A referendum, a plebiscite or a parliamentary vote?
The committee received submissions which ranged from strongly supporting
a popular vote on the issue of marriage to outright opposition to a popular
vote. In this chapter the committee outlines the arguments both in support and
against the following options:
a plebiscite; and
a parliamentary vote.
Many submissions emphasised that a referendum is unnecessary as the
High Court has already held that the Parliament has the constitutional
power to pass legislation with respect to marriage, including same-sex
Section 51(xxi) of the Commonwealth Constitution gives the Parliament
the power to make laws with respect to 'marriage'. 'Marriage' is not defined in
the Constitution but, as noted previously, is defined in the Marriage Act as
'the union of a man and a woman to the exclusion of all others, voluntarily
entered into for life'.
In December 2013, in its decision in The Commonwealth of Australia v
The Australian Capital Territory (Commonwealth v ACT),
the High Court held that the marriage power in section 51(xxi) of the
Constitution encompasses same-sex marriage.
The High Court stated:
Under the Constitution and federal law as it now stands,
whether same sex marriage should be provided for by law...is a matter for the
Associate Professor Kristen Walker QC noted:
There is thus no uncertainty about the scope of the
Commonwealth legislative power in this regard. It is not necessary for a
referendum to confirm the High Court's interpretation.
However, a number of submitters argued in favour of a referendum on the
issue of marriage. Mr Paul Hanrahan, Executive Director of Family Life
International (Australia), outlined the reason he favoured a referendum:
I would support a referendum over a plebiscite. I believe the
matter has not been settled on the constitutionality of these proposed changes,
despite the statement of the High Court in 2013[.]
The Australian Catholic Bishops Conference (ACBC), while stating that it
did not have a view on how the issue of marriage should be decided, argued that
there is a 'strong case' for a public vote on the issue of marriage.
The ACBC continued:
Because of the importance of this matter for the future of
our community a strong case can be made for deciding the matter by referendum
rather than plebiscite or parliamentary vote, as this 'sets the bar high' in
terms of informed public debate and consensus required (a majority of votes
nationally and in a majority of states after a clear explanation of the
arguments for and against).
Submissions acknowledged the decision in Commonwealth v ACT is
binding in relation to section 51(xxi) of the Constitution.
Despite this, Lawyers for the Preservation of Marriage, among others,
criticised the decision of the High Court in Commonwealth v ACT to the
extent that it dealt with the scope of the marriage power in the Constitution:
The High Court's decision as to the breadth of the marriage
power in s51(xxi) of the Constitution was made without the benefit of the
contradictor. It was made, therefore without the benefit of full argument and
was not necessary to decide the question which the Court faced, namely the
validity of the [ACT legislation, the Marriage Equality (Same Sex) Act 2013 (ACT),]
and in the circumstances its status as a precedent in relation to the meaning
of the marriage power in the Constitution is not beyond question.
FamilyVoice Australia argued that the High Court decision in Commonwealth
v ACT on the issue of same-sex marriage could 'theoretically' be considered
Lawyers for the Preservation of the Definition of Marriage contended:
A referendum will be the clearest way in which a question is
put to the people, as it will define the exact changes to be made to the
Constitution, and so, for all practical purposes fix (in constitutional and
legislative terms) the meaning of marriage in Australia.
However, the Australian Human Rights Commission (AHRC) stated that an
amendment to section 51(xxi) of the Constitution is 'unlikely to resolve the
substantive issue at hand'.
The AHRC set out the four possible scenarios that could result from a referendum
to amend section 51(xxi) of the Constitution:
- A question is put to define marriage, for the purposes of
section 51 (xxi), as a union of "two people (including two people of the
same sex)" and is successful: the result would still leave the Parliament
able to legislate marriage for same-sex couples.
- A question is put to define marriage as a union of
"two people" and is unsuccessful: the result would still leave the
Parliament able to legislate under its existing constitutional powers marriage
for same-sex couples.
- A question is put to define marriage as a union between a
"man and a woman" and is unsuccessful: the result would still leave
the Parliament able to legislate under its existing constitutional powers
marriage for same-sex couples.
- A question is put to define marriage as a union between a
"man and a woman" and is successful: the practical result would be
less certain. State Parliaments would retain the constitutional power to
legislate with respect to same-sex relationships. It would be arguable whether
any State legislation relating to same-sex marriages would impair, alter or
detract from the Commonwealth Marriage Act in its current form. States would be
likely to have the power to legislate an equivalent status for same-sex
couples, but a same-sex marriage would have a different legal status from a
marriage under the Marriage Act.
Given these outcomes AHRC concluded:
In all scenarios a Parliament in Australia would be left with
the Constitutional capacity to legislate marriage or an equivalent status for
same-sex couples. And the fourth scenario would raise questions about
recognition of those marriages between different jurisdictions.
The committee also received a limited number of submissions which
strongly supported a plebiscite on the issue of marriage. For example, Professor
Jim Allan explained that he believed social policy issues ought to be resolved
by means of a democratic process, such as a plebiscite:
Such processes have the great advantage of counting all
electors as equal, so that a plumber or secretary's moral views count for as
much as a lawyer's or someone working for some United Nations agency. This, in
my view is the appropriate way of resolving all divisive social policy issues,
even if they have been translated into the language of rights or of human
rights. On issues such as euthanasia, abortion, same-sex marriage and the rest
there is no special expertise that a law degree and a decade working at the Bar
provides to someone. Nor does employment with the United Nations or expertise
in the finer points of international law make one's preferences and opinions
somehow superior. Nor is there any persuasive reason for thinking that
Australians need to follow the dictates of the European Court of Human Rights
or any other committee of unelected ex-lawyers.
The Ambrose Centre for Religious Liberty also favoured a plebiscite arguing
it would deliver a 'clear picture' of the belief of the Australian population
on the question of marriage:
Once such a view is obtained it is then a question for the
Parliament to make (or restate) the law pursuant to the Marriage Act...
The outcome [of a plebiscite] would inform the Parliament as
to the wishes of the majority and allow the appropriate legislation to be
adopted with the necessary consequential changes to the existing law.
However, many submissions expressed concern that the nature of a plebiscite
meant it was an inappropriate mechanism by which to conduct a popular vote on
marriage. For example, the AHRC, noting that a plebiscite is non-binding on the
Parliament, outlined its reservations about a plebiscite:
The outcome of a plebiscite is limited in its ability to
assist in the complex process of reforming the Marriage Act. The lack of
regulation on the conduct and outcome of a plebiscite, raises concerns
regarding the exact wording of any proposal and the threshold test for a vote to
be considered a success. Without legal force a plebiscite is an unreliable
method for establishing a clear mandate for legislative change.
Professor George Williams stated that the fact that a plebiscite had no
legal effect made it 'no more than a formalised, national opinion poll'.
Australian Marriage Equality (AME) submitted that it would be 'an act of
bad faith' to hold a plebiscite on a matter, and then have the outcome of the
plebiscite 'treated as advisory and not final'.
However, AME continued:
The non-binding nature of plebiscites also means parliament
can ignore the result of a plebiscite or delay its implementation for as long
as it wishes. We note it took seven years for the result of the 1977 national
anthem plebiscite to be implemented.
It was also argued that there was no rationale for singling out the
issue of marriage in this particular context as a topic for a plebiscite when a
number of other similarly controversial issues have been decided without a plebiscite.
As The University of Adelaide – Public Law & Policy Research Unit
What is evident from the [examples] of the use of a
plebiscite in Australia [previously] is that they do not yield any criteria or
rationale for when or why the Executive or the Parliament designates to the
electorate a decision wholly within their capacities. This can be contrasted
with referendum mechanism which is clearly linked to the amendment of the Constitution.
The list of other significant policy questions that have not been submitted to
the people for consideration only highlights the fact that similar moral or
highly charged questions remain with the traditional capacity of the
Parliament. For example, decisions to declare war, enter into trade agreements,
raise taxes or provide Medicare benefits for termination services are all
issues that could equally be referred to the Australian people.
In a similar vein, Professor Geoffrey Lindell AM noted that governments
and Parliaments have been able to deal with controversial issues previously
without requiring a plebiscite:
It is true that two plebiscites were held during World War I
on the question of conscription for military service overseas during that War. But
this method of governing in Australia is comparatively rare. A number of
important and controversial social and political issues have been decided by
Parliaments and Governments without the holding of a popular vote as was the
case with sending Australian troops to fight in the Vietnam and Iraq Wars. It
is well known that the issue of euthanasia is a current controversial issue
which has not been put to the people even though it has gained high levels of
public approval. More to the point, no such vote was obtained to herald in the
changes to our divorce laws which have had an equally important effect on
changing the nature of the relationship of marriage.
Professor Lindell concluded:
I do not believe that any special reason has been
demonstrated for departing from the usual way of legislating by holding a
plebiscite on the matter once a matter is clearly within legislative power.
This is so even though sharply conflicting views have been expressed in the
community on the question of same-sex marriage.
At the public hearing the committee sought the view of witnesses on
whether a successful vote at a plebiscite would bring the debate about marriage
to a conclusion. Mr Rodney Croome, National Director, Australian Marriage
Equality, explained that majority support for the question at a plebiscite would
not provide an end to the debate:
[B]ecause of course it has to return to parliament. Only a
vote in parliament that amends the Marriage Act to allow all Australians to
enter into a legally recognised, intimate, lifelong relationship called a
marriage will end the debate—as it has in Britain and New Zealand and the
United States and Canada and every other country where this has been achieved.
That ends the debate.
Mr William Leonard, Director of Gay and Lesbian Health Victoria, also
described the concern amongst the lesbian, gay, bisexual and transgender (LGBT)
community about the implications of an unsuccessful plebiscite:
The assumption built into a plebiscite is that, if it were
defeated, a popular vote could justifiably instate the moral objections of
people against LGBT people—that it is actually legitimate within law to hold
those things, because that is the consequence of a plebiscite if it does not
get up. Many LGBT people in 2015 in Australia feel we should not be held to
account by a popular vote. There is simply nothing to vote on.
The committee received many submissions which strongly argued that it
was not appropriate to determine the issue of marriage with a popular vote,
either in the form of a referendum or a plebiscite.
For example, Liberty Victoria roundly condemned a popular vote:
To seek to put ordinary legislation to a popular vote,
especially legislation about discrimination against one group long subject to a
history of discrimination, is to misunderstand the nature of representative
democracy. Members of the public delegate their power to make laws to
parliamentary representatives. It is the duty of [Members of Parliament] and
Senators to act, to the best of their ability, without fear or favour, honestly
and diligently, in carrying out the responsibility so delegated. They betray
the people's trust if they shirk that responsibility. Putting marriage equality
to a glorified opinion poll is just such a dereliction of duty.
Similarly, Mr Christopher Puplick AM and
Mr Larry Galbraith argued:
We wish to start by stating as clearly as possible that we
believe that the responsibility for determining the question of marriage
equality is one which lies squarely at the feet of the Australian Parliament
and that we see it as a gross derogation of its constitutional and legal
responsibilities to seek to avoid resolving the question by the artificial
device of reference of the matter to a referendum or plebiscite.
In contrast, the ACBC stated that it had reservations about whether a
parliamentary vote would be able to resolve the issue of marriage:
Same-sex marriage continues to be a controversial issue in
the Australian community. Both the Senate and the House of Representatives
voted strongly in 2012 against changing the definition of marriage. Some groups
continued campaigning to change the law. It may be that any bill to redefine
marriage would fail again this year in the Australian Parliament if put to the
test, or prevail in one house of parliament but not the other, or prevail by a
narrow majority in both houses. Such parliamentary votes would be unlikely to
resolve such a fundamental issue in our community and might only serve further
to divide us. Polls suggest that three quarters of Australians want a popular
vote on the issue of whether to redefine marriage and at least half want more
time for an informed debate.
Some submissions favouring a parliamentary vote argued that a public
vote was not an appropriate means by which to address an issue of human rights.
As the AHRC explained:
Public votes are not an appropriate way to resolve issues of
fundamental rights. It is not an appropriate instrument to resolve issues of
equality before the law. Nor it is an appropriate instrument to resolve issues
of religious freedom.
The Constitution gives the power to resolve these issues to
the Parliament for a reason. On the substantive matter, it is not appropriate
that the Australian population is given a vote on the legal standing of the
relationships of same-sex attracted Australians any more than it would be for
the Australian population to vote on the legal standing of opposite-sex
The Centre for Comparative Constitutional Studies referred specifically to
plebiscites as 'manifestly inappropriate in circumstances where minority
rights, including the right to equality, are at issue'.
Submissions also referred to the potential cost of a popular vote as a
reason why this issue should be dealt with by the Parliament. The Australian Electoral
Commission estimated that a popular vote held in conjunction with a federal
election would cost an additional $44 million and a popular vote held as a
stand-alone election issue would cost $158.4 million.
Mr Puplick and Mr Galbraith observed that '[e]xpenditure of $100
million...to resolve a matter which Parliament could address without cost is
utterly unjustified' and that 'there is no justification for such extravagance
and waste of public money'.
Mr Puplick and Mr Galbraith also put the cost of a popular vote in a broader
context, noting that if a plebiscite on marriage was not held in conjunction
with the next election then it was possible it would not be held until 2018,
after the proposed referendum on Indigenous recognition. Mr Puplick and Mr
Galbraith described as 'scandalous' the expenditure of two lots of $100 million
in one year.
Liberty Victoria stated that the resources involved in holding a public
vote would be significant and a diversion of resources that could be put to
A number of submissions also expressed concern about the impact of a
public vote on the lesbian, gay, bisexual, transgender, intersex and queer
(LGBTIQ) community. For example:
In particular the [Rainbow Families] Council is extremely
concerned about the impact of such a public debate on our children and young
LGBTIQ people living in our communities.
No matter what explanation is provided about the need for a
'people's vote' by way of a plebiscite or a referendum, no matter what
assurances or agreements are made to ask that the debate be respectful or must
stick to the topic of marriage equality between two adults, we strongly believe
our children and our families will always be dragged into the fray. Indeed
there is evidence of this already occurring.
At the public hearing Ms Amelia Basset, Co-Convenor of the Rainbow
Families Council, expanded on these concerns:
It is our strong belief that a lengthy public campaign would
be a particular risk because it is so much in the community. It is not watching
a David and Goliath parliamentary battle from the stands, where you are
somewhat distant from it. It brings the debate into the streets, the schools,
the swimming pools, these sports clubs and neighbourhood houses—all the places
and spaces where our children hang out. I think it would be impossible in this
media-saturated age for parents to enforce any kind of a media blackout as a
way of trying to minimise the exposure of their children, including young
children, to a publicly funded no campaign.
[W]e feel confident when we say that a public debate is going
to be all encompassing and our children will be accessing it. It will say
something very directly to them about the value and worth of their families. As
other speakers have mentioned, our children are already vulnerable to
discrimination and stigma. We know from research and anecdotally that that
happens. A campaign run along these lines would amplify that, compound it. In
fact, as a society we need to address that to remove it and end it. Those would
be some of our major concerns.
The Australian Psychological Society (APS) stated that 'a public vote is
likely to present significant risks to the psychological health and wellbeing
of those most affected'.
In its submission the APS explained:
Recent evidence from a suite of studies confirms that the
process of putting marriage equality to a public vote can be harmful to the
psychological health of gender and sexual minorities. The findings highlight
that lesbian, gay and bisexual people (LGB) not only have to contend with the
possibility of having rights to marriage denied through a public vote but also
the stress associated with the campaign itself.
Although many submissions strongly supported a parliamentary vote and
were not in favour of a popular vote, in the event of a popular vote being
held, the preference appeared to be for a plebiscite held in conjunction with
the next federal election. As Amnesty International, for example, stated in its
Amnesty International submits...that a popular vote on marriage
equality is neither necessary nor appropriate, and that the Australian
Parliament ought to legislate to enshrine marriage equality in Australia law as
soon as possible. Notwithstanding our view on a popular vote, Amnesty
International holds that if one is to take place it ought to be a plebiscite at
the next Federal election.
However, at the public hearing, Mr Sean Mulcahy, Co-convenor of the
Victorian Gay & Lesbian Rights Lobby, clarified:
The plebiscite in our view is in no way a fallback position.
We are strongly opposed to a plebiscite on this issue. Our submission simply
sets out: if a plebiscite were to occur, what are the conditions of that?
Again, I want to strongly affirm our view that a plebiscite is in no way an
appropriate way of dealing with this issue.
Although submissions did not necessarily support a popular vote, given
that a plebiscite was the preferred method if such a vote were to occur, the
next chapter of the report discusses the issues surrounding the conduct of a
plebiscite and, in particular, the Marriage Equality Plebiscite Bill 2015.
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