This article is sponsored by Vobis Equity Attorneys. 

Dig a little deeper though, and you’ll realise as I did that a postal plebiscite is just about the furthest thing from an ideal solution the Government could’ve gone done and thought up.

As it turns out, most people aren’t happy with the whole shebang, except perhaps the more right-leaning members of the Coalition. Former Justice of the High Court Michael Kirby has initially publicly stated his intention to boycott the vote, saying it sets a “dangerous precedent”. He joins countless others who rejected the idea of a SSM postal plebiscite on principle. Former Justice Kirby has, however, subsequently indicated that if there is no High Court challenge, or if there is no successful High Court challenge, he will be voting in the postal survey. And while I’ll still be voting, in spite of the Charlie Foxtrot that this has become, I think it’s important that people are informed before they decide whether or not to vote. So here goes my attempt to guide you through the minefield that is the SSM postal plebiscite.

A ‘novel’ approach (and a dangerous precedent)

A vote of this nature is unheard of in the Australian context.

By definition, it’s not even a plebiscite – it’s a national, non-binding, voluntary survey (which is reflected in its formal name: The Australian Marriage Law Postal Survey). This is a totally novel approach and one that bypasses parliamentary process. Legislation does not need to be passed to hold a national survey of this nature – that’s why it can happen in spite of opposition from the other major parties in Parliament.

Whoever came up with this is a pretty smart cookie, albeit one who perhaps lacks an appreciation for ethics and human rights.

Symbolically, the SSM postal plebiscite subjects the rights of a minority group to the will of the majority, despite the fact that such rights are typically considered to be fundamental and inalienable.

This is a backwards step in terms of social progress, and that’s without even mentioning the vilification that a vote of this nature is likely to expose LGBTI people to. In fact, what Malcolm Turnbull maintained would be a respectful debate has already turned very nasty, and the postal plebiscite isn’t even guaranteed to happen yet (more on that later).

Anti-LGBTI posters featuring the slogan “stop the fags” (not to mention some horrendously inaccurate statistics) appeared in Melbourne last week, prompting Malcs to come out and plead with both sides of the debate to be respectful.

There’s even bigger issues at stake here. The SSM postal plebiscite sets a dangerous precedent that may see other minority rights subjected to a voluntary postal vote in the future. Being in Government is not supposed to be all smooth sailing – if our politicians can’t make the decisions they are elected to make, what is the basis for the social contract between citizen and government?

Show me the money

Under normal circumstances, the Government can only spend money if it has been authorised to do so by statute or where such spending is incidental to the executive power of the Commonwealth. Since the postal plebiscite has no legislative underpinning and does not satisfy the ‘incidental to the executive power of the Commonwealth’ provision, the Government had to find another way to fund the plebiscite.

Enter Finance Minister Mathias Cormann.

The Government is planning to fund the postal plebiscite under the Finance Minister’s Advance, which is provided for in the Appropriation Act and allows the Finance Minister to make $295 million available under certain circumstances. Still with me? Okay, good.

Constitutional challenges

That brings us to the Constitutional challenges that have been brought against the postal vote, which will be heard by the High Court in early September. The postal plebiscite is being challenged on two grounds, the first being whether the Government has the authority to spend money on an ABS-run postal survey. It appears that Minister Cormann may not have saved the day just yet.

The second challenge centres on the constitutionality of directing the ABS to run the survey, and in particular the meaning of ‘statistical information’. Even though ‘statistical information’ is not defined in the Census & Statistics Act, the ABS can’t just conduct surveys willy-nilly. The Bureau can only collect statistical information by means other than the Census on a list of topics, which is contained in the regulations that the ABS is administered under. Even when directed to do so by Government, the ABS cannot stray from this exhaustive list of topics. And while ‘marriage’ is on the list, some experts are questioning whether voters’ opinions can be classed as ‘statistical information’.

This already doesn’t bode well for the Government’s stroke of genius.

For something to be ‘statistical’, it must be weighted to counteract any skewing. This ensures that the views of all demographics are accurately and proportionately represented in the result. The Government is yet to reveal any plans it has to correct the results of the postal plebiscite for the likelihood that it will over-represent the opinions of baby boomers, and under-represent those of the homeless, silent electors, rural populations, and people overseas. Further, the only way to ensure the integrity of the voting process would be to issue voting papers with personal identifiers, which flies right in the face of privacy laws that dictate how the ABS can use the data they collect about us.

This is a recipe for High Court failure if I ever heard one.

What exactly are we to make of all this?

If either (or both) of the High Court challenges are successful, we’ll be back to a Parliamentary deadlock on same-sex marriage. This deadlock would likely persist until the next change of Government.

Even if the postal plebiscite does go ahead, the result will not be binding on the Government, and we could end up back where we were before the phrase ‘postal plebiscite’ was even so much as uttered.

This is an undemocratic, unjust, and downright backwards proposal. I’m living in New Zealand at the moment and, to be honest, I’ve been trying to avoid telling people where I’m from. The accent is a bit of a giveaway but, fortunately, I lived in the UK for 12 years so it’s passable for British (although then I have to answer questions about Brexit so it’s a bit of a Catch-22). New Zealand politics is much more sensible, even with an election fast approaching. Trying to explain how Australia got where it is regarding SSM as if it’s anything but an absurd reality has been painful, to say the least.

In an ideal world, we’d settle this with a fight to the death between Tony Abbott and Malcolm Turn- I mean, uh, a conscience vote on the floor of Parliament. Jokes aside, this is a sad moment for Australian politics and democracy. But, ultimately, any shot at legalising same-sex marriage is better than nothing.

That’s why I’ll be voting if the postal plebiscite goes ahead.

*Editor’s note: BucketOrange Magazine supports marriage equality and encourages our readers to vote in the upcoming postal plebiscite.

Further Information

• How To Enrol To Vote In The Same-Sex Marriage Plebiscite
• Same-Sex Postal Plebiscite: Where The Circus Is Headed From Here
• Everything You Need To Know About The Same-Sex Marriage Plebiscite

deliver the resilience and integrity of all the digital platforms on which our 21st century economies are built.”

The Government is right to focus on fostering an environment for better digital intelligence but the real challenge is paving the way for Australia to become a place where people want to own and retain intellectual property, not take it overseas.

Whilst Australia has a mature and desirable market, we still have a way to go in creating a digital intelligence environment conducive to strong capital growth.

Other countries cannot be criticised for having better ways of preserving capital. Experts and digital labor will continue to follow this capital abroad unless significant changes are made here in Australia.

Any government-backed programme to retain smart businesses in Australia, needs to be coupled with a new wave of tax reforms that encourage the creation and retention of intellectual property.

Governments around the world are trying to navigate taxing intellectual property in a borderless environment and there is tough competition between countries.

Home grown intellectual property should be encouraged to remain in Australia. Tax reform is a necessary tool when other countries are desperately trying to attract great ideas using concessional taxation of intellectual property. The people that have conceived those ideas will surely follow.

The Australian government’s $11.2 million initiative to establish “Landing Pads” in Berlin, San Francisco, Shanghai, Singapore and Tel Aviv, was designed to provide market-ready startups with a 90 day operational base located in one of the five global innovation hotspots.

While such an initiative could equip start-ups with the necessary tools to get their foot in the door, it also raises issues of integrity and security of that Intellectual property and whether sufficient protocols and measures are in place to ensure that it can be both commercialised and safeguarded abroad.

The state and federal governments should place greater importance on implementing long-term initiatives that dovetail with models of proven initiatives at a local level.

For example, Brisbane is leading the way in terms of creating a prosperous local environment for digital businesses to form.

Brisbane was only the second city in the world to appoint a Chief Digital Officer who worked with the business community to form a digital first strategy which aims to drive digital uptake and use in Brisbane.

Critical ingredients to the success of these up and coming business hubs are international transport links, high quality internet services and simple and easy work environments.

Start-ups would also benefit from having access to the distribution platforms of established players. If the federal government were to support larger digital businesses with distribution by encouraging them to keep their IP here, these larger businesses would be better placed to support the startup economy.

It’s time that the industry has a shake up and Australia should be looking at ways to keep the digital sphere close to home.

An IP style hub located in regional Western Australia, for example, could provide a gateway to strengthening Australian-Asian ties while also compensating for our deteriorating mining industry.

Business development, skills and information sharing are all key drivers in industry growth and it’s time that we focus on supporting and driving these elements within our own country to bolster businesses, big and small. More importantly, it’s imperative that local, state and federal initiatives are coordinated to ensure Australia’s best and brightest ideas are not lured away from our digital sphere when they are on the brink of commercialisation.

2015 has been a year of mass migrations.

Between January to August 2015, 350,000 irregular migrants entered Europe. An estimated 800,000 migrants seeking asylum are expected to arrive in Germany alone this year.

With only four mass migrations occurring in Europe in recorded history, what can be done with so many people in a modern migrant crisis?

And who can pick a true refugee within the context of mass flows of people into Europe from middle eastern countries in war situations or experiencing political or social upheaval?

What Caused The Migrant Crisis And What Is Europe Doing About It?

According to BBC News, the mass exodus of people from the Middle East and Africa is being fuelled mainly by civil war and terror with conflicts raging in Syria and Afghanistan as well as human rights abuses in Eritrea.

https://www.youtube.com/watch?v=jhBlYwxcaLY

What Is A Refugee?

Under the 1951 Refugee Convention and 1967 Protocol on the Status of Refugees, a refugee is:

Any person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.”

If it were possible to identify many of the people fleeing into Europe as refugees under the Refugees Convention and Protocol, what recognition under these international instruments should now be given to them? What protection should be afforded to them and what can, and should, be done for them as well as the large number of people who have been dubbed migrants rather than refugees?

Australia’s Position

Australia’s past response to a mass influx of people from Iraq, Iran, Afghanistan, Burma and Sri Lanka in ‘turning back the boats’ was successful. It did, however, sublimate our international convention obligations by denying many true refugees the protection to which they were entitled.

At the time, this deliberate avoidance of our international obligation was, perhaps, considered ‘justifiable’ in order to save the lives of many people, including families undertaking such a dangerous sea voyage.

Which raises the question: Is this stance a proper or permanent position for Australia to adopt? According to international or domestic law, can we lawfully (or even morally) maintain this position while still adhering to our current international refugee obligations? The jury is still out on these questions.

Is There A Solution For Europe?

Whatever the legality or morality of Australia’s policy position on refugees, this type of ‘turn back the boats’ response is simply not available to landlocked European countries which are now desperate to find a viable solution for hundreds of thousands of people arriving at their borders daily.

Short of using unpleasant or violent state measures, there is no way to physically prevent mass people movements into Europe across open EU borders.

The migrant crisis is unlikely to improve in the near future without regime change, or complete political and economic solutions emerging overnight in countries being fled.

Who Are The True Refugees?

It is impossible for anyone to say now how many of these desperate people from war torn or repressive Middle Eastern countries are genuine refugees. But does it matter what label is given to them?

For Germany, France, the UK or other affected countries, there is no way to assess such numbers of people properly under their usual refugee assessment processes. Any attempt to do so would take many years and result in significant cost to affected countries, the claimants and their families.

Even Australia faces a herculean administrative and expensive task, under well-developed refugee assessment procedures, to resolve the refugee claims of tens of thousands of boat people who arrived in Australia more than two years ago. Refugee claimants who were removed to Nauru and Papua New Guinea are also still to be resolved.

Legal Change Needed

It is clear that the idea and legal definition of who is a refugee and, therefore, entitled to protection is no longer viable in 2015.

In recent years, Australia has introduced an additional form of protection called Complementary Protection. This is an extension of protection that can be given to asylum seekers. It is used for people who were not previously recognised as a refugee under Australia’s refugee assessment process, but whom the Minister finds substantial grounds for believing that they could face a real risk of suffering significant harm if removed from Australia. This is a positive step forward but does not go far enough.

Mass movements of people across the globe in response to political, social and economic crises as well as religious persecution that is unique to the 21st century require a new and robust solution.

Conclusion

The global approach to who is entitled to refugee protection, or other forms of protection, is in pressing need of review.

It is time for the United Nation’s High Commissioner for Refugees (UNHCR), perhaps, to review the obsolete definition of who is entitled to refugee protection and what obligations are imposed on countries that have ratified the Refugees Convention and Protocol.

Most importantly, the UNHCR needs to make a strong case to the United Nations for nation states to:

• find effective and enforceable solutions to mass people movements
• strive to remove their root causes more effectively; and
• resolve to develop ways to help people in need in their home countries.

This should be a priority, regardless of whether persons seeking asylum qualify for protection under the current outdated refugee definition; or under a new definition; or simply because law and order is breaking down in their home country and remaining there is not feasible without serious threat to life.

What do you think Governments should do about mass movements of people into their countries? Is there an easy answer, or will this issue continue to be placed in the ‘too hard’ basket? Let us know what you think in the comments section below!

For Information About Refugee & Asylum Seeker Policies And Processes Visit:

• Refugee & Immigration Legal Centre (RILC)
• Refugee Council
• United Nations Human Rights Commission (UNHCR)
• Asylum Seeker Resource Centre (ASRC)
• Department of Immigration and Border Protection