Sunday, 16 August 2015

What an extraordinary week- and equal marriage seems as an elusive goal as ever

It seems surprising that an issue such as equal marriage rights has sucked up so much oxygen in national politics, but that has come about with the position of the Prime Minister to oppose come what may, any change to the definition of marriage from that of one man and woman, to the exclusion of others, for life.

Just over a week ago I took part with my fiance Mitchell in the equal marriage rally in Brisbane. I delivered a speech: Thank you to Chris Harvey for (unexpectedly) recording the moment for history.

On Tuesday I was with Brisbane's Lord Mayor Graham Quirk and Councillor Vicki Howard. They are LNP members. Brisbane this year for the first time lit up its iconic Story Bridge in rainbow colours when IDAHOT (International Day Against Homophobia and Transphobia) was held in May. On the same day in May Councillor Howard for the first time raised the rainbow flag at City Hall.

In addition, as part of its policy of inclusion, the Quirk administration funded for the first time the Brisbane Pride Festival. The proof of the administration's commitment was in the pudding the night I was awarded the LGBTIQ Activist of the Year when the event was held at City Hall, was attended by Councillor Howard, was opened by Lord Mayor Quirk, and City Hall was lit up inside and out in rainbow colours.

How much more inclusive could you get?

In any event, I was seeking to encourage the administration to take up a suggestion to have an LGBTI advisory committee, as well as welcoming the efforts so far.

While that meeting was underway, at the very same time the Coalition partyroom was meeting in Canberra, in what Christopher Pyne described as "branchstacking", and decided that there would be no free vote in favour of equal marriage. In other words, while Liberal backbenchers could vote in favour, in accordance with their party's position on matters of conscience, Cabinet members and Ministers could not. They were stuck with Cabinet and Ministerial solidarity- and must stay with, notwithstanding their personal views, unless they resign their position.

Since then the Prime Minister has talked about there being a referendum or plebiscite to decide the issue of equal marriage. Scott Morrison was quick to suggest that there be a referendum, and Attorney- General George Brandis said in effect- wait on, it cannot be a referendum, but a plebiscite.

Either way, the odds are stacked against any positive change- while this Government is in power.

Brandis is right. A plebiscite is a non-binding vote by the Australian public to decide an issue. It is non-binding because only the Parliament can change the law, so even if a plebiscite said that gay marriage should be allowed, it will still be up to the politicians in Parliament House to make the laws to allow equal marriage. If enough politicians in either House claim that the Australian people got it wrong, or because they don't like the outcome, then the laws will not pass, no matter what the outcome of the plebiscite.

A referendum is a vote of the people to change the constitution. This approach appeals to conservatives, because the tradition of referenda is that the no vote will usually win. A requirement is to have a majority of voters PLUS a majority of States. Fail in either and the vote will fail. Odds are stacked against any referendum before it is held.

However, if there is to be a plebiscite or a referendum, a plebiscite, not a referendum is the way to go. Constitutional law 101: a referendum is needed to change the constitution, but the constitution does not need to be changed. Since 1901 the Federal Parliament has had powers to enact laws about marriage. It did so, for example in 1961 with the enactment of the Marriage Act. That Act has been amended several times, including under John Howard in 2002 to change the definition of marriage so that it clearly did not allow equal marriage. In 2013 the Commonwealth had a win in the High Court when the ACT's gay marriage bill was thrown out- because it conflicted with the Marriage Act.

The High Court was clear- the Commonwealth Parliament can legislate about equal marriage. The six judges hearing the case unanimously said this in the second paragraph of their judgment:

"The Commonwealth, the Territory and Australian Marriage Equality Inc (as amicus curiae) all submitted that the federal Parliament has legislative power to provide for marriage between persons of the same sex. That submission is right and should be accepted."

I don't think it could be clearer than that!

Either way will be a process that will likely cost the taxpayers of Australia, according to reports, over $120 million. I wonder what could be funded with that $120 million. Maybe 24,000 chopper rides of $5000 each?

And we have to have this because our politicians are unable to have a free vote, in accordance with the consistent wishes of the Australian public?

While the PM may think this issue has gone away, it hasn't. The PM is on the wrong side of history, is perceived as being unfair, and is viewed as using tricks to prevent a free and fair vote on the issue. The Australian people have moved on. A majority have said consistently that they will be supporting the change. There are those like me who are disappointed about the outcome. There are others who have white hot rage about this issue, particularly the way that it was handled this week, and will keep that rage going for a long time to come.

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