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Day to Day Politics: A “dangerous precedent”

Friday 11 August 2017

1 Former High Court Judge, and International Jurist, Justice Kirby has labeled the non-binding, non-compulsory postal plebiscite a sham and will not be participating. When a plebiscite was first suggested he said the decision sets a ‘dangerous precedent‘.

The plebiscite infers that in the future, questions that concern the liberties of minorities should be settled according to the majority view, instead of the reasoned debate of elected representatives who are directly accountable to individuals in their electorates.

The consequences are potentially awful. If it’s right to hold a plebiscite on gay marriage, why not hold plebiscites on other issues that upset people, like the niqab, circumcision, abortion or the right to die? The majority won’t always prove sympathetic, nor will it always get Parliament out of a tight spot. What will Parliament do, for example, if the plebiscite fails? The issue won’t go away, but the politics will become constitutionally horrible.

Imagine if the Parliament of 1902 had chosen to decide on female suffrage via a plebiscite, and that had failed.

Parliament would have been hamstrung for years. By abdicating responsibility, Parliament is ducking its historic duty to protect and further our liberties.

Too late, members may realise that by ceding power on this issue, they will have dealt Parliament its biggest blow since federation.

Consider this: The astute logical and prodigious mind of Kirby reminds us that we didn’t hold plebiscites when legislating on equality issues for Aborigines, women, the disabled and the dismantling of the White Australia policy. Instead, ”the Parliament simply did what it was paid to do and voted.” Kirby continued:

To this list should be added Mr Howard’s 2004 amendment to the Marriage Act, specifically banning same-sex marriage. We were not offered a plebiscite for this change – why then is a plebiscite now being foisted on us to un-ban it? I think we know why – it is called ”passing the buck”- all 120 million of them.

2 Former Prime Minister John Howard, yes the one that didn’t require a plebiscite when he wanted to change the marriage act, has decided to join Tony Abbott on the NO vote side. No doubt they will destroy the niceties of pleasant discourse.

Both belong in a world that no longer exists. In a past long forgotten. For them this is not only about equality but the defense of class and privilege. It’s a world where people should know their place.

3 Are you aware that because the plebiscite is being conducted by the Australian Bureau of Statistics and not the Commonwealth Electoral Commission, that the normal rules, or safeguards that apply to the Commonwealth Electoral Act, will not apply? Yes, that’s right. It means that both sides of the marriage equality debate will be free to distribute misleading and deceptive material ahead of the same-sex marriage postal vote, because the usual campaign rules have been discarded. It will be open slather for insults.

Honestly, they really haven’t thought this through and the High Court should knock it on the head at its first opportunity.

Senator Cormann said that “the usual laws apply” regarding fraud and mail theft, but acknowledged there would be no legal protections for LGBTI people who fear they will be the victims of a vicious two-month hate campaign.

As Penny Wong said in the Senate:

Have a read of some of the things which are said about us and our families and then come back here and tell us this is a unifying moment.

The Australian Christian lobby described our children as the stolen generation. It is not a unifying moment. It is exposing our children to that kind of hatred.

An observation

Religion in many ways is akin to Politics in so much as it believes that telling the truth isn’t necessarily in its best interests.”

Another observation

Why is it that religion assumes it has some bizarre ownership on people’s morality. To assume that an atheist is any less moral than someone religious is an absurdity.”

4 The problem with all this irrational thinking is that there is no leadership. Turnbull may be a brilliant man but he seems unwilling to confront, on any issue, those who are of extremist views within his party.

Thomas Jefferson often referred to the term good government. In his opinion, the Government ought to be judged by how well it meets its legitimate objectives. For him, good government was the one who most effectively secures the rights of the people and the rewards of their labour, which promotes their happiness, and does their will.

For instance, he said: “The care of human life and happiness and not their destruction is the only legitimate object of good government.”

I have not written on the same subject for three consecutive days before but this issue has now turned into not just a vote about Marriage Equality but also the way we do democracy. As Justice Kirby said; the decision sets ‘dangerous precedent’ “.

My thought for the day

“I have come to the conclusion that one of the truly bad effects religion (any religion) has on people is that it teaches that it is a virtue to be satisfied with not understanding.”


  1. Terry2

    I see that former Justice Kirby has now modified his position and will vote yes if the High Court challenge to the postal vote fails.

    What concerns me most about this is that the parliament has voted down a plebiscite on two occasions so the government cannot appropriate the money necessary for a plebiscite without that authority. So they have taken an unusual approach and are intending to bypass the parliament and take the $122million out of consolidated revenue and give it to the Australian Bureau of Statistics to run an opinion poll.

    The challenge in the High Court being fronted by Andrew Wilkie is asking the basic and fundamental question as to whether it is constitutionally permissible for the Executive to appropriate this money for that purpose without the authority of the Parliament.

    A simple question but it is how the High Court views this appropriation of funds that will be critical to the perceived ability of our Constitution to withstand a rogue Executive committed to overriding the authority of our parliament.

  2. John Lord

    Correct Terry. Since writing Kirby has modified his view and will vote yes. I believe his partner will vote no..

  3. kristapet

    John Lord’s article is making some very important points, including, I think, what Justice Kirby is saying, and warning about, in regard to this plebiscite.
    I believe the following nuggets of understanding need to be heard far and wide
    The significant and salient points made in this article about government behaviour, parliamentary conduct, and the consequences of taking this road, with this current style of L-NP government conduct, and their ‘innovative’, plebiscite process, in regard to changing laws which effects people’s rights, choices, and well being.
    These observations John has made, and Justice Kirby, need to be examined closely by every one who votes
    This same sex marriage issue and this L-NP’s governments non-solution to it, is changing fundamental democratic processes and raising the question of how MP’s are politically representing their constituents and doing their parliamentary jobs, in this case, not doing their duty.
    Further important questions are also raised
    Are vulnerable members of our society needs being met, and are protection of their rights being legally covered? It appears not!
    This government is taking away important and fundamental procedures, eroding the very fabric of a Westminster system government and political representation
    A non binding expensive plebiscite, rushed and ill conceived, is making a mockery of the democratic process and political representation, and creating more problems than solving them.
    In fact, it is simply an exercise in time and money wasting, vacuous toying, and pretense at allowing a voice and vote
    An added extra is thrown in for good measure with the following threat:
    If we make critical observations on L-NP government on social media, we cause loved ones, if they work in government,
    to be penalised by threat of job loss
    No carrots, only big sticks to keep us all in line

  4. Jennifer Gregory

    Turnbull is taking a hammering on his Fb page. Please, help keep up the momentum and make some valid, indesputable points on his page.

  5. wakeupandsmellthehumans

    Seeing as the government wants the general public to have a say in such an important issue as marriage equality, how about adding on some extra questions? The cost of the extra ink would be negligible.

    How about? Should there be a Federal ICAC? Should we allow the mining of coal in the Galilee Basin? Should we enter into a treaty with our indigenous peoples? Should we become a republic? Should we buy back the privatised public utilities, including the Commonwealth Bank? Should we ban political donations from corporations and foreign investors?

  6. Diane Larsen

    Wakeupandsmellthehumans exactly what I have been saying if this government cant make decisions because of internal wrangling with a week prime minister at the helm and have decided to use a postal vote system to make decisions then the precedent is set, we want our say on euthanasia, a womans right to choose, a re negotiation of the PERT to favour this country not multinationals, a royal commission into the banking and financial system and the involvement of the water minister in theft by major irrigators in the Murray Darling Basin, a federal ICAC the list is endless if this current government cannot govern without the use of postal votes then they should resign and call an election otherwise democracy is being undermined by a cowardly prime minister and an ineffectual government

  7. Emmee Bee

    I see this as a first step towards the removal of compulsory voting… It does indeed set a dangerous precedent.

  8. Jaquix

    Voluntary voting is of course an IPA objective. Because it favours the conservative side of politics. Its responsible in no small way for the UK getting conservative governments too often. But its unlikely to find favour in Australia because it does confer an advantage of governments like the one we managed to get, even with compulsory voting. Justice Kirby has indeed changed his mind, and I would imagine the partner may well change his mind about boycott when he sees the groundswell of support for the Yes vote. Bill Shortens speech yesterday will mobilise the Yes troops, and calling on community groups and sporting clubs to get onto it, a masterstroke I think. Hes given everyone permission to get stuck into it! Comments on twitter and facebook, and by journalists, particularly complimentary. Even Katharine Murphy couldnt fault it.

  9. wam

    wow: Lord good read:
    life believes and society dictates the meaning, and use, of truth.
    The nation has made up its mind the advertising is unnecessary but already billy has been called a whinger for his negative stance.
    QED be careful to stick to the script???


    this postal survey dressed up as a plebisite cross dressing as a referendum is really about the introduction of citizen initiated referenda which are effectively engaged in the USA to dismantle social programs at state and local gov level.


    FACT CHECK. ‘It’s worth a read because, like all of Malcolm’s speeches, it underlines what a weak-kneed hypocrite he has become.’ Malcolm Turnbul has always been ‘a weak-kneed hypocrit’. You just didn’t notice it.

  12. Wayne Turner

    When our vote on our war involvements?

  13. Kyran

    It is worth noting that this is not a dangerous precedent, but the status quo. Your reference to the lying rodent is worth putting in context.
    His government had eye-watering income and, quite often, a compliant parliament. This enabled an ‘autocratic’ leadership, largely unquestioned. In 2003, the year before his marriage act change, he committed Australia to war without referral to the Australian people, let alone the parliament. We are still paying the price for that today. Our criminal neglect of the refugee problem exacerbated by his actions is nothing short of soul destroying.
    It should also be remembered that his changes to the marriage act were introduced and passed in a very short time frame without any reference to the Australian public.

    As many have pointed out, this is a human rights issue pertaining to equality. Nothing else. Just as the ‘carbon tax’, a false and misleading descriptor, was allowed to be the only descriptor used, we now see ‘same sex’ as the descriptor being commonly used. It has already skewed the conversation to incite the homophobes.
    It allows the issue of equality to be ignored.
    As for the gits talking about some sort of ‘free speech’ implication, what utter nonsense. Gillian Triggs has delivered many speeches recently. Justin Gleeson, most remembered for his gutless dismissal by brandis, delivered the ‘Sydney Pen Lecture’. Both of these people have championed 18C and 18D as protectors of free speech, a basic requirement of democracy, and the protection of minorities who are frequently denied the right to speak without vilification. Neither one of them have ever countenanced the contention that free speech is some sort of protection for wrong speech, ie talking crap.
    As for the gits talking about ‘religious freedom’ somehow being under threat, what utter nonsense. The equality argument does not compel anyone wishing to observe their religious beliefs to break them. The equality argument merely protects the right of the individual to be exercised, free of someone else’s religious ideology interfering.
    It is also worth noting that both Ms Triggs and Mr Gleeson have been highly critical of the practice of government by regulation. This is where ministerial discretion is used to circumvent scrutiny by parliament. This is the very power that our PM used this morning to invoke ANZUS as a guarantee for Australia’s participation in any military action against North Korea. No reference to the Australian people, let alone parliament.
    If this is the level of hysteria now, imagine what it will be like after the High Court challenge is heard.
    And, so far, nobody has announced what ‘the question’ will be.
    It sort of makes a mockery of ‘for’ and ‘against’ arguments being made when no one knows the question.
    Regrettably, it’s not a dangerous precedent. It is the status quo.
    Thank you Mr Lord and commenters. Take care

  14. Kaye Lee

    It should be noted that the politicians in 1961 were more enlightened and progressive than the Coalition is today.

    The Marriage Act as originally enacted in 1961 did not contain a definition of marriage.

    Delivering the second reading speech, Attorney General Barwick said “it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition.”

    They were more interested in monogamy than sexuality.

    On its passage through Parliament, Senator Gorton, who was responsible for the carriage of the Bill through the Senate, remarked:

    ” […] in our view it is best to leave to the common law the definition or the evolution of the meaning of ‘marriage’ as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage.”

    Then along comes Philip Ruddock 43 years later to say they had to change the marriage act because:

    “The bill is necessary because there is significant community concern about the possible erosion of the institution of marriage … A related concern held by many people is that there are now some countries that permit same-sex couples to marry.

    The amendments to the Marriage Act contained in this bill will make it absolutely clear that Australia will not recognise same-sex marriages entered into under the laws of another country, whatever that country may be.”

    Another 13 years on and Tony Abbott says “If you’re worried about religious freedom and freedom of speech, vote no, and if you don’t like political correctness, vote no because voting no will help to stop political correctness in its tracks.”

    As the world moves forwards on making everyone equal before the law, we have taken 56 years to decide we will let a few people send in letters saying they want to entrench discrimination.

  15. GrumpyT

    This farce reminds me a little of “The Rise and Rise of Michael Rimmer”, a great movie (according to my humble opinion, and showing my age) starring Peter Cook (who, in the movie stood for the seat of Dudleigh Moor, I think). Are we heading down that path?

  16. paul walter

    No plebisicite if Turnbull wants to side with the yanks going to war against NK?

    I reckon we should hold a plebiscite to prevent my elderly neighbour from using the dunnies at the local shoppng centre when she does her groceries…cummon, whaddyas reckon??!!

  17. paul walter

    Grumpy, Abbott is more like the Rimmer from Red Dwarf.

  18. Ceridwen66

    A recent post on FB:

    If you don’t want a same sex marriage, then I strongly suggest that you don’t marry a person of the same gender. As to your opinion on who anybody else should commit to and marry, I strongly recommend that you keep that particular notion to yourself, much as you would want anybody not immediately involved in your life to respectfully keep a silent counsel on your own choice of husband or wife. This not only about same sex marriage, this is about inherent human equality.

    The following is commentary on the post:

    “Nobody will stand for the systematic brainwashing of their children”

    “Any forcing of beliefs, especially of sex and sexuality is a recipe for disaster”

    “And theyou think they can force theiron gay marriages on churches, municipal courts and private people. And it is all promoted as sexual deviance towards the children” (sic)

    “The gays have always had a place, usually higher in society”

    “You likely don’t know any truely gay people. Only sexuality deviant people, or low class people who are gay for convenience or to harass people”

    “They need 2 bullets haha a xtra one in case the first misses”

    Even though I grew up in the eastern suburbs of Sydney during the 80’s, when Green Park and the wall were infamous for violent gay and trans prostitute bashings, I now more than ever fear for my friends in the face of such intolerance and ignorance. The hatred for this community is far more visceral and insidiously vicious these days because it is seen to be sanctioned and condoned by our ‘leaders’.

  19. Terry2


    the elegance of the common law is that, had it been necessary to test what marriage was, it would have gone before the courts for a contemporary evaluation of what the community consider to be marriage and would have allowed for the evolutionary nature of the common law to recognize contemporary community attitudes.

    The black letter amendment to the Marriage Act in 2004 precluded the common law from being permitted to recognize the evolution of societal attitudes and brought us to where we are now.

    I’m still not convinced to vote as it seems to me to be playing into the hands of the rabid religious Right who are doing everything in their power to avoid this going before the parliament and I just don’t want to play their games. As mentioned elsewhere, we can expect a lot of overseas money to come from religious groups, particularly in the USA, and they will easily outspend the yes campaign.

    Ironically, what is being argued has absolutely nothing to do with religion and everything to do with equality before the law.

  20. madeleinekingston

    Thanks John

    As a happily married woman, I have just posted my intention to vote Yes against Jennifer Wilson’s article “Voting Yes.”

    By way of keeping up the momentum, I just wanted to repeat here that as much as I despise the proposed ad twisted ABS survey to ascertain community endorsement of the fundamental rights of the LGBTI community, whilst taking the opportunity to vilify them through the bigoted segment of the community who believe they have a right to manipulate the personal decisions of others. This is a secular state, though not recognised as such by the “deeply religious” who consider themselves to be the moral paragons of society.

    As other posters have noted, Sir Michael Kirby, has changed his mind, and will reluctantly be voting YES if the poll goes ahead. This I believe was based on reconsidering the risks of abstaining or boycotting in some other way.

    I have enormous admiration for Sir Michael Kirby who published a moving article in SMH on 10 August, which I read with interest and all 450 or so comments. He has made some crucial points. He said:

    “It’s unscientific, it doesn’t conform to the rudimentary requirements of polling,” he said. “It has never been attempted ever in the making of laws in Australia. It doesn’t even have the merit that a plebiscite had of a national compulsory vote, which has at least been done once.”

    Your article reinforces this for which we are most grateful. The proposed approach through a glorified and expensive opinion poll will subject the LGBTI community to unacceptable vilification. My support goes out to them as they face the prospect of enduring this in ne context or another.

    Malcolm Turnbull is in the clutches of his party’s manipulators, a spineless apology for a Prime Minister, Abbott was worse but more transparently bigoted, Dutton, I can hardly bring myself to speak about, Morrison was of the same ilk, and all the others falling behind this type of manipulation will sooner or later get their just desserts. Sooner would be better, but he decline will happen.

    It is too dangerous to boycott the non-binding opinion poll guised as an “ABS survey” conducted by seconded AEC staff. Sir Michael is to be congratulated on his change of heart.

    I would like to congratulate you on your article and for stressing the implications of a dangerous precedent. We can hardly view this process as democratic, moral or indicative or governance and leadership of the standard that the voting public and others have a right to expect.


  21. Harvey Jacobsen Sr

    For somebody who has an ‘astute, logical and prodigious mind’, you’d have thought that Michael Kirby would have thought through the postal vote issues and not flip flopped on his decision to vote. One is allowed to change one’s mind but give me a break!

  22. jimhaz

    The ALP were no better when they had a 1 vote majority.

  23. Matters Not

    SIR Michael Kirby? Don’t think so.

  24. madeleinekingston

    May I take this opportunity to congratulate the Public Interest Advocacy Centre (PIAC] Sydney mounted challenge in the High Court, one of two such challenges, with the aim of seeking a determination as to whether the postal opinion poll for Same Sex Marriage is a valid process on the basis that it may be beyond the powers of the government. PIAC seeks funds to support the challenge. Here’s an excerpt from the PIAC statement posted on 11 Aug 2017.

    “PIAC mounts High Court challenge to same-sex marriage postal vote”

    “You may have seen the news that yesterday PIAC commenced proceedings in the High Court of Australia, seeking to stop the government proceeding with the postal vote on same sex marriage.”

    “We are trying to stop the postal vote going ahead because we believe it is beyond the power of government. Specifically, we will ask the High Court to decide whether the government can validly undertake a postal vote and allocate funds for it without parliamentary authorisation.”

    “These are important public interest issues about the way that governments exercise power and the role of parliament in our democracy.”

    “We are proud to represent Andrew Wilkie, Independent Member for Denison, PFLAG (Parents and Friends of Lesbians and Gays) and Felicity Marlowe, a mother in a same-sex relationship with three young children.”

    “Our clients are all concerned about the way the government is exercising its power in this case, the way public funds are being spent and the impact of a postal vote on the community.”

    “Andrew Wilkie says: ‘I have consistently advocated against executive overreach of the kind we see with the postal vote on marriage equality. Parliament should decide if, when and how the people are consulted and how it’s paid for.”

    PS Kaye Lee thanks for the link to the lecture delivered in 2012 by Turnbull entitled Reflections on Gay Marriage – Michael Kirby Lecture 2012. Interesting to see how hypocrisy evolves. Thanks also for outlining the history of the Marriage Act and the elegance of the common law. I completely agree that governance by regulation undermines those fundamental principles and allows politicians to neglect their duties.

    Thanks again John Lord and posters.


  25. Andrew J. Smith

    Certainly puts the Australian LNP government and Turnbull up or down there with aspiring ‘illiberal democracies’ like Hungary led by Orban, and like similar nations, advised by a former GOP Republican strategist (who no doubt has similar hit list to the IPA)

    They do lots of agitprop through bill boards, mail drops, postal plebiscites, postal consultations and polls centred round preserving Christianity, fighting the dictatorial EU migration policies, Moslem refugees etc.; wedge issues to publicise and prepare the electorate to vote the right way in real elections.

    More extreme than Australia with an ageing, declining, monocultural and conservative electorate, while impeding young and working age mobile Hungarians elsewhere in the EU from voting, as it’s assumed they will vote the wrong way.

  26. Kyran

    Just on that good news, jimhaz @ 3.29, from the ABC article;
    “The company plunged into the red from last year’s $300 million profit on the back of almost $1.3 billion in impairment charges across the business, most of which were racked up by the News and Information Services division.”

    Didn’t the Australian government gift them nearly $1bill, through ATO concessions and funding for broadcasting women’s sports?

    “Another $40 million round of cost-cutting — on top of last year’s $40 million in cuts — was flagged in the results for the Australian business.”

    Ah well, they’re only jobs. Not the hate merchants, though. They might lose circulation.
    And just to round it off, to underscore their myopic, jaundiced view of the world and their inflated opinion of their own value, chief executive, Robert Thomson;

    “News Corp led the global debate about content value and values, prompting the digital platforms to address a dysfunctional content eco-system, in which the fake and the fraudulent have flourished.”

    Seriously, you can’t make this shite up. Newscorpse and Fauxnews may have to have a joint funeral. The headstone will likely read ‘We believed our own bull shit. We just couldn’t live on it’.
    Thanks again. Take care

  27. madeleinekingston


    Thanks for your posts today against two related articles by John Lord’s and Jennifer Wilson. and for the link (at 11.25 a.m.) to the Lateline transcript of 2004 in which John Howard was interviewed at the time of the proposed amendments to the Marriage Act that severely compromised LGBTI equality rights.

    It is absurd to consider Howard’s decision in a positive light. Relying on side-stepping the issue of the right to marry the hyperbole suggested a victory because superannuation rights of same-sex couples were protected.

    There are numerous gaps in protection, for example the rights of SSM partners in retirement homes. Four Corners exposed this and other exploitive issues impacted on other groups in their June 2017 program. The laws in retirement villages need urgent amendment to honour the civil rights of partners in SSM relationships, with equality offered in all States. Perhaps this can be addressed in any Bill presented to Parliament on SSM and related matters. At the same time other loopholes will need to be closed so that the principles of equality are upheld.

    Only recently it was reported in the press and in broadcasts that man who had shared his business and private life with a male partner for 55 years, was denied, following his partner’s death continuity of tenancy in a retirement village run by Aveo Care Vic, despite the fact that the retirement home that they shared had been left to the surviving partner in his Will. The retirement village apparently claimed that as the title to the property was solely in the name of the deceased, the surviving partner had no further right to remain there. Clearly they had no interest in his rights or no patience to wait for probate to be executed.

    The LGBTI community will greatly appreciate your public empathy for their position and the manner in which you have encouraged them to stand fast over the stresses that they will face over the vilification process that they will face over the proposed postal opinion poll to be conducted by the ABS, if it does go ahead.

    The outcomes of two High Court appearances today by two groups Public Interest Law Centre PIAC and the Human Rights Law Centre (HRLC) are pleasing. The parties have agreed to set aside their injunction applications on the basis that the matter is to be given serious consideration by the High Court and will hear the more substantial issues on 5 and 6 September prior to the proposed despatch of the opinion poll voting papers (ABS survey).

    The High Court’s decision will be binding and will have to be accepted, but there is a chance that the whole plan may be scotched. If it is not, the LGBTI community will need all the support they can get. They will appreciate the efforts you have made to bolster their courage.

    Bleed Them Till They Die

    Thanks. Madeleine

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