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Monday, 7 November 2016
Page: 1907


Senator SMITH (Western AustraliaDeputy Government Whip in the Senate) (12:21): I am also grateful for the opportunity to place on the parliamentary record a few brief remarks regarding my own position on the proposition that is now before us—the Plebiscite (Same-Sex Marriage) Bill 2016.

I came to the Senate as a constitutional and a parliamentary conservative. I believe that our Constitution and our tradition of respecting parliamentary sovereignty have contributed to Australia's remarkable democratic stability since 1901. It is the protection of both our constitutional and parliamentary traditions in this country that leaves me unable to support the current proposal to hold a plebiscite on the question of same-sex marriage.

I do not think any of us in this place sought election to it because we wished to undermine this great institution. For all of its faults—and it is still imperfect—this parliament has time and again shown it is capable of dealing with the big questions of the day. Do we really want to be the first generation of modern parliamentarians who effectively say that we are not capable of resolving difficult issues? In contracting out our responsibility as legislators that is effectively what we would be doing. After doing that just once, how would we look our electors in the eye again and ask them to place their trust in our judgement on future issues? If we set a precedent of holding a public vote on a policy question then we will come under pressure to do so more and more frequently, particularly on issues which give rise to strong personal ethic or religious considerations. If this plebiscite proceeds, I fear it would not be the last. Indeed, I suspect plebiscites would be used more and more frequently and possibly for far less honourable ends.

There may be some in the community who find the prospect of frequent public votes on policy issues an exciting one. But as a parliamentary and constitutional conservative I would see it as an abdication of this parliament's responsibilities, one that would undermine parliament's authority, make our system of government less stable and, over time, contribute to its political paralysis.

Our Constitution establishes a parliamentary system of representative government. As the respected former High Court judge Michael Kirby has written:

A plebiscite, as a precondition to legislation, is a totally exceptional procedure with no foothold in the Constitution.

As a lifelong constitutional conservative, I see this as a clear line in the sand. In submitting this policy question—significant as it is—to a plebiscite, we would be doing something entirely foreign to our constitutional tradition. Once it is undermined, there is simply no telling where it will end up.

It is worth noting that last month marked the 100th anniversary of Australia's first plebiscite in 1916. In framing my position, I have been curious that when Australia's Constitution was being framed in the late 1890s plebiscites were not made part of its final design. Then, in the adolescence of our Federation, we experimented with plebiscites on two occasions: firstly in 1916 and then in 1917. But we have not experimented with them in any meaningful way since. For me, this speaks to the realisation that plebiscites are not and should not be a feature of our democratic culture in Australia.

Former Prime Minister John Howard, who, for me, is the greatest living conservative figure, said in February this year that when it comes to the question of same-sex marriage:

I would've preferred it being dealt with in the Parliament … on a completely non-partisan basis, I think those issues are always better dealt with in a free vote.

Likewise, the Premier of my own state, Colin Barnett, has said:

… it is my view that the matter should be decided by federal parliament, without the need for a plebiscite.

His views have been endorsed by other senior colleagues in the Western Australian government, including the education minister, Peter Collier, and the emergency services minister, Joe Francis.

Our federal parliament has dealt with issues pertaining to marriage, including its definition and its dissolution, on no fewer than 20 occasions since 1961, all without recourse to a plebiscite vote. I fully understand and accept that the question of same-sex marriage is an issue that gives rise to strong passions in the community, but those passions were no less strong in 1961 or, indeed, in the mid-1970s when no-fault divorce laws were introduced and yet our parliament was able to rise to those occasions. Likewise, in a contemporary context, both immigration and euthanasia raise strong passions. Yet I have heard no credible voice and certainly no-one in this place saying we should submit those issues to a people's vote, despite their relevance to contemporary political debate. I of course would not wish to see either of those issues dealt with via plebiscite.

However, I am not a clairvoyant. None of us can be. That is why the question of precedent is so important and why we have a duty to think more carefully about the long-term implications of what is being proposed in this case. I shudder to think that we may see a day in this country where determinations about our right to freedom of speech and freedom of worship or on whether or not Australia accepts immigrants from a particular nation are made by a popular vote of the people at the expense of our parliamentary system of government. It sounds like a ridiculous notion. Indeed, I hope it is a ridiculous notion. But I would prefer that we in this parliament do not expose future generations to that real risk. That is why I am passionate about protecting the foundational principle of parliamentary sovereignty. I believe we as parliamentarians have a responsibility to seek the best way to resolve difficult issues rather than the easy way to resolve them. I do not believe a plebiscite is the best means for resolving this question, and I believe it will forever and irretrievably undermine the principle of parliamentary sovereignty which has served our country so well.

Debate adjourned.

Ordered that the resumption of the debate be made an order of the day for a later hour.