With the plebiscite set to be blocked, who will leave a legacy of marriage equality?

Paula Gerber

Paula Gerber

Every prime minister likes to leave a legacy, to be able to say Australia is in a better position because of the reforms they introduced. John Howard points to gun control as his legacy; Kevin Rudd the apology to the Stolen Generations; Julia Gillard the National Disability Insurance Scheme.

It is inevitable that Australia will, in the not-too-distant future, amend the Marriage Act to allow two people to marry regardless of their gender. The only question remaining is which prime minister will get to claim this as their legacy.

Labor has now joined the Greens and the Nick Xenophon Team to announce it will vote against legislation to set up a plebiscite on whether Australia should allow same-sex couples to marry. With the government not having a majority in the Senate, this all but ends any prospect of a plebiscite being held.

It will now be up to federal parliament to decide when this long-overdue reform will happen. That marriage equality should be decided by parliament was always the preferable outcome, given the potential harm to vulnerable LGBTIQ youth and children in same-sex families that would likely follow a very hostile public debate.

We never needed a plebiscite anyway

There was never any constitutional or legal requirement for the Australian people to vote on marriage equality.

The plebiscite was only ever a political stunt, dreamt up by Tony Abbott, in a last-ditch effort to delay marriage equality in the face of increasing public support for the abolition of marriage as an exclusively heterosexual privilege.

There are some who argue it is undemocratic to deny the Australian public a vote on this issue. But that opinion is based on flawed reasoning.

If you ask a child who should decide how much time they can spend watching TV – them or their parents – of course they will say they should decide. However, most people would agree it is a parent’s responsibility to make such decisions.

Similarly, Australians have elected politicians to make decisions on their behalf, including decisions about amending the Marriage Act. It is their job to legislate to remove discrimination, not the Australian public’s.

As former High Court judge Michael Kirby observed, a plebiscite on marriage equality would create a dangerous precedent. It would:

… mean any time that there is something that is controversial, that’s difficult for the parliamentarians to address or they don’t want to address, they’ll send it out to a plebiscite. I think that’s a very bad way.

Challenges for Turnbull

Australia’s road to achieving marriage equality is unclear. So, when will it happen? And who will make it happen?

In the aftermath of the 2016 federal election, Prime Minister Malcolm Turnbull invited Labor leader Bill Shorten to “meet us in the sensible centre”. Although this comment was made in the context of economic reform, it applies equally to the human rights issue of marriage equality.

Will Turnbull give his party a free vote in the parliament on marriage equality, which would likely lead it to being achieved? Or will he be beholden to conservatives in his party like Cory Bernardi, Eric Abetz and the Nationals, who are vehemently opposed to a free vote on marriage equality.

If Turnbull, who personally supports marriage equality, is not able to convince his partyroom of the need for this reform, then we are unlikely to see same-sex couples marrying in this country until at least 2019. This is when the next election – absent another double dissolution – is due to be held.

Turnbull would not only be handing the legacy of marriage equality to Shorten on a silver platter, but he would also lose the capacity to set his own agenda and priorities for this term of government.

This issue is not going to go away. The Australian public will continue to agitate for reform and, as a result, marriage equality will continue to be a distraction for the Turnbull government at a time when it is desperate to focus on its economic agenda.

If Labor wins the next election, amending the Marriage Act to remove the limitation that marriage can only be between a man and a woman will be one of Shorten’s first tasks. And at Labor’s national conference in 2015, it was agreed that MPs would have a conscience vote on this issue until 2019, but thereafter would be bound to support it.

Marriage equality is coming. It’s just up to Turnbull to decide whether it will be part of his legacy, or whether he will gift it to his opponent.

Professor Paula Gerber works in the Castan Centre for Human Rights Law.

This article appeared in The Conversation.