SUBJECT/S: Marriage equality plebiscite

KRISTINA KENEALLY, HOST: Welcome back to the Point, we’re now joined by Shadow Attorney-General Mark Dreyfus joining us out of Melbourne, thanks for coming on To The Point this afternoon.


KENEALLY: Good good, let’s go right to it, the same-sex marriage plebiscite. We heard over and over in the campaign Labor was going to legislate in its first 100 days if it was elected, we haven’t really heard yet a firm commitment one way or the other. Is Labor likely to try and reintroduce that legislation into the Parliament?

DREYFUS: That remains our position that we think that this should be a matter for the Parliament. And what’s really disturbing Kristina is to see the way in which we’ve got the right of the coalition running away from even holding this plebiscite. So during the campaign no details on what the plebiscite was going to look like, during the campaign Mr Turnbull, Senator Brandis saying that we were going to have the plebiscite as soon as possible but now we hear from Senator Abetz that perhaps it’s going to be next year and there’s no particular hurry to hold it.

KENEALLY: So would you be trying to possibly force the issue by introducing legislation to Parliament to get the Parliament to vote on it? Is that part of the strategy here to try and force the issue on to the coalition?

DREYFUS: We had a private member’s bill last Parliament which the government wouldn’t let be put to a vote, we still think that this should be a matter that the Parliament can legislate on and that Mr Turnbull should be getting to the position where there is a free vote for coalition members because we’re confident that this would actually  pass the Parliament. All we’ve got with this plebiscite is a costly, waste of money…

PETER VAN ONSELEN, HOST: Mark Dreyfus if I can just jump in, sorry to talk over you there, but you know the government are going to use their numbers in the lower house to vote down any private members’ bill as much as you or I or Kristina Keneally might think a vote in the Parliament is the better way to go, they’re not going to let that happen. They’re going to have this plebiscite. And you’re right, people like Eric Abetz are trying to have it delayed, but he’s not on the executive anymore, he’s obviously opposed to this, I don’t like the idea that there is a free vote at the end of a plebiscite any more than I suspect you do. But the big question here is has Labor made a decision yet, when the government rejects your position on a free vote and when it does put up its legislation on a plebiscite, has Labor made a decision yet firm or otherwise whether it will support that through the Parliament or block it?

DREYFUS: We don’t even yet know what this plebiscite looks like. Not one single detail. Not when it’s going to be conducted, not how the count is going to be managed, not whether or not there’s going to be public funding for what looks like being a dreadfully divisive, damaging “no” campaign. None of those details are available. It’s not like a referendum where the process is known because it’s set out in the constitution. This will be a first for Australia, we’ve never had a plebiscite on a legislative matter like this. Nobody knows what they mean…

VAN ONSELEN: Can I ask you a question, putting your knowledge of parliamentary process hat on for us Mark Dreyfus, what actually is the process in terms of if it passes the Parliament, presumably then it can have, if they choose to do this, public funding attached to it, be it a compulsory plebiscite etc – and this is my real question – if they can’t get it through the Parliament and they decide that they want to have a plebiscite anyway, what are the restrictions on that? Are they not allowed to give public funding? Are they not allowed to make it compulsory? What are the rules?

DREYFUS: Well all actions of government need an appropriation, that’s the starting point, and there will need to be parliamentary authorisation for the expenditure of a large amount of money to conduct the plebiscite. But you then get to other questions, like will the voting in the plebiscite be compulsory? In order for it to be compulsory, you need to pass a law. There needs to be legislation. And I think simply to hold this plebiscite there will need to be legislation. It’s something of a myth that somehow we can hold this plebiscite without there being any legislation. That’s not so.

KENEALLY: So is the compulsory nature of the vote one of the key things that Labor would be looking at, say we do get to a piece of legislation, it would seem to me at least, it would seem like that would just be a deal-breaker. How could you support a plebiscite that didn’t have a compulsory aspect to it?

DREYFUS: Well quite so and you’re right to point to that as a really important feature of how this plebiscite is going to be conducted. I think that Australians are very accustomed to what is a fine feature of our parliamentary infrastructure and that is compulsory voting. I think that it would be a matter of tremendous argument if the government were to somehow come up with a model that said oh we’re going to have this plebiscite but we’re not going to require people to come and vote.

KENEALLY: Can we just take a step back and, I accept your argument that it would be hard for the government to introduce a plebiscite without legislation, but have we had recent examples – I can’t think of any off the top of my head – where we’ve actually used a plebiscite in Australia in a nationwide poll? And have we got good experience? We’ve got plenty of experience of referendums, and we know how hard those are to get up, but even take us through then if there is a plebiscite, presumably it does or it doesn’t have to abide by the same rules for success that a referendum does? A majority of states and a majority of voters. Are these things you would wait to see the legislation for or are these things that we know now?

DREYFUS: We have to wait to see the legislation because it’s unprecedented to use a plebiscite in a legislative contest like this. We’ve only ever had one plebiscite in living memory, that was to choose the national anthem, obviously an important matter but hardly legislation. And just to give you another example, you could put into this legislation to establish the plebiscite a requirement that the Parliament is in effect legislating in advance to make the small change that is required to the Marriage Act so that the plebiscite would determine the end result. Alternatively you could provide for a different kind of plebiscite which is simply a large opinion poll. Until we know what path the government is going to go down it’s completely premature to ask for Labor to adopt some position.

VAN ONSELEN: Well for what it’s worth Mark Dreyfus I’m very clear on this, I think that a plebiscite is not only a waste of money, not only a breach of our representative democracy and more akin to Greek-style participatory democracy from thousands of years ago, but also it’s potentially harmful from the experience that we saw happen in Ireland where they didn’t have a choice, it had to be a referendum because of the constitutional change. We do have a choice here; I think it should be a free vote amongst our Parliamentarians. I know you agree with that. Having said that though, as dumb an idea as I believe this is, where does it stop in terms of plebiscites? Don’t you think it was a bit silly that during the campaign, just as a slight side issue, that Bill Shorten announced a plebiscite on council amalgamations? This is the problem; everyone starts talking about plebiscites rather than you guys in parliament just doing your job.

DREYFUS: Well that’s of course got a history – going back to something that he Howard Government provided for in relation to the same subject which is local government matters. And of course the Australian Electoral Commission is empowered to conduct elections not only for national polls but also to conduct elections for anyone that hires it including unions who use the services of the AEC and of course potentially state governments as well, and that was simply putting forward what I think to be the correct proposition which is that the people of NSW ought to be asked what is their view before the government proceeds to wholesale amalgamations.

VAN ONSELEN: Can I just go back to, just a very quick point of clarification, is there no way they could hold this plebiscite if it doesn’t pass the Parliament without appropriation bills, just by eating into the funding envelope of the AEC for example? It’d have to be non-compulsory though, we know that and a lot of people wouldn’t like that. Is that a practical option they have to be able to hold it even if the Parliament rejects it?

DREYFUS: I don’t think that the AEC is that big an organisation that it could afford to carry $160m of expenditure just to hold the plebiscite itself and that’s before you even get to the additional expenditure that is being envisaged to fund yes and no campaigns. Particularly the “no” campaign, where the various groups, social conservative groups, you can call them, are asking not just for money from the Commonwealth to conduct this “no” campaign, they also want to be exempted from anti-discrimination legislation to boot, which gives you some idea of the kind of campaign they are proposing to run.

KENEALLY: It sounds, Mark Dreyfus, like there are a few hurdles before Labor would even contemplate supporting the same-sex marriage plebiscite. Tell me if I’m wrong here but certainly that it is compulsory and secondly that it would have a binding result on the Parliament, that is that people couldn’t have a free vote after the plebiscite, that they would have to honour the results of the plebiscite. It sounds to me like those are two hurdles before you would even contemplate supporting that legislation.

DREYFUS: That’s right, and as I say, we have to wait to see what this legislation looks like before committing to a position, but from where I’m standing now, this is the delaying tactic invented by Tony Abbott to get him past a problem in his party room in August 2015. It’s still a delaying tactic and worse it’s now being used by conservatives like Senator Abetz to say oh well we don’t even have to have it this year.

KENEALLY: It does seem like it’s possible though that we could just go through this whole term of Parliament and still not consider this question. It won’t get voted on in Parliament, it will somehow get delayed or shut down by the Parliament as a plebiscite, is that an outcome here, that we could be staring at? Three years where we still haven’t answered this question?

DREYFUS: It’s a matter for the government, and the coalition having scraped back in by the narrow majority that they have obtained, those of course are Senator Abetz’s words, it’s the coalition that will make the decision here. And we’ve now got a new voice in the debate which is Pauline Hanson saying that she wants to have an actual constitutional referendum going in the other direction. Those are the difficulties we now have ahead of us.

VAN ONSELEN: A quick one for you Mark Dreyfus, what’s your view philosophically speaking on people who have been advocating having a plebiscite also arguing that they are allowed to not adhere to the results, i.e. vote against it even if it’s successful. Do they try and flip that on it’s head and say well what about those people who are in favour of same-sex marriage will they abide by a referendum or a plebiscite result that goes the other way? My argument with that is always well hang on, they’re not arguing for the plebiscite so they can do whatever they want. I would have thought philosophically speaking if you advocate for a plebiscite, fine. If the outcome you don’t like, if it goes against say your religious principles, then abstain from the vote. But I think it’s bizarre that you would think it’s then OK to go against it.

DREYFUS: Well I agree with that. We’ve had to…a bit of this came up during the campaign in the latter weeks of the election campaign, where various conservatives in the coalition ranks developed this phrase, we will “respect” the result of a plebiscite if and when it is held, what that turned out to mean in the case of say Senator Seselja was not that he would vote in accordance with the expressed will of the Australian people, but rather that he would quite possibly abstain, taking the route that you’ve just suggested. So far from it being something that is binding, far from it being something that is determinative, it’s clearly seen by people on the right of Australian politics as just a delaying tactic, which gives them the right to fight another day even if they lose. And you are left asking, what is the point of a plebiscite in those terms?

VAN ONSELEN: Sorry I just wanted to ask one quick one of Mark Dreyfus, what’s changed so much in less than three years to when Labor was in power for six years and same-sex marriage wasn’t legislated, it wasn’t put to a free vote or anything of the sort and I know that a Labor government over those six years did a lot to equalise rights around things like superannuation but what has just changed so much that suddenly so many people are now suggesting that it’s just a foregone thing and there should be this free vote on same-sex marriage?

DREYFUS: I think, I mean this has been a long movement here. You’re right Peter to point to the fact that Labor in government removed discrimination against same-sex couples from around 88 pieces of commonwealth law, and now we’ve got to a very clear position in favour of marriage equality. And I think – you can muse about what’s got us to this position but in large part it’s got to be that most of the developed world has now moved to this position where we’ve got the United States with marriage equality, Ireland, widely regarded as a socially conservative country and certainly a deeply religious country, in some senses, it has marriage equality. All of Western Europe has marriage equality and New Zealand, just across the Tasman, has marriage equality. Australia is now lagging behind like countries.

KENEALLY: Alright Mark Dreyfus we’ll have to leave it there, we’ll wait and see if we do take that great leap forward in this next term of Parliament. Thanks for joining us on To The Point.