Before same-sex- marriage was made legal in Australia, the issue had 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 was one significant area of difference between the treatment of same-sex and heterosexual relationships.
Advocates of marriage equality argued it was important to move quickly to remove this obstacle to full legal equality.
However, while there was 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) defined 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.
After the 2004 amendments,18 Bills dealing with marriage equality or the recognition of overseas same-sex marriages were introduced into the federal Parliament. No Bill progressed past the second reading stage and, consequently, no Bill was debated by the second chamber.
All 18 Bills were 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
After the 2016 election, Prime Minister Turnbull 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 was not necessary. The High Court determined that, in the Same-sex 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.
The enabling Act for the plebiscite set out the purpose of the plebiscite. The Act
-did not specify any actions expected of the Government as a result of the plebiscite
-speficied that voting would be voluntary and
-specified the actual question to be put to the electors which was
“Should the law be changed to allow same-sex couples to marry?”
Then Attorney-General Senator Brandis indicated that, in his view, and subject to cabinet approval, the question would 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 would be a matter for Cabinet.
Those in favour of the plebescite argued that social issues like marriage should be resolved by means of direct democracy such as a plebiscite.
Those opposed to a plebiscite argued that it is an expensive opinion poll, (estimated cost $160 million) with no guarantee that Parliament would heed the result. Opponents pointed to its potential to be divisive and incite homophobic hatred.
They also argued human rights issues affecting a minority should be decided by a representative Parliament and that Parliament has not in the past and should not abrogate its responsibilities on important human rights issues.
The ALP was opposed to a plebiscite and went to the 2016 election promising to introduce a Marriage Equality Bill within 100 days if elected to office. Opposition Leader Bill Shorten 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 expressed a range of views. The Australian Greens, Senator Xenophon, Mr Wilkie, Ms McGowan and Mr Hinch supported same-sex marriage, preferring a parliamentary vote rather than a plebiscite.
Mr Katter, Senator Lambie and Senator Hanson opposed same-sex marriage.
Prime Minister Turnbull indicated that Coalition members would not be bound by the outcome of the plebiscite. However, he was in no doubt that, if the plebiscite is carried, an overwhelming majority of Members and Senators would vote for the subsequent Bill that would permit same-sex marriage.
Sources: Same-sex marriage Mary Anne Neilsen, Law and Bills Digest Key Issue. Parliament of Australia https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook45p/SameSexMarriage
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.
Results: ABC News: Same-sex marriage postal survey See the full results, including seat-by-seat breakdowns. https://www.abc.net.au/news/2017-11-15/same-sex-marriage-results-ssm/9145636