The future process to deal with same sex marriage reform remains in the balance. The Labor Opposition, opposed in principle to a plebiscite, now holds the key.
Despite majorities in each house of parliament in favour of legislative change, the government still plans to proceed with its plebiscite, first announced as policy by the Abbott government in its dying days. All that remains is to finalise the plebiscite question and to steer it through the parliament. It must now rely on a change of heart by a reluctant Labor.
The government is proceeding despite the cost, warnings about divisiveness from some community leaders and the fact it is not the personal preference of Malcolm Turnbull.
The government stance is not only the policy it took to the recent elections but, more importantly, a delicate compromise between conservatives and liberals, sealed in a deal when Turnbull became prime minister last September. Prominent Liberal campaigners for same sex marriage, including newly elected Tim Wilson, are now enthusiastically backing this stance.
Campaigners for same sex marriage, almost all opposed to a plebiscite because it invites a hurtful campaign, are now split between those who would grudgingly accept one in order to pursue their goal and those willing to wait years if necessary for a parliamentary vote.
As well as fears about the impact of the tone of a plebiscite campaign on the gay community, some advocates are also clearly worried that a plebiscite could be lost despite current majority public support. This is a realistic fear given Australia's referendum record.
Opponents of same sex marriage support a plebiscite as a last resort because it gives them an opportunity to derail parliamentary action by demonstrating majority public opposition. They remain hopeful a silent majority will prove the public opinion polls wrong.
If the plebiscite goes ahead with Labor's support nearly everyone with a stake in the outcome will participate vigorously even if supporters of same sex marriage reform remain disappointed at being put through such a campaign.
"Bill Shorten too will inevitably share some of the blame if post-plebiscite surveys show that the pattern of voting among Labor supporters was not strongly enough in favour of same sex marriage."
It will test the skill and resolve of the major party leaders, both advocates of same sex marriage reform, because the recriminations will be enormous if the plebiscite fails. The leadership of Turnbull, confident that the plebiscite will pass, will become untenable. It would be seen as another campaigning failure and evidence that he is out of touch with majority social attitudes, reinforcing the perceptions of his conservative opponents. Turnbull must campaign from the front for a Yes vote for this reason alone.
Bill Shorten too will inevitably share some of the blame if post-plebiscite surveys show that the pattern of voting among Labor supporters was not strongly enough in favour of same sex marriage, though he will be spared a serious split among his parliamentary colleagues and will be able to explain that he did his best to resist the plebiscite.
Both men will have to balance the time and effort they devote to the plebiscite campaign against the normal duties of parliamentary leaders. This sensitive balance will apply especially to Turnbull with his party critics ever ready to claim he is neglecting his primary 'bread and butter' economic policy duties. On the other hand if the plebiscite bill is defeated in parliament Labor, the Greens and Nick Xenophon will bear responsibility for not taking the opportunity offered even if it is in their view a second-best option. The government is already labelling them as same sex marriage wreckers.
If before too long a parliamentary alternative, such as a free vote, is found to advance the cause of same sex marriage then the rejection of the plebiscite option will come to be applauded as a master stroke. But if years pass by without positive action then there will be some regrets and inevitable recriminations for not grasping the moment of possible success.
The current stalemate may be dignified as a battle of ideas about the most appropriate way of dealing with a matter of deep social importance in a parliamentary democracy. Public involvement through a plebiscite is undoubtedly attractive, but in this instance it is not an appeal to popular sovereignty but a political tactic.
John Warhurst is an Emeritus Professor of Political Science at the Australian National University and a former chair of the Australian Republican Movement.
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30 August 2016
This disputes one of the faults in our Westminster-style Lowe house, and that is the ability of a government to determine which bills will be put to a vote in the legislature and which won't. It's actually worse than that as the current situation demonstrates where the ability of an opposition to get a bill voted on the the Reps is being thwarted by a small majority of the Government members, who could be little more than 25% of all members. So much for parliamentary sovereignty and separation of powers.
30 August 2016
I'm not sure what verb I meant to use before spell-check took over but it wasn't 'disputes'. I think my first line should have read 'This displays one of the faults...'
Roy Chen Yee
30 August 2016
Parliamentary sovereignty as a notion faces a difficulty when the decision of one legislature will change people's rights and decisions to such an extent that a later legislature will effectively be unable to undo the change. When the earlier legislature for all intents and purposes will be abolishing the sovereignty of the later legislature on some matter, it's only fair that the people register an opinion on whether to bind their descendants. Holding a plebiscite on same-sex marriage is the proper approach. As a culture-changer, the issue of same sex marriage is important enough to require specific ratification from the electorate.
31 August 2016
John, Neve Mahoney has this right in ES today., I hope Labor goes that way. Too many risks and too much hurt to decent people in the plebiscite option. . It will bring out all the nasties, in the churches and in the wider community, and it could fail.. This is a job for Parliament. Bill Shorten, please give leadership in this. It matters.
31 August 2016
It's not a 'culture-changer' Roy, the change has already occurred. All that is being proposed is that the law catch up with reality. As to your comments on sovereignty, you clearly misunderstand the meaning of parliamentary sovereignty. For better or worse, 'parliamentary sovereignty' is a characteristic of our polity. A plebiscite will not change the law any more than a properly designed opinion poll. In the long run, it will be up to the sovereign parliament to legislate or otherwise. Bernadi knows that, and that's why he and other rightly state that they will not be bound by the plebiscite. You plebiscite is toothless. It's nothing but a paper dragon.
31 August 2016
The amendment to the Marriage Act in 2004 which limited Marriage as being between a man and a woman foregoing all others was passed because the ALP naively thought it was merely legislating what was already a common law situation. Whatever the socio-political circumstances in 2004 it was a vote of the national government that approved the amendment. There was little parliamentary debate, except by Greens leader, Bob Brown, who as a gay man knew and felt how discriminatory the definition was against same-sex couples. Surely if the parliament was able to bind on Capitol Hill it is able to loose on Capitol Hill? One of the advantages of a plebiscite for conservatives is that a plebiscite is not binding on parliament or the government. It does not have the prestige or legal impact of a Referendum. If only a few members of the government had the insight to see how the current definition (2004 Amendment)) discriminates against same-sex couples surely they would have the courage to cross the floor? Alas, holding on to their seats makes courageous decision making by MPs well nigh physically and morally impossible.
31 August 2016
Turnbull has got us into this mess by making a weak commitment to stick with Abbott’s manipulative delaying tactic of a plebiscite to placate the ultra-conservatives, despite knowing that such a course would exacerbate the injustice and hate felt by gays. A plebiscite is not a referendum, merely a device to gauge the opinion of the people. This damaging plebiscite is not even conclusive as it will not bind the Parliament. The opinion of the people is already clear from the opinion polls which have become even more supportive since the election, which has also returned a majority of parliamentarians in favour of marriage equality. Chances are that Turnbull would have been returned with a greater majority if he had dumped the plebiscite. Let the Parliament vote. Such a step could actually strengthen Turnbull’s position by a show of courageous decisiveness.
01 September 2016
what worries me about the plebiscite is that it will not be a free debate. The Media will become involved. Extremists on both sides will spread "Propaganda" that distorts the issues and hurt. the vulnerable .
01 September 2016
Yes, the plebiscite is pure politics - and so's the the current up swell by Labor and Greens et al to block it.
But it's also a political tussle that as far as I can see reflects the reality - and is not simply party politics at play.
The fact that I've changed my views and opinions on this many times and probably still haven't landed (although obviously in favour of SSM)
I'd actually thought there was no problem with having a plebiscite, but in recent days I've heard the argument from a few different commentators that's given me a new clarity - why does the general public have a right to decide whether I can marry or not?
As soon as I heard that argument, alarm bells started ring in my head and I realised that by sitting on the fence, I've allowed some intellectual, vague and totally inhumane church teaching to crush my sense of worth. When Shorten was confronted by the Anglican cleric after the opening of parliament church service, the man was emphatic he wasn't a homophobic bigot - so what WAS his point then? And what's the point of a church doctrine that condemns gay people to a life of intrinsic disorder?
Roy Chen Yee
01 September 2016
Ginger Meggs, it’s an egotism of the current generation to think that because something different has happened for five minutes during their span of attention, a sea change has occurred. Whether change has happened is an historical retrospective. The legal change proposed here – that marriage is not necessarily between a biological male and a biological female - is to create a space which reality can catch up to. Once reality has reached a certain stage, it will be impossible in practice for a future parliament to correct its predecessor’s mistake. Its sovereignty will effectively be suppressed. As for the potency of the plebiscite, the Westminster system runs in part on conventions which developed out of controversies. Brexit is a precedent for a sovereign Parliament honouring a non-binding referendum which, in a polity such as the UK without a locked constitution, is another name for a plebiscite. Over time, the convention will develop that plebiscites are morally binding upon Parliament. A plebiscite, after all, is when a parliament seeks the views of the electorate on a specific matter.
02 September 2016
Parliaments are sovereign and do change the decisions of earlier Parliaments. Abbott’s abolition of the Carbon Price and the Mining Tax are recent examples and there are many others. It may be extremely hard realistically to remove marriage equality once it is law, but let us focus on the sovereignty and will of the current Parliament. Plebiscites are not part of our Westminster tradition. We don’t have plebiscites to send our service people to war, which surely is the ultimate life and death event. We don’t have plebiscites to decide the aged pension or the rate of the GST, which affects all Australians in their everyday life. We don’t have plebiscites to decide anything in Australian politics. We elect our politicians to make decisions and we expect them to do their jobs. Howard changed the Marriage Act in 2004 without a plebiscite; the current Parliament can, to use Roy’s words, correct this mistake. As for plebiscites being “morally binding upon Parliament”, our ultra-conservatives have already said they won’t necessarily be bound by the plebiscite outcome if the popular vote goes against them. Surely this should be a nail in the coffin of this expensive non-binding opinion poll.
02 September 2016
Roy, so are you claiming that you think Australia should be the last bastion of moral authority and continue to convince the rest of the democratic world that they are wrong? All based on a Westminster system that only set root through legal trickery - by claiming Australia was either uninhabited, or that Aboriginal people were not human persons?
03 September 2016
Dear John, since we live in a representative democracy, how can our elected representatives know our views on a topic if they don't canvas our opinion?
If they don't want our opinion, aren't they telling their electorates that they know better, that we can't be trusted to express our opinion, or that this is a rights issue and we must delegate it to them! Does any of this fit with the idea of representative democracy? Also, isn't freedom of speech a right? Is the only opinion to be aired here that of the oppressed and vulnerable GLBTIQ community, to whose side all right-thinking and empathic people immediately rush? Are the oppressed becoming the oppressors here? Paul Burt
Roy Chen Yee
06 September 2016
Aurelius: “All based on a Westminster system that only set root through legal trickery - by claiming Australia was either uninhabited, or that Aboriginal people were not human persons?” The type of system doesn’t matter. The question is whether this issue should go first before the legislature and the people can argue about the new law later, when they can do nothing about it, or whether it should first go to the people to provide some guidance for the legislature. Anti-plebisciters claim the issue is too sensitive for the mental health of gay people to risk popular free speech on the matter. Plebisciters claim there’s more to this than love between two adults, that people should be informed about those other complexities instead of taking what the same-sexers say on face value. As for ‘legal trickery’, assume British law had been subordinated to Aborigine ‘sharia’ since 1788. If we ‘plebiscited’ the elders about same-sex anything, would they have been supportive? Tradition being tradition, the chances are no.
07 September 2016
Roy, if you think the impact of an anti-Marriage Equality campaign on the mental, emotional and possibly physical wellbeing of GLBTIQ people is less important than an expensive, non-binding opinion poll that has nothing positive going for it, well, I disagree. People opposed to the plebiscite also say it is unnecessary, it was put forward and supported mainly by those opposed to Marriage Equality, it is cynical, it will only hurt the people it is aimed at and it is totally foreign to Australia's Westminster Parliamentary tradition. There really is nothing more to Marriage Equality than the love between two freely consenting adults. Any alleged "complexities" have been shown to be irrelevant when we are talking about treating adults equally. There has not been one sound, logical argument against Marriage Equality that I could say "yes, that's a fair point". We don't need a plebiscite. Our elected representatives should just do their jobs. Let me ask you again Roy, would you be happy if the rest of the country had a say in whether or not a heterosexual couple could marry?
30 September 2016
"Public involvement through a plebiscite is undoubtedly attractive, but in this instance it is not an appeal to popular sovereignty but a political tactic." Not necessarily! The current Marriage Act compulsorily requires the expression of a monition stating that marriage is exclusive and lifelong. It being the case that prominent SSM advocates, such as Robert Dessaix and Dennis Altman, oppose marriage as an institution because of such exclusivity and lifelong requirements, one might assume that at least some prominent marriage equality advocates intend to use SSM as a Trojan Horse through which to drive through changes to the Marriage Act that extend far beyond granting equal marriage rights to gay citizens. As a gay person as well as a Catholic and a supporter of marriage equality, my conscience is torn on this matter between my desire to preserve marriage as permanent and exclusive and my desire not to injure those of my fellow citizens, whether gay or straight, who share my values and who recognise that some of our worst enemies lie within our own camp! In which case, bring on the plebiscite, as a means of teasing out and discerning the ethical implications of this complex decision, say I.
01 October 2016
In response to Michael, there is no basis for the “Trojan Horse” hypothetical. It is a “fear” argument – if Marriage Equality goes through you don’t know what will happen next. Fear worked really well against the Republic referendum campaign and we need to be aware of it happening now. If you have something specific to bring to the discussion then bring it into the light and we can discuss it. You want to preserve marriage as permanent and exclusive. Okay, I doubt people go into marriage with the intention of getting a divorce, but divorce does happen. It would be naïve to think it won’t continue to happen; divorce is a fact of life in our society. But on this point your conscience should not be torn. Marriage Equality will have no detrimental effect on your desire to preserve marriage. It might even strengthen it, given the struggles people are having for equality. We did not need a plebiscite when John Howard amended the Marriage Act to tighten the definition in anticipation of support for Marriage Equality. We do not need one now.