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'It's important the government made it look like it was letting people 'have their say''

Australia could learn from the Irish experience, writes Dr Brian Tobin.

Dr Brian Tobin Law lecturer

THE AUSTRALIAN PRIME Minister Malcolm Turnbull recently raised the possibility of a “postal vote” on marriage equality in Australia in the coming months.

Unlike the Marriage Equality Referendum, which guaranteed a change in the law here in Ireland following a successful outcome, the result of this postal vote would be non-binding on Australian politicians; Australia’s Federal Parliament could still decide whether or not to legislate for marriage equality following the outcome of the postal vote.

Striking similarities

Despite this practical difference between the outcome of our constitutional referendum process and that of a postal plebiscite, there are striking similarities between the meandering political approaches to marriage equality in Ireland and Australia.

The High Court in each jurisdiction indicated that it was within Parliament’s power to simply legislate for same-sex marriage, but the political will to do so simply did not exist and a circuitous yet similar route to attempting to achieve marriage equality was adopted by the governments in Ireland and Australia.

in Ireland, a Constitutional Convention was established by the Fine Gael/Labour coalition in 2011 to consider whether provision should be made for marriage equality in our Constitution. The Constitutional Convention was comprised of a chairman and 33 Members of Parliament, but the vast majority of its members were ordinary citizens, 66 to be precise.

In 2013, a majority of the members of the Constitutional Convention voted for marriage equality to be enshrined in our Constitution. Since amending our Constitution requires a referendum where a proposal to amend is put to a vote of the Irish people, the then Fine Gael/Labour coalition government committed itself to holding a marriage equality referendum in 2015.

A political masterstroke

However, the coalition government should not be lauded for agreeing to hold a referendum on this significant human rights issue – it only agreed to do so because the Constitutional Convention, a body comprised largely of ordinary Irish citizens, voted in favour of including marriage equality in the Constitution.

Indeed, sending the divisive issue of marriage equality to the Constitutional Convention for deliberation was something of a political masterstroke. If the Fine Gael/Labour coalition had simply announced that it was holding a referendum on the issue without any intervention from the citizen-led Constitutional Convention, it might have lost much public support from those in Irish society opposed to such a move.

Instead, the government made it look as though it was giving the Irish people the chance to “have their say” through a referendum, because this is what the Irish people, as represented by the members of the Constitutional Convention, had indicated that they were in favour of. In May 2015, the Marriage Equality Referendum was a resounding success, making Ireland the first country in the world to legalise same-sex marriage by means of a popular vote.

Australia’s proposed “postal vote” on marriage equality is as politically convenient as Ireland’s Constitutional Convention was. As a voluntary nationwide opinion poll with an estimated AU$122 million price tag, the postal plebiscite is simply a far more extensive (and expensive) means of gauging public opinion on marriage equality before the current Australian government commits to allowing a free vote on the issue in Parliament.

Letting the people “have their say”

Similar to the experience here in Ireland, Australia’s current political leaders are not willing to make marriage equality a reality without first letting the Australian people “have their say” via some ostensibly fair and transparent medium.

However, if the Australian government is so resolutely committed to letting the nation decide the issue by means of a non-binding postal vote, then it should attempt to go one significant step further and hold a marriage equality referendum, whereby the nation’s decision would be binding and lead to marriage equality being enshrined in the Australian Constitution, just as it was enshrined in the Irish Constitution following the successful referendum result here.

Although Australian LGBT people would be subjected to heated and often hateful anti-LGBT debate during a referendum campaign, just as their Irish counterparts were in early 2015, they will also be subjected to this with a postal plebiscite and at least a successful referendum result would provide greater protection for marriage equality than legislation.

Indeed, any legislation providing for marriage equality could hypothetically be repealed by a future anti-LGBT administration in Australia. Making marriage equality part of the Australian Constitution would ensure that only the Australian people themselves, through a future successful referendum, could ever remove the constitutional protection for marriage equality.

Since the politico-legal approach to marriage equality in Australia has mirrored Ireland to quite an extent thus far, maybe Australia could learn from the Irish experience.

Dr Brian Tobin lectures in law at NUI Galway.

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About the author:

Dr Brian Tobin  / Law lecturer

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