The Plebiscite: What would Menzies, Howard and Whitlam have done? - The Hon. Michael Kirby AC CMG


Delivered at the Whitlam Institute by the Hon. Michael Kirby AC CMG


Delivered at the Whitlam Institute by the Hon. Michael Kirby AC CMG

As the Australian political system approaches the moment of decision on whether a plebiscite should take place before a vote in Federal Parliament on same-sex marriage, it is tantalising to consider what previous Australian leaders would have done, faced with this issue.

Robert Menzies, the founder of the Liberal Party of Australia, never undertook a plebiscite on any matter of controversy, and he faced plenty of them. He had lived, as a young man, through the bitterly divisive years of the unsuccessful plebiscites of 1916 and 1917 on the question of compulsory military service overseas. He knew the sectarian hatreds that those votes caused in Australia. They lasted decades. Even when he only had a majority of two seats in Federal Parliament after 1961, he never sought comfort in a plebiscite. He knew that under our Constitution, Australians do lawmaking in Parliament, not at the hustings.

We know what John Howard, the second longest serving Prime Minister since Federation, would vote in a marriage plebiscite, given the chance. He has told us he would vote ‘No’ and continue to deny access by gay Australians to the legal status of marriage. Back in 2004, his government introduced the law in Parliament that confines marriage to ‘one man and one woman’ and obliges that limitation to be read out at every marriage performed ever since. No plebiscite was held to get approval. John Howard has been silent about the exceptional conduct of a plebiscite on marriage. As Prime Minister he never undertook a plebiscite on any topic. Not on disallowing same-sex civil unions in the ACT. Not on whether the abortion pill should be banned. He left these decisions to Parliament. One of his given reasons for opposing a Bill of Rights was always that it would enhance the powers of the courts at the expense of parliament. I suspect that John Howard would never have delegated any power of parliament to a constitutionally unnecessary vote of electors. For Howard, parliament had the power and duty to exercise it, unless the Constitution said otherwise.

As Bill Shorten and his colleagues in the ALP now approach a decision on what they will do in the Senate with the Government’s proposal for a plebiscite on marriage, it is specially relevant to ask what Gough Whitlam would have done, faced with the issues of 2016. Although Whitlam’s term as Prime Minister was short (1972-75), his iconography is still powerful in Labor hearts and minds.

Of course, Whitlam never said anything in his lifetime on the subject, because the unheralded proposal for a plebiscite on marriage by Tony Abbott was made to settle internal party divisions evident after Whitlam’s death in 2014. Nevertheless, a reflection on some of the things that Whitlam did and said during his long service as the MP for Werriwa in the Federal Parliament, and afterwards, make it clear that, like Menzies and Howard, he would never have invited on his head a non-binding and divisive plebiscite. He knew only too well the Australian record on popular votes in referendums. Given that the High Court ruled unanimously in 2013 that Federal Parliament has the power to enact same-sex marriage, it is unthinkable that Whitlam would have needlessly gone cap in hand to an expensive, divisive, non-binding vote outside Parliament.

Whitlam repeatedly expressed his faith in Parliament as the place to decide issues of equality affecting the people of Australia. His biographer, Jenny Hocking, describes his attitude towards Parliament as one of ‘reverence’. For all its faults, he saw the parliamentary system as “driven by key values of equality, tolerance and self-determination”. Whitlam often quoted Chifley’s reminder, during a particularly intense parliamentary debate, that “in the life of a democracy, it is important that the public should respect, not necessarily a party, but Parliament”. The very physical proximity of political opponents and their necessary engagement together usually puts a brake on expressed hatred that does not necessarily apply out there on the streets. Especially where religious or political fervour gets in the way of individual opinions.

Whitlam wanted electoral reform on many fronts. He lowered the age of voting and secured Territory senators. In a speech in December 2002, looking back, he asserted that he had “always upheld the idea that Parliament itself should be the great instrument of equality”. In the Australian constitutional context, he declared “Parliament has been our great liberating force. There is no freedom without equality. To redistribute and equalise liberty has been one of the principal functions of Parliament”. Whitlam made this comment in the context of women’s rights, an end to racism and in matters as basic and practical as equality in access to sewerage services. But the same principle applies to access to the legal status of marriage, a civil right enacted by our Federal Parliament. Moreover, marriage is a civil right that today is overwhelmingly carried out in parks and vineyards, by civil celebrants, not in churches and temples that sometimes have problems with the loving relationships of gays.

Whitlam’s Government never conducted a single plebiscite, despite the many major social reforms it initiated. Not for exploring the issues in the Royal Commission on Human Relationships in 1974. Not for enacting the Family Law Act of 1975, introducing no fault divorce and enhancing women’s status and property rights. Nor for the change in the national anthem or the Queen’s title in 1974. On the anthem, Whitlam simply asked the Australian Bureau of Statistics to conduct an opinion poll on three options and then settled on “Advance Australia Fair”. This was done at a fraction of the cost of a plebiscite. (Malcolm Fraser called a plebiscite in 1977 on the national song but it did not settle the issue. This was finally achieved when Bob Hawke issued a proclamation in 1984. Again, no plebiscite).

So what did these Australian leaders have in common? It was certainly not the same political allegiance or social philosophy. It was not that their times were easier or without sensitive controversies. Nor was it a matter of differing parliamentary skills. All of them were impressive performers.

The common thread was that each of them loved and respected the parliamentary institution. None of them sought to outsource parliament’s power to populist debates or direct votes. Each of them shouldered the responsibility, and cherished the obligation, of lawmaking in Parliament. Menzies on education equality. Whitlam on ending ‘White Australia’, reforming family law and much else. Howard on gun control. No chance there for the gun lobby to whip up antagonism against desirable legislation.

Citizens could agree and disagree with those leaders. But they would never have resorted to a plebiscite where Parliament had the full constitutional power of action. An ‘electoral mandate’ is entirely dependent in Australia on the parliament that the election in question delivers. That body includes the Senate. Governments are formed in the House of Representatives. But both Houses of Parliament must give approval to the laws those Governments introduce. This also Whitlam knew. It was certainly known to, and invoked by, his opponents in 1975.

Parliamentary democracy is a special way of governing ourselves. We have been doing it in Australia since 1901. It is central to our version of democracy. We should be strengthening that formula, not undermining it. When equality rights are at stake, we should have our debates in Parliament. And ultimately, there is “no freedom without equality”. Just as Whitlam said.