By James O’Neill*
The Federal government proposes to spend an estimated $122 million on what amounts to an opinion poll on whether the Marriage Act (Cmth) should be amended to allow persons of the same gender to enter a marriage relationship. An earlier amendment to the Act restricting a marriage to being between a man and a woman was passed under the Howard government without either a plebiscite or a postal poll.
The proposed postal vote will not produce a scientifically valid statement of community opinion. That could more accurately be gauged, were it necessary, by a scientifically conducted opinion poll at a cost of approximately $1 million.
Even in the event that the postal vote produces a “Yes” majority, several members of the Coalition have already indicated that they will not be bound by that result.
Not surprisingly, a legal challenge has been mounted as to whether the government has the power to expend $122 million on what is no more than a glorified sampling of a section of the community, and unscientifically at that.
The government has not sought to obtain legislative authority for this substantial expenditure. It claims that it does not need Parliament’s approval, relying instead on a rather arcane and little known device known as the Advance to the Finance Minister (AFM).
Although largely a mystery to the general public, the AFM has a long history. It gives the Minister of Finance (currently Matthias Cormann) power to expend public money without the need for legislative authority. It is in effect an exception to the general principle that at least since Magna Carta, the fundamental principle has been that the expenditure of public money must be pursuant to a statutory power and authorised by parliament.
The AFM power however, is not unqualified. There are conditions to be met and one of issues for the High Court will be whether or not these conditions have been met.
The conditions are that the expenditure is urgently needed; is necessary; and was unforeseen. There is no urgency about this expenditure. It has only arisen as a blatant sop to the Coalitions reactionary rump when the Senate had twice rejected authorizing expenditure for a plebiscite on the same question.
Neither could it be argued that it was necessary. There are a variety of options open to the government that would not require the separate allocation of a single cent. Allowing a conscience vote on a private member’s bill would be an obvious alternative.
Thirdly, by no stretch of the imagination could the government argue that the expenditure was unforeseen. It has known since at least the last general election when it took to the country a promise of a plebiscite that it knew even then was unpopular.
It also knows from a variety of opinion polls over the past several months that a substantial majority of the voting public are in favour of changing the law to enable same sex couples to marry. An even bigger majority think plebiscites and postal votes are a waste of time and money and that parliament should get on with doing what they are paid to do: legislate in the national interest.
There is another problem lurking for the spineless Turnbull when the government’s legal team front up to the High Court next month. That is, the question of whether the executive has the authority to expend public money without parliamentary authorization has already been answered by the High Court. In the case of Williams v Commonwealth (No 2) (2014) (an earlier version of the same argument was heard in 2012) the Court dealt with the issue of funding for chaplains in state schools.
The facts were different, but the principles are the same. Both cases are readily accessible on the Austlii website, as are a plethora of academic analyses. It is sufficient for present purposes to note that the High Court confirmed that the Commonwealth will only have authority to expend public money that has been legally appropriated when the expenditure is:
- Authorized by the constitution
- Made in the execution or maintenance of a statute or expressly authorized by a statute.
- Supported by a common law prerogative power.
- (Possibly) supported by a nationhood power.
The attempt to spend $122 million on an electoral issue, but using (a) the Australian Bureau of Statistics that has no power (or experience) in electoral matters; and (b) using the AFM manifestly in a manner that does not meet its specific requirements, as set out above, can not in my view meet the requirements for a proper legal and constitutional basis.
While I will not be so bold as Turnbull to say that the High Court will decide against the government’s argument, I will say that I would be astonished if they decided otherwise.
This purported exercise of a postal opinion poll is yet another example of the sorry fiasco this government has become. Their transparent dishonesty and ineptness is shown by this backdoor attempt to bypass parliament.
They are apparently willing to spend a substantial sum of taxpayer’s money for the dubious purpose of placating the reactionary rump within Turnbull’s Coalition (one hesitates to call them a government) and helping Turnbull cling to what is an increasingly precarious hold on his job.
It confirms yet again that this government has neither principle nor a purpose to act in the national interest. Never before were Cromwell’s words to the Rump Parliament in 1653 more apt:
“You have sat here too long for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go.”
*Barrister at Law and geopolitical analyst. He may be contacted at joneill@qldbar.asn.au
One aspect that is not raised by supporters (or opponents) of the hijacking of the traditional term applying to a union of male and female that is known as a traditional ‘marriage’.
There is a suitable term already in existence, at least in NSW.
It is a ‘defacto’ relationship that also applies since 2009 to same sex individuals and the rights and benefits are covered by defacto legislation in NSW that are hardly in variance to commercial interests covered under the commonwealth family law legislation.
Rename a defacto relationship/union whatever, but it is not a Marriage’.
The stench of the NWO dead fish head prevails as another step toward the remodelling of social norms as explained by Dr. Day as reported by Dr Dunegan from Day’s address to colleagues in 1969.
Read about page 94 to about 115 of Dee and Mary’s book; ‘Truth in Journalism’ that can be downloaded for free from here at gumshoe.
The 120 million to be spent is a fraud upon the public by the fat rabbits in the Canberra turnip patch.
Hey msm, read Dr. DAY AND TELL THE PUBLIC ABOUT THE current DEFACTO Legislation.
The country has other problems to consider, we do need to borrow another hundred plus mil from the bankers and be stuck with the interest to be paid for it.
Guess my vote.
Ned, you are right on the ball about a defacto relationship. A marriage is between man and woman. In this day and age many people accept two males or two women relationships, but it is not a marriage. Even if a new word is to be invented for this new phenomena, let it be, but it cannot be termed a marriage.
Could not agree more Ned!
Be carefull, they might think that we are ‘partners’.
(:-}
Ned, if that is the case, then i’ll have some of what you’re drinking.
Watch it Ned and Nem (The N & N’s). It all starts with a little innuendo (something about reactionary rumps perhaps?). Then come the soggy SAOs, and before you know its pudding in the officer’s mess after lights out.
In the Officers Mess? You mean for the dance of the Flaming A……..?
Thanks Ned for saying what I wanted to say. Let them do whatever they want to do, on the condition that it is between consenting adults (no kids involved)
Defacto is fine with me. Property rights and transfers likewise.
Insurance for nominated partners again OK. But I will not agree to sanction the term “marriage” under Australian Law for same sex couples. And I’ve got friends and relatives who are gay and if they don’t like it….tough.
It’s just not natural.
Well put Phil!
I am not a person of religious belief, but I do know that the Commonwealth of Australia has a constitution that Australia is supposed to be governed by. The Australian Constitution was drawn up, once again, supposedly, under the laws of God. I do not remember anywhere in God’s laws that man shall marry man and woman shall marry women. Apart from that presumption of mine, for any change in “The Constitution” , there needs to be a referendum, not an opinion poll.
Commonwealth of Australia Constitution Act
Chapter I. The Parliament
Part V….Powers of the Parliament
51. The Parliament shall, subject to the Constitution, have power to make laws for the peace, and good government of the Commonwealth with respect to:
(xxi ) Marriage:
Does this mean that Parliament can change the laws of marriage with or without the consent of a referendum? Remember the laws have to be acceptable to the Constitution.
Which again relates back to God’s Law. If God’s Law is to be overridden in the Constitution, surely that can only be by a referendum put to the people.
In any case the Government of Australia is going to do what it always does best. Ignore the will of the people. So any opinion poll will be a total waste of money.
I agree Aussiemal, no government has the right to change social norms without the consent of the people.
I think they’ve changed the marriage four times already
Yes, there was certain meddling to suit ideological/political interference, but none of the changes came to cause the social impact there will be if homosexual (I refuse to be PC) marriage is given the nod.
First off James O’Neill, Barrister of Law etc. You have the presumption to quote Cromwell on a matter that is no where near the problems that faced the English!
Poofa marriage? I don’t think so! And you would use Cromwell’s good name in order to promote such legal sodomy because your own indoctrinated outlook can’t see past the problems that are already in existence in those countries that have been stupid enough to do so?
You say the plebiscite is unpopular – and you have evidence for that statement other than what the Labor Party and the Greens denied the people/
The plebiscite is a waste of time – really? You have evidence for that as well?
Opinion polls all support yes for poofta marriage? – and you have evidence for that as well?
But, after all your denunciations about giving the people the right to choose whether they would like to place another nail in their cultural coffin, and while all those other non-Australian cultures that envy what we have rub their hands in glee at our stupidity in even entertaining our own cultural suicide, you would have us then believe that a hand full of politicians, the most despised ‘profession’ among Australians, and that is according to those same polls that you place a lot a faith in for the yes vote on poofta marriage, should then decide such a monumental societal change that really requires the input of those who would be most affected by such a change, the Australian people!
James, I think you are on the wrong side!
Love to read what ‘Ollie’ would have to express on this matter and what he would have done, to our Canberra rabbits.
Sorry James, when in town ……… ! My shout, like turps?
Oliver only has a ‘good name’ within some interests.
If he had made himself President and not Lord Protector, and then organized the Parliament to better represent the people instead of that English Bill of Rights 1688, a set of rights that the current Mob in London conveniently hide from, I have no doubt things today would be so much better.
Nemesis — your comments re: “Poofa marriage?” Well what can I say. I don’t mind people agreeing to disagree and stating their arguments — but you’re corroding the debate.
My apologies Dee. It was not my intention to corrode the debate, it is just how I feel, but your message is received and I will desist in using that term whenever similar subjects are raised again.
Thanks
And keep off the turps.
(;-
LOL!
As a matter of historic interest.
I recall an adress by our college chaplain in 1958. (‘Con’ Duffy)
As an aside; he commented that there were some who proposed that two men may marry. The monseignor (as later honoured) would be now turning in heaven and having a severe word with his friends.
Clearly, as 11-12 year olds we had no concept of such a concept.
But it is the only matter I recall of his address.
I had no idea that day that the time would arise 60 years later what the NW(fascists)O was planning, as exposed 11 years later in 1969.
Time to boil the tar and pluck the chooks.
I have had 60 years to connet the dots.
Thanks 911, it was that awakening and the realization of the dot connections that are almost complete.
I forgot to ask you earlier Ned, was the chaplain a Jesuit by any chance?
No, just a very bright conservative theologian and ‘parish’ peasant past student, on assignment.
You might be thinking of that other mob across the river?
theres been plenty of surveys already that show majority consent – or will of the people, rightly or wrongly, for changes to be made.
http://www.australianmarriageequality.org/who-supports-equality/a-majority-of-australians-support-marriage-equality/
yes theres such a thing as a defacto relationship, by brother and his partner have two kids together, they never married, never saw the point. I guess they would have been demonised a few decades ago.
as far as gods law goes.. if there even is a god, how the hell does anyone know what god wants anyway? we go by the bible?
http://i.imgur.com/EUpgWwN.jpg
this article isnt arguing the case for or against SSM, its pointing out that the high court has yet to determine if it even will go ahead, but if it does, what a pathetic waste of time and money this dog breakfast of a non binding survey really is.
so long as SSM isnt made compulsory, it wont bother me one bit if people in SS relationships want to get married, wont have any affect on my life whatsoever.
maybe they should add another question to the survey, should divorce be made illegal? How would folks like others to determine if they were allowed to divorce or not? Ive never voted in my life & I wont be starting now. I dont think I have the right to tell other people how to live their lives.
I’m 66 and I’ve never voted either. Ditto my 3 kids(aged 33,31 &27). From what I can gather the under 40 stat is phenomenal.
If you do not vote then you have to live with the intentions of other’s and you have no cause to complain of the results from any election because you have chosen to refrain from having any say in the system that controls us all.
I’d have thought the Kerr episode would’ve been enough to wake anyone up to the fact that voting in any “commonwealth” Country is a complete farce.
By the time anything of any import goes through parliament its already a fait accompli. Haven’t you noticed?
There are ways of dealing with the respective lawlessness. Voting isn’t one of them
Answering Mal below. Mal writes (re the Constitution):
“51. The Parliament shall, subject to the Constitution, have power to make laws for the peace, and good government of the Commonwealth with respect to:
(xxi ) Marriage:
Does this mean that Parliament can change the laws of marriage with or without the consent of a referendum?”
Yes, Parliament can make any law about marriage. It did so a few decades ago enabling no-fault divorce.
Mal, I think only the items explicit in the Constitution would require a referendum to change. To say “two women can enter a legal marriage” does not upset the Constitution.
It’s nice that you are the protector of the Constitution, Mal.
To throw my two cents in… I don’t care much for religion and the institutions they claim. People are seeking their own paths forward — and diverse they seem to be. I can’t complain as I too am a product of the new world. I don’t want to deny anyone a sense of who they want to be — and I don’t want to be prescriptive. As long as they don’t impose sh*t on me — like forcing me to wear a burqa. I am concerned about the evil killing of people, the lies… and the destruction of our planet. This is very much a distraction. And the postal thing—a waste of money.
And speaking of Same Sex Marriage, I’ve got a nephew who has just had a bust up with his long term boyfriend of many years. Very sad for them both, but I’m bloody sure he’s really glad he didn’t/couldn’t get married. Just walked out and started his life again. Simple. Easy. Clean. No messy divorce proceedings to deal with. No lawyers, and no legal rules to comply with. No legal bills to pay. Nothing.
They’re nuts to want to complicate things with SSM.
Anyway, the whole issue smells like a distraction from something bigger.
One more bid to meddle in our personal affairs perhaps?
It all goes to the notion that marriage is a “right” as opposed to an obligation.
And it goes without saying that seeking Canberra’s blessing on anything is pure folly.
Accentuating our subservience to the politicians?
Canberra’s a CIRCUS.
Ascribing the power to“allow” also ascribes the power to forbid. Putting a benevolent facade on social engineering doesn’t change what it is. The outstanding abuses against the Aboriginal people should be enough to make anyone step back and put 2 +2 together.
Opinions are verbalised beliefs. And be(lie)fs are illusions we, slaving in this era of capital, hang onto like they’re money. And that means our beliefs are based on money even when we convince ourselves of their idealistic purity, We can put that to the test by asking from where we sourced a belief. If we didn’t have the same beliefs regarding human relationships before reality television then we can only answer, the media. Like everything else in our times this issue is about money, otherwise we wouldn’t bring it up. More media generated money for those who already have it all.
And how many kids think “a friend” is a stranger who signed up to be their friend on Facebook…. Eeks!