With the Greens opposed to allowing the plebiscite on same-sex marriage to go ahead and the Labor Party indicating that they might follow the Greens, the plebiscite is looking increasingly unlikely to happen. Sections of the public who were in favour of it back when Prime Minister Tony Abbott proposed it, are now more likely to oppose it and it the plebiscite doesn't take place, then although the legislation might pass the Senate, it more than likely would not pass through the House Of Representatives. Leader of Opposition Business in the Senate, Penny Wong, said that she opposed the plebiscite because it would encourage ugly debate in the nation.
I was asked to write something on this subject via an email which was as filled with bad language as it was badly written. Rather than argue the question itself, what I find more interesting is the process and the mechanics of democracy itself.
Firstly, it must be said that there is no way that this could be a referendum question. Referenda in Australia are specific questions which relate to amending the Constitution. Same-sex marriage and changing the definition, relates to the Marriage Act 1961, and so a referendum isn't the instrument which is to be used. A plebiscite might be held according to exactly the same rules as a referendum but because the Constitution itself holds no provision to make plebiscites binding, they are not binding.
The thing is though, if a plebiscite were to be held and the government of the day were to collectively ignore the will of the people, that would wrought such a betrayal of democracy that I think that even in a modern democracy like Australia which is exceptionally calm when it comes to issues of politics, there would be so much protest that I suspect that force would be needed to stop the masses from entering the parliament. This argument that a plebiscite is useless because it is not binding, is deeply dishonest and whoever spouts this kind of nonsense should be held up in the light of criticism as such. I suspect that if a parliament were to ignore the wishes of the people, there would be people with actual pitchforks walking in through the front doors of Parliament House.
I found it interesting listening to Justice Kirby a few weeks ago on this subject and he said that because Australia doesn't have a strong tradition in holding plebiscites, that holding one now on this subject is almost like holding a trial of a group of people in the court of public opinion and he didn't think that that was fair. I'd argue that he has this exactly backwards and that just because Australia doesn't have a tradition in holding plebiscites, is itself not a good reason not to hold them. In fact as a voter who has spent my entire voting life being ignored by both sides of the political divide, the fact that we the voting public haven't been consulted on many issues, is in my opinion bad government.
Australia like the United Kingdom, from whom we inherited the Westminster system of government is a parliamentary democracy where the executive of the nation lives inside the parliament as opposed to outside of it as is the case in the United States. This means that in Australia like the United Kingdom, we don't actually get a good for the executive of the nation. In the United States though, the idea of direct democracy is alive and kicking; California in particular has a very strong tradition of putting things to the people for a public vote.
What I find interesting about former Justice Kirby's comments is that because tradition has meant that we haven't done something in the past, that should do dictate that same set of demands into the future. I think that that is rubbish. I would have loved a plebiscite on the sale of the Commonwealth Bank, or the sale of Telstra, or the introduction of the GST; all of which I think were absolutely terrible policies that we're still suffering the consequences for and will continue to do so possibly for the rest of my life at least. The other thing which I think is deeply disappointing about former Justice Kirby's comments is that he thinks that the general public isn't fit to make the decision. I argue that for an issue as personal and critical as this, the views of 226 people sitting on leather couches in no way adequately represent the will of the people.
I find it that the argument that there should not be public debate on this issue because it might spark ugly comments, somewhat troubling. Already one side of the debate is being painted as being rational and the other as being bigoted; though truth be told, all I'm seeing is rank hypocrisy on both sides. Already there are ugly comments in the public arena of ideas; so what is exactly at stake here? It is conveniently set aside, either through common ignorance or perhaps wilful denial, that Christians are charged with submitting to the authorities and this was written at a time when they were literally being slaughtered in stadiums for the entertainment of the public. If you assume that the Marriage Act 1961 does change either as the result of the Parliament spontaneously passing the legislation or being obligated to by weight of plebiscite, then churches and religious institutions are still bound by the law and have to comply with it. Even churches and religious institutions would admit that there is a difference between the concepts of crime and sin, and changing the Marriage Act 1961 only has the net effect of defining the former and not people's opinions of the latter. I can say with almost absolute certainty that churches would still be free to conduct their own business within their walls and that the change of law wouldn't change a single aspect of those practices. I can also say that those people opposed to the practices of religious institutions would still be opposed.
If that be true, then the desire to shut down a public discussion on the issue of marriage, is actually an imposition to refuse the right to free speech to churches and religious institutions. Maybe that is the end game here. If that's true then it's really weird that the progressive left should want to use authoritarian ends to further their cause. It's even weirder that they're asking for the refusal of direct democracy. Maybe the unbelievable truth is that both sides of the debate are just as stubborn and bigoted as each other; with both of them denying it. In an argument like this where the fight is eye for eye, all sides are blind.
As a Christian, I want to see a plebiscite held on the Marriage Act 1961. Instantly I suspect that I will be labelled as a bigot for daring to suggest such a thing. The weird thing is though that I think that I would also be seen as some sort of heretic as well. I even suspect that it would pass and that the law would be changed as a result. The common sentiment which is often thrown about is that parliament should just pass it already and that the plebiscite is only a delaying tactic and that might very well be true given the level of toxic politics in this country, but the suggestion that the general public is unfit to decide this sort of thing (and indeed many more pieces of critical legislation) is a very serious thing indeed. Burn me on the pyre of public opinion if you like but you may as well have said that people should be denied the franchise entirely for precisely the same reason.
The several problems here. If this is something which should left to parliament to decide then what does say about the incompetence of the general public? If the parliament then decides that the Marriage Act should not be changed then the way I see it, those opposed to holding a plebiscite should cease to complain immediately. If parliament is the sole arbiter, which you have deferred to, then you have no moral capital to call on when it returns a result that you don't like. If on the other hand this is something which the public should rightly decide, then it should rightly decide it.
The complaint that the public shouldn't decide what are and are not civil rights is mostly bunk. As a right is something which is either allowed by law, or claimed as the ability to act and then defined by law, then ultimately every law which exists moves into the realm of civil rights to some degree. The plebiscite in my opinion is confirmation that the only legitimate arbiter of decisions like this is the electorate. As for the argument that other civil rights weren't put to the people, it is worth remembering that something like the franchise isn't a right in Australia but a duty at law, the right to free speech and to bear arms weren't decided by a vote but claimed as the result of the English Civil War and then the so called "Glorious" Revolution, the 1967 referendum on the status of Aboriginal peoples was indeed put to the people and most of the other things which would consider to be rights were codified in 1948 with the Universal Declaration Of Human Rights but only after a couple of hundred million people were destroyed and strewn across the battlefields of Europe and Asia. In that light, a vote where the people mark their intentions on pieces of paper seems like a trifle.
If marriage is a civil right, then the way that I see it, the only legitimate way that it should be claimed as such is by the general public. I think that parliaments aren't competent it fit to make decisions such as this.