Federal Politics

Time for the silent majority to be heard

The British House of Commons has approved gay marriage. The NSW Parliament will debate a bill embracing it. It is a reform issue which the national and Tasmanian parliaments recently squibbed. To be fair, unlike their predecessors and most states, at least they debated the issue.

For some years, and across polls, a clear majority of us welcome gay equality. Why then are parliaments here not queuing to recognise it?

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UK parliament backs gay marriage


Similarly, why is abortion still formally a serious criminal offence, when even stronger majorities have long accepted a woman's right to decide whether to continue a pregnancy?

To ask these questions raises even deeper questions. How should we go about making such contentious decisions? And why do democratic parliaments fail to act on reforms with sustained popular support?

Courage ... hopefully MPs will finally listen to the silent majority.
Courage ... hopefully MPs will finally listen to the silent majority. Photo: Getty Images

There are three ways to make law. Direct democracy by voting at referendums. Judicial law-making, where courts interpret precedents, statutes and constitutions. And representative government, where cabinets frame laws subject to parliament's approval.

Outside Norfolk Island, direct democracy is not on Australia's radar. Unlike parts of the US, citizens here cannot initiate law reform. Direct democracy may work in small communities which can meet and discuss issues, but it is unfocused. Californians voted for better services and lower taxes; eventually they got public bankruptcy.


Referendums can also fail to balance interests, especially those of minorities. Referendums in the US have mainly been used to ban same-sex marriage.

The US is a prime example of judicial law-making, where judges develop principles, like anti-discrimination, drawn from bills of rights. In October, a US court found that federal tax law could not discriminate against a (lesbian) couple married in Canada, and implied that gay marriage might be constitutionally required.

Australia's DNA is different. The bill of rights debate here revealed a reluctance to entrust veto power to judges. Courts hear litigants, they cannot consult widely as politicians can. Nor are judges experts on social policy.

Representative government was Australia's inheritance. Sovereign parliaments and governments are meant to weigh interests and ensure orderly law-making. Lawmakers, accountable to the people, are rarely fettered by judicial interpretation. This is political constitutionalism.

Yet governments and legislatures sometimes fail the test of democratic accountability. Paradoxically, courts can be more attuned with public values. This is most obvious with abortion.

Australian judges have stretched the wording of criminal codes to provide a defence to women and doctors where the woman's emotional health is ''at risk''.

This might look like a failure of the rule of law: unelected judges and prosecutors not taking statutes seriously. But it is not as if same-sex unions or abortion are complex questions demanding elite opinion or analysis. Defining marriage and access to abortion are values-based issues about family and personhood.

These are the very questions we are told parliaments, not judges, must rule upon because only parliaments can mediate public opinion. What then has gone awry? Why does ''representative'' government sometimes fail the democratic test?

Undoing an entrenched law requires political capital. The definition of marriage as ''a union of man and woman'' and the criminalisation of abortion are more than a century old. To middle-aged, mostly male legislators, they are second-order problems.

Yet politicians are afraid to even discuss the issues, despite the clear majorities for reform - they fear a backlash from a vocal minority more than they anticipate a pat-on-the-back from a quieter majority.

About a third of the population hold strongly conservative positions against gay marriage or abortion. Most do so for religious reasons, some are driven by prejudices. Their views are often vehement, so politicians fear them.

Gay people and their families - or women confronting an unplanned pregnancy - are less numerous and less organised. This leaves a residue of a silent but liberal majority for whom reform is welcome, but not personally pressing.

NSW parties are allowing an open vote on gay marriage. Hopefully those MPs will show courage and listen to the silent majority. Approving gay marriage will be an historic moment.

Graeme Orr is a professor in the law of politics at the University of Queensland.

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