Paul Kildea: Same-sex marriage – Don’t let the people decide

photo-paul-kildeaAustralian politics is gradually settling back down again after a tumultuous few weeks in which we saw another first-term Prime Minister deposed in a party room ‘spill’. New Prime Minister, Malcolm Turnbull, has pledged to run a different kind of government to that of his predecessor, Tony Abbott, but it is unclear what this will mean in practice.

Unfortunately, on the question of whether Australia should legalise same-sex marriage, the new PM has promised to honour Abbott’s commitment to put the issue to a plebiscite. On the surface this has an appealing ring to it and recalls Ireland’s celebrated referendum in May in which voters backed same-sex marriage by a wide margin. But, in the Australian constitutional context, this approach would be a mistake.

The example Australia should be following is that of the United Kingdom, which legalised same-sex marriage in 2013 through ordinary legislation. As the Senate Legal and Constitutional Affairs References Committee concluded in mid-September, same-sex marriage is an issue that can and should be handled by the parliament.

The constitutional context

Same-sex couples are not able to marry in Australia. The Marriage Act 1961 (Cth), the federal (ie, national) law governing marriage, defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.

In 2013 the Australian Capital Territory – the self-governing territory that includes Canberra – enacted legislation permitting same-sex couples to marry. But, within a matter of days, this example of policy experimentation within the Australian federation was struck down by the High Court. In Commonwealth v ACT (2013), the Court ruled that the ACT law was ‘inconsistent’ with the federal Marriage Act and thus inoperative, and any marriages purportedly solemnised under it were void. The decision made clear that, if same-sex marriage were to become legal in Australia, it would have to be by the hand of the federal parliament.

In order to reach this conclusion, the Court made an important preliminary finding by confirming that the federal parliament has the power to legislate on same-sex marriage. This had been a matter of debate for some time. The text of the Australian Constitution is not especially clear: section 51(xxi) merely provides that the federal parliament has power to make laws with respect to ‘marriage’. Some argued, along originalist lines, that the word ‘marriage’ retains the meaning it held in 1901 when the Constitution came into operation, thus confining the reach of the power to opposite-sex marriage (and leaving same-sex unions to the States).

However, the Court dismissed attempts to interpret the provision by reference to notions of ‘original intent’ or ‘contemporary meaning’, saying that such terms had ‘echoes of very different debates in other jurisdictions’ and ‘serve only to obscure much more than they illuminate’. The Court reasoned instead that ‘marriage’ was a juristic category that, even by the turn of the twentieth century, had come to encompass a variety of different unions. If followed from this that ‘[w]hen used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex’.

The political context

The power of the federal parliament to legislate for same-sex marriage is, therefore, beyond question. But neither major party has been willing to champion legislation on the issue. This is despite opinion polls suggesting that as many as 72 per cent of Australians support marriage equality. It is a stark example of an issue on which the preferences of the people and their representatives are at odds.

Both major parties are split on the issue and internal disagreements have intensified over time. The opposition Australian Labor Party has sought to deal with those tensions by giving permission to its MPs to vote according to their conscience, should a Bill come before the parliament. The conservative Coalition parties, on the other hand, have resisted calls for a conscience vote and party policy remains opposed to any change to marriage laws. Tony Abbott, a firm opponent of same-sex marriage, made it clear that any ministers who voted in favour of change would be forced to resign in line with the principle of collective ministerial responsibility.

By August, the same-sex marriage issue had become a political liability for the Abbott government as the combination of public pressure and internal party disagreement began to bite. It was in this context that Abbott surprised many observers by announcing that he would put the legalisation of same-sex marriage to a popular vote in the next term of parliament. Critics viewed it as a delay tactic, while others judged that he had made the ‘right call’. Abbott made his case by saying that ‘this should not be the politicians’ decision, it should be the people’s decision’. Turnbull has endorsed Abbott’s approach, telling Parliament on his first day as PM that ‘it is a very legitimate and democratic way of dealing with it’.

Let the people decide?

A popular vote in Australia can take one of two forms: a referendum or a plebiscite. A referendum is the mechanism by which an amendment to the Constitution is effected, the result of which is binding. The Constitution sets a high bar in this respect, requiring that proposals be approved by a majority of voters nationally, and a majority of voters in at least four of six States. Of the 44 referendums held since 1901, just eight have passed, and 16 years have elapsed since the last vote on republic reform.

A plebiscite, on the other hand, is a popular vote on any issue and carries no legal consequences. Just three national plebiscites have been held: two asking voters to approve conscription during the First World War (both failed), and one on the national song in 1977.

As is clear, Australia has little tradition of direct democracy, particularly in recent times. Proposals to put an issue to a popular vote therefore require strong justification. But on close inspection, the case for putting same-sex marriage to the people is weak.

The idea of holding a referendum is especially problematic. In contrast to the situation in Ireland, a constitutional amendment is not necessary to clear the way for same-sex marriage – the federal parliament already has the power to act. The only reason to hold a referendum would be to allow Australians to affirm, by way of constitutional amendment, the judgment of the High Court. Prominent frontbencher Scott Morrison (then Minister for Social Services) made this case in populist terms, arguing that ‘the Australian people should decide [this matter], not politicians, not judges, but the people of Australia’.

But a referendum would not decide the matter. Assuming it succeeded, parliament would still need to pass legislation in order to bring same-sex marriage into effect. Equally, if the poll failed, nothing of substance would have changed – parliament’s power to legislate on same-sex marriage would still be in place. Of course, one undesirable consequence of a ‘no’ vote would an awkward state of affairs flowing from the fact that a vote of the people had contradicted a recent High Court decision. But no legal consequences would flow from this.

What about the case for a plebiscite? Attorney-General George Brandis, who is opposed to a referendum, has argued that a plebiscite is ‘[t]he way you test public opinion on vexed social issues or important social issues’. The idea is that, when an issue raises difficult social or moral questions, the appropriate course of action is for politicians to step aside and give the people a direct say on how it should be resolved.

This argument is difficult to make in a representative system with little practice of direct democracy. As my colleagues Andrew Lynch, Rosalind Dixon and I argued in a submission to the recent Senate inquiry, Australians choose their representatives to decide on the enactment of laws on an almost infinite range of topics, including ‘vexed social issues’. The enactment of national laws about marriage and divorce, for example, was achieved without resorting to a plebiscite. More recently, the government did not seek a popular vote before introducing controversial new meta-data surveillance laws with serious implications for privacy. It is worth keeping in mind, too, that even if the plebiscite succeeds it will be of recommendatory force only. It will still be necessary for political representatives to act to make same-sex marriage a reality.

Nor is a plebiscite an appropriate mechanism for deciding issues of equality and human rights. Same-sex marriage and other matters of fundamental rights should not be made subject to majoritarian impulses. This argument is strengthened when we consider the harm that could be done during an intense plebiscite campaign prior to a public vote. The Australian Psychological Society has pointed to research showing that ‘a public vote is likely to present significant risks to the psychological health and wellbeing’ of gender and sexual minorities.

Finally, there is the massive price tag attached to a popular vote on same-sex marriage. If it were held separately from a federal election – as the Turnbull government currently proposes – it would cost an estimated $158 million. This is an expensive means of testing public opinion when community feeling is already apparent from a long sequence of published polls.

In sum, putting the issue of same-sex marriage to a popular vote in Australia would be unnecessary, inconsistent with representative democracy, potentially harmful and hugely expensive. In the words of the Senate Legal and Constitutional Affairs References Committee, ‘the matter of marriage is not one which should be decided by a popular vote’ and should instead be resolved by the parliament.

Revisiting democratic participation

There is nonetheless a larger debate to be had in Australia about opportunities for public input into policy debates, beyond those provided by representative structures. Australians have looked on while the United Kingdom, the home of parliamentary sovereignty, has made increasing use of referendums to help resolve difficult issues. This has necessitated a debate in Britain about what issues warrant a popular vote, and which are best left to parliament. Australia has never felt the need for such a debate – partly due to the referendum requirement for constitutional amendments – but recent events suggest that a conversation about the use of direct democracy is overdue.

Australia has also stood on the sidelines as other nations have devised and adopted new approaches to public participation in political decision-making. Examples include the citizens’ assemblies conducted in Canada, the Netherlands and Ireland on electoral and constitutional reform. The impulse among many Australian governments has been to move in the opposite direction, by limiting avenues for public input into crucial debates on issues like federalism reform and constitutional recognition of Aboriginal and Torres Strait Islander peoples.

There is therefore a need for Australian governments to revisit their approach to democratic participation, but this must be done genuinely and not in an ad hoc way to satisfy political expediency. Same-sex marriage, in the end, has proven a poor vehicle for promoting genuine debate about democratic participation in Australia – and, sadly, it looks like a plebiscite will go ahead, at great cost and for no good reason. But, on the plus side, there is an outside chance that it will prompt a much needed conversation on when we should, and should not, ‘let the people decide’.

Dr Paul Kildea is a lecturer at UNSW Law, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law.

(Suggested citation: P. Kildea, ‘Same-Sex Marriage: Don’t let the People Decide’ U.K. Const. L. Blog (6 Oct 2015) (available at: