The two mega issues dominating federal politics, the citizenship crisis and the marriage ballot, have little in common – except that Malcolm Turnbull desperately needs each to come out the right way for him.
A narrow, black-letter interpretation of the Constitution’s Section 44 (i) which rendered three senior Nationals ineligible to sit in parliament would cause chaos for the government and, internally, for the Coalition.
A “No” result in the postal ballot might be less immediately serious, but it would leave a running sore that would further reduce Turnbull’s diminished authority.
It’s hard to believe that inquiries into the circumstances of Greens senator Scott Ludlam and the Justice Party’s Derryn Hinch by Western Australian barrister John Cameron, a man with no apparent political motive but a long-term preoccupation with questions of citizenship qualifications, could have produced such an extraordinary domino effect.
The government is relying on the High Court to read the Constitution’s section in what the lay person might describe as pragmatic legal terms, rather than literally.
The case has been set down for October 10-12, prolonging the uncertainty for the government, which sought a mid-September hearing.
The government is arguing that of the five referred so far (with the Nationals’ Fiona Nash and crossbencher Nick Xenophon to come), the eligibility of the Nationals’ Barnaby Joyce and Matt Canavan as well as former Greens senator Larissa Waters should be upheld. It maintains Ludlam, who – like Waters – has resigned, should be found ineligible, while One Nation’s Malcolm Roberts’ situation turns on paperwork.
One sidelight of the case is that Tony Windsor, whom Joyce fended off in New England at the election, has been given leave to appear, adding further aggravation for Joyce. Windsor’s lawyer will contest Joyce’s eligibility and would like to cross-examine him.
Under pressure over keeping Joyce and Nash in the ministry while the High Court ponders, the government has been struggling with how to handle the politics. There were suggestions it might refer some Labor people to the court and claims Bill Shorten wouldn’t produce his own renunciation documentation (no-one doubts it is in order) because he was protecting people on his own side. But now the government has pulled back.
Before it gets to consider the citizenship cases, the High Court has to hear, on September 5-6, the challenges to the postal vote, where a main issue is whether the funding, which comes from the advance to the finance minister, is legitimate. The government is using that method to circumvent the lack of parliamentary approval for the spending.
Michael Keating, a former head of the finance department and the prime minister’s department, strongly questions this course. Keating sees it as an “entirely inappropriate” use of the advance and cannot recall the finance department ever being asked to facilitate the use of this fund “for a purpose that seemed unlikely to be supported by the parliament”.
Assuming the ballot survives the legal challenges, polls out this week show the battle is starting with the “Yes” case in a good position.
Newspoll found 63% favoured same-sex marriage being legalised; 67% said they would definitely vote and a further 15% probably would. Essential had 57% supporting a change to the law; 63% definitely intended to vote, and 18% indicated they probably would.
Nevertheless, it would be rash to predict the result from these early polls. It’s a voluntary ballot, and the campaign will run for weeks after voting papers are sent out from September 12.
Despite being voluntary, and regardless of Australians’ disillusionment with the political process generally and many people’s scepticism about the postal ballot specifically, early signs suggest voters are quite engaged.
It’s not just the high proportion saying they’ll vote but also the substantial number of new enrolments and people updating their details on the roll. On the latest figures, 90,000 new electors had enrolled, among 765,000 enrolment transactions processed since the announcement of the ballot.
Enrolments closed midnight Thursday; at the end of Thursday there were more than 165,000 transactions still to be processed, with work continuing through the weekend.
With no government funding for campaigning, this battle will test the mobilisation power of both sides: those churches, lobby groups, political figures and others urging a No vote, and the marriage equality groups, Labor, Greens, GetUp!, unions and the like promoting change.
The Yes advocates are trying to narrow the issue, to centre it on the question of rights and justice for the LGBTI community. At the core of their case is the argument that altering the marriage law won’t alter anything for other people.
The opponents are widening the debate in at least two directions.
First, they are taking it to the broad question of religious freedom in Australia, arguing this will be, if it is not already, under threat. This debate is now travelling well beyond the exemptions for those not wanting to have anything to do with same-sex marriage ceremonies.
Second, the critics are going to the general issue of “political correctness” and anger at “elites”. Tony Abbott and others are seeking to hoover up broad discontents and urge people to use a No vote as some sort of general protest.
A Yes win would be a major blow for Abbott, given his heavy political investment in the campaign.
Nevertheless, if the No forces are routed, a rearguard action can be expected from them.
The government says if there is a Yes vote it will facilitate a private member’s bill to implement the result. But the precise terms of that bill are to be agreed on later. A last hurrah from a defeated No side would be over how extensive the protections for critics of same-sex marriage should be in that legislation.
A win for the No side would have deep implications for Turnbull. For him personally, a No victory would be a devastating humiliation. It would have echoes of the rebuff he received at the 1999 republic referendum.
He might have put a lot more effort into that campaign than he plans with this one, but he comes to it as the nation’s leader.
He would have kept an election promise (sort of) but set back a cause once seen as central in his political agenda.
And what about Australia? If more were to vote No, then Australia, a nation that prides itself on the fair go, would have spoken in a way that kept it out of kilter with comparable nations, including Britain, New Zealand, the US, Ireland, and most of western Europe. That surely would send an unfortunate message internationally.