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A free vote on equal marriage

December 13th, 2013

The High Court has ruled, correctly in my view, that the ACT legislation which briefly established equal marriage was in conflict with Commonwealth Law clearly intended to do the opposite, by defining marriage as “between a man and a woman”. We might not like the practical result, but consider how things would be if the court had gone the other way and was then confronted by a state trying to ban equal marriage after a change in Commonwealth law.

And, this is clearly a matter for the Commonwealth to decide. Abbott implied before the election that he would be open to a free vote in the New Year[1], and Labor should push him on this. The politics of this are pretty awful for Abbott – he’s using his control of the LNP to block a reform supported by the majority of Australians and already in place in most civilised parts of the world. On recent form, he’ll probably try to tough it out for a while, but will cave if enough pressure is applied.

The final question is whether equal marriage would pass on a free vote. The last vote wasn’t encouraging, in view of the number of Labor members who opposed it, but some of them have gone and others, I think, have followed Rudd and Obama in “evolving” on the issue. The Nats will presumably be solidly against, so the real question is: how liberal are Liberals?

fn1. In my view, Rudd should have bitten the bullet after his change of view, and demanded a free vote from Abbott (the alternative being a party line vote with Labor and Greens in favor). But, the same advisers who gave us the early election and the Northern Australia nonsense thought otherwise, with results we now have to live with.

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  1. Sam
    December 13th, 2013 at 09:02 | #1

    I was deliberately not paying much attention to Aus politics in the month leading up to the election. What did the advisors have to say about Northern Australia?

  2. Troy Prideaux
    December 13th, 2013 at 09:23 | #2

    George Brandis continually told us that the whole gay marriage thing was a “low priority item” on the Governments agenda. That was until a Territory tried to legislate their own laws allowing it – funny how things can turn from “low priority” to CODE 1 DELTA EMERGENCY(!!!) overnight 🙂

  3. I used to be not trampis
    December 13th, 2013 at 09:26 | #3

    equal marriage is exactly what?

  4. Megan
    December 13th, 2013 at 10:07 | #4

    The ACT’s argument was that their law explicitly dealt with ‘marriages’ which were clearly excluded from the Cth’s Marriage Act – by the 2004 amendments – and therefore there was no constitutional conflict.

    The High Court said the Cth very clearly has the constitutional ‘marriage’ power and whether they elect to restrict marriage or extend it makes no difference. The ACT can’t try to pick off one type of ‘marriage’ on the basis that the Feds aren’t using it.

    The ACT argument was so obviously doomed it makes you wonder if they ever really thought it would fly. Maybe the whole exercise was tactical in a long game?

    As I’ve said before, I believe most Australians couldn’t care less one way or the other and there are two small but very loud camps making this appear to be an issue of huge international significance (ie the same thing is going on around the world). Tony Windsor put it well when asked for his view on the subject: “I don’t care, as long as they don’t make it compulsory”.

    I’m more concerned about things like the kids droned to death today. In my mind that’s a big issue.

  5. Tyler
    December 13th, 2013 at 10:46 | #5

    The court decision was helpful in clearing up the constitutional grounding for a federal same sex marriage law. That will prevent any meaningful challenge to it once a bill is finally passed in parliament.

    The answer to john’s question is it doesn’t have a chance in a liberal dominated parliament. Look at every vote on the issue at a state level and you’ll see a small minority of liberals in favour. Even so-called ‘moderates’ like joe hockey refuse to let go of their reflexive homophobia, the unfortunate reality is that the only way a vote passes in the HoR is after a strong labor victory.

  6. derrida derider
    December 13th, 2013 at 10:57 | #6

    I think I know the ACt Labor/Green strategy, Megan. Firstly, pure politics – they can tell their people “well, we tried”, even though they were fully aware it would never stand up in court. Secondly it does gets the issue on the front page, which may push the Commonwealth to act.

    But there’s little doubt a free vote in the current parliament would not repeal Howard’s Marriage Act, and the ALP split would be nastier than the coalition’s (in the coalition they’d just sigh “there goes that wet Malcolm again”, while on the ALP side it’d be “the #$%^ shoppies are defying the membership again”) . I reckon Abbott will make both calculations so I expect him to actually push the issue – it won’t be “caving in” on his part at all.

  7. Troy Prideaux
    December 13th, 2013 at 11:00 | #7

    LNP senator (and floor crosser) Sue Boyce disagrees – she said in a radio interview earlier in the week that if a proper conscience vote was allowed, it would probably get up. The US Republicans have given up this fight and it’s only a matter of time before our neocons follow suit.

  8. Tyler
    December 13th, 2013 at 11:05 | #8

    She overestimates her colleagues, There are perhaps half a dozen who are publicly open to gay marriage, dozens including the PM who are actively and vocally opposed and then another group who still want some inane compromise like civil unions.

    They may pass a vote in the senate, the HoR is a completely different story.

  9. December 13th, 2013 at 15:14 | #9

    “…. a reform supported by the majority of Australians… ”

    It not supported by the majority of Australians. Leaders of the push for equal marriage know this, which is why they will do anything to avoid a referendum on the issue. For they know what the Australian public will say.

  10. Tyler
    December 13th, 2013 at 15:25 | #10

    no they oppose a referendum because it’s a simple policy change not a constitutional issue. It’s far harder to pass a referendum than a bill through the parliament which is precisely the reason you bigots keep trying to shift the goalposts in that direction

  11. TerjeP
    December 13th, 2013 at 23:24 | #11

    Abbott implied before the election that he would be open to a free vote in the New Year[1], and Labor should push him on this.

    Actually he said the Liberal Party position would be decided by the party room, which is not quite the same thing. If 51% of the party room oppose a free vote then presumably their won’t be one.

  12. rog
    December 14th, 2013 at 04:40 | #12

    @TerjeP A free vote to decide on a free vote?

  13. rog
    December 14th, 2013 at 04:41 | #13

    @I used to be not trampis Equal marriage signifies that people not govt arrange their lives.

  14. Fran Barlow
    December 14th, 2013 at 07:19 | #14

    I do see the rationale for PrQ’s position on the HCA ruling, but it’s still a body blow to the proponents of SSM. A potential breach in the wall has been temporarily filled and the homophobes have had a substantial win. People who wanted their common humanity recognised by access to the rite of marriage on a non-discriminatory basis have been told that this is a bridge too far.

    Humanity (or at any rate the part of it here in Australia) is somewhat the culturally poorer today. An offence that we might have made progress in subverting remains robust. The HCA ought to have accepted the loophole.

  15. rog
    December 14th, 2013 at 08:14 | #15

    @Fran Barlow HCA said that there is no lawful reason for equal marriage to prevail, the only obstacle is political. This then puts the pressure back on parliament who should give good reason to not act lawfully.

  16. rog
    December 14th, 2013 at 10:55 | #16

    @rog That should be “to not prevail….”

  17. Chris Lloyd
    December 20th, 2013 at 21:41 | #17

    The ACT statute was pretty outrageous. The Cth specifically described marriage as between male and female and some too-clever-by-half lawyers thought that this circumscription of the definition meant that SSM was then outside Cth jurisdiction. If Australia is to have SSM then we should decide it democratically, not be tricked/forced into it by legal sophistry.

  18. Alan
    December 21st, 2013 at 07:31 | #18

    @Chris Lloyd

    Which specific sections of the Marriage Equality (Same Sex) Act 2013 you regard as:


    *trickery (that title looks particularly misleading to me)

    *an example of legislation by force (details of the military units deployed to secure passage for the act here, please)

    *an example of legal sophistry

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