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Plebiscite the only way forward for Turnbull on marriage equality



Now that the 2016 federal election is done and dusted, we need to consider what is a responsible, informed position to take on the proposed plebiscite on same sex marriage.

Malcolm TurnbullI uphold and continue to proclaim the Catholic Church's teaching on sacramental marriage. To quote The Catechism for convenience: 'The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptised persons has been raised by Christ the Lord to the dignity of a sacrament.'

We are all citizens of a pluralistic democratic society in which the law does not necessarily reflect my Church's teaching on all matters, including the sacrament of marriage. Most civil marriages contracted in Australia are not sacramental marriages celebrated or even recognised by the Catholic Church. Most marriages nowadays are performed by civil celebrants.

It is essential that any plebiscite or law on the recognition of same sex marriage in no way interfere with the Church's role in performing or defining sacramental marriages. The civil institution of marriage already differs substantially from a sacramental marriage, being terminable on one year's notice by one of the parties, and being available to all citizens regardless of their religion or previous marital status.

I recognise the right of Catholic voters and politicians to vote according to their conscience when deciding whether to expand the definition of civil marriage to include an exclusive commitment by two persons of the same sex.

In The Australian Paul Kelly, writing on the same sex marriage plebiscite, said (23 August 2016): 'Lawyer and priest Frank Brennan, who has always argued the issue should properly be decided by parliament, told this column: "Contrary to Justice Kirby I have urged proponents of same-sex marriage to support legislation for a plebiscite because there is no other way that the matter can be resolved during the life of this parliament with Malcolm Turnbull remaining as Prime Minister."'

I have always thought a plebiscite was a bad idea. There will be complexities in legislation which can only be determined by parliament.

A plebiscite is not the usual Australian way for determining law or social policy. Once Tony Abbott was no longer prime minister, I pointed out to groups such as the Australian Christian Lobby that it made little sense for them to be committed to a plebiscite when the PM, the Leader of the Opposition and the Greens all held a contrary position.


"In the absence of such authorising legislation [for a plebiscite], Turnbull has nowhere to go. So either he goes, or the matter gets put on hold until after the next election."


I always urged a conscience vote in the parliament as the best means of resolving this issue.

Once the ALP conference tinkered with the conscience vote provision, the gate was open to tinkering on the other side. It definitely reduced the compelling nature of the argument that the matter be resolved by conscience vote of the parliament.

Once Malcolm Turnbull went to the election with a commitment not to legislate for same sex marriage except after the conduct of a successful plebiscite, it was inevitable that the only way forward to resolving the issue during the life of this parliament would be by the parliament enacting legislation to authorise a plebiscite. In the absence of such authorising legislation, Turnbull has nowhere to go. So either he goes, or the matter gets put on hold until after the next election.

A conscience vote in the parliament during the life of this parliament, and without a plebiscite, would leave the opponents of same sex marriage rightly feeling that the government had breached an election commitment. This anxiety on their part would then build on their sense that the cultural elites are cutting corners to achieve their objective. There were unfortunate exchanges in the 2013 High Court case involving the ACT's attempt to legislate for same sex marriage when Justice Hayne made it very clear from the bench that the High Court was anxious to expand the constitutional definition of marriage to include same sex marriage even though there was no intervener to argue the contrary position. The Commonwealth was arguing that the case could be decided without the court having to rule on whether 'marriage' in the Constitution could include same sex marriage.

The Commonwealth Solicitor General had argued:


'First of all, we have put something as the better view. The ACT commends that view. The intervener enthusiastically commends that view. The Court does not have a contradictor on that question. The Court would not decide any matter merely on agreement. That is just not on, absolutely not on. If the matter needs to be decided, the Court will decide it and what I had proposed to do, given there was not a contradictor, was to identify what I will call the narrow argument and then deal with what I will call the broader argument.

'So I will seek to identify both those arguments, there being no contradictor. But I do not retreat from the proposition that because our law on any view has stayed on the right side of the relevant part of the circumference of the circle, it is either at the circumference or it is inside it. In that sense, it is not necessary to decide the constitutional question.'


The discussion culminated in Justice Hayne saying to the Solicitor General: 'If you sit on the fence too long, Mr Solicitor, it becomes deeply uncomfortable.' The bench thought the Solicitor General was fence sitting simply because he was arguing that a constitutional question could remain unanswered when the case at hand could be resolved without the question being answered, especially given that there was no contradictor at the bar table.


"The most Turnbull can now offer those supporters of same sex marriage who are at the same time opposed to a plebiscite is a promise to go the next election committed to a conscience vote in the next parliament without a prior plebiscite."


We need to follow due process in determining this policy question. Opponents of same sex marriage (of which I am not one) have realised that the High Court reached a decision on the matter without their having a place at the Bar table. Those opponents then engaged in an election campaign in which government at their urging pledged not to legislate without first conducting a plebiscite. In principle I thought a commitment to a plebiscite was foolish; in principle, once an election commitment is given, I think a plebiscite must be conducted during the life of this parliament prior to legislation for same sex marriage then being debated in the parliament.

Four things are now indisputable: (1) the government within its own ranks signed off on a Coalition agreement before the election making a plebiscite mandatory; (2) the government went to the election committing itself to a plebiscite; (3) the government was re-elected with that 'mandate'; and (4) Malcolm Turnbull is a dead duck if he attempts to preside over a government which participates in a vote in the House of Representatives in favour of same sex marriage without first having a plebiscite. A vote on same sex marriage without a plebiscite is not possible during the life of this parliament with the Coalition maintaining government and being headed by Turnbull.

The most Turnbull can now offer those supporters of same sex marriage who are at the same time opposed to a plebiscite is a promise to go the next election committed to a conscience vote in the next parliament without a prior plebiscite. If Turnbull were to attempt anything else during the life of this parliament, he would face the chopper, and so he should. So we should all prepare for a February plebiscite, hopefully with all sides being respectful of each other's views and civil in their discourse, especially those of us who are members of the Body of Christ — regardless of what we think the law on 'marriage equality' should be.


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University.

Topic tags: Frank Brennan, same sex marriage, marriage equality, plebiscite



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Beautifully summarised, with insight and clinical precision: 'Four things are now indisputable: (1) the government within its own ranks signed off on a Coalition agreement before the election making a plebiscite mandatory; (2) the government went to the election committing itself to a plebiscite; (3) the government was re-elected with that 'mandate'; and (4) Malcolm Turnbull is a dead duck if he attempts to preside over a government which participates in a vote in the House of Representatives in favour of same sex marriage without first having a plebiscite... ' The re-emergence of Abbott as PM, fomented by Bernardi and his other dogs of war, can only mean the re-election of the Labor Party; historically the party of social change and equity in this country. Weighed and found wanting, Abbott poses no joy or hope for Australians. Bye bye, Malcolm.
Barry G | 01 September 2016

I have always been wary about the use of the term "mandate". It falsely implies that, when electing a government, the majority of electors endorsed the entirety of the policy program of that victorious group. There is no way of knowing that with certainty -- though it is highly likely. Ultimate every elector has made a binary choice, mostly deciding that (on balance) one group was preferable (as the government) to the other. Specifically, on 2 July, the tiny majority for the Turnbull coalition was hardly a ringing endorsement -- so the use of that term, "mandate" is even more fraught in the prevailing circumstances. Furthermore, the heterogeneous result in the Senate (which is no less a part of the legislature than the finely-balanced House of Representatives) rather argues against that "mandate" notion. It the electors had REALLY wanted to proceed with the (non-binding) "Plebiscite" (and the polls tell us that they DO NOT) then the option was open to them to give the Coalition a clear majority there: that did not happen. So I'm afraid that Professor Brennan's argument is built on very shaky foundations which, indeed, cannot reliably support his case..
Dr John Carmody | 01 September 2016

Abbott’s plebiscite brainwave was taken straight from John Howard. Howard sank the republic referendum he promised to hold by designing it so the republicans opposed each other. Similarly, the marriage equality plebiscite was proposed by a man who opposes marriage equality and is supported mainly (not exclusively) by opponents of marriage equality. Abbott hoped to kill it and I don’t trust Turnbull to be strong enough to prevent a similar cynical process ending in another failed outcome. It’s what they do. Picking up Frank Brennan’s four indisputable things, I suggest: (1) the plebiscite is Government policy and the Government will have to table a Bill to enable it – agreed. (2) If the Bill is passed, we will have the expensive non-binding opinion poll. If the Bill is defeated by the Parliament, the Government will have honoured its election commitment and simply did not have a sufficient mandate (ie, numbers) to get it through. (3) Rather than Turnbull having nowhere to go, the way would then clear for him, in good conscience, to move to amend the Marriage Act, or to allow a free vote if it comes up as a Private Member’s Bill. The options are not simply a plebiscite or nothing this term. I still think when marriage equality becomes a fact in Australia, future generations will wonder what all the fuss was about.
Brett | 01 September 2016

As Peter Johnstone says on another thread, 'Turnbull has got us into this mess by making a weak commitment to stick with Abbott’s manipulative delaying tactic of a plebiscite to placate the ultra-conservatives, despite knowing that such a course would exacerbate the injustice and hate felt by gays'. The coalition have yet to agree and we have yet to see the substance and the form of the question that will be put to the electorate nor whether there will be public funding for the 'yes' and 'no' cases. Have we forgotten Howard's sabotaging of and Turnbull's political naiveté during the republic referendum? Shorten is right to be non-committal at this stage. Those in the coalition who say they are 'for' marriage equality and are now suggesting that Labor will be to blame if the plebiscite does not proceed ought to look at themselves and their own complicity in the farce. It is sad to see what principles can be set aside in order to secure an opportunity to occupy the treasury benches.
Ginger Meggs | 01 September 2016

If governments on both sides of politics can break core promises when situations change after an election, so they claim, (ie Gillard and the carbon tax, the Coaltion and it;s attempt to attack the health system), why can't this government change it's mind, and break a promise that will result in a positive change? Turnbull - change your mind, break your promise, have some balls. If it takes Enstch to cross the floor, then so be it. Such a bold move would surely upstage Labor's petty tactics in the past couple of days - and restore some faith among Aussies that our pollies haven't simply sold their souls.
AURELIUS | 01 September 2016

Breaking an election promise that should not have been given is fine, they should have broken the promise of never letting some refugees into Australia as well. I have been very disappointed in your last couple of articles Frank, you seem to think that we can compromise away the rights of some groups of people at will and none of the groups involved are part of any group you belong to. What if the secular atheists like me tried to delete some of your human rights from your life because we object to them?
Marilyn | 02 September 2016

'I have always thought a plebiscite was a bad idea. There will be complexities in legislation which can only be determined by parliament." Complexities in legislation are caused by complexities in the concept and circumstances of same sex marriage, one of which is that changing the definition leads not merely to same-sex marriage but multi-gender marriage, gender not only now being asserted to be more than those we know about now (LGBTI+) but changeable within a person more than once during a lifetime. If the people are not made aware of those complexities before a plebiscite, they are asked to buy goods sight unseen.
Roy Chen Yee | 02 September 2016

Precisely Aurelius, Turnbull is going to be brought down by Abbott and Bernardi within three years, so why not risk going down now on a matter of principle rather than becoming a victim of the polls later.
Ginger Meggs | 02 September 2016

Roy, those 'complexities' of which you speak are examples of the sort of noise and misinformation that the anti-marriage equality people will seek to introduce into the pre-plebiscite 'debate' to create fear and confusion. There is nothing complex about this question : it's simply about the right of any two people to a civil marriage.
Ginger Meggs | 02 September 2016

Roy, unlike Frank Brennan and you, I don't think this is a complex issue. The objective is to replace the "man and women" part of the Howard definition in the Marriage Act ("the union of a man and a woman to the exclusion of all others, voluntarily entered into for life") with "two people". Who those two people are is up to them. This is not about polygamy, bestiality or anything other than two people freely choosing to marry. The complexities you raise are not necessary or relevant and only cloud the basic issue. You are not buying something sight unseen. It will not be compulsory for you, only optional if you and your partner choose it. But let me ask you a question. You are heterosexual and want to marry a woman, how happy would you be if the rest of the country had a say in whether or not you could do it?
Brett | 02 September 2016

It's not possible to have a respectful debate on marriage equality (not same-sex marriage, as that would exclude Trans and Intersex people), as to even call into question the right and fitness of LGBTI people to marry is in itself insulting and disrespectful. Governments in this country under our system do not have 'mandates' for anything, least of all those elected by the barest majority. Nor are they obliged legally or otherwise to keep their election promises. Instead they choose which policies to enact once elected. There is no need, and no justification, for a plebiscite.
Doug Pollard | 06 September 2016

You are in a loving relationship with another human being. But you cannot marry unless your next door neighbour, the local fruitologist, the parents of the kid who bullies your child at school, Corey Bernardi, the Collingwood football team ... say you can. How does that make you feel? As for 'this covenant between baptised persons has been raised by Christ the Lord to the dignity of a sacrament', I can understand why an intelligent man like Frank Brennan hides nonsense like that in inverted commas. Final point: the ALP are less than innocent in this by not allowing a free vote.
Frank | 06 September 2016

Can Malcolm Turnbull marry his commitment to party unity with his desire to bring the Marriage Act into line with the arbitrary statement about same-sex marriage inserted into the 2013 judgement of the High Court? The PM may prevail via a plebiscite but just as dissent did not go away when the Marriage Act was amended last time, so also this debate will still be around long after advocates for "Marriage Equality" proclaim that the issue is resolved "once and for all", whether by this parliament or the next. The deeper political need is for the reform of an ongoing political debate about marriage (and much else besides) that has been so malformed by the political parties championed by Messrs Turnbull and Shorten. Parliamentary “conscience votes” haven’t encouraged citizens to join in public debate – and the prospect of a plebiscite is already distracting us from open debate. We have to figure out how to keep on talking respectfully with each other even when we profoundly disagree. We need a politics that avoids the cowardly example of conscience votes and plebiscites, with parties commending comprehensive public justice policies that they will stand by even if that means LOSING an election.
Bruce Wearne | 06 September 2016

"Well! Here's another fine mess you've gotten me into." is an expression frequently used by that funny filmic duo, Laurel & Hardy. Filmgoers, 70 and over, will remember it well when one would rebuke the other for the impossible situation he had ended up in. Turnbull and Abbott are the Australian political equivalent of Laurel and Hardy, except in this case Turnbull can't say: "Well here's another fine mess you've gotten me into, Tony". Nor can either of them blame John Howard for introducing the restrictive definition of marriage to the Marriage Act in 2004. Calculated political manoeuvring has brought about this nice mess and political manoeuvring will only make it worse. I can see how a non-binding plebiscite can fix it. Maybe the PM should consult former PM John Howard for a possible solution. After all Mr Howard introduced the distinction between core and non-core promises without losing much political skin. But then his position as leader of the parliamentary Liberal Party was hardly under threat. Peter Costello simply wasn't ambitious enough. Mr Turnbull's position is very wobbly. His options for action are very very limited.
Uncle Pat | 06 September 2016

This was a bad election promise denying a civil right to individuals in society to have their love and intimacy civilly recognised. The plebiscite was always a device to delay, and possibly deny, the right of civil marriage to LGBTI people. The plebiscite will encourage the use of hate language against people who have been born, created by God, with different sexual preferences. This should not be a debate as to what Turnbull can do to survive; it should be about justice. As a Christian, I am ashamed by the attitude of many Christian churches in seeking to deny justice in a matter that does not affect their own religious practice; worse, that opposition in an unnecessary plebiscite will cause an exacerbation of the ill-informed attitudes to LGBTI people still felt by some in a community that has come a long way and now generally supports marriage equality. We have apparently elected a majority of politicians that support marriage equality and we know what the majority of the people think. Turnbull can and should let the Parliament vote, an easy option after the plebiscite bill is defeated. Such leadership could be the making of his prime ministership.
Peter Johnstone | 06 September 2016

Thanks Frank ...reasoned, principled, incisive and, for me, compelling. Here's my concern: as much as the government might tick all these boxes in pursuing the plebiscite path, for the best of ostensible reasons, what comfort can you offer to us that the framing of the precise plebiscite question or questions will not be "mean and tricky" as was the Howard framing of the Republic referendum of years ago (which neatly divided the pro-republic support)? And ... what do you make of the various public requests already made (by anti equal marriage voices) to suspend the anti-discrimination act for the duration of the campaign? Perhaps lining up some shabby ducks?
Wayne Sanderson | 06 September 2016

It appalls me that the right for two consenting adults to marry is controlled by political meanderings and self-protection. Australia elects its politicians to legislate - so Mr Turnbull and co - legislate! Every day, young people who are same sex attracted or find themselves aligned to a non traditional understanding of sexuality are marginalized, bullied and made to feel unsafe in a country that has prided itself on its egalitarian concept of mate-ship and acceptance. Move with the times Mr. Turnbull and don't give haters a voice during a potentially divisive plebiscite campaign.
MDB | 06 September 2016

When I was at school (I was born in 1934) I learnt that Marriage was a sacrament administered, not by a priest, but by the couple to each other. It was to provide grace to help them to help each other and to remain faithful. At that time it was believed/understood that everyone was born heterosexual and so the couple would be a man and a women. Nowadays, science tells us that that is not so. I can understand that you, with your legal training, would refer to books and documents. But that is not what Jesus did. If he saw that community beliefs and practices were not helpful he would preach contrary those beliefs. At this time, when science reliably tells us that it is normal that some people are homosexual or lesbian, I believe that you and the church should reconsider the definition of marriage. God’s grace should not be denied to people because of how God ‘made them’.
Clare Flanagan | 11 September 2016

If the purpose of a plebiscite is to ascertain with certainty the will of the electorate, then there is another way which would cost far less, be just as reliable, and avoid the division and damaging campaign. That way is to commission the AEC and the ABS to conduct a poll of a representative sample of the electorate as to whether they agreed or disagreed with the proposed change in wording of the Act. Then Parliament could do the job for which it was elected and certain of the will of the electorate. But that assumes that those pushing for a plebiscite are genuine in wanting to ascertain the will of the people and not seeking to manipulate the will of the people or, worse still, deferring marriage equality indefinitely.
Ginger Meggs | 12 September 2016

After viewing Monday night's (Sep 19) debate on Q&A, this plebescite is looking more and more like a Pontius Pilate washing of hands, and hanging LGBTI people out in the cold to be judged and condemned by the voracious hoards.
AURELIUS | 20 September 2016

The Marriage Equality discussion on the ABC Gruen program last night showed the anti Marriage Equality campaign in a plebiscite can be couched in the nicest possible language by the most pleasant of people being very reasonable about their opposition to Marriage Equality. Some of these pleasant people oppose Marriage Equality because they care so much for the welfare of gay and lesbian people whom they dearly love and only want what is best. Marriage apparently isn’t part of it. Others are allegedly reformed or “ex gays” who are now happily married in heterosexual relationships, the implication being that sexual orientation is really a choice and gays and lesbians just haven’t met the right person of the opposite sex. There were even some gently spoken comments that Marriage Equality somehow reduces freedom of speech (not sure how that one works) and nobody wants that. It all sounds so reasonable. But peel back the niceness and we find the same denial of a basic civil right, with GLBTI people still regarded as less worthy of equal recognition in society. A plebiscite “discussion” does not have to be overtly loud, nasty and vicious and in fact this “niceness” facade can be just as hurtful and damaging to the people it opposes.
Brett | 22 September 2016

With due respect, I do not accept that the Coalition has any "mandate" to demand a plebiscite. While the LNP wona a majority of seats in the House of Representatives, they did so with 42% of primary votes - and 35% of first preference votes in the Senate. The LNP are also keen on Budget repair, and seem keen on cutting welfare payments - so it's somewhat hypocritical to waste ~$160-200 million on what is already turning out to be little more than a Festival of Lies and Hatred. Parliamentarians are well-renumerated to vote on legislation. They do not need a plebiscite beforehand. (I am reminded of the refusal of the Howard government to accept the return of David Hicks from Guantanamo unless he blinked first).
David Arthur | 24 September 2016

This was my interview on Radio National this evening on same sex marriage and the plebiscite following upon the ALP's decision to reject the Plebiscite Bill : http://www.abc.net.au/radionational/programs/religionandethicsreport/where-to-now-from-here-on-same-sex-marriage/7923612
Frank Brennan SJ | 12 October 2016

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