Or, “You think a nation that can’t remember its entire national anthem gives enough of a sh*t to change the Constitution?”
First published on 1 May 2013.
You may not be particularly familiar with the Australian Constitution, which is principally because, as Constitutions go, it’s a pretty great one.
At least, it’s pretty great for the purposes for which it was created, in that it’s dull and dry and bureaucratic – unlike, say, the US Constitution, which is inspiring and flowery and ambiguous enough to tear a nation apart. It’s hard to imagine people getting up in arms about Constitutional literalism in Australia, because there’s precious little grey area: it says “here’s the stuff the Federal Government is responsible for,” and that’s about it.
It wasn’t written to inspire a nation to greatness; it was created mainly to iron out irritating disputes between the states and sort out who was paying for what. It’s not great for myth-building, sure, but it’s an impressively robust basis upon which to create a functioning country.
It also means that we’ve never developed much of a taste for amending it. In fact, there have only been 44 attempts to make any changes to the Constitution since Federation, the most recent of which was in 1999. That’s 44 attempts in 112 years.
And the amount that actually passed? Eight.
So given that such things are excitingly infrequent, and that they’ve had an 18% success rate, you might think that a referendum is the ideal way to go for ensuring that change is not made by the Australian people. But the chance of passing anything is actually even more impressively low than that: most of the changes that passed were around such nail-bitingly exciting questions as whether a political party could replace a casual vacancy in the Senate with another member of the party to see out the term, and whether to let people in the ACT and NT vote in referendums (both passed in 1977).
The most controversial successful amendments to our Constitution have been about whether to give the Federal Government powers over certain social services, like welfare (which narrowly passed in 1946) and that the bits in the Constitution that specified special treatment for “People of the Aboriginal Race” be removed, a change that was overwhelmingly passed in 1967.
The point is that getting something passed by referendum is exceedingly rare, even if it’s as seemingly benign as giving the government power to protect the public from interruption of essential services (defeated in 1926), legislating around marketing of primary industry (defeated in 1946) or giving the government power to cap runaway rents (defeated in 1948). And, of course, the far more controversial move for Australia to become a republic in 1999 came nowhere near passing, failing to get a majority in any state (although the ACT passed it, bless ’em).
"Protecting marriage from people who want it is already more trouble than it's worth"
So, in the case of marriage equality, you can see why the likes of Fred Nile are calling for a referendum to settle the issue (and just parenthetically: isn’t it refreshing to see Nile and extremist Muslim leaders standing united on this issue? See, everyone? We can all get along!). They know that the chances of an amendment passing is slim-to-nil, especially given Nile’s insistence that the language of the proposal be all about “homosexual marriage” rather than opaque terms like, say, “marriage equality” (or “basic rights”, or “human dignity”).
The best bit from where he’s sitting is that when a referendum fails to pass he can justifiably declare that this is the will of the people. In fact, he can even accuse those who oppose referenda as being anti-democratic, since they’re opposing the act of asking the citizenry what they want.
The thing is, as the lead up to every election demonstrates, what Australians want is for the government to stop asking what they want so they can get back to bitching about how the government never does what they want. Seriously: if we ever institute voluntary voting, it’s going to be a golden age for crazy people getting into power since barely anyone’s going to turn up on election day.
But even at its best, a referendum on marriage equality is a smokescreen. Even if the Constitution was changed, that wouldn’t make a damn difference until the Marriage Act was also amended. That requires an act of Parliament – which doesn’t require any sort of Constitutional amendment whatsoever. In fact, we last changed the Act in 2004, when the Howard government wanted to make sure that Australia didn’t go recognising gay marriages from overseas.
And that, hilariously, could actually be what speeds things along.
The main reason that Nile is making a song and dance about a referendum is because it’s about the only defence he has left against same sex marriage. Marriage equality is going to happen in Australia, not only because there’s no sane reason for it not to, but because of the aforementioned qualities intrinsic to our national character, viz:
1. Ours is a country based upon cold, grey bureaucracy, and
2. We can’t be arsed doing more than we absolutely have to.
Too many other countries are passing laws ratifying same sex marriage – including our nearest neighbour, with whom we share a whole bunch of special making-life-easier arrangements regarding everything from immigration to Medicare. Thus, unless we close our borders, eventually our government is going to be forced to recognise same-sex marriages for purely bureaucratic reasons concerning visas and taxation and immigration and insurance and inheritance and so forth.
Eventually our Federal ministers are going to look at the tangled mess of red tape unnecessarily clogging up every one of their departments and go “you know what? Fuck this.” Especially if they want to be seen to be streamlining their departmental efficiency, which takes political priority over having one’s department actually do stuff.
Forget the questions around citizens’ rights or withholding happiness from couples for completely arbitrary reasons. Forget the entirely justifiable argument that it’d be impossible to mount a serious referendum campaign in the time left before the election. They’re good points, but Australia has something even more powerful than all those arguments put together: infrastructural laziness.
The fact is that protecting marriage from people who want it is already more trouble than it’s worth, and the same apathy that all but guarantees a referendum defeat is what will eventually see Australia proudly slouch together as one and half-heartedly shrug “yeah, fine, whatever” before going back to watching the cricket.
And it is thus, Australians all, that we shall rejoice.