The Coalition thinks they may have found a way to give voters a binding vote on equal marriage
The latest opinion poll from Essential has given the government a headache. But they think they know how to cure it. On the one hand, the results support their claim that voters want a national vote on marriage equality with 50% in favour.
There’s a catch. Voters want the result to be binding. If not, support drops to a paltry 9%. Quite rightly, they don’t want all the hassle of voting, only to find their wishes ignored. They don’t want to advise MPs: they want to make the decision themselves. But the Australian constitution doesn’t allow that.
“Before a national plebiscite can take place, an enabling bill proposing the plebiscite and setting out its purpose must be passed by parliament. The bill thereby becomes an Act enabling a vote to be conducted by the Australian Electoral Commission. The enabling legislation may or may not specify any actions expected of the government as a result of the plebiscite… the government could ignore the plebiscite result and pursue its own preferred outcome through the Parliament.”
Warren Entsch tried to square the circle in 2015, suggesting the government pass a marriage equality bill that would only become law after it had been endorsed in a plebiscite. That would effectively make that plebiscite binding (he no longer supports the idea). In 2016 Ryan Goss, Senior Lecturer in Law at the Australian National University published an outline of how this might work .
The federal parliament should pass a single new law. That law should do three things:
- First, it should set out precisely and in detail the proposed amendments to the Marriage Act. There are already plenty of examples of what this could look like. Existing proposals would legislate for marriage equality while also ensuring that, as is currently the case, religious ministers need not marry couples they don’t wish to. There could also be details of related amendments that might need to be made to any other legislation.
- Second, it should set up the machinery for how the plebiscite vote itself will be run and administered (the compulsory or voluntary nature of voting, for example, or public funding for the campaigns). It should also ensure there is a formal process for someone – like the governor-general – to officially declare the result soon after all the votes are counted. There is no need for a complicated formula to determine which side has won; whichever of “Yes” or “No” gets the most votes, that side wins.
- Third, and most importantly, the law should state that the proposed amendments to the Marriage Act do not take effect right away. Instead, the law should make it clear that, if there is a “Yes” vote, the proposed amendments would take effect within 30 days of that result being officially declared. If there is a “No” vote, then the proposed amendments do not take effect.
That’s far from ideal: very far. We fought long and hard not to have a damaging, divisive plebiscite at all. The Senate has so far agreed, refusing to pass the enabling bill for a compulsory plebiscite. LNP right wingers don’t like the idea of a marriage bill with an embedded ‘trigger’. Senator Eric Abetz, German-born doyenne of LNP homophobes and staunch Dutton admirer, told ABC Radio:
“To try to force MPs to vote for legislation contrary to that is against that which the party room so overwhelmingly decided.”
But now the party – and the new Gauleiter of Australia, Peter Dutton – is toying with a voluntary, postal plebiscite, possibly embedded within a Marriage Equality Bill. Cabinet likes the idea because it’s cheaper than the compulsory turn-up-to-the-voting-booth variety, plus it gives the voters what they say they want. Best of all, the government doesn’t need to pass any additional legislation. No tedious negotiations with that pesky cross-bench. No arguments over the exact wording of the question, the conduct of the poll, the targets to reach: the government will decide.
That would make matters even worse, because as well as having to endure a bruising anti-LGBTI campaign, we’d end up with a dodgy result that, whatever the outcome, would satisfy neither side.
They can skew the question
Ask people: “Do you support destabilising the millennia-old institution of one man one woman marriage, creating new stolen generations year after year?” and see a swing against LGBTI unions. Ask them “Do you support two adults who love each other being able to marry, regardless of sex or gender?” and you get a rather different answer.
They can set a high bar
They can say ‘because this is such a fundamental institution that we tamper with at our peril’ (or some such rubbish), they can say, e.g., that at least 75% of eligible voters must take part, with at least 65% of them voting for change, for the result to count.
They can restrict who votes
Actually, a postal vote does that for them. It favours older voters. If you want to skew a poll result, the choice of medium matters. Online polling gets more young progressive people voting: postal voting draws a preponderance of older voters, who are inherently change-resistant.
Send out voting papers and reply paid envelopes to every registered voter, and that will miss the thousands of young people who don’t register to vote. And because it’s voluntary, it relies on those who do get their ballot paper to take the trouble fill it in, stick it in the envelope, and take it to a post box or post office in time to meet the deadline.
They don’t have to use the Electoral Commission
Knowing what cheapskates supporters of private enterprise these guys are, they’ll probably use a private company. And while security at the AEC hasn’t been the best recently, it’s streets ahead of people who normally conduct less rigorous polls, like market research, or coupon redemption exercises.
The result will be contestable
It won’t get the issue off the agenda. The answer won’t be definitive. It will only be a poll of those most motivated to vote, and they are likely to be the churches and their allies, the elderly and tradition bound on one side, and people like me on the other.
Because it won’t be conducted under strict election rules, people will always have doubts about the result. Did Australia Post do their job, or did they lose thousands of votes? Were enough ballots printed? How do we know people didn’t vote multiple times. The turnout was too low etc etc. In short…
The Worst Of All Possible Worlds
If you support equality, making the decision via an effectively binding but voluntary postal plebiscite stacks the deck hugely against progress and in favour of the status quo. As well as setting the terrible precedent of subjecting minority rights to a dodgy public vote. Which means we have to kill this idea off right now.
Previously on the stirrer
The stirrer – aka me, Doug Pollard – has been nominated for LGBTI Journalist of the Year 2017 Award: how nice! If you’d like to support me, you can add your nomination here. I wouldn’t mind a bit more bling for my mantelpiece! Thanks.