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So, we're having a plebiscite. But what's the question?

By John de Meyrick - posted Wednesday, 30 March 2016


The Attorney-General, Senator George Brandis, has indicated that the question to be put to the public on gay marriage and the Bill to approve the forthcoming plebiscite, will not now be drafted until after the next election which is likely to take place on 2 July this year.

Whatever that question may eventually be, it is sure to displease many voters on either side of the debate.

A number of unofficial polls has already been conducted on this subject. But as professional pollsters know, one should always question the question, because a question can be formulated in a way that predisposes the answer.

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This occurs because questions, even in everyday conversation, can more often evoke ready responses based on mindless perception rather than on reasoned understanding of the issues involved.

So, despite the weight of privately-run polls in favour of gay marriage, the government is justified in conducting its own official plebiscite, the outcome of which no one should then doubt.

But how will the "official" question be put? How balanced will it be? And will it be left to a mind-jerk response or set out with arguments and debate for and against (as is the practice with referenda)?

Having regard to the various failed attempts to recognise gay marriage in federal legislation, the question will possibly be something like: "Do you agree to the alteration of the definition of 'marriage' in the Marriage Act 1961 to include same-sex unions?"

That may satisfy those who are fed up with the whole issue and who are ready to say "yes" to anything that will have it over and done with, but it is certain to be howled down by those who are already bracing for the fight.

The problem is, this issue cannot be answered by just one question. It is much more complex. It's an apples and oranges situation trying to be made into a new kind of 'fruit'.

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It can be taken that the proponents at the extreme ends of the issue on either side will be against whatever question is put. Nothing will satisfy them. At one end they see same-sex unions as immoral, indecent and an abomination. At the other they cannot see, and are unwilling to recognise, any difference between same-sex unions and traditional heterosexual unions.

To fair-minded thinking people in the middle, the real difficulty lies in the meaning and diverse use of the word "marriage".

In so far as marriage means the declaration of love and the commitment to live and to share life together, and to demonstrate that commitment by way of a solemn ceremony, with or without a celebration and a private time to enjoy the beginning of that undertaking, then who should deny such occasion to any two persons of whatever gender.

But beyond that, marriage has a different meaning, and a purpose which same-sex unions cannot properly claim nor satisfy. It is here that the assertion of equality becomes absurd. The relationship is not the same. Not superior. Not prevailing. Just different.

So the likely question that heterosexuals would be asked to agree to, is that their traditional kind of marriage be regarded and defined as no different to a same-sex kind of marriage. That is illogical.

It is this factor which troubles many heterosexuals who are supportive of gay marriage but object to any change in the perception and status of traditional marriage becoming one and the same as gay marriage.

Those who see the issue in that way may well go for logic and tradition rather than empathy, with a significant loss of votes for the same-sex cause.

It is also unreasonable and absurd to be altering a time-honoured, fundamental definition that applies (according to a recent survey) to 96.5 percent of the adult population who are heterosexual in order to resolve a nagging, but genuinely-held, cause for the other 3.5 per cent of the population who are not.

The sensible and reasonable middle-way for all concerned is to leave the definition of traditional marriage alone and to recognise same-sex unions in separate legislation with their own definition of marriage. (That approach was widely accepted by moderate gay marriage advocates when the ACT Assembly passed such an Act that was over-turned by the High Court in 2013 on the basis of non-jurisdiction.)

The question to allow for this option, even as an alternative, would need to be something like: "Do you agree to same-sex unions being defined and recognised in their own marriage act?" Having regard to all the arguments, who but those at the extreme ends of the debate could disagree with such a proposal?

After decades of political resistance to the recognition of gay marriage, the slow-moving tide of public opinion has swollen into a major social tsunami, even if much of it is disinterested heterosexuals caught up in a feel-good swell of trendy, who-cares sentiment and who just want to have it resolved and out of the way.

The problem now is that in the clamour of political mind-changing and confusion the result is likely to end up in the creation of a legal fiction. Defining traditional unions as one and the same thing as same-sex unions. They're not, and never can be.

To further confuse the issue, the holding of the proposed plebiscite after the next election on the contention that it would avoid being a distraction in the election, is ill-considered. The Opposition is sure to trumpet: "Vote for us and save at least $160 million of taxpayers' money and another voting day to turn out for an unnecessary, plebiscite". That is sure to appeal to many fed up voters.

It should also be noted that section 245(1) of the Commonwealth Electoral Act 1918, only makes voting compulsory for an election and, as a plebiscite is not an election, it will not be compulsory for anyone to turn up to vote for or against whatever the question may be (unless the Bill to hold the plebiscite so provides).

That could mean a very large, disinterested number of those who are entitled to vote and who regard the issue to be an already forgone conclusion and a waste of time and money, will not bother to turn out at all, leaving the question to be decided by the entrenched combatants.

The result could well end up being a fiasco with one side or the other having a majority but which is less than fifty percent of the electorate.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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