Inquiry into the matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia

Liberty submits that neither a referendum nor a plebiscite is an appropriate method to address matters of equality and human rights. Liberty urges the committee to reject the proposal, but to recommend instead that a Bill to amend the Marriage Act 1961 - to provide for equality in access to its provisions, regardless of the sex or gender of the parties - be enacted as a matter of urgency.

The attempt in Clause 3(2) to make the result of a plebiscite bind the government or parliament elected at the concurrent election is quixotic at best. It cannot be done, and if the Parliament and Government were inclined to legislate for marriage equality it would not be necessary anyway. This will be the case if there is a change of government (as noted above).

The inclusion by reference of the provisions, as relevant, of the Referendum (Machinery Provisions) Act 1984 seems likely to mean that even a plebiscite will only be seen to have been carried if carried in both absolute majority and in a majority of states. While the anxieties of the smaller colonies at being outvoted by more populous ones made that double majority requirement in the Constitution understandable in 1899, its repetition in the machinery legislation seems overkill for a plebiscite.

It is a pity that the Statement of Compatibility with Human Rights contained within the Explanatory Memorandum, while narrowly appropriate, does not consider the wider human rights implications of the effect of the Bill, such as the mental health harms that a plebiscite and the ugly community conversation it will entail may cause. Human rights must be considered in relation to the well-being of people, not merely the letter of the law. In the opening words of the UDHR  "All human beings are born free and equal in dignity and rights." Will the plebiscite lead to public language and commentary that respects the dignity and enhances the rights of a long persecuted and discriminated against minority; or not?


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