By Paula Gerber
The much-anticipated announcement of the government’s position on same-sex marriage raised more questions than it answered. By rejecting a free vote on same-sex marriage for Coalition MPs during this term of parliament, the government ensured that Australia will continue to be the only developed English-speaking country in the world where marriage is an exclusively heterosexual institution.
Some 72% of Australians believe that same-sex couples should be allowed to marry, according to a June 2014 opinion poll. The government’s position is not just out of step with the Australian population, but it is going in the opposite direction.
So what is the way forward? Prime Minister Tony Abbott raised several possibilities on Tuesday night. Let’s consider each of them.
Australia’s legal framework means that the only time it holds referendums is when it needs to change the Constitution. Allowing same-sex couples to marry in Australia, or recognising such marriages performed legally overseas, does not require any constitutional amendment.
Marriage is mentioned only once in the Constitution. Section 51 (xxi) provides that the federal parliament has the power to make laws with respect to marriage. The High Court made it very clear in its judgment in the 2013 challenge to the ACT’s same-sex marriage laws that this power includes amending the Marriage Act to allow same-sex couples to marry.
So, unlike Ireland, there is no basis in Australia for holding a referendum on the issue of same-sex marriage.
Is a plebiscite appropriate or necessary? How does it differ from a referendum?
A plebiscite involves holding a national vote to garner public opinion on a particular issue. However, the decision reached in a plebiscite has absolutely no legal force.
There are no rules for how a plebiscite should be conducted. A plebiscite does not have any hurdles for success, unlike a referendum. Would Abbott impose the high hurdle of a referendum – that is, that the government will only consider it a vote in favour of same-sex marriage if a majority of voters across the nation and a majority of voters in a majority of states say “yes” to allowing same-sex couples to marry?
A plebiscite would be no more than a glorified opinion poll. We’ve already had plenty of them, and know that the Australian people want same-sex marriage now. And when the government is constantly saying that it needs to curtail spending, the idea of running an expensive and unnecessary plebiscite cannot be justified. This is particularly so when its outcome would be of no legal force, leaving the government free to ignore any result it didn’t like.
Australia has only ever held three plebiscites. Two of these were in 1916 and 1917, and related to introducing conscription during the first world war. Both were defeated.
So, plebiscites actually have an even worse success rate than referendums. Is this something Abbott is counting on?
Even if successful in demonstrating Australia wants same-sex marriage, a plebiscite on this issue could have negative consequences. Any campaign leading up to a vote would give license to bigots to step up their vitriol against LGBTI persons, potentially damaging the mental health of vulnerable members of this community.
And rather than uniting the country under the “Team Australia” banner – as Abbott is so keen to do – such a move would likely be highly divisive, and include both homophobic attacks and religious vilification.
If not a referendum or plebiscite, what about a court challenge? This is how the US ultimately achieved same-sex marriage across all 50 states.
Just as Australia is the last English-speaking developed country to hold out on marriage equality, so too is it on its own in not having a national Human Rights Act or Bill of Rights.
Thus, there is no basis on which a same-sex couple that is denied the right to marry can challenge that in the courts.
All of this leads to the inevitable conclusion that the only way Australia is going to achieve same-sex marriage is through parliament. In 2004, then-prime minister John Howard amended Section 5 of the Marriage Act to insert a requirement that marriage be between a man and a woman.
Parliament should undo that change. The question is: who will be the prime minister that finally brings Australia in line with the rest of the developed world by recognising the rights of LGBTI people to have their intimate partnerships recognised on an equal footing with heterosexual couples?
Too much time and energy has already been spent fighting for something that the majority of Australians have made clear they want to happen. It is time to get this out of the way, so we can focus on addressing other fundamental human rights issues such as the treatment of LGBTI asylum seekers and refugees, homophobia in schools and the high rates of mental health problems and suicide within LGBTI populations.
Paula Gerber is Associate Professor, Human Rights Law at Monash University.