Legal commentator Morry Bailes unpacks some of the legal issues surrounding the same sex marriage debate in Australia.

In the last few years the likelihood of same sex marriage has taken on a new reality in Australia.

First world attention was focused on Ireland where a staunchly Catholic nation voted overwhelmingly in favour of same sex marriage, albeit without the requirement for a compulsory vote. Opinion polls now show similar trends in Australia, quite different to even a few years ago. There remains strong socially conservative opinion against same sex marriage but there is a sense that is now a minority held view.

In the joint party room of the recently deposed Prime Minister  Tony Abbott a similar battle was played out. The issue was that the Coalition had undertaken in the lead up to the 2013 election that should it win government, it would not enact law legalising same sex marriage in the Parliament during the current term of government. 

Faced with an electorate increasingly engaged in the push for and against same sex marriage and agitation by some in his own party room to deal with the matter, the then Prime Minister was walking something of a tight rope. The upshot, as we all now know, was a decision to put the matter to the people thus preserving the Coalition’s electoral promise and attempting to appease sections of the community.

Although there are critics of this approach, it is difficult to really win that political argument when something like 70 to 80 per cent of the community polled on the question think the whole question of same sex marriage is a matter for the people. In short and in spite of federal Labor’s stance, the overwhelming majority of us want to have our say.

At that point the matter becomes not only one of politics but also of law. What are the legal ramifications?

The first question is whether it is in fact a requirement to ‘ask the people’ in order for the Federal Parliament to enact legislation to legalise same sex marriage?

Second, exactly how does one ‘ask the people’? Quite a number of MPs immediately started talking about the need for a referendum on the question. Is that however actually required? Federal Attorney-General George Brandis was quickly out of the box to say no. He is right of course, but why? Further, does it matter?

The answers in part are to be found in the High Court case dealing with a recent attempt by the ACT to legalise same marriage independent of the Commonwealth, handed down by the court in 2013.

The court was unanimous and clear. On the primary issue it found the whole of the ACT Marriage Equality (Same Sex) Act was inconsistent with the Commonwealth’s Marriage Act and was of no effect. In answer to the first of our questions, the court was also clear. Section 51(xxi) of the Constitution gives the Federal Parliament power to make laws with respect to ‘marriage’ and when used in the context of Section 51(xxi) the court found the term ‘marriage’ included marriage between persons of the same sex. It follows therefore that as the question is not a Constitutional one, no referendum is required as a prerequisite for the Commonwealth Parliament passing law legalising such a marriage.

As an aside, this could help those in favour of same sex marriage in the event of a popular vote because since federation only eight of 44 referenda put to the Australian people have been passed. Why? Because a referendum requires a double majority; a majority not only of the popular vote in the states and territories but also a majority of the states need to be in favour themselves (ie at least four out of six). It is notoriously difficult to achieve the double majority. If it was required for same sex marriage the task would be doubly difficult, and those opposed to the introduction of same sex marriage well know it. Thus the legal way in which the question is put to the people may well determine its outcome.

What then is the alternative and how might it work? The other way to ‘ask the people’ is by plebiscite. Like a referendum, a plebiscite is conducted by the Australian Electoral Commission, however unlike a referendum it requires only a simple national vote. Another distinguishing feature of a plebiscite is that it is not binding on a government. Of course,  the political fallout of ignoring an outcome makes it inconceivable in this case that it would be ignored. Finally, a plebiscite does not require a compulsory vote whereas a referendum does. What impact that may or may not have remains to be seen.

The way the former PM handled the same sex marriage issue provided quite an elegant solution, addressing the obvious desire of the electorate to be heard on the question, as well as confronting what had become a smouldering community issue. However he never got to finish the job, and it is still unclear exactly how the next government will ultimately conclude the matter. If the Coalition is re-elected it seems highly likely that there will be a plebiscite, particularly given recent remarks by the new PM. If it is Labor, the question may never be put to the people.

As a footnote there have only been three federal plebiscites put to the Australian people. The first two were in 1916 and 1917 and pertained to the vexed question of compulsory military service. That episode bitterly divided and factionalised the Labor government of the day. The third one, in 1977, resulted in Advance Australia Fair becoming our national anthem, followed by Waltzing Matilda in second place. It will be interesting to see if in the next term the Federal Government proceeds with our fourth, and if so, what the result will be.

It will also be interesting to see if the process contains the same dangers to the Coalition, if it remains in government, as the earlier plebiscites did to the then Labor government. There are certainly some lessons to be learnt from history.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.