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Marriage equality supporters' hope for a free conscience vote

Sunday, 6 November 2016  | Frank Brennan


My preferred position has always been that all members of parliament be given a free conscience vote on any bill amending the Marriage Act to include same sex marriage.

At the June 2015 conference, the Labor Party decided to maintain a free conscience vote during the life of the last 44th parliament and during the life of this 45th parliament. But it then decided that in the next 46th parliament, Labor members would be bound to vote in favour of same sex marriage.

This move had two political effects. First, it removed the pressure on Prime Minister Tony Abbott to allow a free conscience vote on his side. Second, it provided opponents of same sex marriage on the government side with the encouragement to design strategies to put in place an alternative to a free conscience vote in the parliament.

Thus was born the idea of a national plebiscite and a formal requirement in the Coalition agreement that a plebiscite be held. Malcolm Turnbull was elected to the leadership of the Liberal Party but on the condition that he honour the commitment to the plebiscite. That's why it was placed in the Coalition agreement at the time of Turnbull's accession to the Liberal Party leadership.

Those who want the government to revise its policy and allow a free conscience vote now need to take this history into account. They also need to consider just how locked in is Turnbull and his government.

The Governor-General Sir Peter Cosgrove in his formal speech for the opening of the 45th parliament announced on 30 August 2016: 'A decision on the same-sex marriage plebiscite will be made by all Australians via that plebiscite as soon as practical. My government will ask Australians to make a decision as a nation and then to respect the outcome.'

Introducing the Plebiscite (Same Sex) Marriage Bill on 14 September, Turnbull told the House: 'I remind the House, the parliament, that Australians expect this issue to be resolved in the manner they endorsed at the election. We took this to the election and we won the election. There was no doubt about our policy. There was no doubt about our platform.

'This was prominently debated every day of the election campaign. Every Australian who took any interest in the election knew that that was our policy. We have a mandate for it, and the opposition should respect it.'

"My own hunch, for what little it is worth, is that the hurt and insult would have been no more than what will continue over the next couple of years while the matter remains needlessly unresolved."

If the Senate now rejects the Plebiscite Bill, Turnbull could present it a second time for consideration by the Senate. This could be done any time up until 1 December 2016 when the parliament adjourns for the long Christmas break and the country checks out for Christmas and the summer. Parliament does not then resume until the first week of February, just before the government was wanting to schedule the plebiscite. Should the Senate reject the bill twice, the government could store the bill as a double dissolution trigger.

Given the government's fragile hold on a majority in the House of Representatives, Turnbull could not risk abandoning the commitment to the plebiscite during the life of this parliament. Should he be replaced as prime minister, it is just as likely that his replacement would be even more committed to maintaining the election pledge to honour the plebiscite during the life of this parliament. There is absolutely no prospect that he would be replaced by someone with less commitment to a plebiscite.

So the only way to reverse the commitment to a plebiscite would be for the Liberal and National Party rooms separately to abandon it. One political cost of this would be for them to labelled in much the same way as was Julia Gillard over the carbon tax and Mike Baird over the greyhounds. They would need to be approached by a broad cross-section of the community, including those strongly opposed to same sex marriage.

The most same sex marriage advocates can now hope for is that the Coalition goes into the next election with a commitment to a free conscience vote just at the time that Labor will be taking it away. When the dust settles next year, maybe LGBTI advocates will see the wisdom in trying to convince the Labor party to reinstitute a free conscience vote on its side if only to force the Coalition to do the same. That way the parliament a few years down the track might be able to do what the LGBTI advocates want them to do now.

If it were my call, I would have opted for the plebiscite in February with prompt parliamentary legislation to follow. But it's not my call. To those of my fellow citizens who feared they would suffer hurt and insult during a plebiscite campaign over the Australian summer while most of the media were at the beach, I say: I hope your political advocates are right. My own hunch, for what little it is worth, is that the hurt and insult would have been no more than what will continue over the next couple of years while the matter remains needlessly unresolved.

In so far as anything is certain in politics, there are three relative certainties. Until the next election, there will be no free conscience vote in parliament about same sex marriage unless there has first been a plebiscite. After the next election, there will be no free conscience vote in parliament about same sex marriage unless the Labor Party amends its platform. After the next election, there will be no successful vote for same sex marriage without a free conscience vote unless Labor has won the election.

Frank Brennan SJ is professor of law at the Australian Catholic University. This article was first published in The Australian on 14 October 2016, and reprinted in Eureka Street on 15th October 2016 at https://www.eurekastreet.com.au/article.aspx?aeid=50032.


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