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?

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.

Today, the Council of the Law Society of NSW has acknowledged that there is a diversity of opinion within the profession and the Council on the topic of same-sex marriage and respects those opinions.

This comes after Law Society of NSW President, Pauline Wright, came under fire in early September for refusing to apologise and withdraw the Law Society’s endorsement of same-sex marriage because she failed to consult the Law Society’s 29,000 members.

On 14 September, the Council resolved to reinforce public statements made by Ms Wright, that the Law Society respects the divergent and deeply held views of individual members on same-sex marriage.

Ms Wright said that the Council also urged a respectful debate on the issue of same-sex marriage.

Members of the Law Society are encouraged to vote in the postal survey as their conscience dictates.

While the Council of the Law Society has expressed its support for the introduction of laws to enable same-sex marriage, it also supports a courteous, considerate and fair debate on this important issue,” Ms Wright said.

The Law Society expressed its support for the introduction of laws to enable same-sex marriage in order to address current discrimination and inequality before the law, she said.

We are committed to ensuring all Australians have the right to equality and non-discrimination.

People should not be treated differently under the law solely because of their sexual orientation or gender identity.” Ms Wright said.

Ms Wright says that she consistently emphasised that everyone is entitled to their perspective and that no person should be discriminated against or vilified because of their view.

It is also important the rights we all presently enjoy, including freedom of speech and freedom of religion, should remain unaffected by any proposed laws to enable same-sex couples to enter a civil marriage,” she said.

Continue Reading on BucketOrange Magazine

• NSW Legal & Medical Professionals Unite To Support Marriage Equality Laws
• Bucket Intell-O-gence: Untangling The Postal Plebiscite Debacle

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

Our organisations support the introduction of marriage equality laws and consider that legislation that discriminates on the basis of sexual orientation and gender identity is fundamentally wrong, Mr Moses, Ms Wright and Professor Frankum said.

The President of the Law Society of NSW, Pauline Wright, said denying couples of the same sex the choice to enter a civil marriage contravened the principle of equality before the law.

The Law Society of NSW is committed to ensuring that all Australians are equal before the law in rights and dignity, regardless of sexual orientation or gender identity,” Ms Wright said.

Failing to recognise same-sex marriage can have a negative impact on the mental health and wellbeing of LGBTI people and their families, including those in the legal profession.

It may also amount to discrimination on the basis of sexual orientation which is contrary to the International Covenant on Civil and Political Rights, to which Australia is a signatory.”

NSW Bar Association President Arthur Moses SC said it was an extraordinary step for the medical and legal profession to speak with one voice on an issue.

This is an important issue. The rule of law requires that all Australians are treated equally,” Mr Moses said.

Discrimination in the Marriage Act on the basis of sexual orientation or gender identity is contrary to the rule of law.”

Australian Medical Association (NSW) Professor Brad Frankum said he was very proud of the AMA position statement in favour of marriage equality.

I’m very happy to be joining the Law Society of NSW and NSW Bar Association to campaign jointly on this issue,” Professor Frankum said.

We know that marriage laws, as they exist now, have adverse health consequences for gay, lesbian, transgender, bisexual, and intersex people.

Doctors have a duty to both treat and prevent illness and for me that also means rejecting discrimination in all its forms.”

Answer: When the federal government fails for the second time to get its Bill for same-sex marriage passed through the Senate.

If you’ve been paying attention to the same-sex marriage issue, you will know the Senate rejected yesterday, Wednesday, 9 August 2017, the federal government’s second attempt to pass legislation for a “compulsory attendance plebiscite” to take place this November.

If you’ve forgotten what a plebiscite is, you can take a look at our article on everything you need to know about the same-sex marriage plebiscite.

The fall-back plan now being pursued by the government is to pursue a postal vote option on 15 November this year.

According to the Malcolm Turnbull:

all Australians will have their say – they will get the opportunity to express their opinion on the issue of whether the law should be changed to enable same-sex couples to marry”. 

If the result of this postal ‘plebiscite’ vote is positive, the government says it would seek, during the last sitting fortnight of the Parliament in 2017, to pass a Private Member’s Bill amending the Marriage Act 1961 to recognise same-sex marriage.

If the result of the postal vote is negative, the Prime Minister has said:

their vote will be respected. We’ve been very clear about this, we will facilitate a Private Members Bill to change the law with respect to same-sex marriage so that same-sex couples can be married if there’s a ‘yes’ vote. And if it is a ‘no’ vote, we won’t”.

However, the outcome of the postal survey is not binding on Parliamentarians.

Of course, if it is a ‘no’ postal vote outcome, it is a safe bet that the Opposition will, with the necessary support of a number of Coalition Members ‘crossing the floor’, try to get a Private Member’s Bill through the Parliament.

Australians have 14 days to register to vote in the same-sex marriage postal plebiscite. According to the Australian Bureau of Statistics, the last day to register to vote is 24 August 2017.

Further updates coming.

More articles:

• Everything you need to know about the same-sex marriage plebiscite
• Same-sex unions formally recognised in ACT: But is it enough?
• Taiwan first Asian country to rule in favour of same-sex marriage

A panel of 14 of Taiwan’s top judges have ruled in favour of same-sex marriage.

In a recent ruling, Taiwan’s highest court decided that current laws preventing same-sex unions were unconstitutional and violated rights to equality.

Contrary to many misleading reports circulating the internet, laws that legalise gay marriage in Taiwan have not come into force yet.

The outcome of this landmark ruling is that parliament has 2-years to amend existing laws to either legalise same-sex marriage or create new civil partnership legislation.

Exactly what changes parliament will make to reflect the ruling is still largely uncertain.

According to BBC news, the LGBT community is hoping for an amendment to existing marriage legislation to include same-sex couples. Such changes would mean that same-sex couples enjoy the same rights as heterosexual couples, including adoption, parenting and inheritance rights as well as the ability to make decisions for each other in the case of a medical emergency.

Some commentators have expressed concerns that parliament will, instead, pass new legislation that recognises same-sex marriage as distinct from opposite sex marriage and that only grants same-sex couples certain rights while withholding others.

If parliament does not meet the 2-year deadline, the court has said that same-sex couples could register to marry based on its recent ruling.

h/t BBC News

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!