Groups that are determined to prevent marriage equality from being legislated any time soon back the PM’s proposal for a costly referendum to be held in 2017.

After the six-hour Coalition party room meeting in August in which Prime Minister Tony Abbott sought to push any vote on same-sex marriage beyond the next election and announced a plebiscite/referendum would be held in 2017, the Greens and a number of crossbench senators introduced a private member’s bill that would force the government to hold a plebiscite on the matter at the same time as the next federal election in 2016.

The bill, if passed, would require the government to ask every Australian voter at the next election: “Do you support Australia allowing marriage between 2 people, regardless of their gender?”

While the result wouldn’t force the government to enact legislation after the election, the bill suggests that if a majority of Australians vote in favour of same-sex marriage, Parliament should legislate within six months of the result being tabled.

A short inquiry into the legislation commenced last month. In submissions published this week, most, particularly those representing legal organisations, remain opposed to either a referendum or a plebiscite being held on the matter. Instead these submissions point out that, according to a High Court ruling in 2013, Parliament has the power to amend the Marriage Act to pass marriage equality into law.

“Public votes are not an appropriate way to resolve issues of fundamental rights. It is not an appropriate instrument to resolve issues of equality before the law,” Australian Human Rights Commissioner Tim Wilson said in his submission to the inquiry.

The Public Law and Policy Research Unit at the University of Adelaide argued that Parliament is completely capable of dealing with the issue without a plebiscite:

“The parliament regularly deals with legislation on matters of equality and human rights. More specifically, the parliament has previously amended legislation dealing with the issue of providing people in same-sex relationships with the same rights as those in heterosexual relationships. The Parliament was able to deal with those amendments without the need for a plebiscite.”

Gilbert + Tobin law firm said in its submission that holding a referendum or a plebiscite was unnecessary:

“Conducting a plebiscite is a non-binding and expensive step, inappropriate for the determination of principled maters of legal rights affecting minorities and, essentially, an abdication of responsibility by the people’s elected representatives under our system of government.”

The Law Council of Australia said the 2013 High Court ruling placed the responsibility for marriage law squarely on Parliament.

Unsurprisingly, the submissions that backed a referendum or a plebiscite tended to be those that sought to prevent same-sex marriage from coming into law. A group known as Lawyers for the Preservation of the Definition of Marriage want a referendum with an overly complicated question. The group disagrees with the 2013 High Court ruling and argues that the question should be set out as follows:

“Should s 51(xxi) of the Constitution be amended to read ‘Marriage, namely the union of two persons of the opposite or the same sex to the exclusion of all others voluntarily entered into for life and which is determinable only by law’ or should s. 5(1) of the MA be amended to read ‘Marriage means a union of two persons of the opposite or the same sex to the exclusion of all others voluntarily entered into for life”

The Australian Catholic Bishops Conference didn’t want a referendum or plebiscite held at the next election:

“The Bill seems designed to stifle open and considered debate by scheduling the plebiscite at the next election when there will be many other competing issues discussed and little time and space for informed community discussion. The bill would also allocate minimal government funding to help inform members of the public and restrict publicly funded information to a skeleton of arguments for and against.”

The group was also not concerned about the high cost to the taxpayer of providing equal funding to both the “yes” and “no” campaigns in the event of a referendum or a plebiscite. Opponents of same-sex marriage know that if funding for the “yes” and “no” campaigns does not come from government only, the “yes” campaign will be able to tap into more funds from the corporate sector, which is overwhelmingly in favour of passing gay marriage into law.

The conference argued:

“The costs of an adequately funded process are trivial compared to the importance of the issue at hand for the future of our community and the arguments must not be oversimplified. Radically to limit the debate for cost or ideological reasons would bias the process.”

The Australian Electoral Commission told the committee that to have a plebiscite at the time of the next federal election would cost taxpayers an extra $44 million. This cost would come from extra staff at booths, the additional ballot paper, and the design and production of educational material, as well as the documents needed for the “for” and “against” arguments, provided to over 10 million households.

A plebiscite or referendum on its own would cost an estimated $158.4 million for Australian taxpayers, the AEC stated.

While Liberal MP Warren Entsch has suggested a vote could be done in two weeks, the AEC has said it would need 29 weeks to prepare, at minimum.

The committee is due to report on September 16.

The legislation doesn’t have the backing of Labor, which is still pledging support for the cross-party bill introduced by Entsch and Labor MP Terri Butler in the House of Representatives. The Greens support the plebiscite bill, but it is an uncomfortable marriage with the crossbench for them, seen as the least-worst option for the government’s current intentions around same-sex marriage.

Yesterday, surrounded by members of Parents, Families and Friends of Lesbians and Gays, Entsch, Butler, Liberal MP Teresa Gambaro, Greens MP Adam Bandt and independent MP Andrew Wilkie called on the government to allow its bill to be voted on before the next election, despite the fact that government ministers will not be allowed to vote for it.

The bill was given just 10 minutes of debate in Parliament on Monday, and Bandt has called on the government to allow extra time for debate on the bill. Wilkie says he would like to see the bill voted on in the current sitting fortnight.

Butler, in a break from the group-love moment, pointed out that the costly plebiscite at the time of the next election was entirely unnecessary as Labor has promised to introduce marriage equality legislation in the first 100 days if elected, and Abbott has indicated that after this election, Coalition MPs will be allowed a conscience vote on the matter.

Peter Fray

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