Plebiscite on same-sex marriage: Frequently asked questions

In Australia, a ‘plebiscite’ means a popular vote on an important public question. It can be distinguished from a ‘referendum’, which is a popular vote on a proposed amendment to the Commonwealth Constitution or a State constitution.

The legal consequences of a plebiscite and a referendum are different. A plebiscite generally has no legal effect and Parliament is not required to act in accordance with the result. In this respect, a plebiscite is best described as a mechanism for testing public opinion on an issue. By contrast, the result of a federal referendum is binding. A proposal that achieves the threshold specified in section128 of the Constitution (a national majority of votes plus majorities in four states) must be presented to the Governor-General for royal assent. Conversely, no amendment can be effected in the event that this threshold is not reached.

Since Federation, Australia has held three national plebiscites. The first two – in 1916 and 1917 – asked voters whether they supported the introduction of compulsory military service during the First World War. In both cases, the proposal was defeated by a small margin. In 1977, a third plebiscite asked voters for their preferences on a national song, with Advance Australia Fair prevailing over God Save the Queen, Waltzing Matilda and Song of Australia.

Plebiscites are more common at State and Territory level, where voters have had their say on a wide variety of social and economic issues including hotel closing hours, Sunday trading, prohibition and daylight saving.

Same-sex couples are not currently able to marry in Australia. This is because the Marriage Act 1961 (Cth), the federal 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’.

Yes. In Commonwealth v ACT (2013), the Court confirmed that the federal parliament has power to legislate on same-sex marriage. The Court ruled that the parliament’s power to make laws about ‘marriage’ under section 51(xxi) of the Constitution encompasses ‘marriage between persons of the same sex’. This means that the federal parliament could allow for same-sex marriage simply by passing a Bill that amends the Marriage Act. Holding a plebiscite will not change this. Indeed, if the Australian people vote ‘yes’ in a plebiscite, it will still be necessary for Parliament to pass legislation to amend the Marriage Act.

In September 2015, the Senate Standing Committee on Legal and Constitutional Affairs published its report on the use of a plebiscite in relation to the question of same-sex marriage. The majority report did not endorse a plebiscite, but instead recommended that ‘a bill to amend the definition of marriage in the Marriage Act 1961 to allow for the marriage between two people regardless of their sex is introduced into the Parliament as a matter of urgency, with all parliamentarians being allowed a conscience vote’.

The Coalition government first committed to holding a plebiscite in August 2015. Then Prime Minister Tony Abbott said that the issue of same-sex marriage was ‘in the end is so personal, so sensitive, so intimate…that it really should be decided by the people rather than by Parliament’.Similarly,frontbencher Scott Morrison remarked that ‘the Australian people should decide [this matter], not politicians, not judges, but the people of Australia’. Since succeeding Abbott as Prime Minister, Malcolm Turnbull has said a plebiscite ‘is a very legitimate and democratic way of dealing with’ the same-sex marriage issue.

Parliament has the power to decide the form and nature of the question to appear on the ballot paper.  One approach would be to ask voters if they support allowing same-sex marriage; another would be to ask whether marriage should be restricted to opposite sexes. Voters may respond differently to a question that asks them to change a ‘longstanding’, ‘traditional’ definition of marriage, compared to one that asks them if they support ‘marriage equality’. More neutral options are available. The ballot paper could ask voters if they support Parliament legislating for same-sex marriage; alternatively, if a Bill authorizing same-sex marriage is passed in advance of the plebiscite, but made contingent on a ‘yes’ vote, the question could simply read: ‘Do you approve of the Bill entitled … [name of Bill]?’.

Parliament determines who can vote at a plebiscite. The most likely scenario is that Parliament will adopt the same franchise as exists for elections and referendums.

However, Parliament is free to expand or narrow the plebiscite franchise beyond usual electoral practice. One option would be to allow 16- and 17-year olds to vote. George Williams has written that members of this age group should be permitted to vote at the plebiscite given that they are legally allowed to marry (with the permission of a judge or magistrate) and so have a genuine stake in the outcome. Expanding the franchise in this way would be in line with what occurred at the recent Scottish independence referendum. 

Public polling suggests that a majority of Australians support marriage equality. In July 2015, a Fairfax/Ipsos poll indicated that 68% of voters supported same-sex marriage while 25% opposed it.

There is also majority support for the plebiscite itself. In March 2016, an Essential poll indicated that 66% of voters preferred a same-sex marriage plebiscite over 23% of voters who preferred it to be put to a vote in parliament. However, in a ReachTEL survey conducted in three electorates held by the National Party in February 2016, only 28% of voters supported a plebiscite, citing cost and a preference for parliament to resolve the issue as their primary reasons.

In September 2015, the Australian Electoral Commission estimated that the cost of a stand-alone plebiscite (ie, one that was not held in conjunction with a national election) would be $158.4 million However, this figure did not include an allowance for public funding of ‘yes’ and ‘no’ campaigns. In March 2016, modelling undertaken by accounting firm PriceWaterhouseCoopers estimated that the cost of these campaigns would be $66 million. It further estimated that the loss to the national economy of people taking time out to vote would be $281 million while there would be at least $20 million in costs associated with impact of the plebiscite on the mental health and wellbeing of Australians.

Coalition parties

Prime Minister Malcolm Turnbull affirmed his support for the plebiscite immediately after assuming office. While he personally supports marriage equality, a range of views exist within the Coalition parties on the issue. Turnbull has said that his government will act in accordance with the plebiscite results views of the people. He remarked: ‘If you imagine that any government, this government or any government, would spend over $150m consulting every Australian on an issue of this kind and then ignore their decision, then they really are not living in the real world.’ However, prominent conservative senator Eric Abetz has argued that, irrespective of the plebiscite result, every coalition MP should be free to decide how to cast their parliamentary vote on same-sex marriage.

National Party leader Barnaby Joyce is opposed to same-sex marriage. He does, however, support a national plebiscite, stating that the issue is ‘personal for everybody and this way everyone has one vote’.

Labor Party

Labor Party leader Bill Shorten has pledged to introduce a Bill for marriage equality within 100 days if a Labor government is elected at the 2016 election. Under current party rules, MPs would be allowed a conscience vote on the Bill. Shorten himself supports same-sex marriage but opposes the plebiscite, warning that it ‘could act as a lightning rod for the very worst of the prejudice so many LGBTI Australians endure’. He has further criticised the associated cost and delay.

Greens

The Greens support marriage equality. However, marriage equality spokesperson for the Greens, Senator Robert Simms has labelled the plan for a national plebiscite a ‘farce’, and called for Malcolm Turnbull to introduce a Bill directly into Parliament. Senator Simms has strongly criticised the human and financial cost associated with a plebiscite.

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Other parties

In July 2015, a number of crossbench Senators united to support a Greens private members bill to allow the question of same-sex marriage to be put to the Australian people at the 2016 election. Senator Nick Xenophon has since expressed a preference for a parliamentary vote but has said that if the issue is to be put to a public vote, it should be done quickly.

Senator Glenn Lazarus supports same-sex marriage but is opposed to the plebiscite. He has said that the ‘issue of marriage equality involves people, and people will be attacked through very nasty and very aggressive advertising campaigns’. Lazarus nonethelessbelieves that the majority of Australians will vote for marriage equality. In fact, in May 2015 he declared that he was so certain on this that ‘if they don't, I'll turn up to Parliament House in a mankini’.

While Independent Senator for Tasmania, Jacqui Lambie, has voiced her opposition to same sex marriage, stating that she is not prepared to ‘compromise’ on the meaning of the word, she supports a plebiscite on the basis that it gives ‘power back to the people’.

More information on the history and conduct of plebiscites in Australia can be found here:

Australian Electoral Commission, What Are Referendums and Plebiscites? (9 September 2015).

Antony Green, Plebiscite or Referendum – What’s the Difference, ABC Elections (12 August 2015).

Flagpost, A Quick Guide to Plebiscites in Australia, Australian Parliamentary Library (30 June 2011).

Paul Kildea, Setting the ground rules for the same-sex marriage plebiscite, AUSPUBLAW Blog (27 April 2016).

Senate Standing Committing on Legal and Constitutional Affairs, Matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia (15 September 2015).