Battlelines drawn on same-sex marriage plebiscite
Whatever else you might say about John Howard, you must admit he didn’t muck about. He got things done.
There is no better example than that of May 27, 2004. That was the day the then prime minister called a late-morning media conference to announce the government would change the Marriage Act to ensure that its definition was limited to unions between a man and a woman.
Less than an hour later, at 12.30, legislation was in the house of representatives. Introducing it, Howard’s attorney-general, Philip Ruddock, claimed that “significant community concern about the possible erosion of the institution of marriage” compelled the government to act quickly. It was, he said, “vital to the stability of our society” that marriage should be clearly defined along heterosexual lines. There would be no same-sex marriage in Australia, and no recognition of same-sex unions entered into in other, more progressive countries.
Howard did not mess about with consulting the public. Indeed, at that first press conference he called his move “a necessary assertion by the parliament of the country above all others to define what is regarded in our community [as] marriage”.
From there, things moved very quickly. The Labor Party did not oppose the legislation and it went through the house within a few sitting days. It reached the senate on August 12, where there was impassioned opposition from a half-dozen Green and Democrat senators, led by Bob Brown.
Brown’s speech was particularly strong. It was also prescient.
“Any sensible liberal society, besides practising acceptance, will promote love,” he said. “This legislation is about hate.”
He continued: “When you discriminate against people, they feel they are being hated. That was what happened in the past with discriminatory laws against people of other races. They were based on hate and fear. This legislation has those same components but it is aimed in a different direction.”
Howard’s legislated intolerance, Brown said, weakly acceded to by the opposition, would do “untold harm to many people who will suffer the waves of discrimination coming from Capital Hill, wherever they are in Australia”.
Brown finished on a note of optimism, however. “More enlightened times will come, though, and this will be turned around.”
Seen from a contemporary perspective, that does not seem such a bold prediction, but it was. When Brown spoke, the opinion polls showed fewer than four in 10 people supported same-sex unions. Twelve years later, only one in five oppose them. Minds have changed in just about every demographic group. Support for marriage equality is strongest among the young, but even among the over-65s a majority support it. It is strongest among Greens voters, but a majority of Liberal voters support it, too.
Much else has changed as well – notably the approach of the conservative side of politics towards legislating in the area of same-sex marriage. It took John Howard less than an hour to bring forward legislation. It has taken his successors more than a year to come up with the bill introduced on Wednesday.
Change in plebiscite support
It was August 11 last year when the Coalition party room determined its members would not be allowed a free vote on the issue. But political reality dictated that blunt oppositionism was not tenable either, given the new political reality of changed public opinion.
Then prime minister Tony Abbott endorsed an alternative – a stalling tactic – in the form of a plebiscite to be held some time in the indefinite future.
Malcolm Turnbull had been a strong advocate of a free vote, but when he moved against Abbott a few weeks later, the plebiscite was one of the many hand-me-down policies he had to wear to garner party room votes. Such is the power of the Coalition’s right wing.
Notably, the policy also had some initial bipartisan support. Labor had moved much further than the conservative parties towards accommodating itself to the new political reality, but struggled initially with its response to the plebiscite. Bill Shorten did not immediately dismiss it.
And no wonder. Whatever they say, politicians live by the opinion polls. And for a long time those polls made it appear that the opponents of a plebiscite were the ones out of step with the electorate.
“In polls taken just after the Coalition party room decision last year, public support for a plebiscite was 70 per cent,” notes long-time marriage-equality advocate Rodney Croome.
As this year’s election loomed, Labor firmed up its opposition to the plebiscite, but the polls didn’t move. Deep into the campaign, in late June, a Fairfax Ipsos poll found 69 per cent of voters still favoured a plebiscite, rather than a parliamentary vote.
About the same time, The Australian newspaper gave prominence to another poll, presented by the Centre for Governance and Public Policy at Griffith University, showing that seven in 10 voters “do not agree with Labor’s pledge to have parliament decide on the issue of same-sex marriage within 100 days of the election, and instead prefer the position set by former prime minister Tony Abbott”.
The most pertinent part of the story, however, was buried towards its end. Professor A. J. Brown, whose centre commissioned the survey, offered two possible explanations for why the electors wanted a direct say: that the public had the view that politicians had no special expertise on such moral issues, and/or “frustration that parliament had failed to act despite public opinion showing support for change”.
Croome believes it was the latter reason. He is among those who think a lot of people misinterpreted the message the punters were delivering in those polls.
“The underlying sentiment, which I got everywhere I went – from shopkeepers, from taxi drivers, from all sorts of people – was, ‘Just get on with it.’ People thought they could break the impasse themselves. They thought, ‘If you won’t do it, we’ll do it ourselves,’ ” he says.
“But as soon as people realised the cost of it, and the fact that politicians were not bound to listen to the public’s voice, support declined sharply.”
More recent and detailed surveys support his interpretation.
A Galaxy poll of 1000 voters commissioned at the end of July by Parents and Friends of Lesbians and Gays found support for a plebiscite was down to 48 per cent. And when respondents were told the result would not bind parliamentarians, it dropped to 35 per cent. When they learned it would cost at least $160 million, support dropped further, to only 25 per cent.
Croome suggests the recent solidifying of Labor’s position on the plebiscite reflects, at least in part, this more nuanced reading of public opinion.
“Their focus groups must be showing support for a plebiscite is evaporating,” he says.
“I get the sense there is a strong conviction on this issue among many in the Labor leadership, that they really don’t want a plebiscite. But at the same time, they are realising the politics is moving in their favour.”
“What price democracy?”
Still the government presses on, pushing the highly dubious proposition that the people want a plebiscite, when the evidence suggests what they really want is the quickest means to a change in the marriage law.
And the quickest way would be by a vote of the parliament. There is no doubt at all that a free vote of all members and senators would approve marriage equality. It could be done in days.
Instead, according to the plan advanced by Turnbull on Wednesday, there would be a five-month campaign, in the course of which the “Yes” and “No” cases would each spend $7.5 million of taxpayer funds to put their arguments, leading to a compulsory vote by the people on February 11 next year. The total cost of the process would be $170 million.
Yet that popular vote would change nothing in a legal sense. It would still be up to members and senators to amend the Marriage Act. And they would have a free vote. And there is no doubt at all that a significant majority of them, Turnbull included, would vote in favour of marriage equality.
One might well ask, Why not save all the time and money and do it now? Why not spend that money on other pressing priorities?
Turnbull’s answer, as given in question time on Wednesday, was this:
“Yes, it will cost $170 million. But what price democracy? What price democracy? Do we have enough respect for the Australian people to ask them their view? That is the question.”
The question, however, has been answered many times, in many polls, and we all know its answer. As George Williams, dean of law at the University of New South Wales, recently noted: “The plebiscite is nothing more than a non-binding opinion poll.”
As for respect – which was clearly Turnbull’s word of the day on Wednesday, uttered scores of times – what of respect for the views of the people most affected by the marriage equality issue, the LGBTI community?
Unlike the broader community, its opinion on the matter has not waxed or waned. From the beginning, this community has been firmly against a popular vote and in favour of a parliamentary vote.
A survey of 5463 LGBTI voters, released at the start of August, found 85 per cent opposed the plebiscite. Almost 58 per cent preferred to wait for a parliamentary vote, however long that took.
The government’s promise of $7.5 million of public money in funding for each side of the issue only hardened opposition. The pro-equality advocates were against such funding; it was a demand made of Turnbull by Coalition right-wingers, as well as some of the more extreme elements of the “No” side, such as the Australian Christian Lobby.
The offence taken by marriage equality advocates was most succinctly summed up by Corin Nichols Tomlins, aged 13, in Canberra on Tuesday as part of a group of Rainbow Families lobbying Labor to block the plebiscite bill. He told Guardian Australia the provision of taxpayer money amounted to the government “funding people to insult us”.
It was, he said, “an excuse for opponents … to say whatever they want, slanderous things, make up lies”.
It rankled with others too, on fiscal grounds. Newly elected senator Derryn Hinch protested the cost, demanding to know why “the churches, which pay no tax, should receive public money to advocate in support of one side in a public opinion poll”.
Actually, the expense to taxpayers of funding the respective “Yes” and “No” cases would likely be greater than the headline figure of $15 million, because donations to the respective sides would be tax deductible, up to a $1500 cap.
The greater concern for those supporting marriage equality, though, was about the permissible content of the government-funded “No” advertising campaign, rather than its cost.
The Greens’ Adam Bandt demanded of Turnbull in Tuesday’s question time:
“Lyle Shelton from the Australian Christian Lobby has said that the push for marriage equality is ‘causing unthinkable things to happen, just as unthinkable things happened in Germany in the 1930s’. Is your hold on power really so slim that you will spend over $7 million of taxpayers’ money so bigots like these will spread their opinions on a plebiscite?”
Turnbull argued, though, that the content of advertising would be vetted by two 10-member committees, each consisting of five parliamentarians – two government, two Labor and one other – and five non-MPs. They would be tasked with ensuring advertising was civil and did not introduce extraneous arguments.
The question, then, is who would be on these committees that would allocate funds and referee the debate?
Shadow attorney-general Mark Dreyfus asked Turnbull.
“Will it be the PM?” he asked. “Or the member for Warringah [Tony Abbott] or the member for Menzies [Kevin Andrews] or Senator Abetz or Senator Bernardi?”
He got no answer.
ACL rejects funding
The bigger issue, however, was what might be said by those not in receipt of government money and not constrained by the associated rules of relevance and civility.
The ACL’s Lyle Shelton, having lobbied hard for public funding, told The Saturday Paper that his group did not want any.
“We never were interested in the money for ourselves. We just wanted to be sure there was equal funding for both sides,” he said.
“We saw in Ireland [where a constitutional referendum approved marriage equality last year] that our side was outspent 15 to 1, with a big influx of overseas money.”
Shelton was particularly concerned the “No” campaign would be outgunned by the progressive group GetUp!
He voiced concerns about the funding of GetUp!, making claims about wealthy international figures. “George Soros funded them at the election,” he said.
GetUp! denies this, and there is no evidence of it. But allegations about links between the billionaire philanthropist and left-wing activists are something of staple on the political far right. Coincidentally, Tasmanian Liberal senator Eric Abetz, under parliamentary privilege in the senate this week, detailed an elaborate conspiracy theory involving GetUp! and its “progenitor”, Soros.
Abetz concluded his 17-minute rant saying GetUp! “has now been fully exposed as George Soros’s Australian franchise, operated as a joint venture by the Greens, Labor and the unions”.
But we digress. The Saturday Paper asked Shelton whether his organisation had decided to eschew involvement in the official “No” campaign because that would constrain its activities.
He did not give a direct answer. But he did express his disappointment that the government had ruled out the suspension of anti-discrimination laws during the marriage debate.
As to exactly what arguments the ACL would put, he referred us to his previous comments. And those indicate the ACL would not campaign against same-sex marriage per se, but against its alleged consequences.
They include such extraneous matters as the Safe Schools program, which, Shelton says, “inducts children into homosexual and gender theory ideas”. They include matters such as the use of female toilets by boys who identify as girls. They include matters such as adoption and surrogate parenting.
On Tuesday, Shelton tweeted: “We keep being told redefining marriage is not about children. Clearly it is. Is commercial surrogacy next?”
In short, they go to a whole raft of issues peripherally connected, or completely unconnected, with the issue at hand.
Tiernan Brady, who was the political director of the campaign for marriage equality during the Irish referendum, and who is director of the Australians for Equality group here, has seen it all before.
“What the ‘No’ side is doing is a replay of what happened in Ireland. What the ‘No’ side know is that Australians are strongly in favour of marriage equality, and so they can’t win a public vote about marriage equality. So they have to make the public vote about something else.
“It’s dishonest and it’s misleading and it’s deliberate fearmongering. We see it with Safe Schools, we see it with surrogacy, we see it with transgender people and whether they are allowed to go to a public bathroom.”
But a vote for marriage equality, he says, is not a vote about any of these things.
“It isn’t a vote about whether people can have children. People can have children whether they’re married or not. And lesbian and gay people are bringing up children successfully all over Australia.
“Whether the vote is yes or no, be it through a plebiscite or a vote of the parliament, [be] it a popular vote, they’ll still be bringing up those children.
“The only difference is that those children and their families will be denied the dignity and status that is available to every other family, in law, in Australia.”
As for the argument that every child deserves a mother and father, that marginalises not only same-sex parents but a lot of other parents as well. Single-parent families, for instance.
The notion that there is but one perfect family model, with two biological, heterosexual parents, says Brady, is not just offensive to the LGBTI community, but “a terrible message to send to all of society”.
“Ultimately, people in Ireland knew – and it’s the same in Australia – that what really matters in a family is love and commitment.”
Brady’s organisation has been against a plebiscite all along. Other groups, though, figuring a plebiscite was likely, have sought to shape it.
But as of this week there is no major group on the “Yes” side prepared to engage. Australian Marriage Equality walked away on Tuesday, citing a long list of inadequacies in the government’s proposal.
“The parliament,” AME’s co-chairman Alex Greenwich said in a statement, “should not support the government’s plebiscite bill.”
The plebiscite cannot be pronounced dead just yet. But its vital signs are dire. Every major LGBTI group opposes it, support in the broader community appears to be tanking, and the indications are that Labor’s party room will formally decide to oppose the vote at its next meeting in about three weeks.
Malcolm Turnbull continues to assert that if Labor joins the Greens and majority of senate crossbenchers in opposing his plan, the hopes of same-sex couples will be dashed. That it’s a plebiscite or nothing.
Rodney Croome doesn’t think so.
“It’s time for those of us who support change to begin work on a plan B, to start channelling our energies into getting cross-party legislation introduced into parliament, to creating a more conducive environment for a Liberal Party free vote on that legislation or, failing that, creating an environment where it will be possible for Liberals to cross the floor,” he says.
“It’s very hard to see how supporters of marriage equality in the Coalition can sit back and do nothing for another three years. It’s really hard to see how they can go to the next election and say to the voters, ‘You voted for me, knowing I was a supporter of marriage equality and nothing’s happened.’
“They can blame the Labor Party for blocking the plebiscite legislation for only so long. That won’t carry any water in three years’ time.”
The choice is pretty stark for members in marginal seats. They can either decide that marriage equality is an idea whose time has come, or resign themselves to being politicians whose time has passed.
This article was first published in the print edition of The Saturday Paper on Sep 17, 2016 as "Battlelines drawn on same-sex marriage plebiscite". Subscribe here.