox.

But, even if two thirds of the population “vote” in the survey (a very high number in the context of voluntary voting), and three quarters of respondents support the Yes case, it still won’t deliver a clear majority outcome of those eligible to vote, and will give grounds for whichever side loses to query the outcome.

Second, the vote is not secret. Australians’ votes have been mostly secret since the late 1850s, cast in a booth designed to prevent prying eyes so that poor and vulnerable voters could not be bribed or intimidated by their betters, as happened in English elections where voters told an official their preference and anyone could hear. In the early days of the Commonwealth, Labor was fiercely opposed to postal voting because it could not guarantee secrecy. An employer could easily intimidate a serving girl or a farm labourer, and in parliament Andrew Fisher cited cases of people being told, “Your bread and butter depend on the way in which you vote.”

This survey is all postal. Forms are received by post, and filled in anywhere. There is even provision for “a trusted person” to complete the survey for you. The instructions on the ABS website describe this as “a private arrangement between the eligible Australian and the trusted person”, adding that “A person cannot self declare or claim themselves to be a trusted person for someone else.” But as there is no formal process for nomination, how would the ABS know?

The intent of secret voting was to ensure that it was in fact the voter’s intention that was recorded. It is not at all clear to me how this is guaranteed when survey forms are trusted to the insecure medium of the post and lie about in people’s letterboxes. How does the ABS know who filled them in? Each survey return is barcoded to link it to a particular elector. This is to enable them to request another form should theirs not turn up, and to ensure that no one votes twice. If the form were stolen from their letterbox, or kitchen table, and filled in and returned by someone else, then that unlucky respondent would simply miss out on their vote. Improvising in the face of unforeseen risks, the ABS advised people not to post images of their survey form on social media before posting it lest someone reproduce its barcode and gazump their vote. This seems the least likely of the many possible intercepts between a respondent and their form.

Third, because this is a survey and not a vote, it is being run by the Australian Bureau of Statistics and not by the Australian Electoral Commission, even though it is using the electoral roll. The AEC is the jewel in the crown of Australia’s electoral traditions. Independent of government and party, its permanent staff manages the electoral roll and runs elections with the same rules and processes applying across the country. The AEC is a world leader in the conduct of fair and free elections, regularly invited to advise and assist other countries with their elections. Yet in this survey its experience has been sidelined. But I forgot: this is not a vote but a survey.

Fourth, it has lasted for eight weeks! In 1911, Fisher’s Labor government shifted elections from weekdays to Saturdays to make it easier for working people to vote. There they have stayed, festivals of democracy with balloons and coloured bunting, sausage sizzles and street stalls, party stalwarts in matching caps and T-shirts, and the odd busker to entertain us as we line up to cast our vote. Pre-polling is somewhat diluting the ritual power of the day, but this survey is lasting eight weeks! Did the ABS really need all that time? More to the point, it has stretched out a divisive and hurtful debate as both sides up the emotional rhetoric to persuade those who haven’t returned their surveys to do so. If this really were a survey, an experienced polling agency could have done it in a week, more cheaply, and with far less sound and fury. But then people would not “have had their say”.

Once, the defence of Australia’s traditions of parliamentary democracy was the core of the Liberal Party’s conservative mission, but no longer. To appease conservative Liberals preoccupied with defending traditional marriage practices, the Coalition cabinet has foisted on the country a hybrid survey/vote that is a travesty of Australia’s democratic electoral traditions. It is a worrying development, no matter what the result, as it displays the authoritarian’s willingness to bend the rules of the game to achieve outcomes prevented by accepted political and legal processes.

In recent months we have seen other authoritarian signs in right-wing Liberals. There was Tony Abbott’s ludicrous suggestion that the federal government could use the defence power to force recalcitrant states to approve gas mining projects. More serious were Peter Dutton’s attack on lawyers who represent asylum seekers, agreeing with Alan Jones that they were “un-Australian”, and his department applying changed rules for citizenship applications before these rules have actually been legislated. Labor’s spokesperson on citizenship, Tony Burke, described this as “unprecedented” and added that “the countries of the world where you expect that sort of behaviour are not known as democracies”.

Abbott’s suggestion was quickly slapped down by the government, and the attorney-general, George Brandis, defended due process and the right of access to the courts in a speech to the International Bar Association, which was widely taken as a rebuke to Dutton. Lawyers, he said, had a duty to ensure that “judicial power is not subordinated to executive discretion, and that ministers and officials always respect the rule of law and the authority of the courts as the ultimate arbiters of the rights of citizens”. This was good to hear, to reassure us that the Liberal Party has not completely lost its bearings.

Judith Brett

Judith Brett is an emeritus professor of politics at La Trobe University. Her latest book is The Enigmatic Mr Deakin.

November 2017

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