Plebiscite not within ABS role

The Australian government has, notoriously, decided to run what it calls a plebiscite on the question of marriage equality in Australia. It will put up a bill to set up the running of the plebiscite as a mainstream vote, but this is expected to fail. Its fallback position is to have the Australian Bureau of Statistics (‘ABS’) run a voluntary postal vote.

On a straightforward reading of the relevant statutes, it is unlikely that the ABS is empowered by its legislation to run the vote. The former head of the ABS appears also to hold this view.

Purpose of the ABS

A quick look at the Australian Bureau of Statistics Act 1975 reveals that the ABS is established under section 6(1)

…(b) to collect, compile, analyse and disseminate statistics and related information;

The other listed functions pertain directly to this function. Further, and to clarify the meaning of this purpose, section 6(5) provides that:

a) a reference to statistical purposes shall be read as including purposes in connexion with the collection, compilation, analysis and dissemination of statistics

Under section 9 of the Census and Statistics Act 1905,

1) The Statistician:

(a) may from time to time collect such statistical information in relation to the matters prescribed for the purposes of this section as he or she considers appropriate; and

(b) shall, if the Minister so directs by notice in writing, collect such statistical information in relation to the matters so prescribed as is specified in the notice.

Presumably, to run the plebiscite, the Minister will direct the Statisticiam under section 9(1)(b).

Here it is relevant also to return to the Australian Bureau of Statistics Act to consider this latest likely request to run the plebiscite. It provides in section 6:

(3) Subject to subsection (4), each new proposal for the collection of information for statistical purposes by the Bureau shall be laid before both Houses of the Parliament before its implementation, unless the proposal is for the collection of information on a voluntary basis.

In other words, if the plebiscite is a ‘new proposal’ for the ‘collection of information’ then it would normally go before both houses of Parliament. Assuming this will not occur, the plebiscite will comply with section 6 and be voluntary. Therefore there will be no sanctions that would otherwise apply for failing to participate.

A plebiscite is not statistics…

At this point though, I see a problem. The big flaw in the government’s plan B is that it seeks to run a plebiscite, not a survey. The relevant statutes do not permit the ABS to run a plebiscite. It therefore does not have the power to do so.

A plebiscite is a vote. It is not a vote recognised under the Constitution, and it therefore has no effect at law. But it is a citizens’ vote nonetheless.

In Australia, a national plebiscite has quite a distinctive meaning. A plebiscite is a vote by citizens on a matter of national significance, but one which does not affect the Constitution.

Indeed some have called it a ‘nationwide opinion poll’. If it were genuinely an opinion poll, or survey, then it would fit within the ABS charter. But it is not. It is a plebiscite.

Statistics on the other hand

is a branch of mathematics dealing with the collection, analysis, interpretation, presentation, and organization of data.

While any vote will generate data that can be statistically analysed, its purpose is quite different from statistics per se. As an analogy, when I set an exam for my students, I collect a lot of data and I, and my university, uses statistical processes to analyse that data. But setting the exam is not ‘the collection of information for statistical purposes’. It is to assess student learning.

In the same way, a plebiscite is not the ‘collection of information for statistical purposes’. It is a vote to ascertain the public view on a particular matter. And the ABS is not empowered to run votes.

Member for Leichhardt, Warren Entsch, has described the process for achieving marriage equality as having ‘warts and prickles‘ attached. Indeed.

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