Postal Plebiscite- if it looks like a dead duck, smells like a dead duck, then it is a dead duck

Postal Plebiscite- if it looks like a dead duck, smells like a dead duck, then it is a dead duck

The Chinese have a curse- may you live in interesting times. We are living in those times today.

The issue of what to do about marriage equality is Malcolm Turnbull’s problem. The longer that it takes to solve the problem then the longer it will be like acid and eat away at his authority and that of the Government. It’s really that simple.

What are the options?

Option 1: maintain the line that there ought to be a plebiscite

Whether the Government likes it or not, both the Government and the Senate have legitimacy. The Senate has rejected the plebiscite for a number of reasons. The ability to count numbers, as Graham Richardson noted many years ago, is the essential tool of any politician. Quite simply, the plebiscite is dead.

The Government can put up the plebiscite Bill again- but won’t get it through the Senate. The reason it would be put up is to make the supporters happy, but not to achieve anything worthwhile. To get rid of the “obstructionist” Senate would require another double dissolution. Given how the last one turned out, that won’t be tried anytime soon.

The political reason for the plebiscite has been seen from the beginning for what it was- as a means by then PM Tony Abbott to rescue his leadership, and to delay and stymie the inevitable- laws to allow equal marriage.

The Australian public has seen that Malcolm Turnbull, who was seen as from the sensible centre, yoked himself to the plebiscite wagon, to appease the Right of the Liberal Party- and been stuck there ever since.

Tony Abbott’s expressed view last term was that the plebiscite would only be binding on the last term, not this one- a position he has changed, much as a weather vane moves its position in the wind.

Option 2: do nothing, and wait for the next election

That’s not working now. It won’t work then. This issue will not go away. The Australian voter has moved on. Survey after survey has indicated that two-thirds to 70% of those polled support equal marriage laws. Because of a decision by the United Nations Human Rights Committee on Thursday, this option is not possible, at least for those in same sex marriages who got married overseas and now want to divorce. The Committee has called on Australia to fix the problem.

Doing nothing will eat at the Government’s electoral fortunes. Human rights matter. The rights of other couples like my husband and I to have our marriages recognised are fundamental to who we are. The ability of others to get married should be recognised. Australia is the only English speaking developed country not to allow equal marriage laws. Think of the others- UK, US, Ireland, UK, NZ, Canada, as well as many countries in Europe, South America and South Africa that recognise equal marriage.

Our failure to act is  a national embarrassment. Just travel overseas and mention that we don’t have these laws- and watch the reaction, such as: “Really? I would have thought you would have had that years ago.”

Even worse are those who married overseas who have split up and can’t get divorced. They could get married over there, but can’t get divorced there because they don’t live there. This is what happened to Fiona Kumari Campbell, so she took it to the United Nations’ Human Rights Committee under the International Covenant on Civil and Political Rights. Australia is a party to the Covenant.

The Committee recognised that polygamous marriages have more recognition than same sex marriages in Australia. A person who has entered into a polygamous marriage can obtain a divorce, but a person who has entered into a same sex marriage cannot. 

The UN said:


“The denial of access to divorce mechanisms for same-sex couples does nothing
to further the objectives of divorce laws in Australia, and may even prevent their
realization. These objectives are to facilitate an inexpensive and civil resolution to
marital breakdowns in a manner which encourages minimal spousal conflict and
protects the welfare of children. Divorce in Australia today involves a nationalized,
simplified do-it-yourself process which requires establishing 12 months continual
separation as the sole ground for divorce. Parties and their legal representatives do not
have to attend court hearings if the divorce application is uncontested and there are no
minor children, and parties do not have to establish who is to blame for the breakdown
of the marriage.
Where there are children of the “marriage” under 18 years a court must
also be satisfied that proper arrangements in all the circumstances have been made for
the care, welfare and development of those children; or that the divorce order should
take effect notwithstanding that such arrangements have not been made.
Denial of access to an application for divorce and the relief provided by divorce order prolongs conflict and prevents separating spouses from formally dissolving their marriage and putting an end to their separation, a situation which places spouses and children at greater risk of psychological and physical health problems, as well as
financial and economic stress.
Further, in respect to the relationship recognition scheme currently available in
Queensland, the author is entirely uncertain of her legal position. On one hand, she is
unable to enter into a civil partnership with her current same-sex partner because
she is already “married or in a civil partnership”. Yet her marriage is not recognized under
federal law for the purposes of enabling her to dissolve it. There is therefore the further
future risk that Queensland may, as Tasmania has already done, deem her Canadian
marriage to be a civil partnership, effectively enlivening retrospective recognition of her
defunct marriage at some point in the future. It is difficult to predict what rights (for
instance succession and intestacy) this may enliven for Ms. A or her dependents in the
future and for which the author may then be responsible. The author has no legal avenue
for correcting her legal marital status and removing this legal uncertainty.”

“The fact that the same-sex marriage itself took place outside Australia is
irrelevant, as the matter complained of is the failure of the State party to provide a
mechanism for divorce of same-sex relationships as Australian law does for opposite
sex couples married overseas. That mechanism is currently provided within the State
party’s jurisdiction to persons in the same position as the author where those marriages
involve persons of the opposite sex. Marital status is generally a portable and
internationally recognized status which is carried with a person wherever he or she goes.
Accordingly, although a divorce order may be granted domestically it has international
effect. To alter one’s marital status necessitates access to a remedy for the dissolution of that marriage. Whether Canada or the UK should provide the author with a remedy
cannot divert attention away from the absence of a legitimate basis for Australia to
withhold its own existing domestic remedies from the author. Australia is responsible
for the breach, as it solely occurs within its territory and jurisdiction. Furthermore,
regarding the State party’s argument that some of the author’s claims
are hypothetical, the author responds that she has experienced and continues
to experience harm domestically….
The Committee considers that the State party’s explanation as to the reasonableness,
objectivity and legitimacy of the distinction for the differential treatment between the two
above mentioned categories of foreign marriages not recognized in Australia and
foreign same-sex marriages is not persuasive, and that compliance with domestic law does not in and of itself establish the reasonableness, objectiveness, or legitimacy of a distinction. In particular, the Committee notes that the State party fails to
provide a reasonable justification for why the reasons provided for recognizing the exceptions do not also apply to the author’s foreign same-sex marriage.
For example, the State party has failed to provide any explanation why its stated reason for providing divorce proceedings for unrecognized foreign polygamous marriages, does not apply equally to unrecognized foreign same sex marriages.
In the absence of more convincing explanations from the State
party, the Committee considers that the differentiation of treatment
based on her sexual orientation to which the author is subjected regarding access to divorce proceedings is not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant”.
In accordance with its obligations, Australia has to provide a response to the Human Rights Committee within 180 days as to how it is going to provide a remedy. The only way that Australia can remedy the situation is to amend the Family Law Act and allow divorce for those married in overseas same sex marriages. That then begs the question- if those marriages can be allowed, why not domestic ones?

Option 3- have a postal plebiscite

As I said in the title- this is a dead duck. It is without mandate, designed to fail, non-compulsory, without Parliamentary sanction, and likely not going to survive any legal challenge in the High Court.
Our system of laws since the time of Charles I are that the Executive only can spend the money approved by Parliament. Under s.83 of the Constitution, appropriations have to be made “under law” i.e. with Parliamentary sanction.
Under section 61 of the Constitution, the federal government’s executive power “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
The case that defined what that meant was Williams v Commonwealth, where Mr Williams challenged the Federal Government spending money on school chaplaincy services, directly, and bypassing the States and without specific Commonwealth laws. Money was appropriated to the Commonwealth by Parliament under vague laws. But there was no law about the chaplaincy program. Sound familiar?  Mr Williams was successful.
As the High Court stated:

“The exercise of legislative power must yield a law able to be characterised as a law with respect to a subject matter within the constitutional grant of legislative authority to the Parliament. The subject matters of legislative power are specified for that purpose, not to give content to the executive power. Executive action, except in the exercise of delegated legislative authority, is qualitatively different from legislative action. As Isaacs J said in R v Kidman:

“The Executive cannot change or add to the law; it can only execute it”.

To say positively and without qualification that the executive power in its various aspects extends, absent statutory support, to the “subject matters” of the legislative powers of the Commonwealth is to make a statement the content of which is not easy to divine….


The Commonwealth sought to support the challenged expenditure on two other bases. The first was that the Commonwealth possesses capacities, in common with other legal persons, including the capacity to obtain information, to spend money lawfully available to be spent or to enter into contracts. As initially formulated by the Commonwealth, these capacities were not limited in their exercise by reference to the subject matters of the legislative powers of the Commonwealth. The second basis, put in oral argument, was that:

“a relevantly unlimited power to pay and to contract to pay money is to be found in the character and status of the Commonwealth as a national government just as it would be inherent in the character and status of the Commonwealth were it a natural person.”

The Commonwealth accepted that, unlike a natural person, its power to pay and to contract to pay money was constrained by the need for an appropriation and by the requirements of political accountability

There are consequences for the Federation which flow from attributing to the Commonwealth a wide executive power to expend moneys, whether or not referable to a head of Commonwealth legislative power, and subject only to the requirement of a parliamentary appropriation. Those consequences are not to be minimised by the absence of any legal effect upon the laws of the States. Expenditure by the Executive Government of the Commonwealth, administered and controlled by the Commonwealth, in fields within the competence of the executive governments of the States has, and always has had, the potential, in a practical way of which the Court can take notice, to diminish the authority of the States in their fields of operation. That is not a criterion of invalidity. It is, however, a reason not to accept the broad contention that such activities can be undertaken at the discretion of the Executive, subject only to the requirement of appropriation….

No Act of Parliament existed which conferred power on the Executive Government of theCommonwealth to make the impugned payments . The lawfulness of the payments therefore depended critically upon whether s 61 of the Constitution supplied that authority.”

Following that rationale:

  • it would appear that without a specific law to enable the  postal plebiscite to occur, the holding of the postal plebiscite would be in breach of the Constitution. Approval of both Houses is required first.
  • spending funds for such an extraordinary purpose would likely be an appropriation not made under law.

Option 4 – allow a free vote

This is the only realistic option. It is likely that a Bill will succeed in both Houses. It may- or may not. By putting it before each House will determine whether MP’s support equal marriage or not.
Or to put it in the words of Laurie Oakes: “Australia’s governing party seems intent on destroying itself over the the issue of same-sex marriage despite the fact that the vast majority of voters just want it done….The stark truth about same-sex marriage is that it is going to be legalised eventually….So what is the point of the Coalition risking loss of office -possibly even guaranteeing it- when it knows the most it can achieve is delay?”
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