Coalition tensions expose the flaws of the same-sex marriage plebiscite

Prime Minister Malcolm Turnbull has said the Australian people will have their say on same-sex marriage in a plebiscite after the next election. But Coalition senator Eric Abetz claims he and other Liberal MPs do not have to respect the plebiscite’s result, and may not vote to legalise same-sex marriage even if the Australian people vote “yes”.

Fellow Liberal senator Cory Bernardi declared he would never vote to legalise same-sex marriage – as has Nationals senator Bridget McKenzie.

Turnbull told parliament last year that:

… the consequence of a “yes” vote in the plebiscite will be that same-sex marriage will be legal in Australia.

A plebiscite does not bind MPs in any future vote on a piece of legislation. Consequently, it is possible that an MP who does not like the plebiscite’s result would try to find some justification for ignoring it if legislation on this issue were to come before parliament.

Ignoring a plebiscite

It is easy to envisage some arguments that MPs might use in an attempt to justify ignoring a plebiscite and voting contrary to its result.

Voting in a plebiscite is only compulsory if the legislation providing for it requires compulsory voting. If voting in the plebiscite were not compulsory, its result might not reflect the views of a majority of Australians. One way to avoid this argument being raised would be to ensure that voting in the plebiscite is compulsory, as it is for elections and referenda.

Also, if members of the House of Representatives and Senate represent an electorate or state respectively, there might also be an argument that they should have regard to the vote of those they represent, rather than the majority of the population.

Suppose a majority of Australians voted in favour of legalising same-sex marriage, but a majority of people from South Australia were against it. Should a South Australian senator have regard to the views of only South Australians? In a party-political system, there are few occasions when members and senators solely consider the views of those in their electorate or state, so doing so on this occasion would seem rather selective.

Finally, given the plebiscite is to be held after the next election, it would be possible for an MP to be elected having campaigned solely on this issue, promising to vote a particular way should same-sex marriage legislation come before the parliament. That MP might argue that those who elected them gave them a mandate to vote a particular way on this issue. In those circumstances, the MP might argue that they are justified in ignoring the plebiscite’s result.

An alternative approach?

Is there a way to prevent MPs ignoring the result of a plebiscite?

In a submission to a parliamentary committee examining the issue last year, constitutional law professor Anne Twomey suggested how a plebiscite might be used to bring same-sex marriage legislation into force. Parliament could pass legislation allowing same-sex marriage, with a clause providing that the legislation would not take effect until after the Australian people had passed a plebiscite.

If the plebiscite were not passed, the legislation would lapse.

However, using the plebiscite as a “trigger” for the commencement of same-sex marriage legislation does not avoid parliament having to pass the legislation in the first place. It would simply bring the same problem to a head earlier. Those MPs opposed to same-sex marriage would be able to vote against the substantive legislation prior to a plebiscite and could prevent the issue being put to the Australian people.

A simple solution

The parliamentary committee recommended:

… that a bill to amend the definition of marriage in the Marriage Act 1961 to allow for the marriage between two people regardless of their sex is introduced into the parliament as a matter of urgency, with all parliamentarians being allowed a conscience vote.

Legally, a plebiscite is unnecessary. As with any legislative change, all that is required is for both houses of parliament to pass a bill. A plebiscite adds a layer of complexity to the political process of deciding whether to introduce same-sex marriage legislation in Australia.