In an interview on ABC’s Lateline, Friday night, Michael Kirby (former Justice of the High Court) was interviewed on the topic of the marriage plebiscite. During an engaging interview, Justice Kirby articulated his concerns over the broad debate on marriage, including his reasoning for not supporting a plebiscite.
I was immediately struck by one of his arguments, of how the plebiscite may set a “very bad precedent”. It is important to think through the ramifications for future decision making processes, and what we are communicating about our democracy by setting this path of a public vote. I was persuaded, until I discovered that plebiscites and referendums are not as rare in our history as we might think.
Since Federation in 1901, at the Federal level Australia has held 44 referendums and 3 plebiscites. The States however, have conducted many more plebiscites, covering a wide range of issues including the establishment of Wrest Point Casino (Tas, 1986), closing hours for alcohol selling establishments, extending shopping hours (WA, 2005), and daylight savings.
In other words, on no fewer than 60 occasions, Australian Governments have taken an issue to the people and asked for their opinion. That is one referendum or plebiscite every two years; meaning we’re overdue.
In 1977 a plebiscite was conducted to decide our national anthem. Now, maybe I’m not as patriotic as other Aussies, but in my view, marriage is significantly more important than choosing to sing ‘Advance Australia Fair’.
So, the bad precedent argument doesn’t work. What of Michael Kirby’s other compelling argument against the plebiscite?
“I don’t think we should draw any inferences about what would happen in a plebiscite, especially a plebiscite of compulsory voting in this country. I think we would draw better inferences from our history on constitutional referendums: and on that matter, we have a record of 44 proposals that have been put to the people at a referendum and only eight have succeeded. Australians vote “no” when they get a chance.”
Did Michael Kirby suggest that we shouldn’t hold a plebiscite on same-sex marriage because Australians will probably vote against it?
It certainly sounded so. Emma Alberici certainly thought so, because she followed up with this question, “Because you firmly believe it would be defeated? The “no” vote would win?”
Justice Kirby obviously had a change of mind, for this time he said, “No, I don’t think it would be defeated. I think it may well be passed. But this is a bad way of going about it. It’s not the Australian way.”
By the ‘Australian way’, Kirby then repeated his argument about setting a bad precedent.
Interestingly, on Insiders today, it was revealed that the Labor Party Room has been briefed by pollsters who are saying the plebiscite won’t succeed, and thus adding weight to Labor backing away from supporting a plebiscite.
Malcolm Turnbull responded,
“the worst argument, the absolutely worst argument against a plebiscite is to say that it wouldn’t be passed. So if Labor is seriously saying that, if they are saying, ‘Don’t consult the Australian people because they won’t give you the answer you want,’ it is the most anti-democratic argument.”
I don’t always agree with the Prime Minister, but I think he has a valid point.
I am not questioning Michael Kirby’s commitment to the LGBTI community, nor his convictions about marriage. Neither am I arguing for the plebiscite here, but I am simply making the point, if you don’t want a plebiscite, you need to make a case with more substantive reasons than these.
MurrayCampbell.net 
Given that a majority of the Senate now appears to oppose the plebiscite I wonder if the argument you put can be flipped. Have convincing arguments in favour of the plebiscite been put? Have politicians been lobbied up close? Who have you spoken to?
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Good questions, for which I don’t have an answer on behalf of the Govt!
Several months ago I referred to myself as a ‘reluctant supporter’ of the plebiscite. The chief reason being, the significance of the issue warrants the people having a formal say
I think the cost is a legitimate reason to argue against a plebiscite, however when you break it down it amounts to less than $7 per Australian. Looking at it from that perspective, it can be seen as a very good investment.
I think arguments in relation to inciting hatred and harm ought to be taken seriously. Part of the problem is that allegations are often less than substantiated, and sometimes downright dangerous. There is certainly hateful talk going around, and I’m sure it’s flying in all kinds of directions (I noticed some dreadful language being thrown by one gay man toward another, because of difference of opinion about the plebiscite). most of the angry speech is coming from pro change advocates, including by members of parliament which is most unbecoming.
The Government did go to the election with a clear policy on marriage and they were re-elected. There is some weight to the argument that they have been given a mandate from the Australian public to pursue the plebiscite.
there’s a few thoughts. Will be interesting to see what happens next
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thoughts?
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Talking to a Coalition Senator, the idea that there may be more than one vote came up. Talking to Nick X it is clear that he did not think that a compelling case for the plebiscite had been made to him. Lyle Shelton is using the issue of kids and their biological parents but this does not seem to be persuading the cross bench.
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Dear Murray,
Thanks for your post and helpful engagement on this issue.
I’m not sure it’s right to conflate referenda and plebiscites as you do in this article, by stating the govt has asked for public opinon on more than 60 occasions. Referenda are binding polls on a question of constitutional change. Plebiscites are non-binding polls which a govt uses to judge public opinion. There have been only 3 national plebiscites since Federation which have usually been because the govt was internally divided or there were a range of options (eg anthem). Australia has a system of parliamentary democracy rather than direct democracy. It’s no better for us to support a plebiscite because we think it might fail than for same sex marriage advocates to support a parliamentary vote for the same reason.
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There are serious problems with spending $160 million or $7 per person on something which is not binding and not seen as final. Indeed, an entire faction of the Liberal party has already said they will vote how they want on this issue regardless of the outcome. I suspect Labor and the Greens will too, with most voting Yes even if the plebiscite returns a No.
Shorten claiming that the plebiscite is a bad idea because it might fail is as bad as Malcolm’s reasoning that it is a good idea because it is likely to pass – which he himself has said he expects. It is only bad reasoning if you ignore the wider context around this specific issue, which is different from any other issue ever put to a plebiscite or even a referendum in this country before. That is: if it fails, the issue won’t go away, not even for a while. Do you really think marriage equality supporters will just give up and go home if the plebiscite result is a “No”? They all know that another federal election is just 3 years away, and that a change of government will see marriage equality enacted almost immediately.
Instead, a “No” vote will simply empower those who already have an axe to grind against LGBTI people, just as the Brexit “No” vote empowered racists and saw an overnight 50% increase in police reports of racially charged abuse.
Howard didn’t use a plebiscite to stop same sex couples from marrying with his 2004 Marriage Act changes. I don’t see why we need a plebiscite just to undo those same changes.
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I think the Parliament should respect the outcome of the plebiscite, either way the result goes. If a member cannot vote because of conscience I think they should be able to abstain, but voting against the public’s decision is not a good look.
If it fails, I suspect some people won’t give up. If it passes, I don’t expect to see people campaigning to overturning the decision, however that will open a large can of worms in relation to other issues.
A no vote isn’t about an axe to grind against LGBTI people (perhaps for a few, but that’s certainly not the case with Christians), it’s about what we believe marriage is.
Your parallel with Howard makes some sense. One difference though is that John Howard wasn’t changing the understanding of marriage, whereas the current campaign is.
thank you for the comments. Good to hear them
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Thanks. Knowing enough people in the “Yes” campaign myself, I can guarantee you that a “No” vote will only kick the can down the road for another couple of years until the next election, and I am absolutely sure that every parliament from that one onwards will have a vote of some kind on this issue up until it is passed. If there is a (slim) conscience majority in both houses now supporting a change, then it’s not really possible for the issue to disappear altogether. Every other sovereign nation in the Anglosphere, every country we are culturally closest to, has made the change. We won’t remain a cultural outlier forever, we’re too globalised for that.
I would also argue that the understanding of marriage has already changed for many (maybe most) in Australian society. Indeed, plenty of LGBTI Australians have already gone and married overseas where they’ve been allowed to, if they’ve lost their patience waiting at home. The current campaign is simply about legislating to cater for that understanding. How marriage is defined legally isn’t necessarily how it is defined culturally.
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