The Liberal Party has voted overwhelmingly to put its same-sex marriage plebiscite legislation back to the Senate, in a decisive rejection of the push by rebel backbenchers to get a quick free vote in parliament.
If the Senate, as expected, rejects the plebiscite again, the government will move to a voluntary postal ballot – which marriage equality advocates on Monday pledged to try to stop by a legal challenge.
After a postal ballot, the government would only facilitate a reform bill, with a free vote, if the ballot had returned a yes vote. Malcolm Turnbull would like the issue cleared away by Christmas.
The rebels had only seven votes in the partyroom in their bid for an immediate free parliamentary vote. These were the five who have driven the issue – Warren Entsch, Tim Wilson, Trevor Evans (whose letter was read because he was absent due to a family death), Trent Zimmerman and senator Dean Smith. They were joined by Jason Wood, from Victoria, and John Alexander, from New South Wales. The six present all spoke.
The process will be outlined in more detail on Tuesday at the Coalition party meeting. The plebiscite legislation would go back into the Senate this week.
Entsch reserved his position at the meeting, leaving open the possibility of crossing the floor at some point.
But he said afterwards that while he was “disappointed”, he had no problem with the legislation going back to the Senate; as for the next step: “Let them have a look at a postal vote. I think it’s got whiskers.”
He said many of his colleagues were conflicted, caught between supporting marriage equality but wanting to keep an election promise. He wanted to bring colleagues along with him.
Turnbull opened the meeting by outlining the plan for a quick reintroduction of the plebiscite legislation, with the postal vote the fallback. After the debate, he called a vote on whether the party should drop its plebiscite commitment.
Acting Special Minister of State Mathias Cormann told reporters: “The parliamentary Liberal partyroom maintained our commitment to give all Australians the opportunity to have a say on whether or not the definition of marriage should be changed to allow same-sex couples to marry and to do that through a plebiscite”.
Cormann said the government was confident it had a legal and constitutional way to have a postal vote – without Senate approval.
He said that whatever form the popular vote took, if the public indicated they did not want the definition of marriage changed “then the government will not be facilitating a private member’s bill to change the law”.
The implication was clear that if a private member’s bill was brought forward in those circumstances, there would not be a free vote, although Coalition backbenchers do have the right to cross the floor. Entsch said that if a postal vote came back negative, he reserved his right to call on a parliamentary vote.
If the popular vote endorsed change, there would be a free vote for Liberal MPs on the resulting legislation, allowing those opposed to same-sex marriage to vote against.
Those critical of a postal vote rather than continuing to just persist with the plebiscite included Tony Abbott, Kevin Andrews, Craig Kelly, Julian Leeser and Russell Broadbent.
Abbott argued in Monday’s Australian for adherence to the plebiscite indefinitely. “Like it or not, Coalition MPs are honour-bound to oppose same-sex marriage in the absence of a plebiscite that’s supported it; and we’re equally bound to oppose any move to bring the matter into the parliament without a plebiscite first,” he wrote.
“What we might do about same-sex marriage beyond this term of parliament is the outstanding question. But it would be odd, when you think about it, to go to one election saying that this is too personal and too deeply felt to be left to the politicians – and to go to the next election saying it should henceforth be a matter for the parliament only.
"That would make our current position look mere expedience rather than a principled way to treat a concept of marriage that’s stood from time immemorial and long predates the legislation that gives it expression.”
Anna Brown, director of legal advocacy at the Human Rights Law Centre, released a legal opinion from constitutional experts Katherine Richardson, James Emmett and Surya Palaniappan arguing that the government spending money for a postal ballot without passing legislation would be unconstitutional.
But Anne Twomey from the Sydney University Law School believes this could be done legally by a regulation under the Financial Framework (Supplementary Powers) Act – although the regulation could be disallowed by the Senate.
Tiernan Brady, executive director of The Equality Campaign, tweeted:
The co-chair of Australian Marriage Equality, Alex Greenwhich, pledged the group would be doubling its effort to try to get a free parliamentary vote.
Bill Shorten reiterated that “if Labor is elected, we’ll legislate for marriage equality in our first 100 days. We’ll just get on with it and get it done.”
Authors: Michelle Grattan, Professorial Fellow, University of Canberra