In wake of historic Irish vote, constitutional expert says parliament would still need to create laws to enable same-sex partners to marry

This article is more than 5 years old

This article is more than 5 years old

A referendum on marriage equality would amount to a “big opinion poll” as parliament would still need to create laws to enable same-sex partners to marry, according to a constitutional expert.

In the wake of the historic Irish vote in support of same-sex marriage, Professor George Williams told Guardian Australia parliament would need to authorise any referendum and the result would not allow any bypass of parliament. A majority on the floor of parliament would still be required to enable same-sex laws.



“You could hold a referendum if you wanted but only if parliament authorises it,” said Williams. “In which case it would be a plebiscite, or essentially a big opinion poll.”

His comments came as Tony Abbott all but ruled out a referendum on same-sex marriage because he said referendums are only required for a proposal to change the constitution.

But the prime minister, who is opposed to same-sex marriage, suggested MPs in favour have to decide whether to bring a vote to parliament.



“Referendums are held in this country when there is a proposal to change our constitution and I don’t think anyone is suggesting the constitution needs to be changed in this respect,” Abbott said.



“It’s up to members of parliament who are eager for change to decide whether they want to bring it forward.”

Williams said while referendums were usually held to change the constitution, there had been three held in Australian history. One related to the national anthem and two related to military conscription.



He said Ireland was “the odd one out” among countries on gay marriage as most governments introduced legislation without a referendum.

Williams said the average cost of a referendum was between $100m and $150m outside an election and half that if it was held in conjunction with an election.

“Given the amount of money we don’t have for other things, it seems a luxury to do this when it wouldn’t change the law,” said Williams.

He said referendums had a poor success rate in Australia and he suggested a same-sex marriage debate would be better enabled as a unifying moment.

“[Referendums] tend to polarise, they can lead to a lot of bitterness and division,” he said. “You would hope it would be a unifying moment.”

After 62% voted in favour of allowing gay marriage in Ireland, ACT Liberal senator Zed Seselja suggested Australia should also have a referendum even though he does not support same-sex marriage himself.

Ireland has become the first country in the world to approve gay marriage by popular vote.

“If you are going to make such a fundamental change it should go to a referendum. I think there is a reasonable argument for that,” Seselja told the ABC on Sunday.

The prime minister said questions of marriage were the preserve of the federal government but it was for the supporters of same-sex marriage to bring the matter before parliament.

“Plainly this is a matter which could quite properly come before the commonwealth parliament if members of parliament wanted it to be raised,” Abbott said.

In recent years, there have been three bills put to the parliament to allow same-sex marriage but all have failed. The Liberal party has not allowed a conscience vote on the issue in the past.



In December 2013, the high court struck down the nation’s first same-sex marriage laws, introduced by the ACT government. The court found, however, the federal parliament had the constitutional power to introduce a national law allowing same-sex couples to marry.

On Sunday, Abbott said there were a range of views in the parliament and the Liberal party room and in his own family. His sister Christine Forster tweeted in support of the result.

Inside the Abbott family I’m probably the last holdout for the traditional position, so look, it is a serious issue Tony Abbott

“Inside the Abbott family I’m probably the last holdout for the traditional position, so look, it is a serious issue,” he said. “I don’t know if and when it’s going to come before our parliament again. It came before our parliament in the last term and was dealt with fairly decisively.

“If it comes before our parliament again, our party room will deal with it. Our party room will decide whether our existing policy continues or not and then we’ll have a good debate.”



Both sides of the Australian marriage equality debate are vowing to step up their efforts following Ireland’s historic “Yes” vote.



Marriage Equality Australia says the result in the traditionally conservative and predominantly Catholic Ireland will remove any doubt marriage equality can be achieved in Australia.

But the Australian Christian Lobby has vowed to campaign harder against same-sex marriage in the wake of the result.

A referendum was held in Ireland because the government believed that an amendment was required to the country’s constitution. In Australia, an equivalent change could be achieved through legislation, but that has not stopped other MPs and senators backing a referendum.

The independent senator for Tasmania, Jacqui Lambie, also backs a referendum, without supporting gay marriage herself.

“We have an elderly population here in Australia ... I don’t think you are going to get the same result that has just happened in Ireland,” she told Sky News.

The independent senator Nick Xenophon says a referendum here would be a “circuit breaker”.

“I think the best approach is that there be a conscience vote in the parliament ... after all it has been an election issue,” the South Australian senator told Sky News.



The Greens deputy leader, Scott Ludlam, hopes the Irish result moves the issue along in Australia. He says several bills have just fallen short over the past seven years.

“There were reports last week that we may be four votes short in the House of Representatives and we might be able to carry a majority in the Senate,” Ludlam told Sky News.

Liberal Democrat senator David Leyonhjelm is preparing a bill for a conscience vote among politicians and believes it now has a greater chance of being supported.

“The traditional argument is equality ... my argument is it’s not the government’s business what gender person you are allowed to marry,” he told Sky News.

The Coalition frontbencher Bruce Billson believes there shouldn’t be a single word used to cover all kinds of relationships, especially if it’s one that people feel strongly about, such as marriage.

He suggests formally recognising “committed life partnerships” to allow same-sex couples to attest their commitment to life-long partners before family and friends.

“Polarising the discussion is unhelpful and completely ignores what should be the quality of the relationship and the opportunity for people to love who they love,” he told ABC TV.

• Australian Associated Press contributed to this report

• This article was amended on 28 May 2015. An earlier version said a referendum was required in Ireland because marriage was defined in the country’s constitution as being between a man and a woman. In fact the constitution did not make that definition.