tag:blogger.com,1999:blog-4052593945054595675.post3986944493416694668..comments2024-03-28T14:16:10.498+11:00Comments on Dr Kevin Bonham: Poll Roundup: No Instant Damage After Shocking Week Kevin Bonhamhttp://www.blogger.com/profile/06845545257440242894noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-4052593945054595675.post-27754805417304499642015-08-19T18:15:46.089+10:002015-08-19T18:15:46.089+10:00Further comment from John Pyke:
=================...Further comment from John Pyke:<br /><br />===============================================<br /><br /><br /><br />Thanks Kevin - let's all hold hands and blame Scott Morrison! (I get the impression he'd enjoy that anyway.)<br /><br />A couple of comments on your comments:<br /><br />" I do not think it is cut and dried that any such amendment gives those affected by the current law what they are seeking without any prospect of parliament messing around with it. For instance, a constitutional prohibition on discriminatory laws pertaining to marriage does not address the question of whether there should continue to be laws pertaining to marriage at all."<br /><br /><br />But of course no Parliament ever would repeal the Marriage Act - that would be cutting off a lot of hetero noses to spite a few gays. The High Court would rule that the bit about a man and a woman (which wasn't just added by John Howard - there were references in ss 46 and 69 right from the start) must be interpreted to include man and man or woman and woman (oops - my first amendment omits intersexuals) and the loony right would go home and wait for Armageddon, and the rest of us would move on.<br /><br /><br />And I don't believe any Parliament would ever adopt the GOOTG model - there are so many legal consequences that flow from marriage that the government, and laws, have to stay in the game. Slightly more likely (and much better in my view) would be adoption of the French model under which the only legally-recognised marriages are the civil ones conducted at la mairie, and adding a religious ceremony on top of that is entirely optional. The French have lived happily with that since the Revolution, and I believe it has spread to most of the rest of continental Europe.<br /><br /><br />"By the way I do like that wording of (1) from the Canadian Charter because it says "without discrimination and, in particular, without discrimination based on [...]" It seems to leave open the possibility of targeting discrimination on grounds not specifically mentioned." <br /><br /><br /><br />That's not unusual. The ICCPR guarantees all the listed rights "without distinction of any kind, such as...". That was how the UNHRC was able to rule that "sex" extended to sexual orientation in Toonen's case.<br /><br /><br />John P<br />============================================Kevin Bonhamhttps://www.blogger.com/profile/06845545257440242894noreply@blogger.comtag:blogger.com,1999:blog-4052593945054595675.post-86067602057625863662015-08-19T01:31:44.710+10:002015-08-19T01:31:44.710+10:00Interesting to see how the by-election in Canning ...Interesting to see how the by-election in Canning transpires, it is currently very close according to Newspoll. I somehow suspect the Liberals will get up ever so slightly, similar margin to the Newspoll, which is a 10% swing towards Labor, it would look reasonably good for Shorten with a handsome swing like that. There has been some pressure mounted on Abbott's leadership on the Back of this result, with a consensus view being, a Liberal loss would be the end of Abbott, so I suspect Labor will hope for a 8 - 10% swing towards them. Essentially the result won't change weaken the legislative power of the Liberals but will enhance Shorten's ability to connect with voters and keep Abbott in power to the detriment of the Liberals in Labor's perspective.<br />In my view Canning is naturally a Liberal leaning marginal but this redistribution after the by-election could be cut into two with a seat based around Armadale, in the north of the seat, which is strong Labor territory and the ALP candidate may contest that seat at the Federal Election with the Liberal candidate standing in a redistributed Canning.Anonymoushttps://www.blogger.com/profile/12351448744030085941noreply@blogger.comtag:blogger.com,1999:blog-4052593945054595675.post-13065796093552221382015-08-19T01:18:57.657+10:002015-08-19T01:18:57.657+10:00Thanks very much for that comment; I have edited i...Thanks very much for that comment; I have edited in a note referring to it.<br /><br />I'm always happy to have my (and Mr Turnbull's) occasional ignorance corrected and to facetiously blame Scott Morrison for causing the referendum debate to be dominated by a model that clearly wouldn't have the described effect. <br /><br />That said I do not think it is cut and dried that any such amendment gives those affected by the current law what they are seeking without any prospect of parliament messing around with it. For instance, a constitutional prohibition on discriminatory laws pertaining to marriage does not address the question of whether there should continue to be laws pertaining to marriage at all. <br /><br />A usually well-motivated but idealistic view I encounter rather often (perhaps more often than most involved in the issue) is that government should just get out of the formal recognition of "marriage" altogether. The get-out-of-the-game model (hereafter GOOTG) would involve government having a civil union process for formal recognition of coupledom, which couples could incorporate into their own marriage ceremonies, or enter into without "getting married", as they chose. The State would no longer be involved in any arguably implied moral judgement about a relationship being worthy of the status "marriage". Presumably all existing recognised marriages and civil unions would be transferred to the new system when it started.<br /><br />The GOOTG model gives some of the things same-sex marriage campaigners are seeking: an end to government discriminating in whose marriages it recognises, and an end to restrictions on celebrants in terms of what they can advertise as a marriage. But I think most SSM supporters would view it with distaste. After all it would send the message that same-sex marriages were so undesirable that the State had to stop recognising mixed-sex marriages to avoid giving same-sex couples the same standing. <br /><br />I don't think the GOOTG model has serious political currency or viability or would be pursued by parliament, but maybe I'm wrong about that. It's not light years away from the thinking behind a discriminatory (in my view anyway) two-tier system of "civil" and "religious" marriages that has some currency in Coalition ranks.<br /><br />By the way I do like that wording of (1) from the Canadian Charter because it says "without discrimination and, in particular, without discrimination based on [...]" It seems to leave open the possibility of targeting discrimination on grounds not specifically mentioned. I often dislike anti-discrimination legislation for its tendency to cover arbitrary shopping-lists of reasons and ignore other possible grounds of invalid and irrelevant discrimination.Kevin Bonhamhttps://www.blogger.com/profile/06845545257440242894noreply@blogger.comtag:blogger.com,1999:blog-4052593945054595675.post-89261173753548135702015-08-18T23:16:05.953+10:002015-08-18T23:16:05.953+10:00Comment from John Pyke (sent by email for technica...Comment from John Pyke (sent by email for technical reasons):<br /><br />Why is it that people who should know better (not just you, but Malcolm Turnbull BA LLB BCL) keep saying ignorant things like "it is not clear how a referendum can be a valid means of deciding the issue, unless it's a referendum to prevent the parliament adopting same-sex marriage, which no-one much seems to support"? <br /><br />Of course a referendum could decide the issue positively. Almost every advanced liberal democracy has prohibitions against discriminatory laws in its Constitution; there is a tradition here at the ω-end of the world of ignoring this and pretending that our 19th-century British way of doing things is the only way. [And the Notionally-Liberal Party perpetuates this - what a disgrace to the word liberal!]<br /><br />Here are a few sections that We the People could add to our Supreme Law. <br /><br />At the very specific level we could add a section that says "Laws with respect to marriage shall not discriminate between same-sex couples and opposite-sex couples." Simple, and would probably pass.<br /><br />A bit more generally we could add "No law of the Commonwealth shall discriminate on grounds of sex or sexual orientation"<br /><br />More generally again we could add:<br />"(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability. <br />(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability."<br /><br />You might think that looks familiar - it's s 15 of the Canadian Charter, with "sexual orientation" added. Similar provisions are in the European Convention, the ICCPR, the South African Counstitution, etc etc, and the equal protection clause of the 14th Amendment does a similar job in the US. If we added it we'd just be catching up with the rest of the world.<br /><br />John Pyke<br /><br />Retired lecturer in Constitutional Law and Comparative Human Rights Law <br />Kevin Bonhamhttps://www.blogger.com/profile/06845545257440242894noreply@blogger.comtag:blogger.com,1999:blog-4052593945054595675.post-9964048483909102632015-08-18T22:27:03.657+10:002015-08-18T22:27:03.657+10:00This comment has been removed by the author.Jack Arandahttps://www.blogger.com/profile/06210027164177789357noreply@blogger.com