Mary Anne Neilsen, Law
and Bills Digest
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.
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
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
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.
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.
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
Lambie and Senator
Hanson oppose same-sex marriage.
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.
D McKeown, A chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, Research paper series, 2016-17, Parliamentary Library, Canberra, updated July 2016.
M Neilsen, Same-sex marriage: issues for the 44th Parliament, Research paper series, 2015-16, Parliamentary Library, Canberra, 8 September 2015.
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