THE tyranny of the minority was on display this week. A little over half of the Coalition has all but bound all their MPs to vote against a private members’ bill to allow same-sex marriage.
The total Coalition vote will negate the very large majority of non-Coalition members who would vote for the bill. So that perhaps less than a third of the Parliament will ensure the bill is defeated or does not even come to a formal vote. This in turn will defeat the will of perhaps 70 per cent of the population who would like to see marriage equality.
The same fate is destined for a bill that will originate in the Senate to stage a plebiscite at the next election on the issue.
If Australia is to have a plebiscite on the question, surely it would be best to hold it at the next election rather than during the subsequent term as proposed by Prime Minister Tony Abbott. That would reduce cost and also ensure maximum turn-out.
In any event, it would have to be a non-binding plebiscite rather than a binding referendum because there is no provision in Australia’s constitutional arrangements to have a plebiscite to bind a parliament to legislate in a certain way over particular matters.
In our constitutional arrangements we only have binding referendums to change the wording of the Constitution, usually to refer more or fewer powers to one or other level of government or to alter the underlying structure of the parliament, executive or courts and the relations between them.
A vote, even one citing the actual words of the legislation, could not bind the Parliament.
So a plebiscite would just be a non-binding indication of the mood of the country. Well, that would be a complete waste of money. We already know the mood of the country from opinion polls – now running at 70 per cent in favour of same-sex marriage. Whatever, people’s views about homosexuality, more people are seeing this question as one of treating people equality. It is a human rights question.
Abbott’s plan for a plebiscite next parliamentary term is a delaying tactic and a sop shored up by the mean and sneaky tactic of having the National Party MPs join the party-room decision.
It was just another reactionary captain’s pick – not one of which has been either welcomed or applauded by any substantial majority of Australians. To the contrary, they have been roundly derided – Bronwyn Bishop for Speaker; knights and dames; Prince Philip; and the extravagant paid-parental-leave scheme. And now marriage equality.
The important point here is that each egregious captain’s pick has been followed by Abbott saying he would not longer make captain’s picks but he would let others decide. Others would decide who would be knights; who would be Speaker and how any parental pay would be decided.
But he has never said he would not make any more captain’s picks ever again – as this week’s decision proves.
It is fundamentally weak leadership. Abbott cannot carry the Liberal party room with conviction. He either does not consult at all or he pulls a stunt by letting the Nationals in on the vote – again something he did without consulting his party room.
We already know same-sex marriage has substantial and increasing majority support so a plebiscite is a waste. It is also unnecessary because there is now no constitutional uncertainty about the Commonwealth Parliament’s power to legislate for same-sex marriage. The High Court held, as a necessary part of its reasoning in striking down the ACT’s same-sex-marriage law in 2013, that the Commonwealth has the power to cover the field and legislate to permit or ban any sort of marriage – same sex, underage or polygamous.
And there are other reasons to be sceptical of a plebiscite.
If the reason is that this is a fundamental social or symbolic issue in which the whole community should be involved, then it gives rise to a few questions. Why, for example, did Parliament vote (whether on conscience or not) on euthanasia? Why didn’t that go to a plebiscite? Why weren’t there plebiscites on the other questions that got a conscience vote in the past 15 years: research involving embryos; human cloning; and RU486.
Why hasn’t there been a plebiscite on capital punishment? Polls suggest a majority in favour. Why wasn’t there a plebiscite on the reinstatement of knights and dames?
Proposing a plebiscite or allowing a conscience vote can get a Prime Minister out of a hole. Tony Abbott is not so much in a hole as between a rock and a hard place. He needs the continued support of the right faction of his party to keep his leadership of the party. But the more he panders to them, the more out of touch he becomes with the electorate. In turn that sees him lose support in the polls. And that, ironically, calls his leadership and judgment more into call among the whole party, including the right.
In short, by trying to shore up his leadership he is destroying it.
John Howard as Prime Minister allowed conscience votes on five occasions. Each time he had a good idea the result would be to his liking, including the removal of the ministerial control over the “morning after” drug RU486. It took control away from the Health Minister, who, at the time, was Tony Abbott. The conscience vote meant that Howard was not seen as personally removing Abbott’s power and Abbott was relieved of a decision-making task that would either offend his conscience or offend a large slice of the electorate.
But Abbott’s dealing with same-sex marriage does not have Howard’s political aplomb.
Of, course, it has not always be thus. Sometimes, Prime Ministers seek plebiscites or referendums for the best of motives – to improve society or the working of government. Harold Holt’s indigenous and nexus referendums and Malcolm Fraser’s senators-replacement referendums are good examples. But rare ones in a general history of power grabbing and ulterior motive.