Until this week, the proposed plebiscite on whether Australia should legalise same-sex marriage had been light on detail. What would be the wording of the question? When would it take place? Would there be public funding for both a “yes” and a “no” campaign?
The government has now introduced a bill into the parliament that provides the details and mechanics of the plebiscite.
During the election campaign Prime Minister Malcolm Turnbull said there was “ample time” for a plebiscite to be held this year.
However, parliament did not reconvene until August 30. And after the election Turnbull was less optimistic about the prospect of the plebiscite being held in 2016.
Cabinet has now agreed the plebiscite will be held on Saturday, February 11, 2017.
The question to be put to voters will be:
Should the law be changed to allow same-sex couples to marry?
There was some discussion about whether the question should include a reference to a “change” in the law (and whether the voter supports the “change”). The alternative was to word the question in terms of whether the voter supported same-sex marriage, rather than focusing on the “change” in the law.
The other concern about the wording was whether reference should be made to “allow same-sex couples to marry” as opposed to “marriage equality”.
While there might be some disagreement as to the question’s precise wording, it is essential that the question is clear and simple. The proposed wording arguably achieves this objective.
Funding will be provided to two committees to run a “yes” and “no” campaign. Each committee will be made up of ten members: five politicians (two government MPs, two opposition MPs and one crossbench MP) and five members of the public.
The committees will each be given A$7.5 million from the government to support their advertising campaigns in the four weeks leading up to the plebiscite. In addition, the committees will be able to accept donations, with contributions of up to $1,500 being tax-deductible.
All advertising as part of the “yes” and “no” campaigns will require approval from cabinet’s Service Delivery Co-ordination Committee. This committee oversees:
… the provision of public information by government departments and agencies.
While the advertising of the “yes” and “no” committees will be subject to the cabinet committee’s approval, there will be nothing preventing third parties from running their own advertising. These ads will not be subject to the committee’s approval.
The funding for the “yes” and “no” campaigns is a relatively small part of the overall expense of the plebiscite, which the government estimates will cost $170 million.
The problems with the current proposal
Attorney-General George Brandis has said the plebiscite’s result will be determined by a majority of votes.
If current opinion polls are any guide, a majority of Australians are in favour of same-sex marriage. If a majority of Australians vote in favour of same-sex marriage then the government has promised to put legislation before the parliament to amend the Marriage Act to allow same-sex couples to marry.
However, the result in the plebiscite is not binding on MPs. If legislation amending the Marriage Act is ultimately put before the parliament, MPs are not bound by the result in the plebiscite.
The Australian Electoral Commission will also provide a breakdown of the plebiscite result based upon federal electorates and states. This might lead to MPs voting on the amending legislation based upon the result in their electorate or state.
Western Australian Liberal senator Chris Back has said the plebiscite result in his state will guide his vote. There is some logic in this approach: MPs would ensure their vote reflects the views of those they represent.
However, MPs could also use it as a means to “cherry-pick” whichever result best fits their personal views. This approach also ignores the fact that MPs (especially those of the major parties) rarely consult their constituents to ensure their vote reflects the views of those they represent.
If ensuring their vote reflects the view of their electorate is so important, why not take this approach for every vote – or at least explain the types of matters upon which the views of the electorate will trump everything else?
An alternative to the plebiscite mechanism would have been for parliament to pass the substantive amendments to the Marriage Act with a clause in the bill that the amendments automatically come into force if a majority vote in favour of the change in the plebiscite. There do no appear to be any legal impediments to this “self-executing” plebiscite.
The chances of the plebiscite going ahead
For the plebiscite to go ahead, the government needs to get the plebiscite legislation through the parliament.
The challenge will be whether the legislation can pass the Senate. Liberal senator Dean Smith has already said he will not vote for it.
For the legislation to pass the Senate the government will need either the support of Labor or of enough crossbench senators, given the Greens have announced their opposition. Labor this week introduced a bill into parliament that proposes to legalise same-sex marriage without the need for a plebiscite and reaffirmed its view that a plebiscite was unnecessary. If Labor retains this approach, it seems unlikely it will support the government’s plebiscite legislation in the Senate.
While Australians finally have some detail of the proposed plebiscite, there is still no guarantee that the question will even be put to the Australian people on February 11 next year.
Authors: Adam Webster, Lecturer, Adelaide Law School, University of Adelaide