Australia this week closes the collection of a nationwide survey that will decide whether gay couples can marry. While we’re waiting for the results to be announced on 15 November, there’s much to be said about the organisation of the postal survey. The decision to have a so-called postal plebiscite was widely criticized, even as the Australian Government maintained that “every Australian should have a say on the issue”.  This new instrumentalisation of seemingly direct democracy is worrying and misleading for a number of reasons.

How did we get here?

The leading liberal party has long struggled with its own position on marriage equality, caught between its conservative and progressive members. In fact, it was the liberal prime minister John Howard who changed the previously ambiguous legal definition of marriage to “the union of a man and a woman” in 2004. And while current prime minister Malcolm Turnbull himself has spoken in favour of marriage equality, he has refused to call for a parliamentary vote out of fear of alienating conservative factions in his party.

Hoping to avoid having to take a stand in parliament altogether, the federal government proposed putting the question to the Australian people in the form of a plebiscite. This was an unorthodox proposal, seeing as only three national plebiscites have been held in Australia in the last century: two on military conscription service during World War I and one on the choice of a national song in 1977.

Consequently, the senate blocked the bill proposing a marriage equality plebiscite twice. Opponents of the bill cited worries about the high costs of organising a plebiscite and the risk of bitter and harmful campaigning. In return however, the government proposed a “postal plebiscite”, which has never been held before, and for which they didn’t need parliamentary approval.

The decision to hold a postal survey was made on 10 August and gave Australians a mere 2 weeks’ time to update their information on electoral rolls to be able to receive the survey. In Australia, voting is compulsory in elections and referendums, which are binding, but because this is a “survey”, participation is voluntary and the result will be advisory. The survey was organised through the Australian Bureau of Statistics and not the Australian Electoral Commission, which is usually tasked with referendums.

As preparations were already underway, the survey was challenged by two separate High Court cases end of August, claiming that the use of 122 Million Australian Dollars (80 Million Euros) from a contingency fund and the survey being run by the Australian Bureau of Statistics was in violation of the constitution. However, on 7 September the High Court ruled that both are in line with the law.

Starting 12 September, 16 million Australians were sent a letter with the question: “Should the law be changed to allow same-sex couples to marry?” Yes or No.

Why is this not direct democracy?

We can generally distinguish between two kinds of modern direct democratic instruments. Citizen-initiated procedures like the citizens’ initiative and the popular referendum on one side and government-triggered popular votes like a mandatory referendum on the other. A citizen’s initiative gives people the power to propose law or correct policy they disagree with, usually if they manage to collect a certain number of signatures. A mandatory referendum is automatically triggered when lawmakers propose certain measures, for example in the case of constitutional amendments. In both cases, the procedures are well-defined and the possible outcomes clear to all involved.

However, when the government decides to put an ad-hoc question to the people, this is called a plebiscite. Because in this case defining the question, the rules of the game and the possible outcomes all lie with the same actor, the use of a plebiscite is very vulnerable to manipulation. This means that it even would have been problematic to consider the use of a normal plebiscite as democratic, let alone a postal survey type one.

What’s more, the organisation of this exercise clearly goes against the spirit of the parliamentary decision not to allow a plebiscite in the first place. Especially, since the government has done nothing to address the opposition’s concerns on cost or harmful campaigning.

A fundamental issue with the survey is that both camps cannot hope to secure an equally strong policy outcome. A no-majority will kill the issue on marriage equality for now, but a yes-majority will only lead to a vote in parliament, which could still go the other way.

And this brings us to a key problem: people are not asked to vote on a specific proposition with a clear outcome, they are asked for their general opinion on a complex issue. This has left room for damaging speculation, especially on the no-side, such as the outrageous and harmful claim that legislating gay marriage would force schools to “promote homosexuality and cross-dressing”.

And so, as was feared by human rights organisations, the postal survey has succeeded in politicizing an issue that should only be discussed with great care. A minority’s right to the basic security of legally defining their relationship so that they can have certainty in matters of property, inheritance and parenthood.

The Australian government plays a dangerous and selfish game on a key democratic notion:  that in a democracy all are equal, but not all are the same and some safeguards should apply. Instead of showing modern direct democratic leadership, the Australian government is hedging their bets in a risky way. While current polls do seem to predict a win for the yes-camp, a positive result should not blot out that the “postal plebiscite” sets a dangerous precedent for minority rights.

Image by Ludovic Bertron (CC) https://en.m.wikipedia.org/wiki/File:Rainbow_flag_and_blue_skies.jpg