Brighter Postal vote lacks stamp of authority

Postal vote lacks stamp of authority

Postal vote lacks stamp of authority

Are you confused about the postal vote? Get the low down on what the plebiscite is all about and what could happen after the votes are tallied.

The Australian Marriage Law Voluntary Postal Survey (plebiscite) has been in the headlines and voters have started receiving survey packages. JCU Head of Law Mandy Shircore explains what a plebiscite is and why you are being asked to vote.

Why am I being asked to vote?

Before being re-elected, the Liberal Government made a commitment to bring the question of marriage equality to the people. This would happen in the form of a plebiscite.

“A plebiscite is a non-binding question that is put to the Australian voting public,” Mandy says. “A plebiscite is basically a massive opinion poll, and this one will cost $122 million.”

How is this plebiscite different?

For voters, the postal plebiscite differs in many ways from how they have voted in the past. Unlike elections or previous plebiscites, voting is not mandatory for the postal plebiscite.

“Nothing happens if you don’t vote, other than the lost opportunity to have your view taken into account,” Mandy says.

This will be the first Australian plebiscite to be conducted by way of a postal vote and it is the first plebiscite about changing federal legislation.

“Usually a plebiscite is put up by a government before they put forward a referendum, which is a formal change to the constitution,” Mandy says. “Here you don’t need to change the constitution, so you don’t need a referendum and you don’t need a plebiscite.”

The piece of legislation voters are being asked to consider is the Marriage Act 1961 (Cth). This legislation says that marriage is between a man and a woman to the exclusion of all others.

“Same-sex couples cannot marry under the Marriage Act, which is a federal piece of legislation,” Mandy says. “The Commonwealth Parliament can change that legislation. The change could happen if it is voted and passed through the House of Representatives and the Senate.”

This plebiscite will also be different in that it is not a legislative plebiscite. While a legislative plebiscite would not have been binding, it would have been compulsory for voters to participate.

“A plebiscite is normally run by the Australian Electoral Commission at the time we have an election,” Mandy says. “In order to conduct a legislative plebiscite the Federal Government needed to pass legislation to put the question to the public. When the Federal Government attempted to do that, it was unsuccessful because the Senate blocked it. So the solution the government came up with, which is one where they don’t need the support of the Opposition or the minor parties, is to send everyone the opportunity for a postal vote.”

In place of the Australian Electoral Commission, the Australian Bureau of Statistics will run the survey.

Australian voters will have received survey packages by 25 September. The Australian Marriage Law Voluntary Postal Survey will gauge the public’s appetite for change. Image: Shutterstock

What happens after the vote?

After the votes are tallied, the Federal Government will know if the majority want the law changed or kept the same. Regardless of the result, the Federal Government is not legally required to do anything following the vote. Mandy says they might feel compelled to enact change if a large majority vote in favour of marriage equality.

“Unless the result is overwhelming, there are many arguments that the result will not legitimately reflect the opinion of the Australian public,” Mandy says. “If you get a close result, the method of how the plebiscite was conducted could be disputed. It could be argued that the plebiscite lacked legitimacy if the government fails to get a high percentage of the population to respond. In addition you could argue that, because it’s postal, there is the potential for people to fill in other people’s forms without authorisation.”

Australian voters may turn out in force to make a resounding statement in favour of changing the law. If this does happen, Mandy says the Federal Government could feel obliged to follow through.

“If you’re going to put forward a plebiscite, as a government you’re going to want to follow it,” she says. “Otherwise people will be pretty upset if nothing happens. Hopefully it will bring about change because the government will be embarrassed not to follow through given the $122 million price tag.”

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Feature image: Shutterstock

Published 10 May 2019

Featured JCU researcher

Mandy Shircore
Mandy Shircore
Mandy Shircore joined JCU Law in 2002 having previously practiced law for over twelve years in both Melbourne and Cairns. Mandy’s main areas of legal practice were in criminal law and victim compensation.