Explainer: with no free vote for now, where next for marriage equality?

Marriage equality protest

Whether or not federal parliament should amend the Marriage Act to allow same-sex couples to marry continues to prove much more complicated than it should be for the Coalition government.

On Monday, the Liberal partyroom reiterated its commitment to holding a plebiscite on marriage equality. Parliament will now reconsider legislation for a plebiscite, which has already been rejected once.

The plebiscite is proposed to be held on November 25. If the Senate again rejects the legislation, as seems almost certain, the government will instead take steps to hold a voluntary postal plebiscite, with ballots mailed out from September 12.

If the proposed postal plebiscite survives legal challenges, and returns a vote in support of marriage equality, government MPs will nevertheless remain free to vote against marriage equality in parliament.

So, the government seems determined to give voters a voice, and equally determined not to be bound by what those voters say. How did we get here?

Why a plebiscite?

There is no constitutional or legal requirement to have a plebiscite. In December 2013, the High Court ruled that the federal parliament has the constitutional ability to pass legislation providing for marriage equality.

While we would need a nationwide vote to become a republic, or to switch to four-year parliamentary terms, the High Court’s unanimous judgment means there is no need for such a vote on marriage equality.

What’s more, the High Court also explained that, throughout Australian history, previous parliaments have changed the legal understanding of marriage. None of those changes involved a plebiscite.

This reflects the fact that, for the most part, Australia has a system of representative government: we elect representatives to do the business of government for us, rather than doing it ourselves.

So, why a plebiscite in this instance?

The plebiscite was a campaign promise made by the Turnbull government before the 2016 federal election, and the government has emphasised its commitment to that promise. The promise reflected an internal party compromise reached in August 2015 under the then prime minister, Tony Abbott.

What does a plebiscite look like?

Australia makes a distinction between referendums, which are nationwide votes to amend the Constitution and which must be run in a particular way, and plebiscites, which are national votes for other purposes.

Since 1901, Australia has had just three national plebiscites. The last one, 40 years ago, was about choosing the national anthem.

Unlike a referendum, there is no set formula for how to organise a plebiscite. This means any individual plebiscite needs to be designed from scratch.

If the plebiscite is to be a traditional nationwide vote with compulsory voting, polling stations and democracy sausages, it seems likely parliament would need to pass legislation for it to be held.

The government proposes to return to parliament the plebiscite legislation that the Senate rejected in November 2016.

That proposed legislation did not set out in any detail what changes would be made to the Marriage Act. The bill also did not set out what the consequences would be of a vote in favour of marriage equality. This meant voters would not be sure what they were voting for or what precisely would happen if they voted “yes”.

So, if there was a yes vote at a plebiscite, parliament would need to have another debate about passing another law that would actually change the Marriage Act.

What if the Senate rejects the plebiscite again?

It seems quite likely that the Senate will again reject the plebiscite legislation. If that happens, the government’s back-up plan is a voluntary postal plebiscite.

From the government’s perspective, the voluntary postal plebiscite is an attractive option because it thinks it may be able to proceed without legislation passing through the parliament.

The details of this plan remain uncertain. But emerging details suggest it is likely to be a nationwide vote in which ballot papers are mailed out to everyone on the electoral roll. Anyone who wanted to vote would mail their ballot back by a given deadline. Voting would not be compulsory.

Why might a postal plebiscite be controversial?

The postal plebiscite may be controversial for two main reasons.

First, it is legally controversial. While federal law allows the Australian Electoral Commission (AEC) to conduct plebiscites, the government would presumably need to pay the AEC for this service. And here we strike a potential problem.

In June 2012, a landmark High Court decision about school chaplains tightened constitutional restrictions on when governments could spend money without legislative approval. The High Court has repeatedly emphasised the importance of parliamentary oversight of government spending.

So, unless the government is able to bring the plebiscite within a narrow range of exceptions, it may need to pass legislation approving the spending of money on a postal plebiscite. Without that legislation, it may be vulnerable to a constitutional challenge in the High Court.

We can expect the government to indicate that its legal advice supports the constitutionality of a postal plebiscite, even if there is no new legislation.

The government has indicated it would ask the Australian Statistician to conduct the voluntary postal plebiscite, and argued that existing legislation authorises the spending of money for that purpose.

Plebiscite opponents have made public their legal advice that this form of plebiscite may be unconstitutional, but that advice did not focus on the Australian Statistician’s role. The High Court may therefore need to determine the postal plebiscite’s constitutionality.

Second, a postal plebiscite may be politically controversial. There may be fears that the result might be unrepresentative and exclude Australians who are younger, poorer, or from non-English-speaking backgrounds.

As Malcolm Turnbull argued in another context in 1997:

The voluntary postal voting method … flies in the face of Australian democratic values … It is likely to ensure that not only will a minority of Australians vote, but also that large sections of the community will be disfranchised.

Much will depend on how the postal plebiscite is organised. Will there be restrictions on how the campaign works? How would the votes be counted? Would there be government-funded “yes” and “no” campaigns? What protections would there be for people who claim not to have received a ballot, or who lose their ballots, or for those affected by “recent alterations to Australia Post’s business model”? Would Australians overseas be able to vote?

These questions are not unanswerable. But, for now, they are unanswered.

The consequences of a postal plebiscite

It’s worth remembering that a yes vote in a postal plebiscite would not actually change the law: parliament would need to sit again and amend the Marriage Act.

When those changes come before parliament, the government has indicated that Liberal MPs will remain free to vote against marriage equality – even if the Australian people have voted yes at the postal plebiscite.

At a time when Australians are expressing diminished confidence in representative democracy, there are risks in elected representatives declining to fulfil their constitutional responsibilities.

Those risks increase when a government is unwilling to promise that its MPs will follow the result of the plebiscite.

This article originally appeared in The Conversation

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team