Quick Post: #marriageequality referendum and why it’s not dumb (bonus: rights rhetoric) #auspol

Are rifts and bickering ever not interesting?

A lot of people have hit social media over the last week about holding a referendum in Australia in order to introduce marriage equality into law.  As with social media, it’s been difficult to work out precisely what the arguments are, but there sure is a lot of vitriol from the usual noisemakers.

An article posted by the activist group Australian Marriage Equality seems to hint at what the arguments might be.

Until now the two wings – the moderate, sedate and respectable Australian Marriage Equality (AME), and the more raucous direct action-oriented Equal Love – have pretty much marched in lockstep. But no longer. [Source: AME, ‘Equal Love & Marriage Equality Split over Referendum‘]

Clearly, it’s going to be a balanced and reasonable contribution from AME…

The split is an odd one.  Equal Love are in favour of a referendum.  AME is not:

Rodney Croome, the gay rights veteran and AME leader, countered, “Marriage equality supporters are understandably frustrated that Australia is falling behind other countries, but a referendum is not the quick and easy fix some assume it will be.”

“A plebiscite on the Marriage Act would not be binding and a referendum would simply clarify the constitutional provision dealing with marriage, not change the Marriage Act itself, so in both cases the nation would end up exactly where it is now, with the issue in the hands of parliament.”

And he feared the social consequences of a lengthy referendum campaign. ”With one major party still against marriage equality and with extremist groups keen to use a referendum to propagate fear, a referendum campaign will inevitably polarise the nation and inflame prejudice.” [Source: Ibid.]

Croome is not entirely correct.  Or, rather, he is sort of correct but does not provide a full account.

Section 51 of the Constitution outlines the legislative powers of the Commonwealth Government.  The ability to legislate with regard to marriage is conferred under (xxi).  The exact wording is:


A referendum could change this to read:

marriage, other than to restrict marriage rights based on race or sexual preference

The effect of this is interesting.  It would mean that the Commonwealth Parliament could not pass laws to restrict access to marriage based on race or sexual preference, but it would not stop State Parliaments doing the same.  To stop that, you’d need a very atypical amendment to section 52 restricting their ability to pass laws with regard to marriage (or another section in Chapter V).

If the referendum passed, it would immediately mean that section 5 of the Marriage Act which defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ would need to be read down to permit same-sex marriage.

As a matter of rationality, Parliament would pass a law to resolve the inconsistency between the Constitution and the Marriage Act.  Else, they’d need to wait for a court challenge to bring the application of the Act in line with the Constitution.  So, yes, the referendum would not be altering the Marriage Act in terms of the words but it would be altering the Marriage Act in terms of its force.

As for Croome’s other position: it seems flatly strange to say, ‘We don’t want to have a referendum because people might debate the issue and we might lose.’  The Left is notorious for this kind of ‘rights by stealth’ operation where the mainstream is left out of the discussion while they scheme and plot.  If you think that you’re correct, stand by your convictions.  Don’t sulk and whimper about it.

AME provides a handy macro for ease of circulation on social media.


It’s nice to see a return of the ‘fairies and goblins’ understanding of rights return to the political debate.

Let’s see if Maddow’s assertion holds up in another prominent rights issue at the moment: the right to arms as conferred under the Second Amendment.  If there were a referendum in the United States to strike off the Second Amendment, it would be flatly weird for the NRA to come out saying: ‘Here’s the thing about rights.  They’re not supposed to be voted on.  That’s why we call them rights.’

Maddow’s assertion supposes that there’s some sort of right which exists prior to society conferring the right upon the individual.  This sort of right is somehow innate to the individual and inalienable.  How is it innate and inalienable?  Magic, perhaps?  God, maybe?

But let’s be extremely charitable and concede the lunatic idea that there are rights which exist prior to society’s conferral (rights to life, perhaps?), is the right to get married a right which exists in this way?

Marriage does not exist except within a social framework.  So Maddow’s argument would be that the right to marriage exists prior to the social establishment of marriage… which is clearly false.  It would be like saying that there’s a natural right to Internet access.  The Internet was created within a social framework, so any right to access it would have to be posterior to its invention.  The right to marriage cannot be prior to the social development of marriage.

Rights in the sense that we are debating when we talk about the right to marriage are creations of the State.  In a democratic society, those rights are conferred by voting (either directly or indirectly).  Therefore, there is no construction of her statement which is correct or helpful.

But it does make for snappy propaganda.


The Second Amendment: An argument against an Australian Bill of Rights #auslaw

I usually put some song lyrics in the title.  A few times now I’ve discussed issues where the fear of looking too glib has meant that I can’t go with that convention.  This is another of those.

First things first, I do not understand why civilians can purchase any kind of gun.  Even for farmers.  When I was a kid, we had guns on the property.  They were used twice: once to deal with a snake, another to deal (unsuccessfully) with a fox.  What sort of moron uses a gun to deal with a snake?  My father.  As I grew up, only the weirdo kids at school were into guns.  They were exactly the kind of people that you didn’t want anywhere near guns.  ‘Maaaate, we shot a defenseless creature.  Awesome.’  Although I know significantly fewer farmers now that I’m an employable nerd, the ones that I do know don’t have guns.  Or any interest in them.  In conclusion, why are guns able to be purchased by individuals?

Second things second, the shooting at the primary school was horrible.  I’m not usually the kind of person who gets emotionally affected by news reports, but this one made me feel ill.  There was nary a minute between seeing the item flash up on my newsfeeds before people went immediately to their stock standard battle positions regarding the Second Amendment.  What is it?  Are we that eager to have opinions about things?  Do we have such an incredible need to find somebody to blame (apart from the obvious person)?  It was just utterly vulgar.

Yesterday’s atrocity is yet further evidence why Australia should not adopt a Bill of Rights.

In 1996, the Howard Government was able to pass legislation to severely restrict the sale of firearms.  It was able to do this because there are very few restrictions on Parliament’s ability to pass legislation (provided there’s a head of power to do so).

When the drafters thought up the Second Amendment, they had no way of knowing that it would result in the school shooting.  No way at all.  When legislation is passed, it’s taken out of the author’s hands and into the legal ether of the court system.  It takes on a life of its own.  Some people might argue that this is a good thing: the Refugees Convention, for example, is doing things that the people who wrote it could not possibly have foreseen.  Other people (like me) look at this with a great deal of suspicion.  If the legislation is taking on a life of its own, how is it being controlled?  In whose interest is the legal principle morphing?

For most laws, there’s an easy remedy to this problem: pass a new law!  Intellectual property law is throwing up weird outcomes?  Law reform!  Contract law is throwing up weird outcomes?  Law reform!  Too many individual pieces of human rights legislation?  Omnibus law reform!

It’s bits of legislation which are difficult to change which throw up huge problems.  The Refugees Convention extends rights to asylum seekers tacitly.  Most of our problems in the debate is a result of people being imprecise with terminology.  If the Refugees Convention were easy to amend, it could be clarified to extend rights to asylum seekers.  Instead, we know that if the Refugees Convention were proposed today, nobody would sign it.  As a piece of legislation, it’s immutably stuck in the past.

Constitutional laws are similarly problematic.  Take section 25 of the Constitution:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

I still remember the ‘WTF?’ face I pulled when I first read that section.  Holy crap, it looks horrible.  Disqualifying races from voting?  Oh, those racist white male drafters of the Constitution.  What a bunch of racists.

It turns out that the person who proposed the section, Andrew Inglis Clark, was a progressive visionary.  Section 25 was a way of motivating States to be non-discriminatory in their electoral laws.  If the law of any State discriminates against a race in their electoral laws, the State will be penalised when it comes to representation in Parliament.  It’s really clever.

If you read the YouMeUnity document, you don’t get that background.  I guess ‘Be Informed’ just means ‘Here is the information we want you to have’.  Informed referenda are, it seems, overrated.

Section 25 now looks like a weird bit of historical quirk.  Do we still need this protection in the Constitution?  On the other hand, do we gain anything by removing the protection?  All interesting ideas that you won’t find explored on the websites of people interested in the proposed referendum.

Other sections of the Constitution have played out strangely and, indeed, completely contrary to what the drafter (or, especially, Sam Griffith) thought they would.  Consider  s51(xxxv):

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State

Until the Engineers’ Case, nobody would have thought that this line would signal an end to implied intergovernmental immunities.

Sir Isaac Isaacs sure showed them.

Short of a referendum, Sir Isaac Isaacs breathing life into the conciliation and arbitration power will be the moment where the course of Australian law changed.  Sure, he got it right on this occasion (screw the States) but this could have gone in an entirely different direction.

And that’s the problem with Constitutional rights.  You don’t know now how the right will end up being deployed tomorrow.  Having a well regulated militia for the security of the State probably sounded like an intuitively obvious assertion back in the 1700s.  Today, we’re affected by another gun-related tragedy.

What will grow crooked you can’t make straight… but you can play with electoral systems

One of my favourite conservatives was Lewis Carroll.  Sure, it’s mostly because he gets all grumpy old man about Euclid, but it’s also because of his depth of thought regarding his conservative ways.  It’s not the nasty, petty, moral panic conservatism that’s far too common today.

But one of the other reasons I love him is because of his ideas about democracy.  Possessing a remarkably analytical mind, he wrote a few amazing pieces on electoral processes.  I wrote about his views on preferential voting here.

He also wrote about constituencies which were represented by several members of the lower house.  While thinking about the history of elections in Australia as a sad history of Simpson’s Paradox, I wondered if multiple representation might be a way out of the puzzle.

I’ve been trying to work out how it could work.  At each election (and increasingly so lately) about half of the population ‘misses out’.  Liberal supporters in the Federal seat of Melbourne, for example, preferenced Adam Bandt.  It seems unlikely that he is representing their views in Parliament.  Similarly, ALP voters whipped into a panic about the threat of the Greens preferenced the Liberal Party, only to find their elected candidates trying to wreck good policies and making asinine comments about homosexuals (oh wait… both parties are doing that). Continue reading “What will grow crooked you can’t make straight… but you can play with electoral systems”