How and why to right a legal wrong and support marriage equality (even through a flawed process)

August 21, 2017

There is no time like the present to correct a national history of exclusion and discrimination. 

Although ALHR strongly believes that the postal poll is flawed, if the High Court does not rule it unconstitutional, we urge Australians to still vote and vote yes! 


1. If you are reading this before Thursday 24 August, please check your enrolment here, and if you’re not enrolled to vote, please enrol here.

2. If you need help to have conversations about marriage equality with family members, friends, co-workers, teammates and others in your community, check out:

·       Alastair Lawrie’s 28 Reasons to Vote Yes on Marriage Equality

·       the helpful resources of the Equality Campaign here.

3.  Support and share the many petitions – here are two of them:

Two People  “We, as members of the Australian legal community, call on all members of the Commonwealth Parliament to undo a legal wrong, by voting to amend the Marriage Act 1961 to delete the references to “a man and a woman” and institute marriage equality in Australia.” (organisations or law firms as well as individuals can sign up to this campaign by inserting the organisation or firm name in the ‘name’ contact detail box.)

Change Org (Get angry and get equal) “We call upon the Parliament to revisit their actions of 24 May 2004 and do it again – in reverse – this time to end the discrimination imposed upon a section of the Australian community as enacted that day.”

4.  Vote YES.


Marriage equality is about fundamental human rights that all governments should uphold; the freedom to marry in a government-recognised ceremony, the right to equality before the law and to live free from discrimination on the basis of your sexuality.

These rights should not have been taken away in 2004 (with no public consultation at all) and should not now be used as political bargaining chips.

Politicians are very keen to talk down a Bill of Rights on the basis that in practice they will always act to protect human rights. However, neither major party is currently prepared to take immediate action to protect the rights of LGBTI Australians to equality before the law and freedom from discrimination by introducing legislation and voting in parliament for marriage equality.

Vote ‘yes’, says Alastair Lawrie, because you think Australia can be a better, fairer and more inclusive country.  And because you want to help make Australia a better, fairer and more inclusive country.  (Alastair Lawrie’s 28 Reasons to Vote Yes on Marriage Equality.)

What’s wrong with the current process

1. Human rights derive from our human dignity and are not a matter to be voted in or out of existence.

2. The Australian Government’s decision to invite voluntary postal views from some Australian voters on the human rights issue of marriage equality is potentially divisive.  Unhappily, it is likely to encourage hate speech against the LGBTI community, their families and their children.

3. The concept of a voluntary postal collection of views on marriage equality by the Australian Bureau of Statistics is fundamentally flawed because it cannot produce either an electoral vote or a genuine statistical survey.

4. A postal plebiscite will not involve all voters and will not be subject to control by the Australian Electoral Commission. Prime Minister Turnbull himself argued against a postal vote in the campaign for an Australian republic arguing it would contravene basic democratic values, disenfranchise voters, particularly young people and Aboriginal Australians in remote communities, as well as those who struggled with English, and would fail to be anonymous, saying that a plebiscite “(i)s likely to ensure that not only will a minority of Australians vote, but also that large sections of the community will be disfranchised.”

5. ALHR questions whether the Australian Constitution permits the Minister for Finance to fund this opinion poll. By virtue of s 83 of the Constitution, no money can be drawn from the Consolidated Fund unless authorised by statute or incidental to the executive power of the Commonwealth – which is clearly not the case here. In Australian Capital Television Pty Ltd v The Commonwealth (Unreported, High Court of Australia, Judgment F.C. 92/033) (the Political Ads Case) Mason CJ said:

The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives…. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.”

6.  What the Australian Bureau of Statistics is being asked to do is outside its role of ‘providing trusted official statistics’ with a view to informing ‘decisions on important issues.’

7.  If the government is prepared to have regard to voluntary postal opinions on this crucial human rights matter, what precedent is this setting for the formulation of government policy in the future?

8.  Our MPs should put the issue of marriage equality to a parliamentary vote.  This postal collection of views is a stalling tactic.

9.  The procedure will waste hundreds of millions of tax payer dollars.

There is no time like the present to correct a national history of exclusion and discrimination.

Although ALHR strongly believes that the postal poll is flawed, if the High Court does not rule it unconstitutional, we urge Australians to still vote and vote yes! 


(with thanks to Alastair Lawrie at: