Wednesday, August 16, 2017

Australian same sex marriage - hopefully, we can get the postal vote done

In many ways, I find the debate over gay marriage confused and confusing. Reading the media coverage, the commentary, the twitter feeds from both, sides leaves me feeling that there is a fair bit of cant, bigotry and political hypocrisy in all this, one that mixes together various issues to achieve particular ends. I include Mr Shorten in this charge, as well as the Greens.

As you might expect, I intend to vote yes in this postal ballot. I do so for a mix of practical and ideological reasons. Before outlining them, the Wikipedia piece on the recent history of the same sex marriage debate provides useful background.

In earlier discussion on this blog, commenters suggested that one solution to the same sex marriage question was to remove the state from marriage as such. Marriage would become a ceremonial activity, with the state role limited to practical regulation of associated matters, thus creating a clear distinction between the two.

While I can see force in this argument, I can also see two problems. The first is that the Australian constitution gives the Commonwealth power over marriage, while civil unions fall to the states, creating a risk of differential treatment. The second is the way that marriage as such is recognised internationally. Problems arise if you have two distinct systems in one country in gaining recognition in other countries.

Despite these problems, I can still see real advantages in recognising the differences between what we might think of as the legal and contractual issues associated with marriage and the ceremonial and personal aspects, including any religious aspects. Under this system, the core role of the state would would be the registration of marriages, with all other aspects falling to the personal domain. The role of the marriage celebrant would lie strictly within the personal domain, although it might include assisting the couple to lodge the paper work as an ancillary activity. Registration of marriage celebrants could be abolished, freedom of choice and indeed freedom of religion maximised.

This type of change requires a sensible national conversation that may not be possible within the bounds set by current discussion. However, it does influence my thinking.

As I see it, the present system of marriage is unfair on two grounds. It denies certain couples who wish to enter into a long term binding relationship access to the full civil protections, rights and obligations of marriage, effectively creating a two tier system. It also denies them the right to call themselves and present themselves as married, something that hurts. Both are hard to justify.    

I said that I felt that there was a fair bit of cant, bigotry and political hypocrisy in the debate, one that mixes together various issues to achieve particular ends and that left me confused. I will try to illustrate this.

Consider the question of a plebiscite. Same sex marriage is a genuinely difficult issue for the Coalition, an issue made more difficult because of the way we have mixed together associated  questions about the role of marriage.The decision to opt for a non binding plebiscite by the Abbott Coalition Government in August 2015 reflected differences in the party rooms about how to manage the question. Some may have wanted to kick it down the road, others saw it as providing a justification to vote in a particular way where they or their electorates had real reservations. If the people show support, I can go with this.

This decision was taken to the electorate as policy in the election held on 2 July 2016. In September 2016, Prime Minister Turnbull introduced legislation to provide for a plebiscite to be held on 11 February 2017. This was defeated in the Senate, with the matter to be put aside until after the next election. Agitation continued, creating a split in the Coalition with some members wanting to introduce another marriage equality bill, the twenty second, into Parliament.

On 7 August 2017, the Joint Coalition Party Room decided to resubmit the plebiscite legislation and then,. if that was defeated, to go for voluntary postal survey via Australia Post postal mail run by the Australian Bureau of of Statistics. Ballots would be mailed out to Australian voters from 12 September and would be required to be mailed back by 7 November, with a result expected no later than 15 November 2017. If the postal vote returned a majority 'yes' verdict, the government would facilitate a private member's bill in the final sitting fortnight of the parliamentary year which would legalise same-sex marriage  This approach is now being challenged in the High Court.    

Those who  opposed the plebiscite did so using a variety of stated reasons: Parliament should decide; a plebiscite is a waste of money;  a plebiscite will inflame divisions. There was a fear that a plebiscite might deliver a no vote, whereas a free vote in Parliament would now deliver a yes because of shifts in views in recent years.

There were genuine beliefs and arguments in all this, but I am left with the very uncomfortable feeling that the combination of purism with a desire to wedge the Government for political reasons were dominant. Had the plebiscite legislation been passed, we would had a popular vote in February. Now we have what many think of as a second class vote that will give us a result in November. If the postal vote is defeated in the High Court as seems quite possible, then either the matter will be deferred till after the next election or, and this is the hope of advocates, the Coalition will split, forcing the introduction of a private members bill. This would probably pass, but may not.

One stated aim of those who opposed the plebiscite on the grounds that we needed to avoid a hurtful and divisive debate has, I think, achieved the opposite effect  If the postal vote is defeated in the High Court as I fear it may be, then the matter may drag on for several years.

One of the real problems in all this, apart from the hurt caused to particular individuals, lies in the way it allows time for the issue to become increasingly divisive, not just in terms of same sex marriage but the broader social divides of which this issue is a part. I just hope that we can get through the postal vote, win and move on.

Monday, August 14, 2017

Why Barnaby Joyce may not be a dual citizen under Australian law

The tag on this tweet from @MrJoshEarl on Twitter reads "Oh Barnaby Joyce, if only there were signs."

The Joyce case has had some unexpected effects. Constitutional export Anne Twomey has told @ABCNews that in looking at the Barnaby Joyce case, she discovered that she was a New Zealand citizen.

I looked at the evolving problem on 18 July in Senators Ludlum, Waters and the emerging Section 44(i) mess. There I said in part:
The Constitution was passed as an Act of the British Parliament in 1900. This was a very different world, one of Empire and emerging Commonwealth. As you can see from the Wikipedia article on Australian nationality law, concepts of citizenship have evolved, as has the definition of a foreign power. In 1900, it would have been seen as inconceivable that Canada or New Zealand could or would be classified as foreign powers for the purpose of Section 44(i) as compared to, say, the United States or Germany. When Canberra founder King O'Malley, for example, wanted to run for Parliament, he appears to have changed his birthplace from the US to Canada so that he was not precluded by Section 44(i). 
The problem now can be simply put: something like 28% of the Australian population was born overseas, while almost 50% of the Australian population has one parent born overseas. Perhaps as many as 4.5 million Australians are or may be eligible for dual citizenship depending on the laws in the other country and hence not be eligible to stand for the Australian Parliament on a strict interpretation of the wording of Section 44(i).
Consider my own case as someone who has run for preselection for Federal Parliament. At the time I ran, I was eligible to apply for both British and New Zealand passports, to become a citizen of those countries. Indeed, my family later pushed me to apply for a British passport while I still could because of then EU access. Was I therefore ineligible to stand for Parliament?
At the time I ran, the questions now swirling around S44 had yet to emerge. Nobody would have challenged my right to run just because I might have been able to apply for a UK or New Zealand passport. Track forward. Had I run and stayed in Parliament, then changing interpretations would likely have invalidated my membership.

Barnaby Joyce's father came to Australia in 1947 as a vet science student..My father came in 1938 as a university lecturer..In Australia, Barnaby's father met his Australian wife to be while studying, my father met his wife to be because she was in charge of the library at the New England University College. Both married and stayed. Barnaby was born in Australia in 1967. I was also born in Australia, if somewhat earlier.

On the surface, the advice from New Zealand Prime Minister Bill English that Barnaby Joyce was a New Zealand citizen for the purposes of New Zealand law citizen means that I am too. Mind you, in my case I do not necessarily object. I am very fond of New Zealand and quite like the idea of being citizen of both countries. I also thought that If I am a New Zealand citizen, then my daughters may be able to acquire citizenship too. That might create problems if they were to run for the Australian Parliament, but (as eldest said) they could always renounce an New Zealand rights should they wish to do that.

Interest aroused, I did a bit of checking to try to determine what my rights were. This proved more complicated than I expected because of changes in New Zealand law over time. As best I can work out, the position is this:
  • I am entitled to New Zealand citizenship and a passport by right of descent. 
  • To obtain registration as a citizen, I must fill out a form and provide supporting documentation to prove that I am eligible for registration. Once that eligibility is proved, then registration is automatic
  • If I register as an NZ citizen, it does not give my daughters automatic rights as an NZ citizen. They have to go through other hoops, including five years' residency.Damn!
In these cases, it is always important to look at the facts, especially when dealing with hyper-ventilating Canberra. I do not pretend to be either a lawyer or an expert on New Zealand law. My Joyce appears clearly entitled to register as a New Zealand citizen and obtain a New Zealand passport, but does that make him a New Zealand citizen as Mr English claims?  I would have thought not, at least so far as Australian law is concerned. To be a registered New Zealand citizen, he must both apply and prove that he is entitled to be so classified. He has not done that. Until he does so, his New Zealand citizenship is purely notional.

If the High Court were to accept this position, they would still have to deal with the entitlement part of clause 44(i).

Its all become a bit of a nonsense. For my part, I plan to follow up with both the UK and New Zealand authorities to determine what my position is. It's interesting. I haven't looked at the demography, but at a rough guess at least 500,000 Australians may be eligible to apply for New Zealand passports.Perhaps we should.


Graeme Orr had a useful piece on The Conversation on the whole Section 44 matter, To the High Court we go: six MPs under clouds in decisions that could undermine the government.

Sunday, August 06, 2017

Women, babies and political power

The sudden election of Jacinda Ardern as leader of the New Zealand Labour Party in place of  Andrew Little just weeks before the next general election on 23 September 2017 caused some surprise. Labour had been lagging in the polls, but the move still seems to have been unexpected.

Under the New Zealand MMP (mixed-member proportional) electoral system, it is difficult for either major party to gain a majority, making coalition governments the norm. On the current opinion poll figures, either a National/NewZealand First or a Labour/New Zealand First/Green combination are technically possible. However, the higher the vote of the two major parties, the easier it is to form a coalition, giving the National Party a real advantage. Labour hopes that Ms Arden's appointment will give it a poll boost, narrowing the gap with the Nationals. I don't think that there has been a poll since Ms Ardern's appointment, but it appears to have given Labour a boost.

New Zealand politics is generally not well covered in Australia. However, in this case, the question of a possible future pregnancy for the 37 year old Ms Arden did generate coverage on this side of the ditch.

The issue arose when the host of The Project in New Zealand, Jesse Mulligan, asked Ms Ardern, who does not have children, whether she had to decide between having a career and becoming a parent. As reported by the ABC:
"Let me put it this way. A lot of women in New Zealand feel like they have to make a choice between having babies and having a career, or continuing their career at a certain point in their lives — late 30s." 
"Thank you for reminding the New Zealand public of my age," Ms Ardern interjected, to laughter. 
Mulligan continued: "Is that a decision that you feel you have to make, or that you feel that you've already made?"
The question generated a storm, one that I thought Ms Ardern has handled very well.

She said that she expected to be asked the question because she had previously discussed the issue in the context of choices and challenges for women,  including (I think) her own desire to have a child. As I interpret her response,  she and her partner Clarke Gayford would essentially take things as they come.

At the same time, while she was prepared to respond on an issue she had previously raised, she rounded on a radio show panellist Mark Richardson who is reported as saying that employers "need to know that type of thing from the women you are employing...The question is, is it OK for a PM to take maternity leave while in office?" .Ms Ardern said that while she had been prepared to respond,  for other women it was totally unacceptable in 2017 to say that women should have to answer that question in the workplace.

Mr Richardson reportedly then dug himself into a bigger hole: saying a potential employer had a right to know if they would have to let a staff member take "a year of leave.....I'm not saying don't employ that person". "Why would you ask if it wasn't going to prejudice your decision?", Ms Ardern responded.

Mr Richardson is a former cricketer turned TV presenter  who clearly holds some antediluvian views. Among other things, I think that it would be illegal in New Zealand as well as Australia for an employer to actually ask that question. Stuff NZ reports on some of the responses to his remarks.

My mind went in a slightly different direction. I am not aware of cases, and this may just be lack of knowledge on my part, of elected female heads of state having babies while in office. However, there is one respected female profession where women have had babies while exercising considerable official political influence and indeed direct power and that is the role of Queen or Empress.

Queen Elizabeth the Second was queen when Prince Andrew was 1960. Queen Victoria had nine children while Queen. Empress Maria Theresa had no less than sixteen children while reforming the Hapsburg Empire, while Catherine the Great of Russia  managed to fit in multiple lovers and at least one illegitimate child while acting as authoritarian ruler.

I could give other examples. However, my simple and not especially profound point is that pregnancy of itself does not preclude a woman successfully occupying a top political position. Surely we can fit in at least one elected leader?            .

Tuesday, August 01, 2017

Boredom with the Australian republic

I remain bogged down in other writing. My main post yesterday, The lessons and questions from Madjedbebe, was back on Australian prehistory. I hope to do better here in the future, but am not promising!

Mr Shorten has again raised the question of an Australian republic. We are to be asked:
"One question — do you support an Australian republic with an Australian head of state? 'Yes' or 'No'?" he said. 
How things change. When Prime Minister Keating launched his campaign for a republic I was very upset because it was part of what of what I saw as an ideological attack on a whole range of things. When Prime Minister Howard held the 1999 republic constitutional referendum I was engaged on the constitutional monarchy side. Now I am just bored.

At this point, I do not know what Mr Shorten's question means. A constitutional lawyer may need to advise. If we vote yes, I presume that the next question will be a vote on choices of different republican forms. Again, I'm not sure what that means. I'm assuming that if we vote yes on one, we are bound by the majority on two regardless of the absolute number that want that particular option. So we could end up with almost anything.

I haven't done a poll among my friends. Based on what I know, a majority would be pro-republic in an abstract sense, but none would seem to regard it as a key issue measured by their conversation. Those who are strongly republican seem to come from a relatively narrow slice, essentially particular age groups with Roman Catholic, Irish, Labor ancestry.  I am not sure about under thirty voters, nor about those from many ethnic backgrounds. I just don't know wide enough groups to be representative.

Mr Shorten may well win the next election. Until he does and then introduces the question, I see little point in getting engaged. As I said, I am bored with the issue. There are more important things to worry about.