Marriage equality in Australia: will 2016 bring a change in the law?

A series of landmark events in 2015 sustained prevalent interest in the campaign for marriage equality. In May, Ireland became the first country to legalise same-sex marriage via a referendum. Shortly after this, the US legalised same-sex marriage with a momentous Supreme Court ruling – widely proclaimed as the biggest victory for gay rights activists to date.

Elsewhere, 2016 will see the campaign for marriage equality continue with renewed determination – perhaps nowhere more so than in Australia.

Hopes for change on the issue in Australia were raised and quickly dashed following September’s leadership spill in the centre-right Liberal Party, in which Malcom Turnbull defeated Prime Minister Tony Abbott, 54 votes to 44. Once seen by advocates of law reform as a champion of marriage equality, the new Prime Minister stated his intention to maintain the coalition’s position on the issue. Liberal MPs would not be allowed a ‘conscience vote’, rather the issue would be put to the Australian people through a plebiscite. The move was considered by several Australian Labor Party MPs – including the Party Leader Bill Shorten who has introduced legislation on the issue – to be a delaying tactic. By contrast, Labor MPs will maintain a conscience vote for the next two terms of government (until 2019), when they will be bound to vote in favour of law reform. Shorten also made a commitment to legalise same sex-marriage within his first 100 days, if elected prime minister.

These developments have brought one question to the fore amongst those following the debate in Australia: Where now for same-sex marriage under Turnbull? Coinciding with the Liberal leadership challenge, although largely overshadowed by those events, a Senate committee released its report on a crossbench bill for a plebiscite on the issue. Unexpectedly, it rejected the idea. The report, authored by the Senate Legal and Constitutional Affairs Committee and chaired by independent Queensland Senator Glenn Lazarus (a co-sponsor of the bill), found holding a referendum or plebiscite on the issue unnecessary, as a public vote is not required to change the law. The report also found that a vote would involve unnecessary expense (the cost to the taxpayer could run up to $158 million) and could potentially cause harm to vulnerable groups by providing a platform for homophobic views. The Liberal Party continues to advocate the use of a plebiscite to resolve the issue. However, as George Williams argues, Turnbull may be saved by the fact that Senate support is required to allow the public vote, and opposition there might prevent him from having to implement a policy that ‘he knows is a step in the wrong direction’.

The Committee recommended that a same-sex marriage bill be ‘introduced into the Parliament as a matter of urgency, with all parliamentarians being allowed a conscience vote’. To this end, groups such as Australian Marriage Equality (AME) are focused on ‘securing the numbers’ if a bill were to be put to a conscience vote. This is a vital tactic, as evidence suggests that the support of ‘unwhipped’ small ‘l’ Liberal MPs could be pivotal. In New Zealand, the support of 26 MPs (44% of the Party) from the centre-right National Party, alongside 31 Labour and 20 MPs from other parties, at the Second Reading stage was key to reaching the majority of 61 required to pass the Marriage (Definition of Marriage) Amendment Act 2013. Similarly, in the UK the votes of 126 Conservative MPs (48% of those that voted) at Second Reading significantly contributed to the majority of 326 needed to change the law in the House of Commons. The position of Liberal MPs remains to be tested in an ‘unwhipped’ vote in the Australian Parliament, but several of the Party’s MPs aligned towards the centre have demonstrated their willingness to take a progressive position on other issues attracting a conscience vote.

At the close of 2015, AME announced that their campaign had gained the support of 71 MPs in the House of Representatives – just five short of the majority required. With 21 MPs (14% of the House) ‘undecided’ 2016 will be a busy year and the campaign to secure their votes will undoubtedly continue. The group believes it already has a majority of support for reform in the Senate.

The result of a conscience vote on marriage equality in the Australian Parliament during 2016 might still be too close to predict. What seems certain is that, with polls demonstrating record levels of support amongst Australians, pressure on politicians to change the law will continue to mount.

Headline image credit: Rally for Marriage Equality – Brisbane – November 2013 by Nimal Skandhakumar. CC BY 2.0 via Flickr.