Many senators have described today as the proudest in their parliamentary careers.

The bill will face its final hurdle in the House of Representatives next week when MPs resume the debate.

Senator The Hon. George Brandis said:

Australia may have been slow to reach this day – we are the last of the English-speaking democracies, and one of the last countries in what was once called Western Christendom – to embrace marriage equality. But when that day did come, it came triumphantly, it came joyously, and it came, most importantly, from the Australian people themselves. Like all of the best and most enduring social change, it was not imposed from above. The will for it germinated in the hearts and minds of the people themselves.

Now that the Australian people have spoken, it is for us, their elected representatives, to respond. And so, let us now complete the task which they have set us, and for which so many of us have worked for so long.”

This means that marriage equality is well and truly on track to become a reality by Christmas.

More on BucketOrange Magazine

Explainer: Marriage Amendment Bill Finally Hits Parliament, What’s Next?

What’s likely to happen in Parliament over the next few months?

To become Australian law, the proposed Bill will need to pass through the Senate and the House of Representatives with only nine Parliamentary sitting days remaining this year. It’s likely that there will be several amendments to the Bill before it is passed which, Attorney General George Brandis, believes will happen by December 7, if not earlier.

The vote deciding whether the Bill passes will be a “free vote” or a “conscience vote.”

This means that there will be no direction by the leader of each parliamentary party to Members or Senators to vote in any way on the Bill. It will be a matter entirely for each Member or Senator to decide the way that they wish to vote and to deal with the politics of the way they voted. As there will be no formal sanction, Members and Senators from the same political party may be voting differently from some of their colleagues.

Once the bill has passed Parliament, it will go to the Governor-General, Peter Cosgrove, for the Royal Assent. The commencement date of the Bill remains unclear, however, the legislation must commence within 28 days of Royal Assent.

President of The Law Society of NSW, Pauline Wright, says that the Law Society will scrutinise any proposed legislation and forward its recommendations to the Law Council of Australia to be included in a submission from the national body of the legal profession. Ms Wright said the Law Society has consistently supported the introduction of laws to enable same-sex marriage since 2012 to address discrimination against same-sex couples.

All Australians are entitled to be free from discrimination, to be subject to the same laws and to be treated equally before the law,” Ms Wright said.

Reform is appropriate where there are laws which discriminate against people on the basis of inherent characteristics, such as their sexual orientation or gender identity.

At the same time, it is appropriate that any proposed legislation be scrutinised to ensure that it does not erode other traditional rights and liberties that we presently enjoy.”

Quick recap of the proposed amendments

The proposed Bill has been drafted to:

• redefine marriage as ‘a union of two people’
• introduce non-gendered language so that the requirements of the Act apply equally to all marriages
• enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country to be recognised in Australia
• amend the definition of ‘authorised celebrant’ to include new categories of religious marriage celebrants and certain Australian Defence Force officers
• enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and
• make amendments contingent on the commencement of the proposed Civil Law and Justice Legislation Amendment Act 2017; and Sex Discrimination Act 1984 to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination.

Where to from here?

It’s going to be an interesting few months in Parliament. Malcolm Turnbull and many others in government are eager for same-sex marriage to be legalised prior to Christmas, which means that the first weddings could be taking place as soon as mid-January 2018.

More on BucketOrange Magazine

Last week, emergency laws under the Marriage Law Survey (Additional Safeguards) Bill 2017 to ban vilification, intimidation, and threats in the same-sex marriage campaign were rushed through parliament. The new laws provide for offences for bribery and threats and civil penalties in relation to vilification, interference, discrimination and misleading or deceptive publications.

Civil penalties include fines of up to $12,600, however, any legal action for an alleged breach of the new law will need to be approved by Attorney-General George Brandis.

According to a government spokesperson who spoke to the Sydney Morning Herald:

It will be unlawful to vilify, intimidate or threaten to harm a person either because of views they hold on the survey or in relation to their religious conviction, sexual orientation, gender identity or intersex status.”

That will be a sunset provision, it will only last for the period of the postal plebiscite.”

The laws are similar to state and territory anti-discrimination laws that do not currently exist at a Commonwealth level.

NSW Anti-Discrimination laws, for example, provide for respectful discussion and debate of matters in the public interest, however, these matters must be done reasonably and in good faith, or risk breaching laws designed to protect the people of NSW from vilification on the grounds of their homosexuality.

Chief justice Susan Kiefel has announced that the High Court will hand down its decision on the voluntary same-sex marriage postal survey tomorrow at 2.15pm.

Full reasons will be published later.

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

The State’s most recent efforts this week have been much more successful – the Justice and Community Safety Legislation Amendment Bill (No 3) that passed on the 14th February 2017 amended the Civil Unions Act 2012 to:

allow for the automatic recognition of same-sex relationships that have been formally recognised in other jurisdictions as civil unions under Territory laws”.

Prior to this amendment, same-sex couples who married in another jurisdiction had to register their relationship upon entry or re-entry into the ACT, where heterosexual marriages have always been automatically recognised.

This means while same-sex marriages still cannot be performed in the ACT, the Territory will now recognise those that have occurred in other jurisdictions where such marriages are formally recognised. ACT Attorney-General Gordon Ramsay stated:

The amendments to the Civil Unions Act demonstrate this Government’s commitment to building a Canberra that is progressive, inclusive, and people-centred”.

This is representative of the signalling power that State legislation has, and this is clearly not an area where the ACT Government is going to let the Federal Government drop the ball. As Mr Ramsay further asserted:

Despite this setback, the ACT Government continues to support the recognition of same-sex relationships where possible, and we will continue to advocate for the Federal Government to act on marriage equality.”

These amendments follow the passage of similar legislation in South Australia last year. They were introduced in that State in response to the grief caused when a United Kingdom spouse whose same-sex partner died tragically while the couple were on honeymoon in Australia. The surviving spouse was told that the South Australian death certificate would not acknowledge their marriage, which was recognised in the UK.

The ACT Government is clearly committed to affording as many rights as possible to same-sex couples within the restrictions of Federal law.  In the words of Mr Ramsay:

No one should be made to feel different or lesser because of who they love and we are committed to ensuring that all Canberrans have the ability to express their love and commitment in the eyes of the law.”

The passage of these amendments is not only an important step towards equal recognition but also sends a clear message to the Federal Government that there is a growing impetus behind marriage law reform. Perhaps if more States and Territories make similar legislative changes, the Federal government will take action.

As the 45^th Federal Parliament gets underway, the legalisation of same-sex marriage is one of the issues dominating headlines.

It is hard to know how the matter will play out, but there is one option that was first raised by the Abbott government – and that is to hold a plebiscite. This option is being pushed by the Turnbull government, and it has attracted a lot of criticism.

If you have not been paying close attention to this debate you might be a bit confused about what a plebiscite is. That would not be at all surprising, as plebiscites are so rarely used to resolve important issues in Australia.

What is a plebiscite?

A plebiscite is a popular vote on a national question concerning any matter that does not affect the Constitution.

The result of a plebiscite is not legally binding, and so the government does not have to take any particular action once the Australian public has its say.

How does a plebiscite work?

Unlike a referendum, in which constitutional questions are decided by the electorate, the format and

procedures for a plebiscite are not defined in legislation. As a result, there are not any specific rules about how a plebiscite should be conducted.

The usual way to set up a plebiscite would be for parliament to pass an enabling bill setting out the vote’s purpose.

This bill might clarify:

• The criterion for approval, for example a simple majority or some other standard
• Whether the vote is compulsory
• Whether the question will be a simple ‘Yes’ or ‘No’ or something more complicated
• Whether campaigns for ‘Yes’ or ‘No’ will be provided with government funding
• Any actions expected of the government as a result of holding the plebiscite.

Why hold a plebiscite on same-sex marriage?

There are different ways of framing the answer to this question.

Proponents of the plebiscite generally emphasise the democratic merits of allowing the Australian public to decide the issue. Some critics of the plebiscite see it as a means of derailing or at least delaying the push for same-sex marriage.

Is it necessary that the decision to legalise same-sex marriage be left to a nationwide vote?

There is certainly no legal necessity for a nationwide vote.

Given that the Federal Parliament already has the constitutional power to enact marriage equality, there is no need for a referendum. In the December 2013 case The Commonwealth of Australia v The Australian Capital Territory, the High Court held that the marriage power in section 51(xxi) of the Constitution encompasses same-sex unions.

Considering that the result of a plebiscite has no legal force there is no reason, legally speaking, to hold a plebiscite.

Is it appropriate that the decision to legalise same-sex marriage be left to a nationwide vote?

There are no obvious advantages to holding a plebiscite on this issue, beyond vague arguments for the value of direct democracy when dealing with divisive issues of policy.

On the other hand, a number of reasons have been put forward as to why a national vote on the issue of same-sex marriage would be inappropriate.

Risk of harm to mental health

Concerns have been raised about the impact a national vote may have on the mental health of members of the LGBTQI community. For example, the Australian Psychological Society has emphasised the “significant risks to the psychological health and wellbeing of those most affected” that a public vote would present.

Cost

In 2015 the Australian Electoral Commission submitted to a Senate Committee inquiry that a plebiscite would cost an estimated $158.4 million, not including any Commonwealth funding for Yes and No campaigns.

The Australian Electoral Commissioner has stated that “[t]he costs of a stand-alone event are very comparable to a normal federal election.”

Lack of objective

There is no clear reason to hold a plebiscite.

Given the lack of legal effect of any result, a plebiscite would effectively be “no more than a formalised national opinion poll.”

An opinion poll is not required, as polling has already shown that a majority of Australians favour the introduction of same-sex marriage. Neither a ‘Yes’ or ‘No’ result would necessarily settle the question. A ‘Yes’ vote would not have to be acted upon by parliament. A ‘No’ vote would, given the trends in other Western liberal democracies, likely just delay the inevitable.

Human rights and democracy

Many of those who consider the issue from a human rights perspective argue that it is inappropriate to put such a question of equality before the law up for popular vote:

• Liberty Victoria has argued that putting a matter that is amenable to ordinary legislation to a popular vote, especially involving legislation concerning a group long subject to a history of discrimination, “is to misunderstand the nature of representative democracy” to an extent that amounts to a parliamentary dereliction of duty.

• The Australian Human Rights Commission has argued that: “it is not appropriate that the Australian population is given a vote on the legal standing of the relationships of same-sex attracted Australians any more than it would be for the Australian population to vote on the legal standing of opposite-sex attracted Australians.”

• The Centre for Comparative Constitution Studies has described plebiscites as “manifestly inappropriate in circumstances where minority rights, including the right to equality, are at issue”.

Inconsistency

Australia has only had three plebiscites in its history: two votes on conscription during World War One, and a vote on the National Anthem in 1977.

Popular votes are very rarely used to gauge public opinion on matters of ordinary legislation.

This is not surprising, given that Australia is a representative democracy and we have a Parliament with the authority to pass legislation on behalf of the population. As a result, it would be extremely unusual for this question to be put to a popular vote.

As has been pointed out many times, the 2004 amendment to the definition of ‘marriage,’ which specifically excluded same-sex marriage, was not passed by Parliament after a plebiscite.

Parliament makes a huge number of important decisions without first consulting the public. So why hold a plebiscite on this issue?

In addition to being inconsistent, it may also set an inappropriate precedent.

Parliament has the power to legislate on the issue so why aren’t they?

In 2004, subsection 5(1) of the Marriage Act 1961 was amended to specify that marriage is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

Since then, 18 bills that deal with marriage equality or the recognition of overseas same-sex marriages have been introduced into Parliament. None have progressed past the second reading stage.

The increasing momentum for the recognition of same-sex marriage is a problem for the Coalition, as it is divided on the issue. As Katharine Murphy says, Malcolm Turnbull has many political reasons to turn to a plebiscite rather than a free vote on the question in Parliament.

As it stands, getting an enabling bill through parliament is looking less and less likely. The Greens and the Nick Xenophon Team have both announced they will not support a plebiscite, and it is likely that Labor will follow suit.

Conclusion

There is no legal necessity for a plebiscite on same-sex marriage.

Arguments for a plebiscite on the basis of direct democracy are flimsy and heavily outweighed by the disadvantages of holding a plebiscite on this specific issue. The only remaining reasons for holding a plebiscite on same-sex marriage are, therefore, political.

The government has been making it clear that without a plebiscite the prospects for the legalisation of same-sex marriage during the reign of the 45^th Parliament are zero. However, it is increasingly looking like the government could fail to gain the support it needs in Parliament to make the plebiscite happen.

Frustratingly, we may be heading back into deadlock.

What do you think? Should marriage equality be put to a nationwide vote? Or could a plebiscite on same-sex marriage set a dangerous precedent that Parliamentarians can avoid any controversial or difficult issues by sending them to a public vote? Join the discussion in the comments below!

To everyday Australians, the inner workings of Parliament House can seem complex and confusing.

When it comes to making Australian laws:

• what role do politicians play in the life cycle of a Bill?
• what rules govern whether a proposed Bill lives or dies?
• how are laws actually made?

In the first of our Laws Of The Political Jungle series, we provide a simple snapshot of Parliamentary processes and some of the main obstacles faced by a proposed new Bill, such as the Marriage Equality Bill, being made into Australian law.

Parliamentary Safari

To better illustrate the factors that influence the survival of a Bill on its journey through an, often perilous, Parliamentary landscape we take you on a guided tour through equally wild terrain.

In this setting you have two groups of predators:

1) Lions which live in the open savannah of the House of Representatives; and

2) Crocodiles which reside in the water hole of the Senate.

In the middle of these two groups of politicians is a young zebra which represents a proposed new Marriage Equality Bill. If the young zebra is introduced into the House of Representatives, the zebra must safely travel past the first group of lions, and survive the group of crocodiles on the other side, if it is to become part of Australian law.

If the zebra is introduced into the Senate, the process is vice versa. In any event it may have to become an amended zebra for it to safely pass to become part of Australian law.

Survival Of The Fittest – Challenges Faced By A New Bill 

In recent weeks there has been a lot of interest surrounding the Marriage Amendment (Marriage Equality) Bill 2015 (the Bill). On Monday this week (1 June 2015), the Marriage Equality Bill was introduced into the House of Representatives by Opposition Leader, the Hon. Bill Shorten MP, with the purpose of allowing same sex marriage in Australia.

To introduce the Marriage Equality Bill into a fertile grassland such as the House of Representatives, or alternatively the source of life-giving water in the Senate, is one thing – to have it navigate both Houses of the Parliament, be given the Royal Assent by the Governor-General and become part of Australian law is an entirely different matter.

Due to the current political climate, the House of Representatives has voted to postpone debate on the Marriage Equality Bill until later in the year. This means that it is unlikely that the Bill will be considered again until Parliament’s Spring Sitting (between August and December 2015).

Of considerable interest is whether the vote for each member of the House of Representatives (Member) and each Senator should be one of “conscience“. We will also explore the meaning of the phrase to “cross the floor”. To Members and Senators such a matter could be career defining for them to do so.

Top End Predators: Members Of The House Of Representatives & Senators

Before exploring the dynamics impacting a Bill’s survival, it is important to understand the law of the land as it relates to the placement of Members and Senators at the top of the food chain. This is called the Australian Constitution.

The Constitution is a bit like Mother Nature: it is not only a great source of power over the legal landscape but also has ramifications for politicians as a result of their behaviour, how they interact with one other as well as informing their subsistence strategy (continued election by the voting public). Without the Constitution, the House of Representatives and the Senate would not exist.

Given the importance of political parties in the history of Australian politics, it is somewhat surprising that there is no mention of them in the Australian Constitution, apart from what is to occur to fill the place of a Senator where a casual vacancy occurs by the Parliament of the State in which the vacancy occurred. The House of Representatives is composed of Members directly chosen by the people of the Commonwealth.

• Lions On The Grasslands – Members of the House of Representatives

The Commonwealth Electoral Act 1918 (Electoral Act) provides the mechanism for the creation and re-distribution of Electoral Divisions for the House of Representatives. One member of the House of Representatives is chosen for each Electoral Division. Currently there are 150 Electoral Divisions in Australia, meaning there are 150 Members of the House of Representatives. In the event of a vacancy a writ must be issued for the election of a new member.

Each pride of lions, for example, has a unique leader who is responsible for looking after the interests of the group and its territory.

The pride of lions is the equivalent of each political party in the House of Representatives. The unique leader of the largest pride, or coalition of the largest prides, is the Prime Minister and leader of the next largest pride is the Leader of the Opposition, as constituting the largest prides of lions in the savannah. There are other smaller prides, or individual lions, living in the savannah.

The government is formed by the largest party or coalition of parties with the majority of Members in the House of Representatives. That party or coalition of parties may be in the minority in the Senate.

A political party may have both lions and crocodiles as its members, and certainly will do so if they are the party or parties forming the government and the opposition in the savannah.

• Crocodiles In The Water Hole – Senators of the Senate

The Senate is composed of Senators for each State, directly chosen by the people of that State, voting as one electorate. If the place of a Senator becomes vacant before the expiration of the term of service, special provision is made for action by the Parliament of the relevant State for filling that vacancy by the member of the same political party.

The Electoral Act also makes provision for the election of Senators from the Australian Capital Territory and the Northern Territory, and for the filling of any vacancy by their respective legislative assemblies. There are currently 12 Senators from each State, and 2 Senators each from the Australian Capital Territory and the Northern Territory, with a total of 76 Senators.

If one crocodile unexpectedly leaves the water hole, for example, another crocodile will take its place in the bask.

Each bask of crocodiles, for example, has a unique leader who is responsible for looking after the interests of the group and its territory in the water hole. Each bask of crocodiles is the equivalent of each political party in the Senate. The unique leader is Leader of the Government in the Senate and the leader of the next bask is the Leader of the Opposition in the Senate. They are the leaders of the biggest bask of crocodiles in the water hole. There are other smaller basks, or individual crocodiles, living in the water hole.

Fit To Qualify – What Rules Guide Members And Senators In Their Natural Habitat?

Just like lions are adapted to life on land, so too Members of the House of Representatives must possess certain qualities in order to live in their environment. The same rules apply to crocodiles which are best suited to an aquatic existence in the same way that Senators need specific qualities to successfully live in the Senate.

There is no requirement for a member of a political party to be qualified to stand for election even though, a quick glance at the current list of Members and Senators, tells the story of how difficult it is for a person to be elected unless they are a member of a political party.

What Rules Determine If A Member Or Senator Can Be Disqualified?

Just as the laws of nature determine whether lions or crocodiles cast out certain individuals for social deviance (for example, where younger males challenge an alpha), The Constitution governs when a Member or Senator can become disqualified from their position in public office.

If a Member or a Senator is disqualified, as provided for in the Constitution, their place automatically becomes vacant. Crucially, it is not considered a disqualification for a Senator or a Member if they are expelled from membership, or disciplined by, their current or former political party.

There are also mechanisms for a Member or a Senator to be disqualified by the High Court of Australia, sitting as the Court of Disputed Returns under the Electoral Act. Being expelled from a political party or being disciplined is also no basis for disqualification under the Electoral Act.

Can Politicians Be Disciplined For Voting A Certain Way?

When an individual lion or crocodile misbehaves or contravenes group social norms, that individual could face an attack or social isolation.

Similarly, where a Member or Senator votes in a way that is contrary to their political party policy, they may be expelled from membership of that political party, or disciplined by that party. This does not result in disqualification from continuing to be a Member of the House or a Senator. That Member or Senator may choose to resign from the House or the Senate as the case may be, but they are not compelled as a matter of law to do so.

Bucking The Trend – How Does A “Conscience Vote” Impact A Bill’s Passage?

In recent weeks, there has been considerable discussion by politicians, the media, and the community as to whether members and Senators should have a conscience vote in relation to marriage equality that is the subject of the Marriage Amendment / Marriage Equality Bill 2015.

A “conscience vote” means that there will be no direction by the leader of each parliamentary party, of which they are a part of, to the Member or Senator to vote in any way on the Marriage Equality Bill. That is, it is a matter entirely for them to determine the way that they vote, and to deal with the politics of the way they voted as a result. As there will be no formal sanction, Members and Senators from the same political party may be voting differently from some of their colleagues.

This means that each lion and each crocodile can set aside group social protocols and choose to either attack the zebra or let it pass through their respective territories unharmed.

Zebra Crossing – What Does It Mean To “Cross The Floor?”

“Crossing the floor” is voting against the formal decision of the parliamentary political party to which the Member or Senator belongs.

Some political parties may not require a Member or Senator to vote in a particular way but some do have that requirement.

Where that is a requirement, every Member or Senator of that political party is required to vote in a particular way on a particular matter. For a Member or Senator not to vote in a certain way, if required to do so, is an unmistakeable and public act of rebellion.

Tracking The Zebra’s Spoor – The Parliamentary Procedures For A Bill

For any Bill introduced into the House, provided that it is important enough to have had sufficient time allocated to enable it to be debated, there will be a vote at the end of the second reading debate. For a question to be resolved in the House a vote must be taken. The Speaker or a Deputy Speaker will be the Chair at that time. The Chair will put the question that the bill be now read a second time. The Chair will call for those in favour to say aye and those opposed say no, and will state that he or she thinks that either the ayes or the noes have it. If that occurs and if two or more Members do not dispute that statement of opinion by the Chair then the vote is decided in favour of the ayes or the noes as the case may be. If two or more Members dispute that statement the Chair will ask if a division is required. A division is a formal parliamentary vote.

If a division is required by two or more Members, the Chair instructs the Clerk “to ring the bells”. Bells will be rung throughout Parliament House and every clock will have a flashing green indicator light on, for 4 minutes, to enable those Members who are required by their party to vote to enter the chamber. It is not unusual for Members to be scurrying along the corridors to get into the chamber prior to the time having elapsed – it is that important to them! Once the bells have stopped ringing, on the order of the Chair all of the doors in the chamber are locked. The Chair will then state the question to be decided and the vote of those Members present will be taken. Any Member who is not in the chamber when the doors are locked cannot vote on that question.

Those Members in favour of the Marriage Equality Bill being read a second time will sit on the right hand of the Speaker’s Chair and those opposed will sit on the left side of the Speaker’s Chair. If a Member “crosses the floor” then they will literally be seated on the opposite side of the chamber from their parliamentary colleagues, who will vote in accordance with their parliamentary party’s direction. That situation will remain until the procedural matters to enable the vote to occur are completed, and the number of votes on each side and whether or not the question has been agreed to has been announced by the Chair.

The names of each Member who voted in that division, and the way they voted, are recorded in the Hansard of the House of Representatives for that day, and will permanently remain. If a Member voted against what their parliamentary political party decided, that Member has crossed the floor regardless of the outcome of the vote.

The End Of The Road

If the majority of lions in the House of Representatives decide to attack the young zebra, by voting in the negative, the zebra will die. By denying the Marriage Equality Bill a second reading, and opportunity for the zebra to move on to the water hole, means that the Bill has not been passed by the House of Representatives and cannot be introduced into the Senate. In other words, once Members of the House of Representatives have voted in the negative on whether a Marriage Equality Bill should be read a second time, this is the end of its journey through Parliament and it cannot become law.

Since the life of this particular zebra is over, any further attempt for the same animal to be revived and to pass through the grassland or the water hole is not possible. A new Bill, on the same subject matter, would need to be introduced either into the House of Representatives or Senate and the whole process would need to start over.

NB: Materials from this article have been drawn generally from Info sheets and other publications on the Australian Parliamentary website. For a more detailed analysis of these issues, you can refer to Info sheets and other publications on the Australian Parliamentary website.