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Posted on 8 Aug 2017

People Are Completely Stumped By The News That The Bureau Of Statistics Will Run The Plebiscite

"We're not ruling anything in or out."

So on Tuesday we learnt that the government's postal vote plebiscite on same-sex marriage will be run by...the Australian Bureau of Statistics (ABS).

Due to legal concerns, we are renaming the plebiscite, the plebistat.

Everyone was a bit taken aback by the unexpected news.

Will the ABS also sell micro data from the results of the postal vote on same sex marriage?

Let's get two hugely criticised gov agencies, Australia Post and the ABS, and get them to do an unprecedented national vote on human rights.

And others immediately thought back to #CensusFail.

Brave .. ask the ABS to run a poll, a year after it's still working out what went wrong with the Census...

I come back from training and learn we are getting the agency behind #censusfail to run the plebiscite.

So what do we know about this ABS survey slash postal vote slash plebiscite?

First, the government is super confident it has the relevant powers to run it — despite SSM advocates saying they have serious legal concerns.

In a joint press conference with prime minister Malcolm Turnbull, Mathias Cormann said that as finance minister he has the power under the current Appropriations Act to allocate taxpayer money to pay for the vote without legislation:

Here's the part of the Appropriations Act Mathias Cormann says he can fund postal plebiscite/ABS survey under:… https://t.co/ExPhdO7b1h

The government is going to direct the ABS to ascertain the population's views on same-sex marriage.

In the press conference, Cormann referred to a 1974 survey, conducted by phone, of 60,000 Australians on what song should be the national anthem.

"As it happened 51.4% of Australians surveyed by the ABS on that occasion expressed an opinion in favour of changing Australia's national anthem to Advance Australia Fair and our national anthem was indeed changed as a result," he said.

"We are proposing to use the same constitutional and relevant equivalent legal powers of the ABS to collect statistical information in order to give all Australians enrolled on the Commonwealth Electoral Roll a say by voluntary postal vote on whether or not the law should be changed to allow same-sex couples to marry."

The phone poll to which Cormann refers was not the deciding factor in deciding our national anthem, which was chosen in 1977 by a legislated plebiscite.

Asked why the government had decided to run the survey through the ABS and not the AEC — and whether legal advice played into the decision — Cormann told BuzzFeed News:

"The government’s first preference is a compulsory attendance ballot through the AEC. Should this approach again fail to get the support of the Senate, the government has chosen an alternative constitutionally valid and legal way to keep faith with its election commitment to give Australians a say on whether or not the definition of marriage should be changed."

In other details:

* Officers from the Australian Electoral Commission (AEC) will be seconded to the ABS to assist with the vote;

* It will cost $122 million — about $50 million less than a compulsory, in-person vote — and ballots could be sent out as early as September 12;

* If the plebiscite bill goes down in the Senate — likely to happen this week — the government will hand over responsibility to the ABS and the supporting AEC officers to make announcements about timetables, logistics, and by what date people need to enrol.

David Moir / AAPIMAGE

All this means the legal situation around the postal plebiscite has become even murkier, with two separate groups of marriage equality advocates returning to their lawyers to assess their chances in a High Court challenge.

The Equality Campaign dialled back its threat to launch legal action the day after a postal vote was floated, saying instead there was a "strong, strong prospect" of a challenge.

The Equality Campaign's legal advice was based on the assumption of a vote run by the AEC. It is currently seeking further advice.

Asked if it would boycott the postal plebiscite, co-chair of Australian Marriage Equality Alex Greenwich said the organisation was "not ruling anything in or out".

“We’re not sure we will end up with a postal plebiscite," he said. "However, we will continue to campaign for marriage equality."

Greenwich also hit out at prime minister Malcolm Turnbull, saying his comments at the press conference were "an absolute disgrace".

"How can we have confidence in this process when the prime minister himself has said he’s too busy to participate actively in a campaign? How can he expect anyone else to engage in it when he himself says he’s not willing to?

"The precedent that was provided to us was a ring-around to 60,000 Australians in the ‘70s. Clearly we have concerns over that."

Aaron Bunch / AAPIMAGE

Advocates from LGBTI rights groups just.equal and PFLAG are also returning to their lawyers.

"Advice we received from [Ron Merkel QC] last week indicated the government cannot act without specific legislation and a specific budgetary appropriation," said just.equal spokesperson Rodney Croome in a statement.

"That would appear to cover a postal vote conducted by either the Electoral Commission or the Bureau of Statistics, but we are seeking further advice to establish the constitutionality of the current proposal.

"If the advice shows there are grounds to strike down the postal vote we will see the government in court."

Lane Sainty is the editor of BuzzFeed News in Australia and is based in Sydney.

Contact Lane Sainty at lane.sainty@buzzfeed.com.

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