Same-sex marriage

Mary Anne Neilsen, Law and Bills Digest

Key Issue
Same-sex marriage remains on the political agenda with the debate now focused on the Government’s commitment to hold a plebiscite.

Same-sex marriage has been on the political agenda in Australia for several years, as part of the broader debate about the legal recognition of same-sex relationships. The right to marry remains the one significant area of difference between the treatment of same-sex and heterosexual relationships. Advocates of marriage equality argue it is important to move quickly to remove this last remaining obstacle to full legal equality. However, while there has been a shift in community and political opinion, for some the issue of same-sex marriage remains complex and controversial raising human rights, social and religious questions.

The Marriage Act 1966 (Cth) defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. This definition was inserted into the Marriage Act in 2004.

Since the 2004 amendments 18 Bills dealing with marriage equality or the recognition of overseas same-sex marriages have been introduced into the federal Parliament. No Bill has progressed past the second reading stage and, consequently, no Bill has been debated by the second chamber. All 18 Bills have been private members’ Bills, introduced by members of Parliament from across the political spectrum.

During the 44th Parliament the debate about same-sex marriage further intensified, triggered, in part, by international developments in the United Kingdom, New Zealand, the United States and Ireland where same-sex marriage is now permitted. The debate was spurred on by the introduction of a raft of private members Bills and, finally, by the Coalition party room decision in August 2015 to reject a policy change allowing a conscience vote on same-sex marriage adopting, instead, a proposal to put the matter to a popular vote after the 2016 election.

A popular vote by plebiscite

Since the election, Prime Minister Turnbull has stated that, in keeping with the Coalition’s election commitment, the Government will introduce into the Parliament a Bill for the holding of a plebiscite on same-sex marriage as soon as is practicable and most likely in early 2017.

In Australia, the terms ‘plebiscite’ and ‘referendum’ have quite distinct meanings. At national level, a referendum is a vote to change the Constitution, subject to strict rules set out in section 128 of the Constitution and with a binding outcome. Legally a referendum to decide the Commonwealth’s power over same-sex marriage is not necessary. The High Court has determined that, in the Same-sex marriage case, the federal Parliament has the power to legislate with respect to same-sex marriage.

In contrast, a national plebiscite is a vote by citizens on any subject of national significance but which does not affect the Constitution. Plebiscites are normally advisory and do not compel a government to act on the outcome. There have only been three national plebiscites – two on conscription during World War I and one on the choice of a National Song in 1977.

The Government has not yet announced the full details of the framework for the plebiscite. The enabling Act for the plebiscite, expected to be introduced later this year, would most likely set out the purpose of the plebiscite and enable a vote to be conducted by the Australian Electoral Commission. The Act may specify any actions expected of the Government as a result of the plebiscite. It may set out the rules for approval such as whether it must be approved by a simple majority of votes nationally, or by a double majority—meaning it must win the majority of votes nationally AND win in a majority of the states. The enabling Act should also specify whether voting will be compulsory or voluntary, although there has been debate about whether a compulsory plebiscite may be subject to a constitutional challenge. Some argue that the Act should specify the actual question to be put to the electors. The Attorney-General Senator Brandis has indicated that, in his view, and subject to cabinet approval, the question will be kept simple to avoid confusion. Voting would be compulsory, and counting the vote would be by electorates with a majority of votes nationally required to be successful. Decisions about possible public funding of the yes and no case will be a matter for Cabinet.

Public and political opinion

Public attitudes, gauged in a recent opinion poll, suggest that support for a plebiscite has waned, due in part to the realisation of its non-binding nature and the cost involved.

Those in favour argue that social issues like marriage should be resolved by means of direct democracy such as a plebiscite. Those opposed to a plebiscite argue it is an expensive opinion poll, (its estimated cost being $160 million) with no guarantee that Parliament will heed the result. Opponents point to its potential to be divisive and incite homophobic hatred. They also argue human rights issues affecting a minority should be decided by a representative Parliament and that Parliament has not in the past and should not now, abrogate its responsibilities on important human rights issues.

The ALP is opposed to a plebiscite and went to the election promising to introduce a Marriage Equality Bill within 100 days if elected to office. Opposition Leader Bill Shorten has left open the option of bringing a private member’s Bill to push for a conscience vote rather than a plebiscite. Independents and minor parties have expressed a range of views. The Australian Greens, Senator Xenophon, Mr Wilkie, Ms McGowan and Mr Hinch support same-sex marriage, preferring a parliamentary vote rather than a plebiscite. Mr Katter, Senator Lambie and Senator Hanson oppose same-sex marriage.

Prime Minister Turnbull has indicated that Coalition members will not be bound by the outcome of the plebiscite. However, he is in no doubt that, if the plebiscite is carried, an overwhelming majority of Members and Senators will vote for the subsequent Bill that would permit same-sex marriage.

Same-sex marriage

A popular vote by plebiscite

Public and political opinion

Further reading