The High Court of Australia handed down its verdict yesterday concerning the validity of the Abbott Turnbull Government's plans to hold a plebiscite postal vote on the subject of same-sex marriage. The High Court was answering an appeal which doubted the legality of such a thing and barely spent any time at all in turfing out the appeal on its ear and back into street from whence it came, by giving the appeal a 7-0 thumping.
Before I get to the reason for their decision, this post is a broader sweeping survey of how we got here in the first place.
Once upon a time in the great southern land and before there was an Australia, the six colonies had their own records departments and the subject of marriage was handled under common law. In the brand new shiny Constitution, the things that the brand new shiny Commonwealth of Australia could make laws for, were spelled out in Section 51; specifically Section 51 xxi.
Legislative powers of the Parliament:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxi) marriage;
- Section 51, Commonwealth of Australia Constitution Act 1900¹
That's all that the Constitution has to say on the matter - one single, solitary word. It doesn't define the word; it doesn't specify any sort of direction, no, Section 51 xxi merely says that the Commonwealth of Australia has the power to make laws for the peace, order, and good government of the Commonwealth with respect to this thing.
And then nothing happened.
The Commonwealth of Australia although it had the power to make law with respect to the subject of marriage, found no reason to do so because the six states who used to be colonies, had their own records departments and were handling the issue under common law.
And then nothing happened.
Until... 1961.
From the end of Ben Chifley's fiery premiership, the Australian Government under Robert Menzies became a slow burner. We bumbled through the 1950s and then in 1961, the Marriage Act was passed. Now bear in mind that this was at the beginning of the decade and well before the dawning of the Age of Aquarius, the freaked out flower children and a generation lost in space. The Marriage Act 1961 was passed in an era of brown suits, brown furniture, brown motor cars and brown sauce and chips. So why did the Menzies Government decide to act?
Communism.
This sounds positively ridiculous in 2017 but not quite 60 years ago and in the shadow of World War 2 (book now for World War 3, tickets from Ticketmaster from only $59), the world had organised itself into the glorious free market capitalists who were manipulating foreign governments for political gain, and the evil socialist communists who were on the dismal side of the iron curtain and manipulating foreign governments for political gain.
Australia which has always been a tin pot little country which wants to cosy up to which ever big brother will be nice to it at the time, saw that the glorious free market, capitalism, and freedom, was threatened by a bleeping tin ball in space, and then a bleeping tin ball in space with a man in.
I know that this sounds unhinged but if you read through Hansard for the debate surrounding the Marriage Act 1961, then you find that communism and space are used as the justification for the act. The Menzies Government decided that if it was going to take a stand against everything that the evil socialists stood for, including luxury gay space communism, then it needed to make a symbolic act and the Marriage Act 1961 was the easiest way to say that they were doing something without really doing anything at all.
And then nothing happened.
The twenty-first century kicked off with a couple of planes being slammed into the World Trade Centre in New York, another one slammed into the Pentagon, in retaliation against the glorious free market capitalists who were manipulating foreign governments for political gain. Suddenly the west found itself with a brand new set of enemies, who just happened to be the same people that they'd paid off to fight the evil socialist communists in the decades before. The found itself in two wars for the price of five, against an enemy who they could only classify as being vaguely brown and Islamic.
The Howard Government as part of its continuing war on brown people, was worried about a potential flood of refugees who might escape their countries as a result of the west bombing them. One of the tactics that it decided upon was to change the Marriage Act 1961, to limit the definition of marriage to just a man and a woman, to stop the possibility of Islamic refugees from bringing multiple wives and children into Australia.
And then nothing happened.
The current debate surrounding the Marriage Act 1961, is mostly the result of an internal conflict within the Liberal Party and a set of attempts to appease the right of the party. The Labor governments under Rudd, Gillard, and Rudd again, attempted to do nothing but found political traction trying to force a subject which they didn't really care for in government.
Under the premiership of Tony Abbott, the opposition Labor Party decided that it would try and force a free vote in parliament which it knew was never ever going to fly, and in reply the Liberal Party decided to tear itself to bits and promised a plebiscite to change the Marriage Act because they knew that the Labor opposition wouldn't let that pass. Having said that, the Turnbull Government was still able to secure funding to the tune of $160m to hold a plebiscite in Appropriation Bill No.1 2017 and this is where we are today.
The High Court challenge to the postal vote on same-sex marriage was doomed before it began because the legality of it was absolutely watertight before the ship was launched. It isn't a referendum because it doesn't change the Constitution. This isn't a plebiscite because that was never going to pass the Senate. What it is, is an exercise in collecting statistics; which is also authorised under Section 51 xi of the Constitution.
Legislative powers of the Parliament:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xi) census and statistics;
- Section 51, Commonwealth of Australia Constitution Act 1900¹
The reason why the challenge failed on funding grounds was because funding had already been secured and no new Appropriation Bill needs to be passed. The reason why the challenge failed on constitutional grounds is because of Section 51 xi. Since it is the High Court's job to look at the legality of a thing and the legality of this postal vote is technically correct which is the best kind of correct (even if it is the worst kind of politically stupid), then of course the High Court was always going to return a 7-0 result².
¹Section 51: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
²The High Court's decision: http://www.hcourt.gov.au/assets/publications/HCATrans-176-2017-09-07.pdf
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