The People, Parliament and a Plebiscite: How Should Australia Legalise Same-Sex Marriage?

By Helena Ladomatos

The plebiscite for same-sex marriage has proven to be a contentious issue as it has constantly been debated throughout Australian society for the past few years.  From the moment that Prime Minister Malcolm Turnbull changed his initial plan from pursuing a conscience vote in parliament to legalise same-sex marriage to backing a plebiscite, the debate surrounding the suitability of a plebiscite augmented drastically.

An opinion poll taken by the ABC’s Vote Compass, based on more than 350,000 responses, reflected that the majority of Australians support same-sex marriage.  This survey, amongst others, shows that the legalising same-sex marriage is generally supported by Australians.  However, the division in opinion regarding this issue lies in the process.  The two options that Australia currently have are a national vote via a plebiscite or a free conscience vote by politicians in parliament.  Turnbull’s attempt at passing a plebiscite, planned for February 2017, was blocked in October due to opposition from the Labor Party, the Greens and the Nick Xenophon.  Ultimately, this is what is being debated in the media, as writers try to persuade the Australian public of what they believe is the most appropriate process for legalising same-sex marriage.

A pattern that emerges when looking at views journalism regarding the plebiscite for same-sex marriage is that it is not only journalists putting forward their opinion in traditional media outlets.  Instead, there are a large amount of public figures and politicians discussing and arguing their specific views on the situation.  Of the articles that I will be examining, no author is simply a journalist.  The author of ‘Same-sex marriage: Parliament is the proper place for enacting laws’, Michael Kirby put forward his views regarding the plebiscite.  Michael Kirby is a former Justice of the High Court of Australia, and has held other positions within the industry for more than forty years.  Tim Wilson, who wrote ‘Blocking the plebiscite on same-sex marriage would be no victory’ in the Sydney Morning Herald, is the Federal Liberal member for Goldstein, and was also formerly the Australian Human Rights commissioner.  Author of ‘Plebiscite looks set to fail, but the push for same-sex marriage will not’ in The Conversation, Dennis Altman, is Professorial Fellow in Human Security at La Trobe University, and a prominent gay rights activist.  Whilst holding different positions and jobs, each author holds a relatively prominent role in Australian society.  Hence, this illustrates that it is not simply journalists contributing to the debate regarding the plebiscite for same-sex marriage in Australian media.

The examined articles represent the pattern that the majority of opinion articles surrounding the plebiscite express very explicit claims either for or against the plebiscite.  This demonstrates that same-sex marriage is indeed a contentious issue, as authors take a clear side.  A quick search in google for views journalism regarding the plebiscite demonstrates this.  The majority of headlines illustrate the contentiousness of the issue, with explicit headlines that clearly outline the authors view, whether that be for or against.  For example, Frank Brennan’s headline ‘Same-sex marriage plebiscite the only choice left’ from the Australian, explicitly implies that he believes Australians should support the plebiscite.  Tim Wilson argues a similar point that is explicitly evident in his headline ‘Blocking the plebiscite on same-sex marriage would be no victory’. The same explicitness is evident in views journalism with the opposing view.  One example of this is Peter Van Onselen’s headline “Same-sex marriage: parliament could vote yes without plebiscite,” in which it is clear that he does not believe the plebiscite is appropriate. Similarly, Michael Kirby’s headline ‘Same-sex marriage: Parliament is the proper place for enacting laws” overtly articulates his opinion that parliament can decide in a free vote and therefore the plebiscite is unnecessary.  Each article mentioned above uses different persuasive and argumentative mechanisms in order to their argument across, and use different combinations of appeals to legal norms, appeals to facts and appeals to emotion.  Despite these varying styles, they all make very explicit evaluations of the plebiscite, illustrating that in views journalism it is an issue that requires a side to be chosen.  This is reflective of the nature of the issue to the Australian public.  Each author argues strongly for their explicit and respective opinions, insinuating that their audience, as individual Australian citizens, must do the same.

The examination of three articles in particular illustrate the contentious nature of the debate surrounding the plebiscite.  Michael Kirby and Dennis Altman both present their view opposing the plebiscite.  On the other hand, Tim Wilson expresses his argument that Australians should support the plebiscite. Whilst these three examples explicitly hold opposing viewpoints regarding the efficiency and effectiveness of holding a plebiscite, they also differentiate from each other through the means of argumentation.  Michael Kirby’s “Same-sex marriage: Parliament is the proper place for enacting laws” relies on an appeal to facts and legal norms to support his arguments.  He uses clear and direct language to create a structured article with formal tone. In contrast, Tim Wilson’s “Blocking the plebiscite on same-sex marriage would be no victory” relies on appeals to emotion to support his opinion that Australians should support the plebiscite in order to quicken the process of legalising same-sex marriage.  The argumentative style of Dennis Altman in “Plebiscite looks set to fail, but the push for same-sex marriage will not,” lies somewhere in the middle of the previous two articles.  He utilises a greater variety of justifications, including appeals to precedent, facts and emotion.

Published in The Australian, Michael Kirby’s article “Same-sex marriage: Parliament is the proper place for enacting laws” expresses his explicit central claim that parliament should make the decision regarding legalising same-sex marriage via a free vote.  Accordingly, Kirby does not support the plebiscite.  He makes an evaluative argument that relies on legal norms and facts to justify this claim. This reliance on legal norms and facts create a formal tone throughout the article, indicating the contentious nature of the issue because Kirby resorts to facts to present his argument as the ‘logical’ conclusion to come to. He makes his point of clear consistently throughout the article, and it is very clearly set out from the first paragraph:

 “Australians should reject the proposal to hold a plebiscite as a precondition to the enactment of same-sex marriage legislation by the federal parliament.  The elected politicians should get to work on what we the people elected them to do – to decide on the law, one way or the other, in parliament.”

This paragraph introduces his main justification – as a plebiscite has no impact on the Constitution, which is ultimately what we are attempting to achieve, it is not necessary.  This appeal to legal norms sets the formal and structured tone of the Kirby’s article.  He continues to repeat this main justification to persuade the audience of his central claim, stating that “we do not need a referendum, still less an extra constitutional plebiscite, to resolve any issue that parliament cannot decide” and “…there is no constitutional reason for a plebiscite”.

He emphasises that a free vote in parliament would be the most appropriate as it follows the current political processes normal to Australian parliament.  This is evident through Kirby’s multiple references to the Constitution, for example the argument that a free vote “would return Australia to its normal constitutional arrangements.  Under these, Australians do lawmaking in parliament, not plebiscites.” Another example of this is the following argument:

“The Constitution provides for a parliamentary system of representative government.  A plebiscite, as a precondition to legislation, is a totally exceptional procedure with no foothold in the Constitution. Under the Constitution we make laws in parliament, through decisions voted on after debates by the parliamentarians we elect to represent us.”

These references to the Constitution appeal to legal norms and precedent to present a factual argument. By reinforcing this argument he emphasises his evaluative clam – holding a plebiscite to decide on same-sex marriage is inappropriate because it does not have any impact on the Constitution, and therefore it should be left up to a free vote by politicians in parliament.

Kirby also utilises evaluate arguments to produce and justify his opinion.  The use of evaluative language, such as “abysmal” to describe Australia’s history of referendums, indicates his negative judgement of the political process. He follows this justification with the statement “there is no reason to think a plebiscite on same-sex marriage will be different.” This false analogy undermines his argument because a referendum and a plebiscite are two different processes.  However, they are successful in communicating Kirby’s negative evaluation of the plebiscite, and the assumption that it will fail.  A more subtle example of Kirby’s use of evaluative language is evident in “the substantial costs of the plebiscite (estimates of $160 million to $525m have been quoted) could be better spent on supporting, rather than attempting to frustrate, the attainment of the basic human rights of citizens.”   The use of the word “substantial” followed by the inclusion of statistics regarding the cost of a plebiscite further communicate Kirby’s negative evaluation of the plebiscite inefficient because it is a waste of time and money.

Another way that Kirby attempts to justify his opposition to the plebiscite is via appealing to authority.  The most prominent example of this is Kirby’s reference to the High Court of Australia in “The High Court of Australia in 2013 unanimously made it clear that the entire power to enact same-sex marriage in Australia rested with the federal parliament.” Consistent with his writing style throughout the article, Kirby presents the clear and direct argument and justification that the plebiscite is unnecessary because the decision rests with parliament.  The appeal to authority is an attempt to give credibility to his argument and further present his argument as the ‘logical’ conclusion to make.

Michael Kirby’s evaluative arguments help to communicate his firm and explicit opinion regarding the plebiscite.  The appeals to legal norms and facts provide justifications for his negative judgement of the plebiscite and, accordingly, his viewpoint that a free vote in parliament should occur. Dennis Altman shares a similar central claim to Kirby in his article published on The Conversation Plebiscite looks set to fail, but the push for same-sex marriage will not.” Whilst Altman presents arguments that rely on a greater variety of appeals and argumentative means, he ultimately shares the same point of view as Kirby.

Altman explicitly outlines his opinion that the plebiscite should not go ahead via appeals to facts, authority and emotion.   Similarly to Kirby, his explicit view is made evident from the outset as he sets out his central claim in the following statement:

“There are two major reasons to oppose the plebiscite: it distorts the nature of parliamentary democracy, and it will lead to a bitter and hurtful campaign.”

Altman’s first justification that the plebiscite does not follow the Australian parliament’s processes is supported by an appeal to legal norms in “unlike referenda, plebiscites are official public opinion polls, without any binding impact on legislation.” Thus, he infers the warrant that a plebiscites inability to impact legislation makes it an inappropriate action to take. Altman further backs this argument with an appeal to precedent by stating that plebiscites “are rare in Australian history; two on conscription during the first world war heightened sectarian bitterness that persisted for several decades.”  While this appeal to precedent successfully justifies his central claim, it is also an informal fallacy as it is based on a false analogy that assumes that the two separate social issues of legalising same-sex marriage and conscription could have the same impact on society.  Therefore, this assumption reduces the impact of his justification.  This is not the only false analogy present in Altman’s article.  He concludes his piece by relating the actions of members of parliament in relation to grey-hound racing to same-sex marriage in the following example.

“Recently a few Coalition members crossed the floor in New South Wales to oppose the end of greyhound racing.  It is probably not asking too much of their federal counterparts to cross the floor in order to allow a parliamentary debate and vote on same-sex marriage this year.”

Whilst grey-hound racing and same-sex marriage are both prominent and contentious issues being debated within parliament, as well as society, they are two separate issues. Therefore to compare them does not provide an accurate prediction of what will happen if a parliamentary vote for same-sex marriage occurs.

Altman goes into further detail in his reasoning for the plebiscite being unnecessary because of its lack of impact to change legislation.  This is evident in his argument that a parliamentary vote will need to occur regardless of whether or not the plebiscite occurs. The appeal to political norms in “a plebiscite can only stall a parliamentary vote to amend the Marriage Act allowing same-sex couple to wed.”  In this instance, Altman explicitly justifies his claim by stating that the only impact that the plebiscite will have is delaying a free vote in parliament.  The inclusion of the first person narration “let’s be clear” to introduce this point highlights his argument, and causes it to appear more ‘logical’.

Whilst Altman explicitly expresses his opposition to the plebiscite, as previously identified, he acknowledges that the impact of legalising same-sex marriage should not be over-estimated.  Altman states that “in reality changing the Marriage Act will achieve less than either its opponents or its proponents claim… Homophobia will not magically disappear because a number of established couples are able to legally marry.”  This statement is something that is not discussed by Kirby or Tim Wilson.  However, it essentially summarises the impact of the debate of this contentious issue in the Australian media.  It brings to attention that the legalisation of same-sex marriage, whether via a plebiscite or a parliamentary vote, will not necessarily alter anything in society.

In contrast to Michael Kirby and Dennis Altman’s articles in opposition to a plebiscite, Tim Wilson writes in support of it in “Blocking the plebiscite on same-sex marriage is no victory,” from the Sydney Morning Herald.  Wilson’s viewpoint is explicit and he presents the central claim that Australians should support the plebiscite.  He presents a recommendatory argument that relies on appeals to emotion to justify his claims.  However, he article comes across as opinion rather than argumentative as many claims made are not justified and contain informal fallacies.

Similarly to the previous articles discussed, Wilson’s view is explicit throughout the article.  His positive evaluation of the plebiscite is introduced in “many people who support a change in the law seem to think blocking a plebiscite is a victory.  It isn’t.” He justifies this by stating that “it might be the first time in human history when people who have an opportunity to fight for their rights decide they’d rather sit back and wait until someone else permits them.”  This is also the first example of an informal fallacy, as Wilson makes a hasty generalisation that people who support the legalisation of same-sex marriage are not doing anything for the cause. However, he appeals to the emotion of his audience via the image of fighting.  This is continued throughout the article, in which Wilson attempts to motivate his audience. For example, Wilson states “history isn’t delivered on a silver platter. It has to be fought for,” as well as “that is a future worth fighting for.” These examples of the reoccurring image of fighting appeal to the emotions of readers, and are Wilson’s attempt to persuade the audience to support the plebiscite in order to ‘fight’ for the change they desire through the nationalistic tones that are evoked.

The appeal to emotion is continued throughout the article.  Specifically, Wilson includes personal anecdotes to relate to his audience that imply his imagined readers have a similar worldview to himself.  A specific example of this occurs when Wilson recalls his initial reaction when Malcolm Turnbull announced that they would push for a plebiscite. In this personal anecdote, he states “after the announcement I went home, crawled into a ball in bed and cried.”  He continues to describe how it triggered him to relive his personal struggles as a young gay person trying to find his place in the world.  This personal anecdote strongly appeals to the emotions Wilson’s audience.  It indirectly refers to readers through the concluding statement “I know I wasn’t alone in this response,” as it subtly infers that readers share similar experiences or have similar worldviews. It is effective in supporting his central claim as he causes readers to reflect on their current view and reconsider Wilson’s argument, just as he has changed his view since his initial reaction to the plebiscite.

These examples of appeals to emotion are the most prominent justifications that Wilson utilises.  It illustrates that the issue of same-sex marriage, and how it is debated in Australian media is very divisive, and requires people to take a side. Whilst Wilson holds a different view on the plebiscite to Kirby and Altman, they ultimately similar in two aspects. Firstly, all authors address an audience that is made up of Australians who support same-sex marriage and want it to be legalised.  Secondly, they explicitly take a definitive on the issue, implying that it is an issue that each Australian must decide on.


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