Constitutional and parliamentary arguments.
In yesterday’s post, I looked at the hypocritical, anti-democratic arguments against a same-sex marriage plebiscite, that it will supposedly lead to a hateful and divisive public debate. What I didn’t touch on was the constitutional and parliamentary arguments.
This is the argument put forward by the likes of former High Court justice Michael Kirby – that a plebiscite is without precedent, and “alien to constitutional tradition”. Others have argued that it would be a case of parliamentarians abdicating their responsibilities as elected representatives.
On the face of it, these seem not unreasonable arguments. But there are some inconsistencies and evasions in Kirby’s argument which I’d like to address. As well, today Andrew Hastie, the newly-elected member for Canning in Western Australia, has put forward a good response to the “abdication of responsibility” argument.
Firstly, to the constitutional argument. It is not true at all that a plebiscite is without precedent, and Kirby is straight-out misleading when he claims there hasn’t been one for a hundred years – the 1977 referendum included an additional plebiscite question on the then-new national anthem.
So plebiscites are unusual, but not without precedent – and in 1977, on a question far less controversial than changing the institution of marriage, the parliament sought the opinion of the people.
Most recently, in the mid-90s push for an Australian republic, many republicans advocated a non-binding plebiscite before a referendum. Then-Prime Minister John Howard’s insistence on moving directly to a referendum was seen by many as a deliberate tactic by the monarchist Howard to stymie the republican cause. “He was the prime minister who broke this nation’s heart,” grumbled Australian Republican Movement (ARM) chairman Malcolm Turnbull. Immediately after the 1999 referendum, then Opposition leader, Kim Beazley, revived the plebiscite option. Even today, current ARM chair, the fashionably “progressive” Peter Fitzsimmons is still agitating for a plebiscite.
Conspicuously, no-one appears to be decrying the republican push as “un-constitutional” – least of all the “progressives” for whom same-sex marriage and the republic generally seem to go together like a horse and carriage.
(I will concede that Michael Kirby is perhaps the odd-man out here, being an advocate of same-sex marriage but also an opponent of the republican cause.)
Curiously, though, Kirby doesn’t appear to have overly opposed the idea of a plebiscite in the case of the republic as a constitutional principle – although in fairness I may well be misreading his words.
So, plebiscites are not without precedent. They are unusual, but then, so is the issue: marriage is a fundamental institution in human society. Older, certainly, than republics, monarchies, and anthems. If changing those was important enough to put to the people in a plebiscite, it seems strange to think that this question should not.
To the issue of the alleged “abdication of parliamentary responsibility”: this is the argument that politicians have been elected to parliament, so we should trust them to make the big decisions for us.
Reflect on that for a moment.
That’s an argument of children.
If anyone is abdicating responsibility in that argument, it’s those who are saying that politicians, not the people, should be trusted to make the big decisions.
The proponents of this argument claim that, having elected politicians to parliament to represent us, we have empowered them to make this decision on our behalf. In other words, this is the mandate theory: we have mandated politicians to make a vote on same-sex marriage for us, by proxy.
But mandates are a bitterly contested idea in politics. Every newly-elected government wants to claim a “mandate” for its preferred agenda, and every opposition wants to deny the very concept. The reality is that almost no government is ever elected on a clear mandate, with very rare exceptions. A government is almost always elected on a multitude of policies – and that’s when it’s not simply a case of the old government just plain being voted out.
Same-sex marriage was just not a major issue of the last federal election, which was dominated by industrial relations, economics, education and health. So the idea that the current parliament was elected with some kind of “mandate” to act on the peoples’ behalf on this issue specifically is utterly false.
Instead, what the “abdication” arguers are saying is that the people can’t be trusted to make such a decision. Indeed, some are saying openly that “too much democracy is a bad thing”.
“Nanny state” is an over-used phrase, but here it’s utterly appropriate. This is the argument of people who want to abdicate their decision-making sovereignty completely to the state.
Andrew Hastie, writing in The Australian, concurs.
Marriage, he says, is a profound institution in human society; it’s the peoples’ institution. Parliamentarians cannot know the hearts and minds of every individual voter, as he says, so the vote must be given to every individual, not the parliamentarians.
What we see starkly contrasted here are two very different visions of the world. One is truly liberal in that it recognises the sovereign rights of the individual, the other communitarian, emphasising that the individual’s sovereignty is subordinate to the group’s.
The choice, as Hastie says, is between investing authority in parliament, or in the citizens of Australia.