Parliament, not a plebiscite, for marriage equality

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By the Hon Michael Danby MP

Marriage equality is a right whose time has come. But a plebiscite is not the way to bring it to fruition.

In this I am only referring to civil marriage, i.e. what the state is prepared to sanction. Religious marriage is a matter for respective religions.

Already there are at least 21 countries in which it is legal for two people of the same sex to marry, including countries such as Ireland, United Kingdom, United States, Brazil and Argentina. And acceptance of marriage equality is only moving in one direction.

Institutions, standards and values evolve and change over time. History bears this out.

For example, it wasn’t until the late 19th century that slavery officially ended in America.   In England, it was only from 1882 that married women could own property. In Australia, aboriginal people were only given the right to vote in 1962.

The notion of no fault divorce is something we take for granted today. Yet it was not until 1975 that a spouse could get a divorce without establishing some egregious fault on behalf of the other spouse.

And homosexual relations were only decriminalised in Victoria as late as 1980. [ http://www.abc.net.au/news/2015-08-24/timeline:-australian-states-decriminalise-male-homosexuality/6719702 ]

Marriage equality is inevitable in Australia. It is really now a question of when and how.

The Turnbull government wants to hold a plebiscite (a vote of the people) on this issue at a cost of at least $160 million and no earlier than February 2017.

A plebiscite is in some ways similar to a referendum but is also significantly different. A referendum is a vote to change Australia’s constitution. And when passed, it has binding legal effect.

A plebiscite is an indicative vote that isn’t legally binding. Malcolm Turnbull has said that if marriage equality is passed by plebiscite, then it will become law. But the parliament must enact the law, and Turnbull has not outlined how he can guarantee that will happen. Not even members of his own party will be bound.

The rules of a plebiscite need to be determined, but probably the most important issue will be the formulation of the question to be put to the people. How that question is worded will be crucial in determining its outcome.

Turnbull is well aware of this given his experience as head of the failed ‘yes’ campaign for the referendum on an Australian republic in 1999. A key factor in that failure was that Australians were not in agreement as to the particular republican model proposed, even though they may have been broadly sympathetic to the notion of Australia becoming a republic.

Australia’s record when it comes to passing referendums is poor. Forty-four referendums have been held, of which only eight have been carried.

Referendums and plebiscites are particularly susceptible to scare campaigns. If sufficient doubt can be raised in the minds of the public, even if those doubts are unfounded, then the question will be defeated.

And the subject of marriage equality is even more open to unjustified and emotionally laden rhetoric.   Many of the “slippery slope” arguments fall into this category. The articulation of one such example is: “If we allow same-sex marriage, then what is to stop people being allowed to marry their pets?”. The answer to that of course is the parliament. Only the parliament can change the Marriage Act. To suggest that the majority of parliamentarians would endorse such a change is ridiculous.

The issue of marriage equality is one that affects LGBTI+ people very personally and deeply. It is not like deciding whether we should change our flag or national anthem or whether we should become a republic. Relationships are inherently personal and highly significant to our sense of belonging and wellbeing. If there is a plebiscite campaign, the ‘no’ side will inevitably be targeting gay relationships. And people in the gay community will undoubtedly be hurt and feel more isolated as a result of such a campaign.

Another concern with the proposed plebiscite is that it sets up a scenario where a substantial majority (those not gay) are determining the rights of a minority. As a general principle, allowing the majority to determine how society is to be regulated is in broad terms a good thing, but it is not always fair or appropriate and particularly in cases of determining minority rights. And it is simply not feasible or desirable for every issue to be decided by popular vote. This is one of the reasons why we have a representative democracy established under our Constitution. We elect by democratic process persons to represent us in parliament and we then empower those representatives to consider, debate and decide on legislation.

It is highly unusual for a matter to be put to a plebiscite. And in the case of same-sex marriage such a plebiscite is likely to be unfair, divisive, hurtful and costly. This issue is one that particularly calls out to be decided by parliament.

Former High Court Justice, Michael Kirby, has argued the case for parliament to decide on marriage equality instead of holding a plebiscite. Writing in The Australian on 9 August 2016 [ http://www.theaustralian.com.au/opinion/parliament-is-the-proper-place-for-enacting-laws/news-story/7844f4c295e8549e4f12def06c7d5c36 ] he raised a number of points, all of which have merit.

In summary (and with apologies to Justice Kirby for any mistranslation) the main points he makes are:

(1) Australia’s Constitution provides for representative government whereby our parliamentary representatives make the laws. A plebiscite is not recognised in our Constitution and relying on such a vote sets a bad precedent in enabling politicians to avoid making controversial decisions for themselves;

(2) the probability of a plebiscite succeeding is likely to be little different to the probability of a referendum succeeding, which in Australia is weak, and note also what happened in the Brexit vote;

(3) “complex, sensitive, issues are better decided after debate in parliament, not in the heat of public division and emotional campaigns in the community”;

(4) a plebiscite on marriage equality is “likely to bring out hatreds and animosities” affecting the gay community;

(5) it is inappropriate “to commit decisions on the basic human rights of minorities to a majority popular vote”;

(6) a defeat of marriage equality in a plebiscite will delay reform for much longer than a defeat in parliament and put Australia at odds with many other democratic countries;

(7) the substantial cost of a plebiscite can be better spent;

(8) a plebiscite may signal a move away from liberal democratic norms of decision-making towards populism.

The only reason the Turnbull government has chosen to hold a plebiscite on marriage equality is to appease certain conservatives in the government. The Prime Minister must know, particularly given his own experience, that there is less chance of a plebiscite succeeding than if parliament were to decide the matter.

And what will happen if the plebiscite is defeated? The issue will not disappear from public consciousness, nor will the drive for change diminish. And if the issue is to be resurrected, would the failure of an initial plebiscite mean that the parliament is morally precluded from deciding the matter in the future? The argument here being that if the people have rejected the proposition in the first place, then arguably it should go back to the people for the decision to be overturned.

In short, the Australian public is being forced to pay for a purely political, unwise and unnecessary decision to hold a plebiscite. It is a decision that will only delay the inevitable adoption of same-sex marriage, but in the meantime will give rise to aggravation, hurt and division.

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