A PROMINENT Australian judge has joined the ranks of an increasing number of voices who are speaking out against the proposed marriage equality plebiscite, favouring a parliamentary vote in its place by our elected officials.
Michael Kirby, who served as a Justice of the High Court of Australia from 1996 to 2009, detailed his objections to the process in an opinion piece published in The Australian.
“The elected politicians should get to work on what we the people elected them to do — to decide on the law, one way or the other, in parliament. Not at the hustings. Ten reasons have brought me to these conclusions.”
Kirby argues that the plebiscite is an exception to Australia’s constitutional procedure and is not the way things are generally done.
“Under the Constitution we make laws in parliament, through decisions voted on after recorded debates by the parliamentarians we elect to represent us,” he writes.
“A plebiscite has no place in the constitutional arrangements that, since 1901, have governed the way we make laws.”
The former judge suggests the process of a plebiscite is destined to fail, going into the precedents set in Australia over the past century.
“The proposed plebiscite on marriage is the first such attempt in nearly a century,” Kirby writes.
“Our record on constitutional referendums is abysmal. Only eight have succeeded in 115 years despite 44 attempts.
“There is no reason to think a plebiscite on same-sex marriage will be different, particularly with several political parties opposing a yes vote.”
Kirby believes that whatever the outcome, a dangerous precedent will be set that can’t be undone.
“Complex, sensitive, issues are better decided after debate in parliament, not in the heat of public division and emotional campaigns in the community,” he writes.
“If a plebiscite is held, it could become a bad precedent to be copied when other controversial questions come before parliament. This would further weaken our governmental institutions at a time when they need strengthening, not weakening.”
He went on to echo sentiments spoken time-and-time again by advocates against the public vote, who argue that a plebiscite would be a harmful process that would subject minorities to bigotry and hatred.
“A plebiscite campaign unfortunately would be likely to bring out hatreds and animosities in our country that are bad for minorities generally and for the lesbian, gay, bisexual and transgender minority in particular,” he writes.
“It is exceptional and wrong in principle to commit decisions on the basic human rights of minorities to a majority popular vote, especially in a country such as Australia which, exceptionally, has no entrenched constitutional guarantees for equality or fundamental human rights to protect minorities.
“For protection, minorities look to parliament to protect them. It should not shirk from that duty.”
Kirby believes those behind the push for a costly plebiscite aren’t hoping for a favourable result.
He was of the opinion that marriage equality is inevitable.
“A defeat in parliament alone would do no more than delay the inevitable for a short time,” Kirby writes.
He suggested that Australia would only be damaging their reputation on an international stage in the mean time.
Kirby, who came out as a gay man in 1999, went on to speak about his own relationship. While still being undecided on whether he wants to get married himself, he believes LGBTI people deserve that choice.
“After so much time, our relationship is not doubtful for us,” he writes.
“However, we certainly consider that marriage in Australia should be available to LGBT citizens, the same as for other personal relationships, to help sustain the couple, families and good health in a country whose Constitution provides for a secular society.”
Kirby called on the senate to deny their support for a plebiscite.
“This would release the Prime Minister from his commitment to a plebiscite that he inherited on his election to that office,” he writes.
“It would return Australia to its normal constitutional arrangements. Under these, Australians do lawmaking in parliament, not plebiscites.”
Michael Kirby spoke to Star Observer last year about his own coming out process and his long term relationship with his partner.