Same-sex mar­riage postal vote.

The method­ol­ogy be­ing used to test the pub­lic mood on same-sex mar­riage is di­vid­ing both the Lib­eral Party and con­sti­tu­tional ex­perts – and fur­ther di­min­ish­ing the prime min­is­ter’s stand­ing among his own. By Karen Mid­dle­ton.

The Saturday Paper - - The Week / Contents - Karen Mid­dle­ton

Ear­lier this year, af­ter par­lia­ment re­jected the gov­ern­ment’s first at­tempt to hold a com­pul­sory plebiscite on same-sex mar­riage, Queens­land Lib­eral MP War­ren Entsch went to see Prime Min­is­ter Mal­colm Turn­bull.

Entsch had not sup­ported the plebiscite the pre­vi­ous leader Tony

Ab­bott had pro­posed, ac­cus­ing Ab­bott of de­vis­ing it as “a way of kick­ing the can down the road”.

But hav­ing cam­paigned for change for more than a decade, he was des­per­ate for some way of bring­ing it about. He sug­gested an al­ter­na­tive: a postal vote.

“I cer­tainly raised it as a way for­ward, to try and get it fin­ished,” Entsch told The Satur­day Pa­per. “… I did that out of frus­tra­tion.”

Now, he says, he wishes he hadn’t. Entsch and four of his Lib­eral col­leagues forced the is­sue back onto the agenda this week, hop­ing to achieve a free vote in par­lia­ment and threat­en­ing to force a vote on a pri­vate mem­bers’ bill.

But they ac­qui­esced af­ter a twohour spe­cial meet­ing of Lib­eral MPs and sen­a­tors on Mon­day, and a sec­ond meet­ing with the Na­tion­als on Tues­day. The out­come was the gov­ern­ment stick­ing with its elec­tion prom­ise of a com­pul­sory plebiscite and that it would ask par­lia­ment a sec­ond time to back it.

If that failed – which it did in the se­nate on Wed­nes­day – they re­solved to move to an un­tried mech­a­nism, a vol­un­tary postal bal­lot at a cost of

$122 mil­lion, not the $40 mil­lion of pre­vi­ous es­ti­mates, or the $170 mil­lion of a full com­pul­sory plebiscite.

In an­nounc­ing the postal bal­lot, which will be­gin on Septem­ber 12 and close on Novem­ber 15, with­out pub­lic fund­ing for “yes” or “no” cases, Mathias Cor­mann likened it to the Whit­lam gov­ern­ment’s 1974 tele­phone poll of 60,000 vot­ers on op­tions for a new na­tional an­them. That was con­ducted by the Aus­tralian Bureau of Statis­tics and this was to be, too.

Then prime min­is­ter Gough Whit­lam used the 51.4 per cent sup­port for aban­don­ing “God Save the Queen” in favour of “Ad­vance Aus­tralia Fair” to jus­tify do­ing just that.

Three years later, the then Fraser gov­ern­ment ef­fec­tively re­jected the phone poll’s le­git­i­macy, re­in­stat­ing “God Save the Queen” and then hold­ing a com­pul­sory plebiscite to test it against “Ad­vance Aus­tralia Fair” and two other op­tions: the pop­u­lar bal­lad “Waltz­ing Matilda” and the lesser-known “Song of Aus­tralia”. Vot­ers up­held the pre­vi­ous choice and “Ad­vance Aus­tralia Fair” was re­stored.

War­ren Entsch now wor­ries the postal bal­lot will not have much cred­i­bil­ity, es­pe­cially if the turnout is low.

Re­gard­less of turnout, Mal­colm Turn­bull has promised a “yes” re­sult will her­ald a par­lia­men­tary vote by year’s end on whether to en­trench same-sex mar­riage in law. But if the bal­lot re­jects change, there won’t be a vote, and Turn­bull says that will be the end of the mat­ter.

No, says Entsch, it won’t.

He is vow­ing to pro­ceed with his orig­i­nal plan, in­tro­duc­ing Sen­a­tor Dean Smith’s bill into par­lia­ment and bring­ing on an ur­gent de­bate and a vote – by forcibly sus­pend­ing stand­ing or­ders with the help of op­po­si­tion par­ties if nec­es­sary. He says he has “ev­ery right to dis­sent”.

“If the an­swer’s ‘no’ I would be look­ing very closely at the process,” he says, con­vinced most Aus­tralians want change. “Ei­ther way, I want a vote.”

Entsch has asked the fi­nance min­is­ter and act­ing spe­cial min­is­ter of state, Mathias Cor­mann, to en­sure there is a mech­a­nism to cur­tail the dis­tri­bu­tion of hate­ful ma­te­rial on ei­ther side of the de­bate. In ask­ing the se­nate to back leg­is­la­tion for a com­pul­sory plebiscite, Cor­mann said he hoped it could be “a uni­fy­ing mo­ment”.

His com­ment en­raged La­bor’s se­nate leader Penny Wong. She warned hate­ful com­men­tary al­ready abounded.

In a pas­sion­ate speech, an emo­tional Wong said the process would hurt peo­ple who, like her, are rais­ing chil­dren in same-sex re­la­tion­ships.

“We know the sort of de­bate that is al­ready there,” Wong said, call­ing for a par­lia­men­tary vote in­stead. “Let me say, for many chil­dren who are par­ented by same­sex cou­ples and for many young LGBTI kids, this al­ready ain’t a re­spect­ful de­bate.”

Af­ter the se­nate re­jected the bill, the gov­ern­ment com­mis­sioned a postal bal­lot – not con­ducted by the Aus­tralian Elec­toral Com­mis­sion as ex­pected but by the ABS. The gov­ern­ment in­sists it can di­rect the ABS this way with­out ask­ing par­lia­ment to en­dorse any leg­is­la­tion, us­ing the power re­lat­ing to “cen­sus and statis­tics” in sec­tion 51 of the con­sti­tu­tion.

“We be­lieve that the method­ol­ogy is le­gal and con­sti­tu­tional,” Cor­mann told Coali­tion MPs on Tues­day.

De­spite the as­sur­ances, doubts re­main. It is not clear if the gov­ern­ment sought le­gal ad­vice on the ABS op­tion or only on us­ing the AEC. Con­sti­tu­tional ex­perts point to the gov­ern­ment’s avoid­ance of us­ing the AEC as a pos­si­ble sign there were le­gal con­cerns.

On Mon­day, the Human Rights

Law Cen­tre ob­tained a le­gal opinion from three con­sti­tu­tional lawyers – Kate Richard­son, James Em­mett and Surya Pala­niap­pan – that said the gov­ern­ment did not have the con­sti­tu­tional power to com­mis­sion the AEC to con­duct the poll with­out spe­cial leg­is­la­tion or reg­u­la­tion.

But the gov­ern­ment’s al­ter­na­tive – and slightly stranger – ABS route is also rais­ing ques­tions.

Syd­ney Univer­sity con­sti­tu­tional law pro­fes­sor Anne Twomey sug­gests there are still two ob­vi­ous po­ten­tial grounds for le­gal chal­lenge.

The first is whether the ABS has the le­gal power to con­duct the bal­lot. The bureau’s leg­is­la­tion di­rects it to un­der­take sur­veys and gather statis­tics and Twomey says it could be ar­gued this sur­vey would be seek­ing opinion rather than facts.

But she says there is a pos­si­ble coun­ter­ar­gu­ment that this would be a sur­vey to de­ter­mine a statis­tic: the num­ber of peo­ple who be­lieve same-sex cou­ples should be al­lowed to marry.

The sec­ond is­sue is whether the fi­nance min­is­ter has the power to ap­pro­pri­ate money to run the vote with­out spe­cial leg­is­la­tion. Cor­mann in­sists he does, un­der an ex­ist­ing pro­vi­sion that al­lows the min­is­ter to ac­cess up to $295 mil­lion for un­ex­pected or un­fore­seen ex­penses.

But oth­ers query the vi­a­bil­ity of ar­gu­ing the bal­lot is un­fore­seen.

“My guess is the gov­ern­ment ac­tu­ally hopes that it falls down in the High Court be­cause that will save them a lot of trou­ble,” Twomey says.

Le­gal chal­lenges have al­ready be­gun. In­de­pen­dent Tas­ma­nian MP An­drew Wilkie and two other same-sex mar­riage ad­vo­cates are bring­ing the first of them, ad­vised by Ron Merkel, QC.

Those sup­port­ing a change in the law are di­vided over whether to en­cour­age or dis­cour­age par­tic­i­pa­tion in the postal vote.

For­mer High Court judge and gay rights cam­paigner Michael Kirby is call­ing it a “com­pletely in­ef­fec­tive” and “ir­reg­u­lar” mech­a­nism that dis­re­spects the wishes of the par­lia­ment. “I think they should aban­don it,” he told ABC Ra­dio Na­tional on Thurs­day.

He said gov­ern­ments had not re­sorted to plebiscites when chang­ing laws re­lat­ing to the rights of women or In­dige­nous peo­ple but were now us­ing some­thing even less rep­re­sen­ta­tive to de­ter­mine the rights of gay Aus­tralians.

“This isn’t a plebiscite now,” Kirby said. “It’s a com­pletely novel, vol­un­tary, non-bind­ing, non-com­pul­sory vote of a few cit­i­zens and it’s just some­thing we’ve never done in our con­sti­tu­tional ar­range­ments of Aus­tralia and it’s un­ac­cept­able.”

Kirby said he would “not take any part in it what­so­ever”.

Mal­colm Turn­bull urged vot­ers not to fol­low Kirby’s ex­am­ple. “I en­cour­age ev­ery Aus­tralian to ex­er­cise their right to vote on this mat­ter,” he said.

Mem­bers of the group of MPs whose ag­i­ta­tion put the is­sue back on the gov­ern­ment agenda are also urg­ing like-minded peo­ple to put any frus­tra­tions aside. “It’s re­ally im­por­tant that peo­ple par­tic­i­pate and we all work to con­vince our fel­low Aus­tralians that it’s time the law al­lowed ev­ery­one to par­tic­i­pate in this im­por­tant in­sti­tu­tion to demon­strate their love and com­mit­ment for each other,” Lib­eral MP Trent Zim­mer­man said.

He said a postal plebiscite was not his first choice and he still had “se­ri­ous reser­va­tions about it”.

“It’s been a dis­ap­point­ing week be­cause the par­lia­ment could have re­solved this is­sue in a mat­ter of days,” Zim­mer­man told The Satur­day Pa­per.

“I un­der­stand the is­sue of our elec­tion com­mit­ment to hold a plebiscite played heav­ily on the minds of our col­leagues. I think most Aus­tralians just want this is­sue re­solved quickly.”

For­mer prime min­is­ter Tony Ab­bott is fram­ing the is­sue as be­ing about some­thing broader, ap­peal­ing to peo­ple who might not have strong feel­ings against gay mar­riage but are dis­il­lu­sioned with gov­ern­ments and cul­tural change. Ab­bott now says the new push is part of “a war on our way of life”.

“If you don’t like same-sex mar­riage, vote no,” Ab­bott said af­ter the Coali­tion fixed on its postal-vote course. “If you’re wor­ried about re­li­gious free­dom and free­dom of speech, vote no. And if you don’t like po­lit­i­cal cor­rect­ness, vote no, be­cause vot­ing no will help stop po­lit­i­cal cor­rect­ness in its tracks.”

Zim­mer­man re­sponded in a sim­i­lar vein. “If you think that your broth­ers and sis­ters, your sons and daugh­ters, your friends, your work col­leagues and your neigh­bours should be able to share their love and com­mit­ment in the same way as ev­ery other Aus­tralian, then vote yes,” Zim­mer­man said. “If you be­lieve that the gov­ern­ment shouldn’t be able to tell you who you can and can’t marry, then vote yes. And if you want to help bring this coun­try to­gether so we can all move on from this is­sue, then vote yes.”

Pub­licly, Ab­bott en­dorsed the postal vote as a le­git­i­mate ve­hi­cle for test­ing the mood and con­grat­u­lated Turn­bull. But be­hind closed doors in the Lib­er­als’ party room meet­ing on Mon­day, Ab­bott ar­gued ve­he­mently against the postal vote, in­sist­ing any­thing short of a full com­pul­sory plebiscite amounted to a bro­ken prom­ise.

His po­si­tion earnt a re­buke from Cor­mann, who re­sponded that he had checked ev­ery pub­lic com­mit­ment both Ab­bott and his suc­ces­sor had made on a same-sex mar­riage plebiscite and nowhere had ei­ther spec­i­fied the method.

The is­sue has be­come the lat­est ve­hi­cle for the ten­sions be­tween con­ser­va­tives and mod­er­ates – and Ab­bott and Turn­bull. Lead­er­ship over­tones are un­avoid­able.

Turn­bull is hop­ing the plebiscite will put both the sub­stan­tive and un­der­ly­ing is­sues to rest. But some mod­er­ate Lib­er­als who sup­port same-sex mar­riage were taken aback by the way Turn­bull de­scribed it both in pri­vate and in pub­lic, when he com­plained it had de­tracted from his agenda and sug­gested he was too busy to cam­paign for change.

In seek­ing to bro­ker a com­pro­mise, Turn­bull may have di­min­ished his own stand­ing in­side the Lib­eral Party.

And that means the un­der­ly­ing is­sue may not go away at all. •

Prime Min­is­ter Mal­colm Turn­bull at a Par­lia­ment House press con­fer­ence on Thurs­day.

KAREN MID­DLE­TON is The Satur­day Pa­per’s chief po­lit­i­cal cor­re­spon­dent.

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