Action alert: Senate Inquiry into Marriage Vote

As highlighted in yesterday’s Catholic Talk piece, the Legal and Constitutional Affairs References Committee for the Australian Senate is conducting an inquiry into the issue of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia.  It is looking at what question might be put to the Australian people, when, in what manner, and whether it is an appropriate way of approaching this question.

It has extraordinarily tight timeframe, with submissions closing in just over a week on Friday, 4 September, 2015.

It is so difficult to know what the best way to approach this at a political level is – that is, whether we ask for it to be left up to our elected politicians, whether it should be put to a plebiscite or whether it should be put to a referendum. 

There is no definitive answer on this – all options available risk that marriage will be redefined.  As Archbishop Anthony Fisher OP explained in a public address last month:

We could [have a referendum], and that may yet come.  It’s not the way we normally make laws in Australia.  In Australia, we’ve normally reserved referenda to changes of the Constitution and only those... Australia’s traditionally only used referenda for constitutional change and very rarely for anything else.  But we could have a plebiscite.  We can, the government can consult the people to hear what kind of law they would like made.  And some people are strong advocates of that.  And some would say if a plebiscite was announced, then the government could say: “Well now, here’s $10 million for each side so you can both present your case, you have to give equal time to each side.”  That might be better than what we’re getting at the moment with the very biased reporting of the issue.  Other people would say that if it’s parliamentarians, you can in all sorts of ways lever them, encourage them, lobby them – whatever, you’ve got some control on where it goes, some influence.  Once it goes out to the public, who knows where these things run?  And emotions can sweep over the crowd like clearly happened in Ireland, driven by all sorts of things.  Big money comes in, like in Ireland, tens of millions of dollars of American, corporate money was put into persuade people to vote for same-sex “marriage”, and so with a plebiscite, we could end up with an even worse result and if we did, then it would be terribly hard for anyone to say no to that when you had a vote of the whole people.  So this really is a hard judgment of prudence, which way you would go on this, which way are we more likely at the end of the day to protect marriage?  There are strong arguments on both sides, I think, for that.  Let’s pray for wisdom and courage for our political leaders as they work out how this matter will be decided as well as what the decision will be.

There is no clear answer.

Even so, I strongly encourage you to make a brief submission to the Senate Inquiry. 

We know that those who are strongly advocating for the redefinition of marriage are asking first for this to be put to Parliament as a conscience vote, and failing that, to a plebiscite.  We also know that the Marriage Equality Plebiscite Bill 2015 (Bill) which is currently the subject of the Senate inquiry has the support of Australian Marriage Equality, the Greens and those parliamentarians who introduced the marriage amendment legislation – which means it deserves our attention.

This piece hopes to provide you with some background information on the matter.  Tomorrow, we will provide some key points and the encouragement you will need to make a submission.

Parliamentary vote, plebiscite, or referendum – what’s the difference?

Parliamentary vote

The Australian Labor Party and the Coalition government have differing approaches to a parliamentary vote.

Labor Party: Currently, ALP members will have a conscience vote on the issue of the redefinition of marriage.  However, if marriage has not been redefined by the time of the 2019 Federal election, ALP members will be required to vote for the redefinition of marriage, or else resign from the party.

Coalition: the current Coalition policy is that its party position is that marriage is between a man and a woman.  Backbenchers will be able to “cross the floor” without resigning their positions, but Cabinet members will need to resign if they vote to redefine marriage. 

If a vote on the matter was to be held in Parliament today, then the existing definition of marriage would remain.  If both parties maintain their current positions, it would mean that marriage would stay as is unless the Labor Party is elected to government in 2019 or at any election after that.

The risk with leaving this decision to the Parliament is that our MPs are very susceptible to pressure from lobby groups, as we have seen so far in this discussion.  The political pressure will only increase as this continues.

Following a Coalition party room meeting, the Prime Minister announced an intention to put the matter to the public.  The manner of the vote is not clear – it could be a referendum or a plebiscite.

Referendum

A referendum is used when an amendment to the Constitution is proposed.  In order for a referendum to pass, a “double majority” is required – a majority of the states (four out of six) need to agree to the change, and also a majority of persons overall (more than 50% of the voting population.)  Historically, very few referenda have been passed because this hurdle is quite high.

In Commonwealth v Australian Capital Territory [2013] HCA 55,  a recent case before the High Court of Australia (which is tasked with interpreting the Constitution), the High Court said that the word “marriage”, when used in section 51(xxi) of the Constitution, is a term which includes a marriage between persons of the same sex.

This would lean to an argument that a referendum is not required.  However, there is some dispute as to whether this is accurate.  In order to make its decision in that particular case, it is arguable that the High Court did not need to make a decision about whether the Constitution would need to be changed to include same-sex “marriage” in the Constitutional definition of “marriage.”

So it is not definitive that a referendum is not required.  A case can be made that a referendum is required.

The risk with a referendum is its finality.  A change to the Constitution in this manner means that the decision cannot be altered by a future Parliament or the High Court.  The only ability to change a result which allows the redefinition of marriage will be another successful referendum.

Plebiscite

Similar to a referendum, a plebiscite requires asking a question of all registered voters, and is used when there is no need to amend the Constitution.  There is no “double majority” requirement, and so it could be passed on just a simple majority of Australian voters. 

While a plebiscite is not binding on the government (as it is only indicative of public opinion), but the Bill requires Parliament to give effect to a public “yes” vote, if it is given, within six months – so the legislation will bind the Parliament (although technically, a Parliament could pass legislation to negate the effects of that six-month requirements, but it would be unusual for it to do so.)

The risk with a plebiscite is the lower standard required for it to pass, and specific aspects of the Bill (which we will highlight in tomorrow’s Catholic Talk.)

Concluding thoughts

I know this topic can be tedious.  But please, we need to be engaged.  We need to take the time to make sense of these conversations and make submissions to the Senate Inquiry.  We need to stand together on the side of marriage. 

Monica Doumit, Catholic Talk contributor

 

Thursday, 27 August 2015 08:45 Written by 
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Disclaimer: The opinions expressed in CathTalk blog are those of the authors and do not necessarily reflect the opinion of all members of that of the Catholic Archdiocese of Sydney.

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