find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
Legal figures weigh in on public debate for marriage equality plebiscite

Legal figures weigh in on public debate for marriage equality plebiscite

The federal government’s promise to hold a plebiscite for gay marriage has been described by some quarters of the legal profession as a constitutionally unnecessary and discriminatory measure.

Attorney-General George Brandis and retired High Court judge Michael Kirby went on the public record this month with their views on a gay marriage plebiscite.

The plebiscite will be a national vote cast on the question of whether laws should be passed to allow gay marriage and, unlike a referendum, does not propose to amend the constitution.

In separate interviews on ABC’s Lateline, the attorney-general and former High Court judge gave different takes on the would-be vote.

Pointing to the nation’s track record of other similar votes, a total of three in Australia’s history, Mr Kirby said such a measure has not been employed by the Australian parliament in 100 years. He described the plebiscite as an “interposing additional step in the law-making process” and warned it would set a bad law-making precedent.

“We should be strengthening parliament, not weakening it,” Mr Kirby said.

“It’s a discriminatory step. It’s a step that is designed by those who propose it in the hope of defeating and delaying equality for citizens.

“It's unfair to people who are of a different sexual orientation or gender identity and it’s a bad precedent for our law-making.”

Mr Kirby distinguished Australia’s current situation from the 2015 marriage equality referendum held in Ireland, saying the provisions of Ireland’s constitution urged the non-compulsory vote in that country. He suggested a review of Australia’s own history would better inform the likely outcome of a gay marriage plebiscite, and noted the overwhelming majority of times Australians have voted against change.

“I think we would draw better inferences from our history on constitutional referendums, and on that matter, we have a record of 44 proposals that have been put to the people at a referendum and only eight have succeeded. Australians vote ‘no’ when they get a chance," Mr Kirby said.  

Meanwhile, Mr Brandis told Lateline that the government mandate to see the gay marriage plebiscite through followed a robust debate during the federal election campaign in July. He suggested the plebiscite offered the clearest path to marriage equality in the foreseeable future, adding that he was sure the public would vote ‘yes’.

“There is a variety of views across the gay community, but I think that most of the mainstream gay interest groups and stakeholder groups are pragmatic enough to understand that this government, having adopted this policy a year ago, having taken it to an election, is determined to ensure that there is an act of public choice,” Mr Brandis said.

The government introduced its plebiscite policy despite the High Court of Australia finding that the constitution’s definition of marriage includes a marriage between persons of the same sex.

The Law Council of Australia highlighted the viability of parliament passing marriage equality legislation in a submission to the Senate and Legal Constitutional Affairs Committee last year.

In its submission the Law Council noted that as a matter of law, it was not necessary to hold a popular vote in the form of plebiscite on the matter of marriage in Australia and that parliament has the constitutional power to legislate with respect to same-sex marriage.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Legal figures weigh in on public debate for marriage equality plebiscite
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...