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.