A Travesty of Process

The same-sex mar­riage sur­vey sets a dan­ger­ous prece­dent and may give le­git­i­macy to leg­is­la­tion that Aus­tralians op­pose

The Monthly (Australia) - - NEWS - Com­ment by Ju­dith Brett

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.”

Once, the de­fence of Aus­tralia’s tra­di­tions of par­lia­men­tary democ­racy was the core of the Lib­eral Party’s con­ser­va­tive mis­sion, but no longer.

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.

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