Marriage Equality: The Plebiscite is Not The Answer

By Alfarid Hussain

Over the past few years, the debate over marriage equality in Australian politics has shown no signs of resolution. Consequently, the fate of many same-sex couples is now dependent on a plebiscite despite the fact that the Parliament could take a different course, namely a free conscience vote.

Eighteen years ago, in Quilter v Attorney General, the dissenting judgment of Thomas J famously noted that, “as a matter of law the exclusion of gay and lesbian couples from the status of marriage was discriminatory” and in contravention of New Zealand’s Bill of Rights. In the absence of a Bill of Rights in Australia and no universal guarantee to equality by our Constitution, it is argued that marriage equality cannot be determined by a court, but must be determined by parliament.

Today, marriage is a recognised institution for same sex couples in many jurisdictions. And Australian opinion-polls have consistently indicated marked increase in public support favouring marriage equality. In light of these developments, Justice Kirby recounts Thomas J’s analysis in Quilter: that, his views are vindicated by time.

Before 2013, there was no certainty as to whether same-sex marriage “fell within the ambit of the federal marriage power” under s 51(xxi) of the Constitution, hence there may have been legal challenges for the government to legislate changes. The High Court decision in Commonwealth of Australia v The Australian Capital Territory, however, gave legal passport to Commonwealth Parliament to “amend, limit and extend marriage rights and extend the classes of persons who may enjoy those rights”, thereby, removing this uncertainty.

In not giving a wider meaning to the word ‘marriage’ in s 51 (xxi) of the Constitution­­ ­­─ unlike in the United States of America, where a Supreme Court majority faced robust criticism in arguably over-stepping the doctrinal limitation of separation of power ─ the High Court in Australia, perhaps serendipitously, revealed what needs to change to encapsulate same-sex couples in the definition of ‘marriage’ in the Marriage Act 1961 (Cth).

This paved the way for the Marriage Equality Plebiscite Bill 2015 (Cth). The government could have been more responsive towards the High Court’s observations in 2013, instead, it adopted a rather self-admittedly, costly pathway by allowing itself to dictate the terms of the plebiscite. It is submitted that this could ostensibly polarise the electorate, thereby diminishing the narrative of marriage equality, losing out to the existing heteronormative paradigm of marriage (although, it must be noted that the courts are beginning to recognise gender and sexuality beyond a binary, male-female, heteronormative classification).

A recent senate enquiry’s warning about the health effects that a plebiscite could have on the LGBTIQ community, has made it all the more unsettling. Even though, the explanatory memoranda provides for mandatory voting and an expenditure limit to maintain a level-playing field, there isn’t any consideration in the Bill about managing the sensitivity of the debate in safeguarding the health of the LGBTIQ community.

Furthermore, the parliament is not legally bound by the plebiscite outcome. One could run an anti-marriage-equality election campaign and still be allowed to vote against the outcome of the plebiscite, thereby, making the entire process unreliable and impractical.

Given the costs and risks at hand, and increasing public support for marriage equality, the question to ask is, whether it is justified to conduct the plebiscite in absence of any obstacles that could prevent a vote by Parliament? The answer to this is No.

Alfarid Hussain is studying a Bachelor of Laws at La Trobe University.

La Trobe