After a long party room debate, the Liberal-National coalition decided that its MPs would not be given a conscience vote on a bill before the parliament permitting same-sex marriage. At the press conference after the party room meeting, the Prime Minister announced that “we could have a plebiscite or a constitutional referendum” on the issue.
But is there a need to go directly to the people?
The Difference Between A Plebiscite And A Referendum
A referendum is required when amendment is sought to the Australian Constitution. If a referendum is successful the change to the Constitution is ‘presented to the Governor-General for the Queen’s assent’, which means the change will be made.
A plebiscite, on the other hand, is where a question is put directly to the people and merely gives voters the opportunity to express their views on the question posed: it does not have any legal force and could be ignored by the Parliament.
Section 128 of the Constitution requires that for an amendment to be made to the Constitution, a majority of Australian voters must approve the change. There must also be a majority of voters in a majority of states – that is, a majority in at least four states.
There is no similar guidance as to what constitutes a successful plebiscite. Is it the same as for a referendum? Or should it just be an overall majority of voters?
The other key difference is that there is legislation regulating how a referendum must be held. For example, for a referendum material is distributed to voters outlining the arguments for and against the proposed constitutional amendment. There is no requirement that this same procedure is to be undertaken with a plebiscite.
History tells us that the ‘no’ vote has been very successful in referendums and plebiscites. Of the 44 proposed changes to the Constitution, only eight have been successful. The two national plebiscites – dealing with the issue of conscription in 1916 and 1917 – were also both unsuccessful. Going to the people does not guarantee change.
Does The Constitution Need To Be Amended To Permit Same-Sex Marriage?
It seems likely that the Commonwealth Parliament could legislate for same-sex marriage without the need for a referendum to amend the Constitution. Section 51(xxi) of the Constitution gives the Commonwealth Parliament the power to make laws with respect to ‘marriage’.
The Constitution does not define the scope of the Commonwealth’s power to legislate with respect to marriage. Instead, it is left to the High Court to interpret the meaning of the word ‘marriage’.
In 2013 the Court considered the meaning of ‘marriage’ within the Constitution in the context of determining the validity of the ACT’s Marriage Equality (Same Sex) Act 2013.
The case clarified the meaning of ‘marriage’ within the Constitution and confirmed that the power to legislate with regards to same-sex marriage rests with the Commonwealth parliament.
As constitutional law expert Professor Anne Twomey has noted, the decision provided the ‘legal passport’ for same sex marriage.
While there have been changes in the composition of the High Court since 2013, there does not appear to be any reason why a future High Court would deviate from the 2013 decision.
Consequently, there would seem to be no need for a referendum to amend the Constitution to provide expressly the Commonwealth Parliament with the power to legislate with respect to same-sex marriage. The High Court has already said that the Commonwealth Parliament has that power.
Why Do Some Politicians Want A Plebiscite?
The Liberal-National coalition’s current policy on marriage is to support the existing definition of marriage within the Marriage Act as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".
The bills currently before the Commonwealth Parliament seek to amend that definition to remove the wording “a man and a woman” and define marriage as between “two people”.
In a democratic system of government it might be argued that on a matter such as this the will of the Parliament should reflect the will of the people. One way to test the views of the public is with a plebiscite.
A plebiscite might also allow a party to change its position without being seen to be ‘back-flipping’ on current policy, but rather shifting as a result of listening to the voice of people.
Yet a plebiscite would not guarantee same-sex marriage in Australia, even if a majority of voters supported same-sex marriage.
If members of parliament were to be given a ‘free vote’ after a plebiscite there is no guarantee they would necessarily vote along the lines of the majority of the public. Nor is there any guarantee that a plebiscite would affect the Coalition’s current policy, particularly if only a small majority of voters were in favour of same-sex marriage.
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