Prime minister Malcolm Turnbull announced on Monday that his government was reintroducing legislation to enable a national plebiscite on same-sex marriage. The bill – which is to be debated this week -is expected to be rejected by the Senate once more, as it was in November last year.
The PM said the government is sticking to its plebiscite proposal, as it was a 2016 election promise. This is despite Turnbull himself personally supporting a conscience or free vote, which is what the majority of Australians are also calling for.
If the bill fails the second time around, the PM’s backup plan is to have Australians vote in a postal plebiscite starting in five weeks. The $122 million non-binding and non-compulsory postal vote would be counted on November 7, and the result would be announced on November 25.
An idea of ultra-conservative minister Peter Dutton, the postal plebiscite will be conducted by the Australian Bureau of Statistics, the same agency that carried out the debacle that was the 2016 Census.
A discriminatory process
The Australian Marriage Equality group have vowed to mount an immediate legal challenge against the national postal vote, claiming it’s unconstitutional.
Tiernon Brady, executive director of the Equality campaign, said in a statement that telling a group of people that their rights have to be decided by a separate process, and not in parliament, was sending a message to “Australians that LGBTI people have to reach a higher bar for their dignity.”
On Monday, Anna Brown, director of legal advocacy at the Human Rights Law Centre, released a joint opinion from constitutional experts confirming that it would be unconstitutional if the government spent money on a postal vote without passing legislation first.
The Equality Bill
On Sunday, Liberal senator Dean Smith released his marriage equality bill ahead of the Liberal party’s special meeting on Monday. Five Liberal MPs – including Smith – released a statement in support of the private member’s bill and advocating for a conscience vote.
The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 would redefine marriage “as the union of two people to the exclusion of all others, voluntarily entered into for life,” paving the way for lesbian, gay, bisexual, transgender and intersex people to be wed.
The bill provides protections for ministers of religion and Australian defence force chaplains creating a new class of religious marriage celebrant. And it also recognises same-sex marriages that were conducted overseas.
The United Nations Human Rights Committee recently condemned the Australian government for prohibiting same-sex divorce for people who were married overseas. The UN committee ruled that the Australian laws were discriminatory and a violation of human rights.
The shelving of the bill
The Equality campaign spoke out in support of Senator Smith’s bill outlining that it was the most “robust and genuine approach” to same-sex marriage parliament has seen. The group also stated that it was in keeping with the Senate inquiry report into marriage equality released in February.
The inquiry recommended that civil celebrants be required to marry any couples legally permitted, while ministers of religion would reserve their current right to refuse couples based on sex.
“Conscientious objection” as a reason to refuse marrying a same-sex couple was rejected, as it would be allowing the concept to be used as a justification to discriminate against a group of people.
However, due to overwhelming Liberal party support for the plebiscite, the option of introducing the Smith bill won’t be happening. The group of five Liberal MPs have agreed to wait until after the postal vote to take this line of action.
A plebiscite is a nasty approach
The idea of a plebiscite has long been criticised as subjecting the LGBTI community to a prolonged public debate, which will feature an ultimately discriminatory “no” campaign. This will lead to prejudicial viewpoints being thrown about as if they were justified.
And at the end of the day, the result of the national vote is non-binding.
As Turnbull said this week, if the outcome of the postal vote is “yes” then parliament will introduce a private member’s bill and put it to a vote. “And if there is a “no” vote we will not,” he added.
The postal vote carries the same issues as the plebiscite with a bit extra. Many people who have changed address will not be reached, those that are not enrolled to vote won’t bother to, and others won’t make it to the post office to send in their voting sheet.
Australia is the only English-speaking western democracy still not to have passed laws to allow for marriage equality. And the politicians who are shirking their responsibility of passing legislation to allow it are dragging the rest of the community through the shame.
Not to mention they’re denying LGBTI people the possibility of partaking in a process of establishing a legally-binding union with the person they love.
Just take the vote
In 2004, the Howard government amended the Commonwealth Marriage Act 1961. It added the definition of marriage as the `voluntarily entered into union of a man and a woman to exclusion of all others’. At the time the laws didn’t define marriage.
The changes were made to the laws to effectively ensure that same-sex marriages weren’t a possibility, as well as establishing that same-sex couples married overseas would not have their unions recognised in Australia.
The conservative PM said at the time, “We’ve decided to insert this into the Marriage Act to make it very plain that that is our view of a marriage and to also make it very plain that the definition of a marriage is something that should rest in the hands ultimately of the parliament of the nation.”
And there you have it from Howard himself. It’s up to federal parliament to define what a marriage is. However, politicians like Malcolm Turnbull and George Brandis – who both support same-sex marriage – are refusing to carry out their duty and redefine it.
Numerous polls show that the overwhelming majority of Australians support same-sex marriage. So all the government has to do is take that conscience vote, make it a reality, and allow ordinary citizens the right to marry the person that they choose to.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.