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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PLEBISCITE (SAME-SEX MARRIAGE) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
PLEBISCITE (SAME-SEX MARRIAGE) BILL 2016
GENERAL OUTLINE
1. Same-sex marriage continues to be a matter of public interest in Australia. Given the
diverse range of community views, the Australian Government has committed to holding a
national plebiscite that would ask Australians if they support same-sex marriage.
2. The Plebiscite (Same-Sex Marriage) Bill 2016 (the Bill) would establish the
legislative framework for, and authorise federal spending on, a compulsory, in-person vote in
a national plebiscite that would ask Australians: "Should the law be changed to allow
same-sex couples to marry?".
3. The Bill is not a standalone piece of legislation. It would apply a number of
provisions from the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and
the Commonwealth Electoral Act 1918 (the Electoral Act), as well as other pieces of
Commonwealth legislation. The effect of this would be that the plebiscite would be
conducted in much the same way as a referendum.
4. The framework for a referendum includes: the 'one vote per person' rule; formality
rules for ballot-papers; provision for the appointment of scrutineers; and compulsory voting.
This framework would apply to the plebiscite. As in referendums, individuals would have
access to alternative options for voting, such as pre-poll voting, postal voting and absent
voting, if they are not able to vote in their Division on polling day.
5. In summary, the Bill would:
provide that people who are entitled to vote at elections would be asked to vote on
the following question at the plebiscite: "Should the law be changed to allow
same-sex couples to marry?"
require the plebiscite to be held no more than 178 days after the day the Bill
commences, providing certainty about the timeframe within which the plebiscite
would be held
specify that the outcome of the plebiscite would be determined by a simple
majority; that is, more than 50 per cent of the votes cast. Any informal
ballot-papers (as determined by the Australian Electoral Commission in
accordance with the Referendum Act) would not be included in the count of the
number of votes cast
provide for the establishment of two committees, each comprised of five members
of Parliament and five citizens. These committees will be known as the
Committee for the Yes Case and the Committee for the No Case, and will be
appointed jointly by the Attorney-General and the Special Minister of State. Each
committee will have two Government members (one of whom will be the Chair),
two Opposition members, and one cross-bench member.
provide that each Committee will receive $7.5 million in public funding, and the
ability to receive up to $1,500 (per donor) in tax deductible gifts, and
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extend the application of broadcasting rules in the Broadcasting Services Act 1992
and the Special Broadcasting Service Act 1991 to conduct relating to the
plebiscite. This would include the requirement for a blackout period in which
broadcasters are prohibited from broadcasting advertisements about the plebiscite.
Broadcasters would also be required to provide reasonable opportunities to any
person or organisation wishing to broadcast plebiscite material for 30 days prior to
the blackout period.
6. In the event that the plebiscite result is in favour of the plebiscite proposal, further
legislation would be required to give effect to same-sex marriage. The result of the plebiscite
would not be legally binding on the Parliament. If more than 50 per cent of people vote 'yes'
in the plebiscite in support of same-sex marriage, it is the intention of the Government to
introduce a Bill amending the Marriage Act 1961. Consequential amendments to other
legislation would also be required at the Commonwealth and State and Territory levels to
give full effect to same-sex marriage.
FINANCIAL IMPACT
7. The Bill would have a financial impact of $170 million.
8. The Bill would appropriate these funds from the Consolidated Revenue Fund for the
purposes of paying or discharging the costs, expenses and other obligations incurred by the
Commonwealth in relation to the plebiscite.
REGULATORY IMPACT STATEMENT
9. The plebiscite would increase the average annual regulatory burden by an estimated
$32.5 million, being the time taken for people to cast a vote in the plebiscite.
10. The Office of Best Practice Regulation has agreed to the regulatory costs.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Plebiscite (Same-Sex Marriage) Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
11. The Plebiscite (Same-Sex Marriage) Bill 2016 (the Bill) would establish the legislative
framework for a compulsory, in-person vote in a national plebiscite that would ask Australians
if the law should be changed to allow same-sex couples to marry. Under clause 5 of the Bill,
the question to be asked would be 'Should the law be changed to allow same-sex couples to
marry?'. The result of the plebiscite would be determined by whether more than 50 per cent of
the votes cast are in favour or not in favour of the plebiscite proposal under clause 6 of the Bill.
The Bill would also provide that, should this Bill become an Act, the writ for the plebiscite
must be issued within 120 days after the Act commences.
12. Clause 15 of the Bill would require the establishment of two committees, each
comprising five members of Parliament and five citizens. These committees will be known as
the Committee for the Yes Case and the Committee for the No Case, and will be appointed
jointly by the Attorney-General and the Special Minister of State. Each committee will have
two Government members (one of whom will be the Chair), two Opposition members, and one
cross-bench member. Each committee would receive $7.5 million in public funding to conduct
official yes and no campaigns, and the ability to receive up to $1,500 in tax deductible gifts
from donors.
13. The Electoral Commission will be responsible for overseeing the vote under clause 7.
To ensure Australian voters are informed about the procedural elements of the plebiscite, the
Electoral Commission will prepare and distribute to households in Australia general
information about how-to-vote in the plebiscite. This is appropriate given the role of the
Electoral Commission as an independent impartial body responsible for overseeing
parliamentary elections.
14. The Bill is not a standalone piece of legislation. In particular, it incorporates a number
of provisions from the Referendum (Machinery Provisions) Act 1984 (the Referendum Act)
(Division 1 of Part 3 of the Bill). The effect of this is that the legal framework for a referendum
would apply to the plebiscite, including: the 'one vote per person' rule; formality rules for
ballot-papers; provision for the appointment of scrutineers; and compulsory voting. This would
mean that the plebiscite would be conducted in much the same way as a referendum.
15. Under clause 10 of the Bill, a range of offences in Part X of the Referendum Act would
apply to certain conduct in the lead up to, and the holding of, the plebiscite. These conduct that
would be the subject of these offences is detailed below. The penalties for these offences
includes fines (of amounts of $500, $1,000, $2,500, $5,000 or 10 penalty units depending on
whether the person is a natural person or a body of corporate) and/or periods of imprisonment
(six months or two years).
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16. The Bill would also incorporate a number of provisions of the
Commonwealth Electoral Act 1918 (the Electoral Act) and other pieces of Commonwealth
legislation (see Division 3 of Part 3 of the Bill).
17. The Bill would also extend the application of broadcasting rules in the
Broadcasting Services Act 1992 and the Special Broadcasting Service Act 1991 to conduct
relating to the plebiscite. Specifically, a requirement would apply to provide a reasonable
opportunity to a representative of an organisation on each side of the debate to broadcast
material about the plebiscite. There would also be a requirement for a short media blackout
period in which broadcasters are prohibited from broadcasting advertisements about the
plebiscite. Similar rules to those applicable during elections would also apply to the
broadcasting of material during the plebiscite.
18. In the event that the plebiscite is carried, a separate Statement of Compatibility would
be prepared for any amendments to the Marriage Act 1961 and any consequential amendments
to Commonwealth legislation that are required to give full effect to same-sex marriage.
Human rights implications
19. The Bill engages the following human rights contained in the International Covenant
on Civil and Political Rights (ICCPR):
the right of citizens to take part in the conduct of public affairs in Article 25 of the
ICCPR
the right to freedom of expression in Article 19 of the ICCPR, and
the right to a fair hearing in Article 14(1) and minimum guarantees in criminal
proceedings in Articles 14(2)-(7) of the ICCPR.
Right to take part in public affairs
20. Article 25 of the ICCPR provides that every citizen shall have the right and the
opportunity to take part in the conduct of public affairs, directly or through freely chosen
representatives. It also provides the right to vote and to be elected at genuine elections held by
secret ballot on the basis of universal and equal suffrage and secret ballot which guarantees the
free expression of the will of electors. Any criteria which apply to the exercise of the rights
protected by Article 25 should be based on objective and reasonable criteria.
21. While the plebiscite is not an election and so Article 25 does not directly apply to these
circumstances, the plebiscite would be held in accordance with the same legislation that applies
to federal elections conducted in Australia.
22. In General Comment No 25, The right to participate in public affairs, voting rights and
the right of equal access to the public service (1996), the Human Rights Committee has taken
the view that public affairs is a broad concept relating to the exercise of political power, in
particular the exercise of legislative, executive and administrative powers. Citizens can directly
participate in public affairs when they are members of legislative bodies or hold executive
office. They can also participate directly when they choose or decide public issues by way of
referendum or other electoral processes. Citizens can also take part in the conduct of public
affairs by exerting influence through public debate and dialogue with their representatives. The
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Committee has also taken the view that the right to freedom of expression, assembly and
association are essential conditions for the effective exercise of the right in Article 25 of the
ICCPR. This requires a free press and other media able to comment on public issues and
inform public opinion.
Entitlement to vote
23. Clause 9 of the Bill would apply section 4 of the Referendum Act to specify who would
be entitled to vote at the plebiscite. Under this section as it would apply to the plebiscite
(through the modifications provided for in subclause 10(1) of the Bill), an elector would be
entitled to vote at the plebiscite where, if the plebiscite was an election, the elector would be
entitled to vote at the election. This includes people who have attained the age of 18 years, and
who are Australian citizens or certain former British subjects whose historic entitlement to vote
has been preserved.
24. The entitlement of individuals to vote engages the right in Article 25. Any limitations
on who would be entitled to vote at the plebiscite are reasonable and necessary to ensure
consistency with other federal electoral events, and are commensurate with the serious
responsibility of voting on a matter of national importance. It is also reasonable and
proportionate to limit voter eligibility to Australian citizens and certain former British subjects,
as it would ensure that only people who are entitled to experience the rights and responsibilities
of Australia's representative democracy can influence the political process in Australia. As
recognised in General Comment No 25, the setting of a minimum age limit for the right to vote
is a reasonable restriction on the right to vote at elections and referendums and, by extension, a
plebiscite.
The right to freedom of expression
25. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of
expression. This right includes the freedom to seek, receive and impart information and ideas
of all kinds, orally, in writing, in print or other media. The right to freedom of expression
carries with it special duties and responsibilities, and may only be subject to the restrictions
provided for by law and which are necessary for specified purposes, being respect of the rights
and reputations of others, the protection of national security, public order, public health or
public morals in accordance with Article 19(3) of the ICCPR.
26. The holding of a plebiscite on whether the law should be changed to allow same-sex
couples to marry engages the right to freedom of expression in a number of ways, set out
below.
27. The right to freedom of expression would be promoted by giving eligible citizens the
opportunity to express their views on this matter by the casting of a vote by way of the
plebiscite. On this basis, the holding of the plebiscite is compatible with the right to freedom of
expression.
Compulsory voting
28. Clause 9 of the Bill would create a duty for every person listed on an electoral Roll to
vote at the plebiscite, by importing the requirement for compulsory voting in section 45 of the
Referendum Act as it would apply to the plebiscite. Federal elections and referendums both
have compulsory voting. It is an essential part of our democratic system. Compulsory voting at
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the plebiscite requires every eligible elector to participate in the vote by attending at a polling
place, completing a postal vote or an electronically assisted vote.
29. The penalties for failing to vote at the plebiscite would be the same as the penalties for
failing to vote at a referendum. The penalty for failing to vote at the plebiscite would be $20 if
the elector did not wish to have the apparent failure to vote dealt with in court (in accordance
with subsection 45(5) of the Referendum Act). If the offence was dealt with in court, the
penalty for this strict liability offence would be increased to $50 (in accordance with
subsections 45(14) and 45(15) of the Referendum Act). As a person who fails to vote at the
plebiscite would have direct knowledge of that fact, it is appropriate for subsection 45(14) to be
an offence of strict liability that would apply to the plebiscite. Subsection 45(14B) would
provide a defence for this offence, requiring the defendant, who would bear the evidential
burden, to demonstrate that they had a valid and sufficient reason for the failure to vote.
30. While the Bill may appear to require the expression of a view about whether or not
same-sex couples should be able to marry, it does not in fact do so. As voting occurs by way of
a secret ballot, a person is not required to cast a vote in favour of, or in opposition to, the
proposition put at the plebiscite. They may choose to cast an informal ballot. While this may
not be encouraged, there is no offence for casting an informal vote as provided for in clause 8
of the Bill.
31. Compulsory voting in the plebiscite would serve the legitimate objective of giving
every person the opportunity to convey to the Parliament their view on whether the law should
be changed to allow same-sex couples to marry. This is compatible with citizens' civic duty to
vote for people to represent them in the Parliament. It also informs elected representatives of
the public view about a particular matter, when the Parliament considers it necessary.
Compulsory voting would preserve the integrity of the plebiscite result, to be used when the
Parliament is considering legislative change, and ensure it is representative of the views of
Australians. On this basis, compulsory voting, and the corresponding offence for failing to
vote, is consistent with the right to freedom of expression.
Broadcasting in relation to the plebiscite
32. The Bill would apply broadcasting provisions from the Broadcasting Services Act 1992
and the Special Broadcasting Service Act 1991 to the plebiscite. This would require
broadcasters to give people reasonable opportunities to broadcast plebiscite matter. It would
also create a short media blackout period giving people time to consolidate their position on
whether the law should be changed to allow same-sex couples to marry without interference
from certain forms of advertising before they vote in the plebiscite.
33. The Bill would adopt the requirement in the Broadcasting Services Act 1992, and
include a new requirement in the Special Broadcasting Service Act 1991, that a representative
of an organisation in favour of the plebiscite proposal, and a representative of an organisation
not in favour of the plebiscite proposal, would be provided with a reasonable opportunity to
broadcast plebiscite matter. The requirement would be time limited and would apply only for
the period of 33 days in the lead-up to the plebiscite.
34. On this basis, the Bill would promote the right to freedom of expression by ensuring
that broadcasters cannot selectively broadcast only one side of the debate, allowing both sides
of the debate the opportunity to broadcast plebiscite matter. It will also promote the right to
participate in public affairs by ensuring that the free press and other media are able to comment
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on public issues and inform public opinion. While this requirement may affect the editorial
independence of broadcasters, the requirement would be time limited. The impact on
broadcasters would be balanced with the promotion of the rights to freedom of expression by to
participate in public affairs. The requirement to give reasonable opportunities is consistent with
the approach taken to federal elections and referendums in the Broadcasting Services Act 1992.
35. Following the 30 day period, the Bill would impose a three day media blackout period,
restricting the broadcast of any plebiscite matter from the end of the Wednesday before the
polling day for the plebiscite and ending at the end of polling in the plebiscite. This is a
standard provision for federal elections, and would ensure that individual voters have a short
period immediately prior to casting their vote to consolidate their position without being
subjected to ongoing advertising.
36. The requirement for a blackout period engages the right of individuals to freedom of
expression and opinion, as it restricts broadcasters, individuals or organisations from
expressing and broadcasting their position or opinions on television or radio for the three day
period. However, this right must be balanced with the right of other individuals to hold
opinions without interference. Same-sex marriage continues to be a matter of public interest in
Australia and people on both sides of this debate have very strong views. It is reasonable and
necessary to provide people with a short period immediately prior to the plebiscite to finalise
their position on the matter without influence or interference from ongoing campaigning on the
television or radio. In addition, this broadcasting restriction does not apply to material
published on the internet, including social media, so people would continue to be able to
express their views and debate the plebiscite through those mediums during the blackout
period.
37. This limitation is proportionate in light of the preceding 30 day period, during which
both sides of the debate would have reasonable opportunities to broadcast plebiscite matter.
This would give ample opportunity for both sides of the debate to broadcast their position to
the public, and to attempt to influence the views of individuals voting in the plebiscite.
Offences for inappropriately influencing or interfering with the plebiscite
38. The Bill would apply offence provisions from the Referendum Act to the plebiscite.
This would mean that a range of offences that currently apply to referendums would apply to
the plebiscite. These include an offence for the publication of material that is likely to mislead
or deceive another person, and offences for behaviour intended to inappropriately influence or
interfere with a person's vote such as the six metre rule, the prohibition on electoral officers or
scrutineers wearing badges or emblems in support of or in opposition to the plebiscite proposal,
and not allowing an employee leave of absence to vote. These offences would only apply for a
limited period of time--from when the Bill commences (should it become an Act), to the close
of voting on voting day for the plebiscite.
39. These offences may operate to limit the freedom of expression of individuals, including
members of the public, electoral officers, and scrutineers. These limitations are reasonable and
necessary to the objective of ensuring that people are free from influence immediately prior to
casting a secret ballot. The offence that would apply to employers who do not allow an
employee leave of absence to vote is reasonable and necessary to facilitate participation in
public affairs. The limitations are reasonable and necessary to ensure that the plebiscite
outcome reflects the views of the Australian public and can be relied upon by the Parliament.
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40. These limitations are proportionate. They only restrict an individual's freedom in very
specific circumstances and do not restrict freedom of expression in relation to the plebiscite
more broadly. They do not prevent individuals from lawfully attempting to influence a person's
vote in the plebiscite through advertising and other means in the period leading up to the
plebiscite.
The right to a fair trial and minimum guarantees in criminal proceedings
41. Article 14 of the ICCPR provides that, in the determination of any criminal charge
against a person, that person shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. It also contains a range of minimum
guarantees in criminal proceedings. In particular, Article 14(2) of the ICCPR provides that
everyone charged with a criminal offence shall have the right to be presumed innocent until
proven guilty according to law. It imposes on the prosecution the burden of proving a criminal
charge and guarantees that no guilt can be presumed until the charge has been proved beyond
reasonable doubt. Offences that contain strict liability offences may amount to a limitation on
the presumption of innocence. This is because the imposition of liability on a party does not
require a finding of fault or wrongdoing.
42. The Bill engages these rights through the application of offence provisions in Part X of
the Referendum Act by way of clauses 9 and 10. The relevant provisions of the
Referendum Act broadly cover offences relating to the behaviour of electoral officers and
scrutineers in relation to secrecy (section 116), the influencing of votes (sections 118 and
118A), bribery (section 119), misleading publications (section 122), false statements (section
123) and fraud (section 130). These offences are subject to court proceedings, consistent with
Article 14 of the ICCPR. Through the application of section 130(1A), there would also be an
offence of strict liability for a person to vote more than once in the plebiscite. As a person who
casts more than one vote in the plebiscite will have direct knowledge of that fact, it is
appropriate for section 130(1A) to be an offence of strict liability that would apply to the
plebiscite.
Conclusion
43. The Bill is compatible with human rights because it promotes human rights and, to the
extent that it may limit human rights, those limitations are reasonable, necessary and
proportionate.
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
1. Clause 1 would provide for the short title of the Act to be the Plebiscite (Same-Sex
Marriage) Act 2016.
Clause 2 - Commencement
2. Clause 2 would provide for the commencement of each provision in the Bill, as set
out in the table. Item 1 in the table provides that the whole of the Act commences the day
after the Act receives Royal Assent.
Clause 3 - Simplified outline of this Act
3. Clause 3 would provide a high-level overview of the Bill.
4. Simplified outlines are included to assist readers to understand the Bill. The outline is
not intended to be comprehensive. Readers should rely on the substantive provisions.
Clause 4 - Definitions
5. Clause 4 would define the terms used throughout the Bill.
6. There are eight new definitions provided for in subclause 4(1): Committee for the No
Case, Committee for the Yes Case, plebiscite, plebiscite matter, plebiscite period, plebiscite
proposal, Referendum Act and Referendum Regulation.
Definition of 'Committee for the No Case'
7. Subclause 4(1) would provide that the term Committee for the No Case has the
meaning given by subsection 11(3) of the Referendum Act (as it would apply to the plebiscite
by operation of clause 15 of the Bill).
8. Clause 15 of the Bill would replace section 11 of the Referendum Act with a new
version for the purpose of the plebiscite. The replacement section 11 would provide for the
establishment of two committees, each consisting of up to five members of Parliament of the
Commonwealth and up to five other individuals. The replacement subsection 11(3) would
provide that the purpose of the Committee for the No Case is to conduct the campaign not in
favour of the plebiscite proposal.
Definition of 'Committee for the Yes Case'
9. Subclause 4(1) would provide that the term Committee for the Yes Case has the
meaning given by subsection 11(2) of the Referendum Act (as it would apply to the plebiscite
by operation of clause 15 of the Bill).
10. Clause 15 of the Bill would replace section 11 of the Referendum Act with a new
version for the purpose of the plebiscite. The replacement section 11 would provide for the
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establishment of two committees, each consisting of up to five members of Parliament of the
Commonwealth and up to five other individuals. The replacement subsection 11(2) would
provide that the purpose of the Committee for the Yes Case is to conduct the campaign in
favour of the plebiscite proposal.
Definition of 'plebiscite'
11. Subclause 4(1) would provide that the term plebiscite is defined as the national
plebiscite that will be held in accordance with the provisions of this Act, as enacted. Clause 5
of the Bill would set out the details of the plebiscite to be held in accordance with this Act,
being a plebiscite on the question 'Should the law be changed to allow same-sex couples to
marry?'. The Bill would not provide a legislative framework for plebiscites to be held on
other issues.
Definition of 'plebiscite matter'
12. Subclause 4(1) would provide a definition of plebiscite matter. The definition would
provide that plebiscite matter means matter which:
a) comments on same-sex marriage, the plebiscite or the plebiscite proposal (not
including Electoral Commission matter);
b) states or indicates the plebiscite proposal (not including Electoral Commission
matter);
c) solicits votes supporting or against the plebiscite proposal;
d) refers to meetings connected with same-sex marriage, the plebiscite or the plebiscite
proposal.
13. Paragraphs (a) and (b) of the definition exclude certain material printed or published
by the Electoral Commission from the definition of plebiscite matter. This would enable the
Electoral Commission to publish general information, such as information for electors on
how to vote at the plebiscite, without being subject to the broadcasting restrictions relating to
plebiscite matter.
14. The definition is modelled on the definition of 'election matter' in item 1 of Schedule
2 to the Broadcasting Services Act 1992. The definition is intended to be broad, capturing:
references to the plebiscite, including the framework for the plebiscite and the act of
conducting a plebiscite
references to the specific question that people would vote on at the plebiscite
arguments in favour of or against the issue of same-sex marriage generally
references to any meetings held or to be held about the plebiscite (including about
the plebiscite question).
15. This definition is relevant to the broadcasting provisions referred to in Subdivision B
of Division 3 of Part 3 of the Bill, which would apply broadcasting rules to the broadcast of
plebiscite matter.
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16. The terms 'broadcast' and 'broadcasting', which are referred to in the definition of
plebiscite matter, are not defined in the Broadcasting Services Act 1992 or the
Special Broadcasting Services Act 1991. However, the meaning of these terms can be derived
from the references throughout those Acts.
Definition of 'plebiscite period'
17. Subclause 4(1) would provide that the term plebiscite period means the period that
starts 33 days before the voting day for the plebiscite and ends at the close of voting on that
day. The purpose of defining plebiscite period in the Bill is to create a period during which
certain broadcasting provisions would apply. This definition is relevant to subclause 35(3)
and clause 37 of the Bill. Subclause 35(3) would provide that the obligations in
subclauses 4(2) and (3) and clause 5 of Schedule 2 to the Broadcasting Services Act 1992,
and subsections 70A(2) and (3) and section 70B of the Special
Broadcasting Service Act 1991 only apply in relation to plebiscite matter that is broadcast
during the plebiscite period. These obligations relate to announcing the particulars of a
broadcast of plebiscite matter in a form approved by the Australian Communications and
Media Authority (ACMA) and keeping records of plebiscite matter broadcast at the request
of a person.
18. Clause 37 would provide that the Special Broadcasting Service Act 1991 applies to
the plebiscite as if a new section 70BA were inserted. The new section 70BA would provide
for the Special Broadcasting Service to provide reasonable opportunity to a representative of
an organisation that is not in favour of the plebiscite proposal to broadcast plebiscite matter
during the plebiscite period, if it broadcasts plebiscite matter that is in favour of the plebiscite
proposal, and vice versa.
Definition of 'plebiscite proposal'
19. Subclause 4(1) would provide that the term plebiscite proposal means the proposal for
the law to be changed to allow same-sex couples to marry. The purpose of defining
plebiscite proposal in the Bill is to create a general term that can be used to refer to the
plebiscite question, without repeating the question in full. Subclause 5(2) would set out the
question that will be put to voters in the plebiscite. This term serves a similar purpose to the
term 'proposed law' in the Referendum Act, which refers to the specific proposed law for the
alteration of the Australian Constitution being put to voters at a specific referendum. For the
purpose of the plebiscite, clause 11 provides that references in the Referendum Act to a
'proposed law' or a 'proposed law for the alteration of the Australian Constitution' would
include a reference to the plebiscite proposal.
Definition of 'Referendum Act'
20. Subclause 4(1) would provide that the term Referendum Act means the
Referendum (Machinery Provisions) Act 1984. Clause 9 of the Bill would apply the majority
of the Referendum Act provisions to the plebiscite, which would enable the plebiscite to be
held in much the same way as a referendum.
Definition of 'Referendum Regulation'
21. Subclause 4(1) would provide that the term Referendum Regulation means the
Electoral and Referendum Regulation 2016. As with the Referendum Act, the Bill would
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apply the majority of the Referendum Regulation provisions to the plebiscite, to enable the
plebiscite to be held in much the same way as a referendum.
Expressions defined in the Referendum Act
22. Subclause 4(2) would provide that expressions used in the Bill that are defined in the
Referendum Act have the same meaning in the Bill as they have in that Act. This is intended
to capture expressions that are defined in subclause 3(1) of the Referendum Act
('Interpretation'), as well as expressions which are defined elsewhere in that Act.
Expressions defined in this Act
23. Subclause 4(3) would provide that, where this Bill modifies all or part of a provision
of another Act or instrument, and an expression used in the modified provision is defined in
subclause 4(1), then the expression would have the same meaning in the modified provision
as it would have in this Act. As mentioned in the note under subclause 4(3), the term
'modifications' is defined in section 2B of the Acts Interpretation Act 1901. That section
defines 'modifications' as 'including additions, omissions and substitutions'.
Part 2 - Plebiscite on same-sex marriage
Clause 5 - Plebiscite on same-sex marriage
24. Clause 5 would set out the key aspects of the plebiscite that would be held in
accordance with the Bill.
25. Subclause 5(1) would provide the Governor-General with the power to cause the
plebiscite to be held. This would be achieved by the Governor-General issuing the
Electoral Commissioner with a writ setting out the details for the plebiscite, including the
voting date for the plebiscite and the question that people would be asked at the plebiscite.
The Governor-General's act of issuing a writ would trigger the process for the
Electoral Commission to establish the mechanisms for, and conduct, the plebiscite. This
process would mirror the process used in a referendum. The writ is Form A in Schedule 1 to
the Bill.
26. Subclause 5(2) would set out the question that people would be asked to vote on at the
plebiscite: "Should the law be changed to allow same-sex couples to marry?". The effect of
including the question in the Act would be to provide certainty to the Parliament and the
public about the subject of the plebiscite, specifically the question people would be asked to
vote on at the plebiscite. The question would also be set out in the writ (see Form A in
Schedule 1 to the Bill).
27. Subclause 5(3) would provide that the writ for the plebiscite must be issued no more
than 120 days after the day the Act commences. Including a time period in the Bill would
provide certainty about the timeframe within which the plebiscite would need to be held.
28. By operation of clause 9 of the Bill, other relevant timeframes from the
Referendum Act would interact with this timeframe. Subsection 9(2) of the Referendum Act
would require the day fixed for taking the votes of electors to be not less than 33 and not
more than 58 days after the issue of the writ. Together with subclause 5(3), this would mean
that the plebiscite would need to be held between 33 and 178 days after the day the Act
13
commences. Subsection 8(1A) of the Referendum Act would require the writ to be returned
no more than 100 days after it is issued. This would mean that the writ for the plebiscite
would need to be returned (i.e. the result would need to be formally notified to the
Governor-General) within 220 days of the Act commencing.
29. The note below clause 5 provides that the voting day for the plebiscite may be
deferred, or voting may be suspended or adjourned, in accordance with provisions of the
Referendum Act, as it would apply to the plebiscite by operation of clause 9 of the Bill. The
note specifically refers to sections 10, 41A, 42 and 43 of the Referendum Act. Section 10 of
the Referendum Act provides that the Governor-General may, before the voting day for a
referendum, fix a later day for the taking of votes of electors, either generally or for a specific
Division, by notice published in the Gazette. Sections 41A, 42, and 43 of the Referendum Act
provide for the temporary suspension of polling (section 41A) or the adjournment of voting
(sections 42 and 43) at a referendum because of an emergency situation, including riots,
storms, health hazards, fires and any other reason related to the safety of voters or difficulties
in the physical conduct of the voting.
Clause 6 - Result of the plebiscite
30. Clause 6 would provide that the result of the plebiscite would be determined by a
simple majority. That is, the result of the plebiscite would be determined on the basis of
whether, across all of Australia, more people vote in favour of the plebiscite proposal or more
people vote not in favour of (against) the plebiscite proposal (disregarding informal
ballot-papers).
31. Subclause 6(1) would provide that the result of the plebiscite would be in favour of
the plebiscite proposal (i.e. in favour of same-sex marriage) if more than 50 per cent of the
votes cast in the plebiscite are given in favour of the plebiscite proposal ('yes' votes).
Subclause 6(2) would provide that the result of the plebiscite is not in favour of the plebiscite
proposal if more than 50 per cent of the votes cast in the plebiscite are given not in favour of
the plebiscite proposal ('no' votes).
32. Both subclauses 6(1) and 6(2) would provide that any informal ballot-papers cast in
the plebiscite would be disregarded from the vote count and would not affect the plebiscite
result. As set out in the note at the end of this clause, section 93 of the Referendum Act,
which would apply to the plebiscite by operation of clause 9 of the Bill, would set out when a
ballot-paper would be informal. An example of an informal ballot-paper is where a voter does
not mark the ballot-paper. This clause would provide certainty about the basis upon which the
plebiscite result would be declared.
33. This process for determining the result of the plebiscite is different to the process for
determining the result of a referendum under the Referendum Act. In a referendum, the
proposed alteration to the Australian Constitution must be approved by a double majority.
That is, both a national majority of votes cast, and a majority of votes in a majority of the
States (for example, at least four out of six States), are required for a referendum to be
carried. In determining the result, the ballot-papers rejected as informal ballot-papers are not
included, as would be the approach for the plebiscite.
34. The legal effect of a 'yes' vote in a referendum is to change the
Australian Constitution. By contrast, the plebiscite is intended to provide a broad indication
of the public's view on whether the law should be changed to allow same-sex couples to
14
marry. Given this difference between the two, it is appropriate that the result for the plebiscite
be determined by a simple majority.
Clause 7 - Functions of the Electoral Commission
35. Clause 7 would provide that certain subsections and paragraphs of section 7 of the
Electoral Act apply in relation to the plebiscite.
36. Subclause 7(1) would provide that, for the purpose of paragraph 7(1)(g) of the
Electoral Act, the Electoral Commission has the function conferred on it, in relation to the
plebiscite, by this Act and by the Referendum Act.
37. Paragraph 7(1)(g) of the Electoral Act provides that the functions of the Electoral
Commission include functions conferred on it by or under any law of the Commonwealth.
Subsection 7(3) of the Electoral Act provides that the Electoral Commission may do all
things necessary or convenient to be done for or in connection with the performance of its
functions.
38. Given that subclause 7(1) of the Bill would make it express that conducting the
plebiscite is a function of the Electoral Commission, subsection 7(3) of the Electoral Act
would be engaged. This would ensure that the Electoral Commission has the authority to
perform all necessary functions relating to the conduct of the plebiscite.
39. The note at the end of subclause 7(1) confirms that the Electoral Commission has
other functions relating to the function provided for by paragraph 7(1)(g) of the Electoral Act.
The note identifies these functions as those contained in paragraphs 7(1)(b)-(f) of the
Electoral Act. These functions include considering and reporting on electoral matters,
promoting public awareness of electoral matters, providing information and advice to the
Parliament and the Government, conducting research, and publishing material relating to its
functions.
40. Subclause 7(2) would provide that the Electoral Commission can perform its
functions relating to the plebiscite (provided for in subclause 7(1)) in conjunction with the
electoral authorities of a State, the Australian Capital Territory and the Northern Territory.
Allowing this cooperation is administratively necessary for a national plebiscite.
Clause 8 - No offence to vote informally
41. Clause 8 would provide certainty that, for the purpose of the plebiscite, an offence is
not committed under the Referendum Act (as it would apply to the plebiscite by operation of
clause 9 of the Bill) merely because a person's ballot-paper is determined to be informal.
42. The effect of this clause would be to clarify that the obligation to vote, provided for
by section 45 of the Referendum Act, which would apply to the plebiscite by operation of
clause 9 of the Bill, is not an obligation to lodge a formal vote.
43. Note 1 would provide that section 93 of the Referendum Act, which would apply to
the plebiscite by operation of clause 9 of the Bill, sets out when a ballot-paper would be
considered to be informal. These are the same formality rules as apply in a referendum.
15
44. Note 2 to this clause would provide clarity that a person may still commit an offence,
under subsection 45(14) of the Referendum Act, if they fail to vote in the plebiscite. For
example, if a person fails to attend a polling place on voting day, and fails to otherwise
participate in the vote by pre-polling, postal voting or voting by electronically assisted voting.
Part 3 - Application of the law in relation to the plebiscite
Division 1 - Application of the Referendum Act
Subdivision A -General
Clause 9 - Application of the Referendum Act
45. Clause 9 would provide that the Referendum Act applies to the plebiscite, with any
modifications to that Act set out in Division 1 of Part 3 of the Bill.
46. This clause would mean that Referendum Act provisions do not need to be replicated
in the Bill. The effect of this clause would be to enable the plebiscite to be held in much the
same way as a referendum, using the same well-established processes. This approach would
provide certainty and integrity to the plebiscite framework, as plebiscites are not defined in
the Australian Constitution, the Electoral Act or the Referendum Act.
47. The modifications to the Referendum Act, as it would apply in relation to the
plebiscite, are set out in clauses 10 to 28. Any modifications the Bill makes to the
Referendum Act would apply only in relation to the plebiscite held in accordance with the
Bill. These changes would not apply in relation to any future referendums held under the
Referendum Act.
Clause 10 - References to referendum
48. Clause 10 would provide for references to referendum in the Referendum Act to
include references to the plebiscite (subclause 10(1)), with some exceptions
(subclause 10(2)).
49. Subclause 10(1) would provide that wherever the words 'referendum' or
'referendums' appear in the Referendum Act, they would include a reference to the
plebiscite. As set out in the note following subclause 10(1), the Referendum Act uses the
term 'referendum' in many ways, such as 'a referendum', 'the referendum', 'each
referendum', or 'a particular referendum'.
50. Subclause 10(1) is required to give full effect to clause 9. The effect of this subclause
would be that the existing Referendum Act provisions would apply to the plebiscite, covering
procedural aspects such as creating the writ, voting (including postal and pre-polling, and the
requirement for compulsory voting), and formality rules for ballot-papers, subject to other
modifications set out in this Division.
51. Subclause 10(1) would also ensure that offences relating to referendums would apply
to the plebiscite (see Part X of the Referendum Act). Examples of offences include failing to
vote, misleading or deceptive publication, fraudulently tampering with ballot-papers, and
engaging in certain activities within six metres of the entrance of a polling booth. This would
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enable the plebiscite to be held in much the same way as a referendum under the
Referendum Act.
52. Subclause 10(2) would provide for exceptions to subclause 10(1) in relation to certain
provisions in the Referendum Act that use the term 'referendum'. These references to
referendum would not include a reference to the plebiscite. Each of these provisions are set
out below.
53. Paragraph 10(2)(a) would provide that subclause 10(1) would not apply to the
definitions of referendum and referendum period in subsection 3(1) of the Referendum Act.
References in these definitions to 'referendum' would not need to include a reference to the
plebiscite, as the Bill would define 'plebiscite' in clause 4, and replace the definition of
'referendum period', for the purpose of the plebiscite, in clause 13 (as set out in the note at
the end of clause 10). Paragraph 10(2)(a) would also provide that any other references to
'referendum period' in the Referendum Act would not include a reference to the plebiscite.
The effect of this would be to ensure that the revised definition of 'referendum period'
provided for by clause 13 is applied wherever the term appears in the Referendum Act. The
referendum period is relevant to determining when certain types of conduct would constitute
an offence under the Referendum Act.
54. Paragraph 10(2)(b) would provide that subclause 10(1) would not apply to the
reference to 'last referendum' in paragraph 16(2)(b) of the Referendum Act.
Paragraph 16(2)(b) of the Referendum Act requires the Electoral Commissioner publish a list
of all polling places that have been abolished since the last referendum or election, which
ever occurred last. The purpose of paragraph 16(2)(b) is to inform voters about the changes to
polling locations since last time they voted. Since Australia has not held a plebiscite since
1977, extending the operation of paragraph 16(2)(b) of the Referendum Act to include a
reference to the plebiscite would have no effect for the purpose of the plebiscite.
55. Paragraph 10(2)(c) would provide that subclause 10(1) would not apply to the
definition of referendum in subsection 62B(6) of the Referendum Act. Section 62B of the
Referendum Act restricts the use and disclosure of information in relation to a referendum. It
would apply to the plebiscite by operation of clause 9 and subclause 10(1) of the Bill.
Subsection 62B(6) provides that any reference to 'referendum' in section 62B includes
referendums conducted under State or Territory law, in addition to federal referendums. This
definition does not need to include a reference to the plebiscite as the term referendum used
in the substantive subsections of 62B would include a reference to the plebiscite by operation
of subclause 10(1) of the Bill.
56. Paragraph 10(2)(d) would provide that subclause 10(1) would not apply to the second
reference to 'referendum' in section 143 of the Referendum Act. Section 143 of the
Referendum Act provides that, on the voting day for a referendum, no election or referendum
or vote of electors of any State or Territory, or any part of a State or Territory, shall be held
or taken under a law of a State or Territory without the authority of the Governor-General. By
operation of clause 9 and subclause 10(1) of the Bill, this section would prevent a State or
Territory election or referendum from being held on the same day as the plebiscite without
the authority of the Governor-General. The effect of paragraph 10(2)(d) would be that the
second reference to referendum in section 143, being a reference to a referendum held or
taken under a law of a State or Territory, would not include a reference to the plebiscite as
this is not a scenario that could occur.
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57. Paragraph 10(2)(e) would provide that subclause 10(1) would not apply to any
references to 'referendum' in section 145 of the Referendum Act. Section 145 of the
Referendum Act deals with the repeal of Acts specified in Schedule 2 of that Act, and the
interaction between existing regulations and the Referendum Act. Given section 145 refers to
referendums in the context of historic Acts and regulations, it is not necessary for these
references to include a reference to the plebiscite that would be provided for by the Bill.
58. Paragraph 10(2)(f) would provide that subclause 10(1) would not apply to all
references to 'referendum' in Schedule 2 to the Referendum Act. Schedule 2 to the
Referendum Act lists the Acts that are repealed by the Referendum Act. All references to
'referendum' in Schedule 2 are in the titles of repealed Acts. It is not appropriate for those
references to include a reference to the plebiscite.
59. Paragraph 10(2)(g) would provide that subclause 10(1) would not apply to the
reference to 'referendum' in paragraph 13(c) of Schedule 4 to the Referendum Act.
Schedule 4 to the Referendum Act relates to the preliminary scrutiny of declaration votes.
Paragraph 13(c) defines the term 'election' in relation to the scrutiny of a declaration vote of
someone who was not registered in a Division due to an error, where there has been more
than one election since the mistake was made or a redistribution of Divisions has occurred.
Paragraph 13(c) provides that 'election' includes a referendum for the purpose of this
scrutiny provision. This provision refers to past elections (i.e. whether, at the time of the
scrutiny to which the rules are being applied, more than one previous election or referendum
has occurred since the error or mistake was made that caused the person not to be registered
in a Division). Given the plebiscite proposed by the Bill is not a past plebiscite, it is not
necessary for this reference to referendum to include a reference to the plebiscite.
Clause 11 - References to proposed law
60. Clause 11 would provide that the Referendum Act applies to the plebiscite as if
references in that Act to 'proposed law for the alteration of the Australian Constitution'
(paragraph 11(a) of the Bill) and 'proposed law' (paragraph 11(b) of the Bill) also included
references to the plebiscite proposal (as defined in clause 4).
61. This clause is required to give full effect to clause 9. The effect of this clause would
be to enable the plebiscite to be conducted in much the same way as a referendum.
Clause 12 - References to the Referendum Act, the Referendum Regulation or
provisions of the Referendum Act
62. As with clauses 10 and 11, clause 12 would provide that the Referendum Act applies
as if references in that Act to that Act (paragraph 12(a)), a provision of that Act
(paragraph 12(b)), or the Referendum Regulation (paragraph 12(c)), would include references
to those things as they apply in relation to the plebiscite (i.e. as applied, with modifications,
by the Bill).
63. This clause is required to give full effect to clause 9. The effect of this provision
would be to ensure that self-referencing provisions of the Referendum Act would apply, as
modified by the Bill, to the plebiscite. This means that the plebiscite would be conducted in
much the same way as a referendum.
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64. The note to this clause provides an example of the application of this clause to a
reference to 'that Act' in section 116 of the Referendum Act.
Clause 13 - Meaning of referendum period
65. Clause 13 would replace the definition of referendum period in subsection 3(1) of the
Referendum Act with a revised definition for the purpose of the plebiscite. The referendum
period is relevant to when specific types of conduct would constitute an offence (see Part X
of the Referendum Act for the majority of the offence provisions, which include conduct such
as making misleading or deceptive statements).
66. For the purpose of the plebiscite, paragraph (a) of the definition would specify that the
referendum period commences at the start of the day the Act commences. By contrast, for
referendums, the referendum period commences on the day of the issue of the writ for the
referendum. Paragraph (b) of the definition would specify that the referendum period ends at
the latest time on the voting day for the plebiscite at which an elector in Australia could enter
a polling booth for the purpose of voting at the plebiscite. This is the same as it is for
referendums.
67. The effect of this replacement definition would be to extend the referendum period for
the plebiscite so that it begins earlier than it would for a referendum. This would ensure the
relevant offences apply for the full duration of the period between when the Bill commences,
and when the plebiscite is held. This is important given the emotive nature of the same-sex
marriage debate. In particular, the extended period would protect people from being exposed
to misleading or deceiving statements in relation to the plebiscite or the issue of same-sex
marriage for a potentially longer period of time.
Subdivision B - Holding the plebiscite
Clause 14 - Writ and forms for the plebiscite
68. Clause 14 is relevant to the writ (Form A) and ballot-paper (Form B) in Schedule 1 to
the Bill. Clause 14 would set out modifications to the Referendum Act, as it would apply to
the plebiscite, to remove references to documents that would not be required for the
plebiscite, and to replace the writ and ballot-paper for the purpose of the plebiscite.
69. Paragraph 14(1)(a) would omit subsection 8(2) and paragraph 12(a) from the
Referendum Act as it would apply to the plebiscite. Subsection 8(2) of the Referendum Act
requires the Governor-General to attach a copy of the proposed law, or a statement setting out
the text of the proposed law and the proposed textual alterations to the
Australian Constitution, to the writ for a referendum. This subsection is not required for the
purpose of the plebiscite because the plebiscite, if carried, would not result in an automatic
change to the law.
70. Paragraph 12(a) of the Referendum Act requires the Governor-General to cause a
copy of the writ and a copy of the proposed law or of the statement (if any) attached to the
writ to be forwarded to the Governors of the States, the Chief Minister for the
Australian Capital Territory and the Administrator of the Northern Territory. This paragraph
is not required for the purpose of the plebiscite because the plebiscite does not affect the
States and Territories in the same way that a referendum would. On this basis, it is not
19
necessary for the Governor-General to forward a copy of the writ for the plebiscite to the
States and Territories.
71. Paragraph 14(1)(b) of the Bill would remove the reference to 'and a copy of the
proposed law or of the statement (if any) attached to the writ' from paragraphs 12(b) and
13(b) of the Referendum Act. Paragraph 12(b) of the Referendum Act requires the
Governor-General to, after issuing a writ, forward the original writ and a copy of the
proposed law or statement (if any) to the Electoral Commissioner. Paragraph 13(b) of the
Referendum Act requires the Electoral Commissioner to publish the particulars of the writ
and the copy of the proposed law or statement in the Gazette.
72. Paragraph 14(1)(c) of the Bill would omit paragraph 14(1)(a) and
subparagraphs 14(1)(b)(ii) and (iii) from the Referendum Act as it would apply to the
plebiscite. Paragraph 14(1)(a) of the Referendum Act requires the Australian Electoral
Officer for each State and Territory to cause copies of a statement setting out the text of the
proposed law and the text of the particular provisions (if any) of the Australian Constitution
proposed to be altered by the proposed law to be made available at offices of the
Electoral Commission in that State or Territory, and at such other places as the
Electoral Commissioner directs. Paragraph 14(1)(b) of the Referendum Act requires the
Australian Electoral Officer for each State and Territory to cause a notice setting out,
inter alia, a copy of the proposed law or of the statement (if any) attached to the writ
(subparagraph 14(1)(b)(ii)), and the places at which copies of the statement referred to in
paragraph 14(1)(a) are available (subparagraph 14(1)(b)(iii)) to be inserted in not less than
2 newspapers circulating generally in the State or Territory.
73. The effect of paragraphs 14(1)(b) and 14(1)(c) of the Bill would be to remove
references to the proposed law, statements setting out the text of the proposed law, and text of
the particular provisions of the Australian Constitution proposed to be altered by the
proposed law from the Referendum Act as it would apply to the plebiscite. References to
these documents would not be relevant to the plebiscite, as the public would be asked to vote
on a simple question, not on a specific proposed law or change to the Australian Constitution.
If the plebiscite is carried, it is the Government's intention to introduce a Bill amending the
Marriage Act 1961 to provide for same-sex marriage. This is different to the process in
referendums, where people are asked to vote on whether they support a proposed change to
the law which has been passed by at least one house of Parliament already. This difference in
approach is because referendums are legally binding and, if a referendum was successful, the
proposed law to change the Australian Constitution would be implemented automatically.
Conversely, the result of the plebiscite would not result in an automatic change to the law.
74. Subclause 14(2) would replace Forms A and B in Schedule 1 to the Referendum Act
with forms developed specifically for the plebiscite. The replacement Forms A and B are in
Schedule 1 to the Bill. The differences between the forms for a referendum and the
replacement forms for the purpose of the plebiscite are outlined in the explanatory material
relating to Schedule 1.
Clause 15 - Committee for the Yes Case and Committee for the No Case
75. Clause 15 would replace section 11 of the Referendum Act with two new sections for
the purpose of the plebiscite. The replacement section 11 would provide for the establishment
of a Committee for the Yes Case and a Committee for the No Case. The new section 11A
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would provide for the funding of the committees and arrangements for the receipt and use of
gifts by the committees.
76. The replacement subsection 11(1) would provide for the establishment of two
committees, each consisting of up five members of the Parliament of the Commonwealth
(paragraph 11(1)(a)), and up to five other individuals (paragraph 11(1)(b)). The up to five
members of the Parliament of the Commonwealth would consist of up two members of the
Government (subparagraph 11(1)(a)(i)), up to two members of the Opposition
(subparagraph 11(1)(a)(ii)), and up to one other member of the Parliament
(subparagraph 11(1)(a)(iii)). The reference to 'one other member of the Parliament' is
intended to cover crossbench members of the Parliament who are not members of the
Government or the Opposition. There are no qualifying requirements for the up to five other
individuals provided for by paragraph 11(1)(b).
77. The replacement subsection 11(2) would provide that the purpose of the Committee
for the Yes Case is to conduct the campaign in favour of the plebiscite proposal. Replacement
subsection 11(3) would provide that the Committee for the No Case is to conduct the
campaign that is not in favour of the plebiscite proposal. The replacement subsection 11(4)
would provide that the committees may do all things necessary or convenient to be done for
the purposes of the committee.
Chair of Committee
78. The new subsection 11(5) would provide for there to be a Chair of each committee
who is to be one of the members of the Government referred to in subparagraph 11(1)(a)(i).
Appointment of members
79. The replacement subsection 11(6) would provide that the members of each
committee, including the Chairs, would be appointed jointly by the Attorney-General and the
Special Minister of State.
Notifiable instrument
80. The replacement subsection 11(7) would provide for the Special Minister of State to
make provision in relation to the functions of a committee (paragraph 11(7)(a)), or any other
matters relating to a committee (paragraph 11(7)(b)), by notifiable instrument.
Public Governance, Performance and Accountability Act 2013
81. The replacement subsection 11(8) would clarify that the Committee for the Yes Case
and the Committee for the No Case are not Commonwealth entities for the purpose of the
Public Governance, Performance and Accountability Act 2013. The effect of this subsection
would be to exclude the committees from the operation of the Public Governance,
Performance and Accountability Act 2013.
82. The effect of the replacement section 11 would be to provide for the establishment of
committees to conduct official 'yes' and 'no' campaigns, and to provide for their membership
and structure. The replacement subsection 11(7) would allow the Special Minister of State to
make further provisions in relation to the functions of, and other matters relating to, the
committees, in addition to the provisions of the Bill.
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83. This is different to the approach for a referendum. For the purpose of a referendum,
section 11 of the Referendum Act provides for the distribution to electors of arguments in
favour and not in favour of the proposed law to change the Australian Constitution. For the
purpose of a referendum, the arguments to be distributed to electors are prepared by
committees of parliamentarians who voted for or against the proposed law, and are limited to
2,000 words for each case.
84. For the purpose of the plebiscite, it is not appropriate to apply the existing section 11
of the Referendum Act, because the plebiscite would not be asking the public to vote on a
proposed law that had already been considered and passed by at least one house of the
Commonwealth Parliament. Therefore, it is not possible to establish committees of
parliamentarians who voted for or against the proposed law prior to the plebiscite, as the
proposed amendments to the Marriage Act 1961 would not be introduced into the
Commonwealth Parliament until after the plebiscite, and then only if the plebiscite were
carried.
85. The new model provided for by clause 15 of the Bill would provide for the
establishment of committees that are comprised of both parliamentarians and members of the
public. This reflects the different nature of the plebiscite debate compared to the debate
relating to a referendum. A referendum is a public vote on a proposed law to change the
Australian Constitution. By nature the arguments for and against a proposed law to change
the Australian Constitution would be technical legal arguments. By contrast, the plebiscite
provided for by the Bill is about a social issue and is not a technical legal question. As a
result, it is not appropriate to restrict those who can contribute to an official 'yes' or 'no'
campaign to members of parliament. Members of the public, particularly those who may
advocate for or against same-sex marriage or represent relevant interest groups, are likely to
have a greater awareness of the social arguments relating to the plebiscite. They may also
represent key stakeholders in the same-sex marriage debate. It is therefore appropriate to
ensure that an opportunity is provided for those individuals to contribute to the development
of official 'yes' and 'no' campaigns.
86. Clause 15 of the Bill would also provide for a new section 11A, for the purpose of the
plebiscite, to be inserted into the Referendum Act after the replacement section 11. The new
section 11A would provide for the funding of the Committee for the Yes Case and the
Committee for the No Case, and for the management of the funds of the committees,
including any gifts received by the committees.
87. The new subsection 11A(1) would provide that the Special Minister of State, on
behalf of the Commonwealth, may make payments to the Committee for the Yes Case and
the Committee for the No Case. As mentioned in the note below this subsection, clause 40 of
the Bill would appropriate the Consolidated Revenue Fund for the purpose of making the
payments.
88. The new subsection 11A(2) would provide that the total amount of payments made
under subsection 11A(1) is to be no more than $15 million. The effect of these new
subsections would be to provide for Commonwealth funding for the Committee for the
Yes Case and the Committee for the No Case, and to cap the funding at a total of $15 million.
The new subsection 11A(3) would provide that the Special Minister of State must ensure that
the total amount of payments made to each committee are equal. The effect of this would be
that the Special Minister of State could make a total of $7.5 million in payments to each
committee.
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89. Given each Australian elector will be required to vote on the plebiscite proposal, it is
important that public funding is available for the purpose of official campaigns to educate the
public in relation to arguments in favour and not in favour of the plebiscite proposal. The
requirement that the funding provided to each committee be equal would ensure that each
committee has an equal opportunity to put their arguments to electors.
Establishment of bank account
90. The new subsection 11A(4) would provide that the Chair of each committee, as
provided for by the replacement subsection 11(5), must establish a bank account for the
purposes of receiving payments made to the committee under the new subsection 11A(1)
(paragraph 11A(4)(a)), deductible gifts made to the committee (paragraph 11A(4)(b)), and
any other payments that are made to the committee (paragraph 11A(4)(c)). The term
'deductible gift' would be defined in the new subsection 11A(10) (see below). The new
subsection 11A(4) is required to give effect to new subsection 11A(1), and to allow for the
receipt by the committees of gifts of money from individuals or organisations wishing to
support the Committee for the Yes Case and the Committee for the No Case.
91. Establishing bank accounts for the committees would allow for the committees to
receive private donations from individuals or organisations, as well as the public funding
provided for by the new subsections 11A(1) to (3) above. This would encourage interested
members of the public to engage in promoting an informed public debate about the plebiscite
proposal. Subdivision C of Division 3 of Part 3 of the Bill provides for the deductibility of
gifts made to the committees.
Directions to committees
92. The new subsection 11A(5) would provide for the Special Minister of State to issue
directions to the committees, by notifiable instrument, in relation to payments made to a
committee in accordance with the new section 11A (paragraph 11A(5)(a)), any deductible
gifts made to the committees (paragraph 11A(5)(b)), and any other payments made to the
committees (paragraph 11A(5)(c)). The term 'deductible gift' would be defined in the new
subsection 11A(10) (see below). The directions could include directions relating to the
governance arrangements for those payments or gifts and the purposes for which those
payments or gifts may be spent. The effect of this new subsection would be to allow the
Special Minister of State to issue directions relating to the receipt and use of funding by the
committees. The new subsection 11A(6) would require the committees to comply with the
directions given by the Special Minister of State in accordance with the new
subsection 11A(5).
Surplus money to be transferred to DisabilityCare Australia Fund Special Account
93. The new subsection 11A(7) would provide for the return of any surplus funds held by
the committees after the plebiscite to be returned to the Commonwealth. The new
subsection 11A(7) would provide that, before the end of 6 months after the voting day for the
plebiscite, the Chair of each committee must determine the amount of any surplus money in
the bank accounts established for the committees in accordance with the new
subsection 11A(4) (paragraph 11A(7)(a)), notify the Treasurer, in writing, of that amount
(paragraph 11A(7)(b)), and arrange for that amount to be transferred to the Treasurer, on
behalf of the Commonwealth (paragraph 11A(7)(c)). The effect of this new subsection would
be to require the committees to return surplus funds to the Treasurer following the plebiscite.
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94. The new subsection 11A(8) would provide for the surplus funds returned to the
Treasurer in accordance with the new subsection 11A(7) to be redirected to the
DisabilityCare Australia Fund. The new subsection 11A(8) would provide for the Treasurer
to make a determination under section 12 of the DisabilityCare Australia Fund Act 2013 to
specify that an amount equal to the sum of the amounts transferred under
paragraph 11A(7)(c) must be credited to the DisabilityCare Australia Fund Special Account.
The effect of this new subsection would be to provide for any unused funds provided to the
committees by the Special Minister of State in accordance with the new subsection 11A(1),
or any other funds received by the committees and not used, to be allocated to
DisabilityCare Australia after the plebiscite.
95. The new subsection 11A(9) would clarify that a notification made under the new
paragraph 11A(7)(b) is not a legislative instrument. The effect of this new subsection would
be that the notifications to the Treasurer of amounts of surplus funds in the bank accounts of
the committees after the plebiscite would not be a legislative instrument and would not be
disallowable.
Definition of deductible gift
96. The new subsection 11A(10) would define the term deductible gift for the purpose of
the new section 11A. This subsection would define deductible gift as a gift of money made to
one of the committees to the extent that the gift is deductible under Subdivision 30-A of the
Income Tax Assessment Act 1997 (the Income Tax Assessment Act), as it would apply to the
plebiscite by operation of clause 39 of the Bill. Subdivision 30-A of the Income Tax
Assessment Act provides for an individual, and other taxed entities, to deduct a gift or
contribution made in certain situations from their assessable income for the purpose of
determining income tax payments. Further information is provided in the explanatory
material relating to Subdivision C of Division 3 of Part 3 of the Bill, 'Deductibility of gifts
made to Committee for the Yes Case or Committee for the No Case' (see below).
Clause 16 - Applications for and issue of postal votes
97. Clause 16 would provide that the Referendum Act applies to the plebiscite as if
subsection 55(4) of the Referendum Act were replaced with a new subsection, and as if a
reference to subsection 55(4) were inserted into subsection 61(1) of that Act.
98. Subsection 55(4) of the Referendum Act provides that an application for a postal vote
may not be made until after the issue of the writ for a referendum, or the public
announcement of the proposed date for voting, whichever is earlier.
99. Subclause 16(1) would replace subsection 55(4) of the Referendum Act with a new
subsection 55(4) for the purpose of the plebiscite. The replacement subsection 55(4) would
provide that a postal vote application may not be made until after the issue of the writ for the
plebiscite. This change would mean that even if the proposed date for voting is announced
prior to the issue of the writ, postal vote applications may not be made until the writ is issued.
100. Subsection 61(1) of the Referendum Act provides that if the Electoral Commissioner
or an Assistant Returning Officer receives a postal vote application in accordance with
subsection 55(1), he or she must arrange for the sending to the applicant, a postal vote
certificate and a postal ballot-paper. Subsection 55(1) of the Referendum Act provides that an
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application for a postal vote must be in writing in the approved form and must contain a
declaration by the applicant that he or she is entitled to apply for a postal vote.
101. Subclause 16(2) of the Bill would provide that subsection 61(1) of the
Referendum Act applies to the plebiscite as if it referred to 'and subsection 55(4)' after the
reference to 'subsection 55(1)'. The effect of this subclause would be that the
Electoral Commissioner or Assistant Returning Officer would only need to arrange for the
sending of a postal vote certificate and postal vote ballot-paper if the application is in
accordance with subsection 55(1) and in accordance with the replacement subsection 55(4)
(provided for by subclause 16(1) of the Bill). That is, if the application was made after the
issue of the writ.
102. Requiring postal vote applications to be made after the issue of the writ is an
administrative efficiency for the Electoral Commission. This change would be likely to result
in fewer postal vote applications being processed by the Electoral Commission prior to the
close of the rolls that may ultimately relate to an individual who is not entitled to vote.
Clause 17 - Application forms for postal votes
103. Clause 17 would provide that the Referendum Act applies to the plebiscite as if
section 56 of that Act were omitted.
104. Section 56 of the Referendum Act provides that any organisation or individual may
attach a postal vote application form to written material issued by that person or organisation
without infringing the Copyright Act 1968.
105. Omitting this section would have the effect of preventing individuals and
organisations other than the Electoral Commission from sending copies of the postal vote
application form to electors. This would provide administrative efficiencies for the
Electoral Commission by reducing the number of paper-based postal vote applications it must
process.
Clause 18 - Dispatch of postal voting papers to registered general postal voters
106. Clause 18 would provide that the Referendum Act applies to the plebiscite as if
subsection 58(1) of the Referendum Act were replaced with a new subsection 58(1).
107. Subsection 58(1) of the Referendum Act provides that, as soon as practicable after the
issue of the writ for a referendum, or the public announcement of the proposed date of voting
(whichever is earlier), the Electoral Commissioner must arrange for the delivery of postal
voting papers to each registered general postal voter.
108. Clause 18 would replace subsection 58(1) of the Referendum Act with a new
subsection 58(1) for the purpose of the plebiscite. The replacement subsection 58(1) would
provide that the voting papers need to be sent to registered general postal voters on, or as
soon practicable after, the Friday that is 22 days before the voting day for the plebiscite.
109. This change would provide administrative efficiencies for the Electoral Commission
by reducing the number of voting papers that are sent to individuals who are ultimately not
entitled to vote at the plebiscite. This is because the timeframe provided for by the
replacement subsection 58(1) would mean that voting papers would only be sent to registered
general postal voters after the close of the Rolls for the plebiscite. Section 9 of the
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Referendum Act, as it would apply to the plebiscite by operation of clause 9 of the Bill,
provides that the day fixed for the close of the Rolls is the seventh day after the issue of the
writ for the plebiscite, and that the day fixed for the taking of votes at the plebiscite shall not
be less than 33 days after the issue of the writ. This would mean that the Rolls would close a
minimum of 26 days prior to the voting day for the plebiscite.
Clause 19 - Applying for pre-poll vote
110. Clause 19 would provide that the Referendum Act applies to the plebiscite as if
subsections 73B(4) and (5) of that Act were replaced with a new subsection 73B(4).
111. Section 73B of the Referendum Act deals with where, when and to whom an
application for a pre-poll vote in a referendum can be made.
112. Subsection 73B(4) and (5) of the Referendum Act deal with when an application for
pre-poll voting can be made when a referendum is held on the same day as polling for a
House of Representative election (subsection 73B(4)) or a Senate election to be held in a
State or Territory (subsection 73B(5)). These subsections are irrelevant for the purpose of the
plebiscite.
113. Clause 19 would replace subsections 73B(4) and (5) with a new subsection 73B(4).
The replacement subsection 73B(4) would provide a general prohibition on applications for a
pre-poll vote being made before the Friday that is 22 days before the plebiscite voting day.
114. This change would provide administrative efficiencies for the Electoral Commission
by limiting the timeframe during which it must be able to receive pre-poll vote applications.
As with clause 18 above, it would mean that an application for a pre-poll vote could not be
made before the close of the Rolls for the plebiscite.
Clause 20 - Sending advertisements by voice call and text message
115. Clause 20 would provide that the Referendum Act applies to the plebiscite as if a new
section 121AA, titled 'Authorisation of audio recordings and electronic messages', were
inserted after section 121 of that Act. The new section would create two new offences
relating to sending advertisements by voice call and text message.
Advertisements sent by voice call
116. The new subsection 121AA(1) would create an offence relating to advertisements sent
by voice call. The term 'voice call' is defined in the new subsection 121AA(4) (see below).
The elements of the offence would be as follows:
1. Subparagraphs 121AA(1)(a)(i) and (ii) would provide that the offence would apply
where a person sends, or causes, permits or authorises an advertisement to be sent,
relating to the plebiscite by voice call.
2. Paragraph 121AA(1)(b) would provide that the offence would only apply to
advertisements sent by voice call that are intended to affect the result of the plebiscite.
3. Paragraph 121AA(1)(c) would provide that the offence would only apply to
advertisements that have been paid for.
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4. Paragraph 121AA(1)(d) would provide that the offence would apply if the name and
address of the person who authorised the advertisement is not stated at the beginning
of the voice call. The term 'address' is defined in the new subsection 121AA(5)
(see below).
117. This offence would have a maximum penalty of 10 penalty units. Section 4AA of the
Crimes Act 1914 defines the amount of a penalty unit.
Advertisements sent by text message
118. The new subsection 121AA(2) would create a new offence relating to advertisements
sent by text message. The term 'text message' is defined in the new subsection 121AA(5)
(see below). The elements of the offence would be as follows:
1. Subparagraphs 121AA(2)(a)(i) and (ii) would provide that the offence would apply
where a person sends, or causes, permits or authorises an advertisement to be sent,
relating to the plebiscite by text message.
2. Paragraph 121AA(2)(b) would provide that the offence would only apply to
advertisements sent by text message that are intended to affect the result of the
plebiscite.
3. Paragraph 121AA(2)(c) would provide that the offence would only apply to
advertisements that have been paid for.
4. Paragraph 121AA(2)(d) would provide that the offence would apply if the name and
address of the person who authorised the advertisement is not included at the end of
the text message (subparagraph 121AA(2)(d)(i)) or, if the name and address is too
long to be included in the text message, in a website that can be accessed by a URL
included in the text message (subparagraph 121AA(2)(d)(ii)). The term 'address' is
defined in subsection 121AA(5) (see below).
119. This offence would have a maximum penalty of 10 penalty units. Section 4AA of the
Crimes Act 1914 defines the amount of a penalty unit.
Authorisations by Committee for the Yes Case or Committee for the No Case
120. The new subsection 121AA(3) would provide that an advertisement authorised by the
Committee for the Yes Case or the Committee for the No Case must be authorised by the
Chair of the Committee or a person authorised by the Chair. The effect of this new subsection
would be to specify who would be required to authorise an advertisement sent by voice call
or text message on behalf of the Committee for the Yes Case or the Committee for the
No Case, for the purpose of subsections 121AA(1) and (2).
Exception for carriage service providers
121. The new subsection 121AA(4) would provide that a person does not contravene
subsections 121AA(1) or (2) merely because the person supplies a carriage service that
enables a voice call or text messages to be sent. The effect of this new subsection would be to
provide a protection for service providers in relation to carriage services provided by them to
a person sending an advertisement relating to the plebiscite. It would provide that the
operator would not commit an offence provided for by the new subsections 121AA(1) or (2)
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just because their service is used to distribute a voice call or text message, on behalf of
another person or organisation, that is not properly authorised. This protection is modelled on
subsection 16(10) of the Spam Act 2003, which provides an identical protection to a person
who supplies a carriage service for electronic messages.
Extended geographical jurisdiction
122. The new subsection 121AA(5) would provide that section 15.4 of the Criminal Code
(extended geographical jurisdiction--category D) would apply to the new offences in
subclauses 121AA(1) and (2). This would mean that the offences would apply whether or not
the conduct constituting the alleged offence occurred in Australia, and whether or not a result
of the conduct constituting the alleged offence occurred in Australia.
Definitions
123. The new subsection 121AA(6) would define the terms used in the new
section 121AA.
124. The new subsection 121AA(6) would provide that the term address of a person would
mean the full street address and suburb or locality that is located in Australia at which the
person can usually be contacted during the day. It would not include a post office box. This
definition has been drawn from the sections 121 and 121A of the Referendum Act, as those
sections would apply to the plebiscite.
125. The new subsection 121AA(6) would define the term carriage service as having the
same meaning as it has in the Telecommunications Act 1997. Section 7 of the
Telecommunications Act 1997 defines a carriage service as a service for carrying
communications by means of guided and/or unguided electromagnetic energy. This includes
communications transmitted by physical mediums (such as wires and cables), and by
radiocommunication.
126. The new subsection 121AA(6) would define the term standard telephone service as
having the same meaning as it has in the Telecommunications (Consumer Protection and
Service Standards) Act 1999. Section 6 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 defines a standard telephone service as a carriage service for
the purpose of voice telephony, or an equivalent service for a particular end-user with a
disability, or a carriage service for a purpose declared by the regulations.
127. The new subsection 121AA(6) would define the term text message as an electronic
message (within the meaning of section 5 of the Spam Act 2003) that is sent to an electronic
address in connection with a telephone account. In effect, the definition of text message, as it
would apply to the plebiscite, would create a subset of the definition of electronic message in
section 5 of the Spam Act 2003. This would be because it would only pick up the reference to
subparagraph 5(1)(b)(iii) in the Spam Act 2003 electronic messages sent to a telephone
account.
128. The new subsection 121AA(6) would define the term voice call as a call or calls that
send in bulk a pre-recorded message to standard telephone services (within the meaning of
section 6 of the Telecommunications (Consumer Protection and Service Standards) Act
1999). The effect of this definition would be to capture pre-recorded voice calls, otherwise
known as 'robocalls'.
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Subdivision C - Determining the result of the plebiscite
Clause 21 - Appointment of scrutineers for voting
129. Clause 21 would provide that the Referendum Act applies to the plebiscite as if
section 27 of that Act were replaced with a new section.
130. Existing section 27 of the Referendum Act sets out who may appoint scrutineers for
the purpose of scrutineering the voting on polling day in a referendum. Subsections 27(1) to
(3) provide for the Governor-General, the Governor of a State, the Chief Minister for the
Australian Capital Territory, and the Administrator of the Northern Territory, or a person
authorised by one of those people, to appoint scrutineers for polling day. Subsection 27(4)
provides that the registered officer of a registered political party may appoint persons to act
as scrutineers during voting.
131. The effect of clause 21 would be that none of those people would be authorised to
appoint scrutineers for the purpose of the plebiscite.
132. Instead, the replacement subsection 27(1) would provide that a member of the
Parliament of the Commonwealth may appoint persons to scrutineer the vote on polling day.
Replacement subsection 27(1) would restrict the ability of a member of Parliament to appoint
scrutineers to the polling places in the member's State or Territory.
133. To avoid overcrowding at polling places, and so that Electoral Commission officials
can perform their duties, it is important that there be a restriction on the number of scrutineers
able to be appointed at each polling place. The replacement subsection 27(2) would provide
that the Special Minister of State may limit the number of scrutineers allowed at a polling
booth by making a notifiable instrument.
134. Replacement subsection 27(3) would define the term State or Territory for the
purpose of the replacement section 27. Replacement subsection 27(3) would define the
State or Territory of a member of the Parliament of the Commonwealth as being the
State or Territory in which the Division for which the member is elected is located (for
Members of the House of Representatives)(paragraph 27(4)(a)), or the State or Territory of a
Senator (paragraph 27(4)(b)). This effect of this would be that, for example, a Member of the
House of Representatives whose Division is located in New South Wales would be able to
appoint people to scrutineer the vote in every polling place in New South Wales, as would all
Senators elected for New South Wales.
135. Scrutineers perform an important function in ensuring the integrity of the vote is
maintained. In a referendum, the legal effect of a 'yes' vote is to change the Australian
Constitution. In such circumstances, it is appropriate that the Commonwealth and the States
and Territories, as contracting parties to the Australian Constitution, are able to appoint
scrutineers. By contrast, the plebiscite is intended to provide a broad indication of the
public's view on whether the law should be changed to allow same-sex couples to marry. As
such, this function is most appropriately performed by individuals appointed by members of
the Parliament of the Commonwealth, who represent the views of their constituents across
Australia.
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136. There is no requirement that each and every member of the Parliament appoint
scrutineers, or that scrutineers be appointed to scrutineer both sides of the debate at every
location.
137. Subregulation 21(2) of the Referendum Regulation (which would apply to the
plebiscite by operation of clause 29 of the Bill), provides that a person who may appoint a
scrutineer under section 27 of the Referendum Act may also appoint scrutineers to attend
authorised call centres to scrutineer electronically assisted voting. Therefore, clause 21 would
also have the effect of allowing a member of the Parliament of the Commonwealth to appoint
scrutineers for the purpose of scrutineering electronically assisted voting.
Clause 22 - Appointment of scrutineers for pre-poll voting
138. Clause 22 would provide that the Referendum Act applies to the plebiscite as if
section 73CA of that Act were replaced with a new section.
139. Section 73CA of the Referendum Act sets out who may appoint scrutineers for the
purpose of scrutineering pre-poll voting in a referendum. Subsections 73CA(1) to (4) provide
for the Governor-General, the Governor of a State, the Chief Minister for the Australian
Capital Territory, and the Administrator of the Northern Territory, or a person authorised by
one of those people, to appoint scrutineers for the purpose of scrutineering pre-polling in a
referendum. Subsection 73CA(5) of the Referendum Act provides that the registered officer
of a registered political party may appoint persons to act as scrutineers for pre-poll voting.
140. The effect of clause 22 would be that none of those people would be authorised to
appoint scrutineers for the purpose of pre-poll voting in the plebiscite.
141. Instead, the replacement subsection 73CA(1) would provide that a member of the
Parliament of the Commonwealth may appoint persons to scrutineer the vote at pre-poll
voting offices. Replacement subsection 73CA(1) would restrict the ability of a member of
Parliament to appoint scrutineers to the pre-poll voting offices in the member's
State or Territory.
142. To avoid overcrowding at pre-poll voting offices, and so that Electoral Commission
officials can perform their duties, it is important that there be a restriction on the number of
scrutineers able to be appointed at each pre-poll voting office. The replacement
subsection 73CA(2) would provide that the Special Minister of State may limit the number of
scrutineers that may be appointed by members of Parliament by making a notifiable
instrument.
143. Replacement subsection 73CA(3) would define the term State or Territory for the
purpose of the replacement section 73CA. The replacement subsection 73CA(3) would mirror
the replacement subsection 27(3) provided for by clause 21 above.
144. As with clause 21 above, it is important to retain the scrutineering function for the
plebiscite to ensure that the integrity of the vote is maintained. As above, it is appropriate for
members of the Parliament of the Commonwealth, who represent the views of their
constituents, to perform the scrutineering function for the purpose of the plebiscite.
30
145. There is no requirement that each and every member of the Parliament appoint
scrutineers, or that scrutineers be appointed to scrutineer both sides of the debate at every
location.
Clause 23 - Ascertainment of result of plebiscite
146. Clause 23 would provide that the Referendum Act applies to the plebiscite as if
section 89 of that Act were replaced with a new section.
147. Section 89 of the Referendum Act provides that the result of a referendum is
determined by scrutiny (counting), and sets out who may appoint scrutineers for the purpose
of scrutineering the counting. Subsections 89(2) to (4) provide for the Governor-General, the
Governor of a State, the Chief Minister for the Australian Capital Territory, and the
Administrator of the Northern Territory, or a person authorised by one of those people, to
appoint scrutineers for the purpose of the scrutiny. Subsection 89(4A) of the Referendum Act
provides that the registered officer of a registered political party may appoint persons to act
as scrutineers during scrutiny at counting centres.
148. The effect of clause 23 would be that none of those people would be authorised to
appoint scrutineers for the purpose of the scrutiny.
149. The replacement section 89 would provide for alternative arrangements for the
scrutiny for the purpose of the plebiscite. The replacement subsection 89(1) would provide
that the result of the plebiscite shall be ascertained by scrutiny. This provision mirrors the
existing provision in the Referendum Act.
150. The replacement subsection 89(2) would provide that a member of the Parliament of
the Commonwealth may appoint persons to scrutineer the vote during scrutiny at each
counting centre. Replacement subsection 89(2) would restrict the ability of a member of
Parliament to appoint scrutineers to the counting centres in the member's State or Territory.
151. To ensure that Electoral Commission officials can perform their duties, it is important
that there be a restriction on the number of scrutineers able to be appointed to each counting
centre. The replacement subsection 89(3) would provide that the Special Minister of State
may limit the number of scrutineers that may be appointed by members of Parliament by
making a notifiable instrument.
152. The replacement subsection 89(4) would define the terms counting centre and
State and Territory for the purpose of the replacement section 89. Replacement
subsection 89(4) would define the term counting centre as any premises at which a scrutiny
or counting of ballot-papers for the plebiscite is to be, or is being, conducted. This definition
mirrors the existing definition in section 89 of the Referendum Act.
153. The definition of State and Territory in the replacement subsection 89(4) would
mirror the definitions set out in the replacement subsections 27(3) and 73CA(3), as provided
for by clauses 21 and 22 above.
154. As with clauses 21 and 22 above, it is important to retain the scrutineering function
for the plebiscite to ensure that the integrity of the vote is maintained. As above, it is
appropriate for members of the Parliament of the Commonwealth, who represent the views of
their constituents, to perform the scrutineering function for the purpose of the plebiscite.
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155. There is no requirement that each and every member of the Parliament appoint
scrutineers, or that scrutineers be appointed to scrutineer both sides of the debate at every
location.
Clause 24 - Recount
156. Clause 24 would provide that the Referendum Act applies to the plebiscite as if
subsection 95(2) of that Act were replaced with a new subsection.
157. Subsection 95(2) of the Referendum Act sets out when the Electoral Commissioner
may direct a recount of ballot-papers. The replacement subsection 95(2) would provide that
the Electoral Commissioner may direct a recount of any ballot-papers if requested to do so by
the a member of the Parliament of the Commonwealth, or on his or her own motion. This is
different to the current provision for referendums. The current subsection 95(2) of the
Referendum Act provides for the Electoral Commissioner to direct a recount at the request of
the Governor-General, the Governor of a State, the Chief Minister for the Australian Capital
Territory or the Administrator of the Northern Territory, or of his or her own motion. The
effect of this clause is that the Electoral Commissioner would not be able to direct a recount
at the request of any of those individuals, but instead would be able to do so at the request of
any member of the Parliament of the Commonwealth.
158. This clause is consistent with clauses 21, 22 and 23, which would amend the
Referendum Act to restrict who can appoint scrutineers for the purpose of the plebiscite to a
member of the Parliament of the Commonwealth. Only the scrutineers appointed by a
member of the Parliament would have the necessary knowledge of the counting process to
initiate a request for a recount of the votes in the plebiscite.
Clause 25 - Return of the writ
159. Clause 25 would provide that the Referendum Act applies to the plebiscite as if
subsection 98(1) of that Act was replaced with a new version, and section 99 of that Act was
omitted.
160. Subsection 98(1) of the Referendum Act sets out the requirement for the
Electoral Commissioner to certify the results of a referendum and return the writ to the
Governor-General. For the purpose of the plebiscite, the replacement paragraph 98(1)(a)
would require the Electoral Commissioner to certify the number of votes given in favour of
the plebiscite proposal (subparagraph 98(1)(a)(i)), the number of votes given not in favour of
the plebiscite proposal (subparagraph 98(1)(a)(ii)), and the number of ballot-papers rejected
as informal (subparagraph 98(1)(a)(iii)), for the whole of the Commonwealth only. This is
different to the existing paragraph 98(1)(a), which requires the results to be certified for each
State and Territory, as well as for the whole Commonwealth. The replacement
paragraph 98(1)(a) would also require the Electoral Commissioner to attach the certificate to
the original writ, which is the same as for a referendum.
161. The replacement paragraph 98(1)(b) would require the Electoral Commissioner to
return the writ and the paragraph 98(1)(a) certificate to the Governor-General.
162. The effect of this clause would be to only require the Electoral Commissioner to
certify the result of the plebiscite in relation to the whole of the Commonwealth, not by each
State and Territory. This is because, according to clause 6 of the Bill, the plebiscite would be
32
determined by a simple majority of more than 50 per cent of the votes cast in the plebiscite
(disregarding informal ballot-papers), as opposed to the double majority required for a
referendum. On this basis, it is not necessary for the Electoral Commissioner to certify the
results by each State and Territory.
163. This clause does not replace or modify subsection 98(2) of the Referendum Act,
which applies to the plebiscite because of the operation of clause 8 of the Bill.
Subsection 98(2) requires the Electoral Commissioner to publish in the Gazette a copy of the
certificate provided for by paragraph 98(1)(a), and provides that, subject to the terms of
Part VIII of the Referendum Act (as modified by the Bill to apply to the plebiscite), the
certificate is conclusive evidence of the result of the plebiscite.
164. Section 99 of the Referendum Act requires the Electoral Commissioner to forward
copies of the certificate attached to the writ, which sets out the results of a referendum, to the
Governors of the States and the Chief Minister of the Australian Capital Territory and the
Administrator of the Northern Territory. This provision is included in the Referendum Act
because of the relevance of a referendum to the States and Territories.
165. Given that the plebiscite will be determined by a simple majority (by operation of
clause 6 of the Bill) and would not result in a change to the Australian Constitution, it is not
necessary for the Electoral Commissioner to forward a copy of the certified attached to the
writ to the Governors of the States or the Chief Minister of the Australian Capital Territory or
the Administrator of the Northern Territory for their information or otherwise. As such,
section 99 of the Referendum Act would not apply for the purpose of the plebiscite.
Clause 26 - Disputing validity of submission or return
166. Clause 26 would provide that the Referendum Act applies to the plebiscite as if
section 100 of that Act were replaced with a new section.
167. Section 100 of the Referendum Act sets out who may dispute the validity of a
referendum or a return or statement showing the voting at a referendum. The replacement
section 100 would provide for a member of the Parliament of the Commonwealth to dispute
the validity of the plebiscite or of any return or statement showing the voting at the plebiscite,
by petition addressed to the High Court. This is different to the existing provision for
referendums. Section 100 currently allows the Commonwealth, any State, the Australian
Capital Territory, or the Northern Territory to dispute the validity of a referendum by petition
to the High Court.
168. The effect of this clause would be to remove the right of the Commonwealth and the
States and Territories to dispute the validity of the plebiscite. This is consistent with clauses
21, 22, 23, and 24, which limit who can appoint scrutineers for the purpose of the plebiscite,
and who can request a recount, to a member of the Parliament of the Commonwealth (and the
Electoral Commission for the purpose of recounts). It is appropriate for the Commonwealth
and the States and Territories to be able to dispute the validity of a referendum about a
change to the Australian Constitution, as contracting parties to the Australian Constitution.
However, the same nexus does not exist in relation to the plebiscite as the outcome of the
plebiscite would not result in a change to the Australian Constitution.
169. Replacing the Commonwealth and States and Territories with members of the
Parliament of the Commonwealth for the purpose of section 100 is appropriate in light of the
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nexus between scrutineering the plebiscite process and disputing the validity of the process.
Those entitled to scrutineer the vote are most likely to be aware of issues that might give rise
to a petition disputing the validity of the plebiscite, such as counting errors or mishandling of
ballot-papers. Together with clauses 21, 22, 23, and 24, this clause would ensure that there
would be an appropriate level of oversight of the plebiscite process, without the unnecessary
involvement of the Commonwealth and States and Territories.
170. The Electoral Commission would retain its right to dispute the validity of the
plebiscite by operation of section 102 of the Referendum Act, as applied to the plebiscite by
clause 9 of the Bill. It is important to retain the right of the Electoral Commission to dispute
the validity of the plebiscite, in particular in the event that there is an administrative or
logistical error which may affect the validity of the plebiscite.
Clause 27 - Requirements for petition by member of Parliament
171. Clause 27 would provide that the Referendum Act applies to the plebiscite as if
paragraph 101(1)(c) of that Act required a petition by a member of the Parliament of the
Commonwealth under section 100 of that Act (as amended by clause 26 of the Bill) to be
signed by the member.
172. This clause is required as a consequence of clause 26, which would provide that only
a member of the Parliament of the Commonwealth may dispute the validity of the plebiscite
under section 100 of the Referendum Act (as it would apply to the plebiscite), removing the
right of the Commonwealth and States and Territories to do so. Given this change, current
paragraph 101(1)(c) of the Referendum Act, which sets out who must sign a petition
disputing the validity of a referendum, would not be applicable.
Clause 28 - Notice of petition and joinder of parties
173. Clause 28 would provide that the Referendum Act applies to the plebiscite as if
sections 105 and 106 of that Act were replaced with new sections. This clause is required as a
consequence of clause 26.
174. Section 105 of the Referendum Act provides for notice to be given where a petition is
filed disputing the validity of a referendum. The replacement section 105 would require a
member of the Parliament of the Commonwealth to notify the Electoral Commission of the
filing of a petition by that member under the replacement section 100 (provided for by
clause 26 of the Bill).
175. This is different to the existing provision for referendums. The existing section 105
provides for the Commonwealth, the States and Territories, and the Electoral Commission to
notify each other if any of them files a petition. Clause 26 of the Bill would replace section
100 with a new section for the purpose of the plebiscite, to remove references to the
Commonwealth and the States and Territories filing petitions, and to refer to members of the
Parliament of the Commonwealth instead. It is therefore necessary to replace section 105
with a new section for the purpose of the plebiscite, to provide for notice to be given where a
petition is filed by a member of the Parliament of the Commonwealth in accordance with the
replacement section 100.
176. The effect of this clause would be to ensure that the Electoral Commission (the only
other entity entitled to dispute the voting in the plebiscite under section 102 of the
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Referendum Act) must be notified if a member of the Parliament of the Commonwealth files
a petition disputing the validity of the plebiscite.
177. Section 106 of the Referendum Act provides that the High Court may order other
entities to be joined as parties petitioning or responding to a petition on application. The
replacement section 106 would allow the High Court to order that the Electoral Commission
or a member of the Parliament of the Commonwealth be joined as a party petitioning or
responding to a petition filed under the replacement section 100, or section 102, of the
Referendum Act.
178. This is different to the existing provision for referendums. The existing section 106
provides that the High Court may, on application, order the Commonwealth or a State or
Territory to be joined as a party petitioning or responding to a petition. Clause 26 of the Bill
would replace section 100 with a new section for the purpose of the plebiscite, to remove
references to the Commonwealth and the States and Territories filing petitions, and to refer to
members of the Parliament of the Commonwealth instead. It is therefore necessary to replace
section 106 with a new section for the purpose of the plebiscite, to provide for the joining of a
member of the Parliament of the Commonwealth, as persons who would be entitled to dispute
the validity of the plebiscite, to a petition filed by another person or the
Electoral Commission.
179. Replacement subsection 106(2) would expressly provide that replacement section 106
would not limit the High Court's power to join other persons as a party petitioning or
responding to a petition.
Division 2 - Application of the Referendum Regulation
Clause 29 - Application of the Referendum Regulation
180. Clause 29 would provide that the Electoral and Referendum Regulation 2016 (the
Referendum Regulation) apply to the plebiscite, with any modifications to the Regulation set
out in the remainder of the proposed Division 2 of Part 3 of the Bill (paragraph 29(a)), and
any regulations made under subclause 41(2) of the Bill (paragraph 29(b)).
181. As a result of this clause, the Referendum Regulation provisions do not need to be
replicated in the Bill. The effect of this clause would be to enable the plebiscite to be held in
much the same way as a referendum, using the same well-established processes. This
provides further certainty and integrity to the plebiscite framework, together with the
application of the Referendum Act to the plebiscite as provided for by clause 9 of the Bill.
182. The modifications to the Referendum Regulation, as it would apply in relation to the
plebiscite, are set out in clauses 30 and 31. Any modifications the Bill makes to the
Referendum Regulation would apply only in relation to the same-sex marriage plebiscite held
in accordance with the Bill. These changes would not apply in relation to any future
referendums held in accordance with the Referendum Act.
Clause 30 - References to referendum
183. Clause 30 would provide that references to the term 'referendum' in the Referendum
Regulation would also include references to the plebiscite. This clause is required to give full
effect to clause 29. The effect of this clause would be to enable the plebiscite to be conducted
35
in much the same way as a referendum. In particular, it would allow registered sight-impaired
voters to vote through electronically assisted voting, as is provided for in the Referendum
Regulation.
184. There are two exceptions provided for by this clause. Subclause 30(1) would provide
that references to the term 'referendum' where it appears in a reference to the
'Referendum Act' would not include a reference to the plebiscite. This is because the Bill
would already apply relevant provisions of the Referendum Act to the plebiscite, but without
incorporating them directly into the Bill or altering the name of the Referendum Act. By
operation of clause 31 below, references to the Referendum Act in the
Referendum Regulation would include a reference to the Referendum Act as it would apply
in relation to the plebiscite.
185. Subclause 30(2) would provide that subclause 30(1) does not apply in relation to the
definition of referendum in section 5 of the Referendum Regulation. Section 5 of the
Referendum Regulation defines referendum as having the same meaning as it does in the
Referendum Act. This use of the term 'referendum' should not include a reference to the
plebiscite because the term 'plebiscite' is defined in clause 4 of the Bill, not in the
Referendum Act.
Clause 31 - References to the Referendum Act or provisions of the Referendum Act
186. Clause 31 would provide that references in the Referendum Regulation to 'the
Referendum Act' or 'a provision of the Referendum Act' would include references to the
Referendum Act or its provisions as they apply to the plebiscite. This clause is required to
give full effect to clause 29.
187. The effect of this provision would be to ensure that relevant provisions of the
Referendum Regulation apply, as modified by the Bill, to the plebiscite. This clause would
enliven Referendum Regulation provisions governing any court proceedings held in relation
to a prosecution against an elector for failing to vote at the plebiscite (see sections 27 and 28
of the Regulation). This would mean that the plebiscite would be conducted in much the same
way as a referendum.
Division 3 - Application of other laws
Clause 32 - Application of other laws
188. Subclause 32(1) would provide that certain provisions of the Commonwealth laws
referred to in clauses 33 to 39 apply to the plebiscite, with modifications set out in the
remainder of Division 3 of Part 3 of the Bill.
189. As a result of this clause, the provisions of Commonwealth laws referred to in clauses
33 to 39 do not need to be replicated in the Bill. The effect of this clause would be to enable
the plebiscite to be held in much the same way as a referendum, by ensuring that a range of
laws would apply to the plebiscite in much the same way that they apply to a referendum.
This approach provides certainty and integrity to the plebiscite framework.
190. Any modifications the Bill makes to these Commonwealth laws, as set out in
clauses 33 to 39, would apply only in relation to the plebiscite held in accordance with the
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Bill. These changes would not apply in relation to any future referendums held under the
Referendum Act, or elections held under the Electoral Act.
191. Subclause 32(2) would provide that instruments made under an Act, or provisions of
an instrument made under an Act, apply in relation to the plebiscite, with modifications set
out in the remainder of proposed Division 3 of Part 3 of the Bill (paragraph 32(2)(a)) and any
regulations made for the purposes of subclause 41(2) (paragraph 32(2)(b)). The effect of this
clause would be to apply relevant parts of instruments made under Commonwealth laws for
federal elections or referendums to the plebiscite.
Clause 33 - References to referendum
192. Clause 33 would set out the specific provisions from Commonwealth laws that apply
to the plebiscite. To ensure these provisions would apply to the plebiscite, this clause states
that any references to 'referendum' or 'referendums' in the provisions outlined below include
references to the plebiscite. This clause is required to give effect to clause 32. The effect of
this clause would be to selectively apply some of the same laws to the plebiscite as apply to
referendums or elections.
193. Paragraph 33(a) would apply clause 33 to references to 'referendum(s)' in
paragraphs (d) and (e) of the definition of election period in clause 1 of Schedule 2 to the
Broadcasting Services Act 1992 (the Broadcasting Services Act). Clause 1 of Schedule 2 to
the Broadcasting Services Act defines the election period for a referendum as being the same
as the election period for any federal election being held on the same day, or, if the
referendum is being held on a different day to any federal election, the period that starts
33 days before the voting day for the referendum and ends at the close of voting on that day.
The effect of this paragraph would be to apply the same election period for the plebiscite as
applies for a referendum. This definition is relevant to the requirement for broadcasters to
give reasonable opportunity for the broadcasting of plebiscite matter to any person or
organisation that wishes to broadcast plebiscite matter for the duration of the election period
(clause 3 of Schedule 2 to the Broadcasting Services Act as modified by subclause 36(1) of
the Bill).
194. Paragraph 33(a) would also apply clause 33 to references to 'referendum(s)' in
paragraph (b) of the definition of required period in clause 1 of Schedule 2 to the
Broadcasting Services Act. Clause 1 of Schedule 2 to the Broadcasting Services Act defines
the required period as being six weeks from the day on which matter was broadcast, or the
period commencing on the day on which the matter was broadcast and ending at the end of
the election period (as defined above), whichever is longer. This definition is relevant to the
requirement to keep a record of political matter broadcasted during the election period for a
required period (clause 4 of Schedule 2 to the Broadcasting Services Act). The effect of
paragraph 33(a) would be to apply the same required period for the plebiscite as applies for a
referendum.
195. As set out in the note at the end of clause 33, further modifications are made to the
Broadcasting Services Act in clause 36 of the Bill (see below).
196. Paragraph 33(b) would apply clause 33 to references to 'referendum(s)' in certain
provisions of the Electoral Act. The main purpose of this is to apply certain provisions of the
Electoral Act that apply to referendums, including the application of provisions relating to the
37
use of the electoral Roll, to the plebiscite to allow the plebiscite to be held in much the same
way as a referendum. The relevant provisions of the Electoral Act are:
(i) The definition of electoral matters in section 5. Section 5 defines electoral matters as
matters relating to Parliamentary elections and, inter alia, referendums. This
definition is relevant to Part II of the Electoral Act only, which deals with
administrative arrangements for the Electoral Commission. In particular, the
definition is relevant to section 7 of the Electoral Act. Section 7 sets out the functions
of the Electoral Commission, which include considering, providing advice on and
researching matters relating to electoral matters. The effect of applying clause 33 to
the definition of electoral matters in section 5 would be to include the plebiscite as an
electoral matter in relation to which the Electoral Commission can exercise relevant
functions and powers as set out in section 7 of the Electoral Act.
(ii) Subparagraph 35(1)(a)(i), which enables the Electoral Commission to employ
temporary staff to conduct referendums. The effect of this would be to enable the
Electoral Commission to employ temporary staff to conduct the plebiscite, in the
same way it employs temporary staff for referendums.
(iii)Paragraphs 91A(1A)(a), (2)(a) and 2A(a), which allow the use of information from
the electoral Roll and habitation index for specific purposes, including any purpose in
connection with a referendum. This provision is limited to use of the Roll and
habitation index by a Senator, member of the House of Representatives, or a political
party. The effect of this would be to allow the same use of information by Senators,
members of the House of Representatives, or political parties, for the purpose of the
plebiscite as is allowed for a referendum.
Paragraph 91A(2B)(a), which enables State or Territory electoral authorities to use
information on an electoral Roll, or other information provided for under a specific
arrangement, in connection with a referendum. The effect of this would be to enable
those authorities to use information, including information on an electoral Roll, in
connection with the plebiscite.
Paragraphs 189B(4)(a) and (5)(a), which allow the use or disclosure of information
obtained from an electronic list of postal vote applicants (provided by the
Electoral Commissioner) by a candidate in a Senate or House of Representatives
election or a registered political party, where the use or disclosure is for a permitted
purpose including, inter alia, any purpose connected with a referendum. The effect of
this would be to allow the same use or disclosure of information by candidates or
registered political parties for any purpose connected with the plebiscite.
(iv) Subsection 202A(4), which requires anyone employed by the Electoral Commission
to perform duties in connection with the conduct of an election or referendum held on
the same day as an election to sign an undertaking in an approved form before
beginning the performance of duties. Amended subsection 202A(4) would impose the
same requirement to sign an undertaking before Electoral Commission employees
begin the performance of duties if the plebiscite were to be held on the same day as an
election.
Subsection 202A(5), which provides that the failure of a person to sign an
undertaking, as required by section 202A, is not grounds for setting aside the result of
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an election or referendum. Revised subsection 202A(5) would extend this application
to the plebiscite result.
Section 16A of the Referendum Act, as applied to the plebiscite by clause 7 of the
Bill, deals with undertakings by officers, scrutineers and other people employed by
the Electoral Commission in relation to a plebiscite that was not held on the same day
as an election.
Subsection 203(7), which provides that polling booths and ballot-boxes provided for
the purpose of an election may be used for the purpose of other elections or a
referendum being held on the same day, as long as the ballot-papers for each election
and the referendum are distinctively coloured. Revised subsection 203(7) would allow
the same polling booths and ballot-boxes to be used for the plebiscite as for the
election being held on the same day as the plebiscite, as long as the ballot-papers for
the plebiscite and the election/s are distinctively coloured.
(v) Clause 22 of Schedule 3, which provides that, for the purpose of paragraph 17 of that
Schedule, an envelope that contains a ballot-paper for a referendum shall be dealt with
as if it did not contain that ballot-paper. Paragraph 17 provides that the relevant
electoral officer shall withdraw ballot-papers from envelopes, without examining
them, for those votes that are to be included in the counting for House of
Representatives and Senate elections held concurrently or separately. The effect of
this clause would be that if the plebiscite was held on the same day as an election,
envelopes containing ballot-papers for the election and the plebiscite would be dealt
with in the same way as they would be dealt with where the election is run
concurrently with a referendum. This means that rules relating to the preliminary
scrutiny of declaration votes that apply to a referendum would also apply to the
plebiscite.
197. Paragraph 33(c) would apply clause 34 to references to 'referendum(s)' in
subparagraph 80.2(3)(a)(ii) and subsection 80.2(4) of the Criminal Code.
Subparagraph 80.2(3)(a)(ii) creates an offence of intentionally urging another person to
interfere, by force or violence, with lawful processes for an election or referendum, where
they do so intending that force or violence will occur. Subsection 80.2(4) states that
recklessness applies to the element of the offence under subsection 80.2(3) relating to what is
a lawful process for a referendum. The effect of these changes would be to apply these
offences to the plebiscite, so that if a person does an act that falls within
subparagraph 80.2(3)(a)(ii), in relation to the plebiscite, they may be found guilty of a
criminal offence punishable by up to seven years' imprisonment. Section 80.3 of the
Criminal Code would apply to provide, as a defence, that it was an act done in good faith.
198. Paragraph 33(d) would apply clause 34 to references to 'referendum(s)' in paragraphs
7C(1)(b) and (4)(b) and subparagraph 7C(2)(b)(ii) of the Privacy Act 1988 (the Privacy Act).
Paragraph 7C(1)(b) and subparagraph 7C(2)(b)(ii) provide that political acts and practices
done for any purpose in connection with a referendum are exempt from the application of the
Privacy Act. Subsection 7C(1) relates to acts done by a member of a Parliament or a
councillor of a local government authority, and subsection 7C(2) relates to contractors for
political representatives. Paragraph 7C(4)(b) provides that an act done voluntarily by an
organisation for or on behalf of a registered political party and with the authority of that party
is exempt from the Privacy Act, where those acts are done for any purpose in connection with
a referendum. The effect of this would be that members of a Parliament, councillors of local
39
government authorities, contractors for political representatives, and organisations acting
voluntarily for or on behalf of a registered political party would be subject to the same
exemptions from the Privacy Act for the plebiscite as they are for acts done in connection
with a referendum.
Clause 34 - References to the Referendum Act
199. Clause 34 would set out provisions from other Commonwealth legislation in which
references to the Referendum Act, or a provision of that Act, include references to the
Referendum Act or its provisions as they would apply in relation to the plebiscite. This clause
is required to give full effect to clause 32. The effect of this clause would be to enable the
plebiscite to be conducted in much the same way a referendum.
200. Paragraph 34(a) would apply clause 34 to the reference to the Referendum Act at
item 41 of the table in Schedule 1 to the Age Discrimination Act 2004
(the Age Discrimination Act). Schedule 1 to the Age Discrimination Act lists the Acts,
regulations and other instruments to which subsection 39(1) of that Act applies.
Subsection 39(1) provides that Part 4 of the Age Discrimination Act (which sets out what
constitutes unlawful age discrimination) does not make unlawful anything done by a person
in direct compliance with the Acts and other instruments mentioned in Schedule 1. The effect
of this would be to apply the exemption provided for by subsection 39(1) of the
Age Discrimination Act to acts done in direct compliance with the Referendum Act as it
applies in relation to the plebiscite. Consistent with the approach in federal elections and
referendums, the purpose of this provision is to ensure that limiting the right to vote in the
plebiscite to people aged 18 or above does not offend the Age Discrimination Act.
201. Paragraph 34(b) would apply clause 34 to references to the Referendum Act in
paragraph 105(4)(b) of the Electoral Act. Paragraph 105(4)(b) of the Electoral Act states that
the Electoral Commissioner may enter the name of an elector who is not enrolled, and who
has made a declaration vote, on the Roll for the subdivision the elector was living in at the
time of voting if, for a declaration vote made under the Referendum Act, the ballot-paper was
properly issued according to Schedule 4 to the Referendum Act, and the person was omitted
from the Roll due to error or mistake. The effect of this would be that the same rules relating
to the inclusion of people who have made declaration votes on the electoral Roll would apply
to the plebiscite as apply to a referendum.
202. Paragraph 34(c) would apply clause 34 to references to the Referendum Act in the
Schedule to the Jurisdiction of Courts (Cross-Vesting) Act 1987
(the Jurisdiction of Courts (Cross-Vesting) Act). The Schedule to the
Jurisdiction of Courts (Cross-Vesting) Act lists the Acts to which section 7 of that Act apply.
Subsection 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act provides that appeals of
matters decided by a single judge of a Supreme Court of a State or Territory can only be
determined by the Full Court of the Federal Court or the Family Court, or by the High Court
(with special leave), if the matter arises under an Act specified in the Schedule. The effect of
this would be to provide that an appeal of matters arising from the application of the
Referendum Act to the plebiscite may be determined only by the Full Court of the
Federal Court, or with special leave of the High Court. This is the same approach as for
appeals of matters arising from referendums.
203. Paragraph 34(d) would apply clause 34 to references to the Referendum Act in
item 2A of the table in subsection 355-65(8) of Schedule 1 to the
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Taxation Administration Act 1953 (Taxation Administration Act). The table in subsection
355-65(8) of Schedule 1 to the Taxation Administration Act sets out the types of records or
disclosures to which section 355-25 of the Schedule to that Act does not apply. Item 2A of
the table provides that records made for, or disclosures to, the Electoral Commissioner where
the record or disclosure is of information disclosed to, or obtained by, the Commissioner of
Taxation on or after the commencement of the table item, and is for the purpose of
administering the Electoral Act or the Referendum Act, are exempt from section 355-25.
204. Section 355-25 of Schedule 1 establishes offences for disclosure of protected
information by taxation officers. By operation of subsection 355-65(8) of Schedule 1, these
offences would not apply to the types of records relating to the Electoral Commissioner
described above. The effect of this would be to enable taxation officers to disclose protected
information to the Electoral Commissioner for the purpose of administering the
Referendum Act as it applies to the plebiscite. This would mean that taxation officers would
have the same protections in relation to information disclosure for the purpose of the
plebiscite as they would in relation to a referendum.
205. Paragraph 34(e) would apply clause 34 to references to the Referendum Act in
Item 120 of Schedule 1 to the Electronic Transactions Regulations 2000
(the Electronic Transactions Regulations). Regulation 4 of the
Electronic Transactions Regulations states that specific provisions of the
Electronic Transactions Act 1999 (the Electronic Transactions Act) do not apply to specific
provisions in other Commonwealth laws. The relevant provisions in the
Electronic Transaction Act and other Commonwealth laws are specified in Schedule 1.
206. Item 120 of Schedule 1 of the Electronic Transactions Regulations provides that
subsection 8(1), Division 2 of Part 2, and sections 14, 14A, 14B and 15 of the
Electronic Transactions Act do not apply to Parts III (other than subsections 16A(1), (2), (4)
and (5)), IV, IVA, and V of the Referendum Act. The relevant provisions of the
Electronic Transactions Act are:
Subsection 8(1)--for the purpose of a Commonwealth law, providing that a
transaction is not invalid because it is made by electronic communication.
Division 2 of Part 2-- permitting the use of electronic communication in certain
circumstances where Commonwealth laws require or allow a person to give
information in writing, provide a signature, provide a document, record information in
writing, retain a written document, or retain an electronic communication.
Sections 14, 14A, 14B and 15--establishing rules relating to the accepted time and
place of dispatch of an electronic communication, the time and place of receipt, and
the attribution of an electronic communication.
207. The relevant parts of the Referendum Act to which these provisions do not apply are
Part III ('Voting at a Referendum' - except for the purpose of Electoral Officers signing an
undertaking before commencing work at a Referendum according to section 16A), Part IV
('Postal voting'), Part IVA ('Pre-poll voting') and Part V ('Special provisions relating to
voting in Antarctica at a Referendum'). This covers the majority of voting procedures under
the Referendum Act (with the exception of Part IVB 'Electronically assisted voting for
sight-impaired people'). This has the effect that, at a referendum, electronic transactions
would not be considered valid written communications for the purpose of voting in the
41
referendum (except for sight-impaired individuals using electronically assisted voting). This
is to ensure that most voting in a referendum must be done in writing on paper. The effect of
paragraph 34(e) of the Bill would be to apply the same rules to the plebiscite as apply to a
referendum.
208. Item 120 of Schedule 1 to the Electronic Transactions Regulations only excludes
specific provisions of the Referendum Act from the application of specific provisions in the
Electronic Transactions Act, as outlined above. The Electronic Transactions Act would
continue to apply to provisions in the Referendum Act, as that Act would apply to the
plebiscite.
Subdivision B--Broadcasting
Clause 35 - Identification of certain political matter and records of matters broadcast
209. Clause 35 would set out provisions from the Broadcasting Services Act 1992
(the Broadcasting Services Act) and the Special Broadcasting Service Act 1991
(the SBS Act) in which references to 'political matter' and 'political subject' would include
references to plebiscite matter. The effect of this clause would be to make it clear that the
provisions below would apply for the purpose of the plebiscite during the plebiscite period.
The terms plebiscite matter and plebiscite period would be defined in clause 4 of the Bill.
210. Subclause 35(1) would set out provisions from these Acts that use the term political
matter, and provide for those references to political matter to include a reference to
plebiscite matter. Paragraph 35(1)(a) would apply subclause 35(1) to the reference to political
matter in clauses 1 and 4 of Schedule 2, and subclause 24(4) of Schedule 6, to the
Broadcasting Services Act.
211. Clause 1 of Schedule 2 defines political matter, for the purpose of that Schedule, as
meaning any political matter, including the policy launch of a political party. Clause 4 of
Schedule 2 places obligations on broadcasters who broadcast political matter at the request of
another person. Subclause 4(2) requires those broadcasters to, immediately afterwards, cause
the required particulars in relation to the political matter to be announced in a form approved
in writing by the Australian Communications and Media Authority (ACMA). The required
particulars are defined in clause 1 of Schedule 2, and are categorised depending upon whether
the broadcasting was authorised by a political party, by a person other than a political party or
by the name of every speaker who, either in person or by means of a sound recording device,
delivers an address or makes a statement that forms part of that matter. Clause 24 of
Schedule 6 to the Broadcasting Services Act sets out the conditions to which datacasting
licences are subject. The effect of applying subclause 35(1) to these provisions would be to
apply them to the broadcast of plebiscite matter for the purpose of the plebiscite.
212. Paragraph 35(1)(b) would apply subclause 35(1) to the reference to political matter in
section 70A of the SBS Act. Section 70A of the SBS Act relates to the broadcasting of
political or controversial matter. Subsection 70A(1) of that Act maintains the SBS's
discretion, subject to the SBS Act, to determine to what extent and in what manner political
matter or controversial matter will be broadcast by the SBS. Subsections 70A(2) and (3) set
out specific requirements for the SBS to announce or transmit required particulars in relation
to political matter it broadcasts at the request of another person, to keep details of the person
or company that requested it to broadcast political matter, and to give those details to the
ACMA upon request. The effect of applying subclause 35(1) to section 70A of the SBS Act
42
would be to apply the same requirements to the broadcast of plebiscite matter by the SBS for
the purpose of the plebiscite.
213. Subclause 35(2) would set out provisions from the Broadcasting Services Act and the
SBS Act that use the term political subject, and provide for those references to
political subject to include a reference to plebiscite matter. Paragraph 35(2)(a) would apply
subclause 35(2) to the reference to political subject in clause 5 of Schedule 2 to the
Broadcasting Services Act. Clause 5 specifies when a broadcaster who broadcasts matter
relating to a political subject or current affairs must cause a record of the political subject to
be made in a form approved in writing by the ACMA. The effect of applying subclause 35(2)
to clause 5 of Schedule 2 to the Broadcasting Services Act would be to apply the same
requirement to the broadcast of plebiscite matter for the purpose of the plebiscite.
214. Paragraph 35(2)(b) would apply subclause 35(2) to the reference to political subject in
section 70B of the SBS Act. Section 70B of the SBS Act provides that, if the SBS broadcasts
matter relating to a political subject or current affairs, the SBS must cause a record of the
matter to be made. Subsections 70B(2) - (6) state the time period within which the SBS is
required to retain the record, including if the record is admissible as evidence in a court case.
The effect of applying subclause 35(2) to section 70B of the SBS Act would be to apply the
same requirement if the SBS broadcasts plebiscite matter for the purpose of the plebiscite.
215. Subclause 35(3) would provide that the obligations in subclauses 4(2) and (3) and
clause 5 of Schedule 2 to the Broadcasting Services Act, and subsections 70A(2) and (3) and
section 70B of the Special Broadcasting Service Act, would apply in relation to plebiscite
matter only if the matter is broadcast during the plebiscite period. The obligations in these
clauses are outlined above. The plebiscite period would be defined in clause 4 of the Bill, and
would mean the period that starts 33 days before the voting day for the plebiscite and ends at
the close of voting on that day. The effect of this subclause would be to limit the time period
in which the obligations on broadcasters would apply in relation to the broadcast of plebiscite
matter.
No requirement to lodge annual return
216. Subclause 35(4) would refer to the annual returns relating to political expenditure, for
the purpose of the plebiscite. This subclause would provide that a person would not be
required to provide a return for a financial year under subparagraph 314AEB(1)(a)(iv) of the
Electoral Act merely because that person incurred expenditure for the purposes of
broadcasting plebiscite matter in relation to which particulars were required to be announced
under subclause 4(2) of Schedule 2 to the Broadcasting Services Act (as it would apply to the
plebiscite by operation of subclause 35(1) of the Bill).
Clause 36 - Obligations on broadcaster in relation to plebiscite matter
217. Clause 36 would apply specific provisions from the Broadcasting Services Act to the
plebiscite, with minor modifications.
Requirement to give a reasonable opportunity
218. Subclause 36(1) would provide that subclause 3(2) of Schedule 2 to the
Broadcasting Services Act applies to the plebiscite as if it required a broadcaster that, during
the election period, broadcasts plebiscite matter that is in favour of the plebiscite proposal to
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give a reasonable opportunity to a representative of an organisation that is not in favour of the
plebiscite proposal to broadcast plebiscite matter during that period, and vice versa.
Plebiscite matter would be defined in clause 4 of the Bill.
219. The note to subclause 36(1) would note that the definition of election period in
clause 1 of Schedule 2 to the Broadcasting Services Act would be modified by
paragraph 33(a) of the Bill (see above). As a result of that paragraph, the election period
would mean the period that starts 33 days before the voting day for the plebiscite and ends at
the close of voting on that day. The reference to the election period would have the effect of
limiting the time period in which the obligations on broadcasters would apply in relation to
the broadcast of plebiscite matter.
220. The effect of subclause 36(1) would be to require broadcasters to give representatives
from both sides of the same-sex marriage debate a reasonable opportunity to broadcast
material in the lead up to the voting day. This requirement is consistent with the requirement
in relation to federal elections and referendums.
Limitation on broadcasting during blackout period
221. Subclause 36(2) would provide that clause 3A of Schedule 2 to the
Broadcasting Services Act applies to the plebiscite as if that clause created a blackout period
in which broadcasters would be prohibited from broadcasting any advertisement that contains
plebiscite matter during the defined blackout period. Paragraph 36(2)(a) would define the
blackout period as commencing at the end of the Wednesday before the polling day, and
paragraph 36(2)(b) would define the blackout period as ending at the close of the poll on that
polling day. The effect of this clause would be to give people time in the days leading up to
the voting day to consolidate their thoughts without being exposed to continuous advertising.
The blackout period for the plebiscite would be consistent with the blackout period for
federal elections. There are no blackout periods for referendums.
References to clauses 3 and 3A of Schedule 2
222. Subclause 36(3) would provide that paragraphs 7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and
11(1)(d) of Schedule 2, and paragraph 24(1)(a) and subclause 24(4) of Schedule 6, to the
Broadcasting Services Act would apply to the plebiscite as if references in those paragraphs
to clauses 3 and 3A of Schedule 2 to that Act included references to those clauses as they
would apply in relation to the plebiscite (i.e. as amended by subclauses 36(1) and 36(2) of the
Bill).
223. Paragraphs 7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and 11(1)(d) of Schedule 2 require the
holders of commercial television, commercial radio, community, subscription television, and
class licences, respectively, to comply with the requirements of, inter alia, clauses 3 and 3A
of Schedule 2. Clause 24 of Schedule 6 sets out general conditions on datacasting licences.
Paragraph 24(a) requires the holder of a datacasting licence to comply with, inter alia, clauses
3 and 3A of Schedule 2, and subclause 24(4) provides that those clauses apply to datacasting
services in the same way as they apply to broadcasting services. The effect of subclause 36(3)
would be to require all broadcasting and datacasting licence holders to comply with
clauses 3 and 3A of the Broadcasting Services Act, as amended by
subclauses 36(1) and (2) of the Bill for the purpose of the plebiscite.
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224. This means that licence holders would be required to comply with special conditions
relating to broadcasting plebiscite matter during the election period for the plebiscite,
including the requirement to give a reasonable opportunity to broadcast plebiscite to
representatives of organisations on both sides of the debate, and to adhere to the media
blackout period. This provision is required to give full effect to the modifications in
subclauses 36(1) and (2) of the Bill.
Clause 37 - SBS to give a reasonable opportunity to broadcast plebiscite matter
225. Clause 37 would provide that the SBS Act applies to the plebiscite as if a new
section 70BA was inserted after section 70B of that Act.
226. The new section 70BA would require the SBS to give a reasonable opportunity to
broadcast plebiscite matter to organisations in favour and not in favour of the plebiscite
proposal. The new section would provide that if, during the plebiscite period, SBS broadcasts
plebiscite matter that is in favour of the plebiscite proposal, SBS must give a reasonable
opportunity to a representative of an organisation that is not in favour of the plebiscite
proposal to broadcast plebiscite matter during that period, and vice versa. The new
subsection 70BA(2) would provide that the new subsection 70BA(1) does not require
the SBS to broadcast any matter free of charge.
227. Clause 4 of the Bill would define the terms 'plebiscite matter' and 'plebiscite period'.
The plebiscite period would mean the period that starts 33 days before the voting day for the
plebiscite and ends at the close of voting on that day. The reference to the plebiscite period
would have the effect of limiting the time period in which the obligations on the SBS would
apply.
228. The effect of the new section 70BA would be to require the SBS to give
representatives from both sides of the same-sex marriage debate a reasonable opportunity to
broadcast plebiscite matter via paid advertisements on the SBS in the lead up to the voting
day for the plebiscite. While the effect of the new section 70BA may limit the SBS's
discretion under section 70A of the SBS Act in relation to determining to what extent and in
what manner it broadcasts political or controversial matter, this requirement is consistent with
the approach taken in federal elections and referendums. It would also be consistent with the
requirement that would be imposed on broadcasters covered by the Broadcasting Services
Act. It would ensure that Australian voters receive information from both sides of the
same-sex marriage debate to enable them to make an informed view on the plebiscite
proposal.
Clause 38 - SBS not to broadcast advertisements containing plebiscite matter during
the blackout period
229. Clause 38 would provide that section 70C of the SBS Act applies to the plebiscite as
if that section created a blackout period in which the SBS would be prohibited from
broadcasting any advertisement that contains plebiscite matter during the defined blackout
period. Paragraph 38(a) would define the blackout period as commencing at the end of the
Wednesday before the polling day, and paragraph 38(b) would define the blackout period as
ending at the close of the poll on that polling day.
230. The effect of this clause would be to give people time in the days leading up to the
voting day to consolidate their thoughts without being exposed to continuous advertising. The
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blackout period for the plebiscite would be consistent with the blackout period for federal
elections. There are no blackout periods for referendums. The blackout period imposed on the
SBS by operation of this clause would be consistent with the blackout period imposed on
broadcasters operating under the Broadcasting Services Act provided for by subclause 36(2)
of the Bill.
Subdivision C - Deductibility of gifts made to Committee for the Yes Case or
Committee for the No Case
Clause 39 - Deductibility of gifts made to Committee for the Yes Case or Committee for
the No Case
231. Clause 39 would provide for an amendment to the application of the Income Tax
Assessment Act 1997 (the Income Tax Assessment Act) , for the purpose of the plebiscite, so
that money donated to the Committee for the Yes Case or the Committee for the No Case, of
no more than $1,500, would be tax deductible.
232. The table in subsection 30-15(2) of the Income Tax Assessment Act sets out the gifts
or contributions that a taxpayer can deduct.
233. Each Australian voter will have an opportunity to have their say about whether the
law should be changed in Australia to allow same-sex couples to marry. As such, educating
the public on the arguments in favour and not in favour of this question would be a public
good, justifying the status of deductibility of monetary gifts made to the official committees
established to perform this function.
Deductibility of gifts
234. Clause 39(1) would provide that the Income Tax Assessment Act applies to the
plebiscite as if a new item 9 were added to the table in subsection 30-15(2) of that Act. New
item 9 would provide that gifts of money made to the Committee for the Yes Case or the
Committee for the No Case are deductible subject to the conditions in column 4 of the table.
235. These conditions would be that the gift:
(a) must be made after the Plebiscite (Same-Sex Marriage) Act 2016 commences and
before the voting day of the plebiscite;
(b) must be of $2 or more; and
(c) must be paid directly into the account established for the committee for the
purpose of subsection 11A(4) of the Referendum Act as that section would apply
to the plebiscite by section 15 of the Plebiscite (Same-Sex Marriage) Act 2016.
$1,500 limit on deductions to each committee
236. Clause 39(2) would provide that the Income Tax Assessment Act applies as if a new
subsection 30-15(6) was added to the end of section 30-15. New subsection 30-15(6) would
provide that, for the purpose of item 9 of the table in subsection 30-15(2), an individual or
taxed entity would not be able to deduct more than $1,500 for gifts made to the Committee
for the Yes Case and Committee for the No Case. This cap applies separately to donations
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made to each committee. For example, an individual who donates $1,500 to the Committee
for the Yes Case and $1,500 to the Committee for the No Case could claim $3,000 of gifts
under item 9.
237. Applying the cap separately to each committee would allow individuals and other
taxed entities, who by donating to both committees, wish to encourage a respectable,
well-rounded debate on the plebiscite proposal, the benefit of tax deductibility for both
donations made.
Modification of other Acts and instruments
238. Clause 39(3) would provide that the Special Minister of State may, by notifiable
instrument, modify the operation of Acts or instruments made under an Act in relation to the
modification of the Income Tax Assessment Act made by subclause 39(1). The power that
would be afforded to the Special Minister of State by subsection 39(3) would assist in
ensuring that the changes made by clause 39 operate as intended.
Part 4 - Miscellaneous
Clause 40 - Appropriation
239. Clause 40 would appropriate moneys from the Consolidated Revenue Fund for the
purpose of the plebiscite. Paragraph 40(a) would appropriate moneys for the purpose of
paying or discharging the costs, expenses and other obligations incurred by the
Commonwealth in relation to the plebiscite. The moneys appropriated under paragraph 40(a)
would be used by the Electoral Commission.
240. Paragraph 40(b) would appropriate moneys for the purpose of making payments
under subsection 11A(1) of the Referendum Act (as that subsection applies because of
section 15 of the Bill). The moneys appropriated under paragraph 40(b) would be used by the
Committee for the Yes Case or the Committee for the No Case to conduct official yes and no
campaigns in accordance with this Bill.
241. It is necessary to include an appropriation for the purpose of the plebiscite in the Bill,
as the funds for the plebiscite have not otherwise been appropriated. Section 83 of the
Australian Constitution provides that no money shall be drawn from the Treasury of the
Commonwealth except under an appropriation made by law.
Clause 41 - Regulations
242. Clause 41 would provide a power for the Governor-General to make regulations under
the Bill. Subclause 41(1) would enable regulations to be made which prescribe matters either
required or permitted by the Bill (paragraph 41(1)(a)); or necessary or convenient for
carrying out or giving effect to the Bill (paragraph 41(1)(b)).
243. Subclause 41(2) would provide that, without limiting the operation of subclause
39(1), the Governor-General may make regulations modifying the operation of any
instrument or part thereof made under any Commonwealth Act.
244. Subclause 41(3) would provide that the terms of the Bill do not limit the regulations
that the Governor-General may make under this regulation-making power.
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245. This clause is necessary to ensure the Bill can be implemented effectively.
Schedule 1 - Forms
246. Schedule 1 to the Referendum Act contains the forms for the writ for a referendum
(Form A) and for the ballot-paper (Form B). Subclause 14(2) of the Bill would provide that,
for the purpose of the plebiscite, Schedule 1 to the Bill would replace forms A and B in the
Referendum Act with new forms for the plebiscite.
Form A - the writ
247. The replacement Form A is the writ the Governor-General would issue to the
Electoral Commissioner to direct that the plebiscite be conducted. The structure and text of
the writ largely mirrors that used in the Referendum Act, but has been modified as follows:
The replacement Form A would compel the Electoral Commissioner to submit the
plebiscite proposal (as defined in clause 4 of the Bill, above) to electors. It would not
compel the Electoral Commissioner to submit a proposed law for the alteration of the
Australian Constitution. This is because the plebiscite would be a vote on a simple
question - the plebiscite proposal - rather than a vote to approve a proposed law for
the alteration of the Australian Constitution like a referendum.
The replacement Form A refers to the plebiscite proposal being submitted to the
electors who are entitled to vote at an election, rather than the electors who are
qualified to vote at referendums. This is because electors are defined in the
Referendum Act, as it would apply to the plebiscite by operation of clause 9 of the
Bill, as a person whose name appears on a Roll of electors kept pursuant to the
Electoral Act.
The replacement Form A removes the reference to laws in States and Territories.
248. The effect of these changes to Form A would be to create a writ specific to the
plebiscite context, which would allow the Governor-General to command the
Electoral Commissioner to submit the plebiscite proposal to all persons entitled to vote at
elections.
Form B - the ballot-paper
249. The replacement Form B is the ballot-paper that people would complete on the voting
day for the plebiscite. This form would set out the question to be submitted to voters, which
would be: 'Should the law be changed to allow same-sex couples to marry?'. It would also
direct electors to write 'yes' or 'no' in the box provided. This form has been revised to create
a form specific to the plebiscite on same-sex marriage. The replacement Form B does not
refer to the State or Territory of the voter, as this is not relevant to the plebiscite.
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