By Crispin Hull

THE 116-year-old Constitution hovers in the background. Every now and then in the day-to-day political argy-bargy it comes in to play.

The past week has been a good example -- senate voting; the marriage equality plebiscite; and recognition of indigenous first occupation.

Let’s take the plebiscite and referendum first.

The Christian lobby has expressed concern, with some justification, that if it poses some of its arguments against same-sex marriage publicly its members could be in breach of some state’s anti-discrimination legislation – particularly that of Tasmania.

Action has already been brought in Tasmania against the Catholic Church over a booklet it published in defence of traditional marriage.

The trouble with the Tasmanian discrimination law, and to a lesser extent Federal law, is that breaches can be founded on whether someone is offended by speech or conduct, provided that a reasonable person could anticipate that they would be offended.

I think that that is a pretty low threshold to curb someone’s freedom of speech. Sure, make it an offence to incite violence, but to make it either a civil or criminal matter just because you might offend someone goes too far. 
That said, some good might now come of this hopelessly misguided, wasteful, and constitutionally faulty plebiscite on marriage equality.

This is because, if it goes ahead, and toes are trodden upon by Christians slagging off at gays and gays slagging off at Christians, the hovering 116-year-old Constitution will come into play.

And similarly, with any referendum on indigenous recognition.

The High Court has said that implied in the Constitution is a system of democratic and representative government. That can only work if people are well-informed, the court says. And, therefore, to the extent that any state law impinges upon the free flow of information implied in a representative and democratic system of government it is invalid.

Hitherto, the constitutional implication has been mainly applied to state defamation laws. It has permitted defendants in defamation cases to argue that publication of political matters, if done responsibly and carefully, cannot be successfully sued upon even if they ultimately turn out to be untrue.

So my guess is that the High Court will constrain state and federal anti-discrimination law when it comes to people engaging in debate on the marriage-equality plebiscite or on the indigenous-recognition referendum. These are clearly matters of representative democracy.

The constitutional implication of a free flow of information will not permit people to incite violence against gays or indigenous people, but it will allow speech that offends them or that reasonable people might expect to offend them.

The High Court will most likely read down these rather precious “take-offence” laws.

I detest homophobic and racist comments, but making them criminal or even subject to civil sanction in the context of a national political debate over marriage equality and indigenous recognition is not helpful.

How much better would it be that after a successful Yes vote on marriage equality or indigenous recognition to be able to say, “We let you do your worst. We let you say whatever you wanted and you still lost.”

That would be much better than successful Yes campaigns and a lingering resentment from the No campaigns that they only lost because they were muffled by do-good anti-discrimination laws.

Anther good thing might come of the Christian lobby feeling hard done by because of do-good speech-limiting opponents. They might see the value in having a general bill of rights which enshrines people’s freedom of speech beyond the merely political context, to enshrine their freedom to express themselves in a non-political environment to oppose marriage equality and to vehemently oppose indigenous recognition.

It is important to win these great human battles after opponents have no excuse – after they have lost in a great big equal conquest of ideas. However, if the battles are lost, so be it. There is always another day.

No one is now advocating that women should not be allowed to vote; that nine-year-olds should go down mines; that the impecunious sick should be left to die.

It is detestable that opponents of marriage equality should be muzzled by badly thought-out and badly drafted state legislation which wants to make their speech an offence.

Free speech is not free speech unless you are allowed to offend someone – always provided you do not incite violence against them.

Now to the Senate.

In the past week we have had an instructive truism from psephologist Malcolm Mackerras: the Constitution says what the High Court says it says.

With Green support a Bill is now certain to pass under which voters will be allowed to vote preferentially above the line: Labor 1; Liberal 2; Nationals 3; Greens 4 and so on.

Under the old system voters could only put a 1 above the line for a party and their vote was deemed to follow the preferences lodged by that party with the Electoral Commission. Or they could number all their preferences below the line, but for a valid vote they had to number them sequentially and accurately even if there were more than 100 candidates (as there have often been in some states).

Under the new arrangements, below-the-line voting will still require voters to number all candidates sequentially and accurately. This is a shame. It should allow an optional preferential system under which voters need only vote sequentially for, say, 12 candidates, not the whole 100 plus.

It is a shame because the power brokers in political parties will get to order their candidates and 90 percent plus of voters will be steered like sheep into a sheep dip to vote for that order. But it will not be unconstitutional.

The Constitution requires that senators be “chosen directly by the people”.

The existing system was held not to offend the Constitution by a single judge of the High Court. That could have been reargued, but with new provisions on their way that is irrelevant.

What about the constitutionality of the new provisions? My guess is that if challenged (quite likely) the court would say that any system that provided for the choice of senators based solely upon what voters mark on a ballot paper, without any reference to an external party list (as the soon-to-be-former system provided) would be held “chosen directly by the people”.

That would be the case even if the order on the ballot paper above the line is determined by political parties, provided there was an option below the line, however cumbersome, for voters to list all the candidates in order.

You cannot get more “directly chosen by the people” than that – even if 90 pus per cent opt for the convenient above-the-line voting in which parties predetermine the order of candidates.