Right: Prime Minister Malcolm Turnbull introduces the plebiscite legislation to an almost-empty House.
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Arguments against holding a gay marriage plebiscite
1. Parliament is able to amend the Marriage Act without a plebiscite and should act as a responsible law-making body on this issue
Opponents of the plebiscite note that there is no obligation on the federal Parliament to put same-sex marriage to a vote of the people before legislating on the question.
Under Section 128 of the Australian Constitution the only laws that require a referendum are those which involve altering the Constitution itself. Any such proposal requires a referendum and has to be accepted by an overall majority and a majority of states. As Professor Carolyn Evans, Dean, Melbourne Law School, University of Melbourne, has explained, 'Therefore, if parliamentarians wanted to introduce a Republic, or change the balance of federal power, or abolish the Senate, or limit the powers of the courts, they would first need to seek the permission of the Australian people in a referendum.'
However, altering the Marriage Act to allow for same-sex marriage does not involve making changes to the Constitution. Such an amendment to existing law could be passed in federal Parliament simply by achieving the support of a majority in the House of Representatives and a majority in the Senate.
In fact, the Constitution seems specifically to empower the federal Parliament to make laws with regard to marriage. Section 51(xxi) says the Commonwealth Parliament shall have powers to make laws with respect to 'marriage'.
There are those who have argued that the reference to marriage is specifically to marriage as it would have been understood at the time the Constitution was drafted and that the federal Parliament does not, therefore, have the power to extend this definition to include same-sex marriage.
In 2013 the High Court clarified the powers of the federal Parliament in a way which gave the Parliament exclusive authority to legislate with regard to same-sex marriage. The High Court ruled that with regard to the powers conferred on federal Parliament by the Australian Constitution, '''Marriage'' in s 51(xxi) includes a marriage between persons of the same sex.'
Professor Carolyn Evans has therefore concluded. 'There is therefore no legal reason to require a vote of the people to clarify this situation. It is clear that the Commonwealth has the power to pass a law allowing for same-sex marriage.'
It has further been argued that calling for a plebiscite on this issue weakens rather than strengthens the democratic process. Parliamentarians, whether federal or state, are elected to make laws and take decisions on behalf of the people who elect them. If they act in a way that is contrary to the wishes of the electorate they are likely to be removed at the next election. They are therefore the people's representatives who are held democratically accountable for what they do every three or four years when an election is held.
It has been argued that if politicians had to get the opinion of the electorate before passing any potentially controversial law the business of government would become unworkable.
In an opinion piece published on the ABC's site, The Drum, on August 21, 2015, Mike Steketee stated, 'We live in a representative democracy - one in which we elect politicians to advance our interests but not necessarily our day-to-day opinions...'
Steketee suggests that although electorates often like the idea of being consulted their judgments are not always sound and the process of consultation can impede government. He argues, 'Voters like the idea of having a direct say on more issues...[However] at some point governments have to govern.'
Professor Carolyn Evans has similarly concluded regarding the same-sex marriage issue, 'Parliamentarians should have the courage of their convictions...and bring the matter to a vote of the parliament rather than trying to delegate their responsibilities to a society where a strong majority have already expressed their support for a change in the law.'
Despite widespread public support for same-sex marriage, it has been suggested that it is particularly problematic to have a national majority vote attempt to determine the rights of a minority group. In an opinion piece published in The Conversation of June 27, 2016, Brian Tobin, Lecturer below the Bar, NUI Galway, stated, 'Placing the rights of a minority group in the hands of the majority seems almost ludicrous. A sizeable number of the electorate could simply vote against same-sex marriage without being properly informed in the way elected politicians would usually be when legislating.'
2. Parliamentarians will not have to vote as the result of the plebiscite directs
Critics of the same-sex marriage plebiscite argue that it was originally proposed by Tony Abbott (the former leader of the Coalition government) as a stalling device, because he and the hard right of his party are opposed to a social reform that has gained increasing popular support. Calling a plebiscite allowed him to hold off declaring an unpopular position on the question and to appear to be taking action.
Critics argue that the plebiscite is just a stratagem intended to delay a vote in Parliament and that it indicates no genuine respect for the wishes of the electorate as even if a majority of people vote in favour of gay marriage, no Member of Parliament will be compelled to vote as the plebiscite suggests.
Doubts about the binding nature of any plebiscite on Australia's federal Parliament were confirmed when on June 24, 2016, the Prime Minister, Malcolm Turnbull, indicated that his party members would be allowed a conscience vote. Mr Turnbull stated, 'The tradition in the Liberal Party is that on matters of this kind it is a free vote.'
In a letter to the editor published in The Sydney Morning Herald on August 31, 2016, Anthony van den Broek stated, 'Meanwhile the hard right of the Liberal Party are laughing for they have achieved their ends. They have successfully delayed a vote on same-sex marriage, wedged Turnbull, will still vote against same-sex marriage no matter what the outcome of the vote, and have managed to split the pro camp.'
Prominent conservative spokesperson within the Liberal Party, Senator Eric Abetz, has indicated that whatever the result of the gay-marriage plebiscite, for him the question would remain one that he would have to determine in accord with his conscience.
Senator Abetz has stated, 'Everyone knows my view is very strongly that a marriage between a man and a woman is the foundational institution for socialising the next generation. And every member of parliament will make up his or her mind after the plebiscite is held. People will take into account the views of the electorate, the views of the nation and their own personal views...
There will be people in the parliament who could not support the outcome of a plebiscite whichever way it went.'
Conservative Liberal Senator Cory Bernardi has similarly stated, 'There's no way I'm ever going to cast a vote in favour of changing marriage. I don't know that I would be expected to do so...
There are people who are always going to be supportive of changing marriage and people who are always going to be opposed to it and you can't expect people to cast a vote in favour of something that is against everything they believe in simply because a majority of Australians say that should be the case.'
Critics of the plebiscite argue that to hold it and then not require Party members to abide by the results of the plebiscite makes the whole exercise nonsensical.
Greens Senator Robert Simms has stated, 'It's ironic that Eric Abetz doesn't want a conscience vote on the issue of marriage equality but when it comes to implementing the outcome of any plebiscite that's a different story.
He wants some sort of veto power if he doesn't like the outcome. This just demonstrates what a complete nonsense this plebiscite is.'
Senator Simms further stated, 'I think most Australians would be scratching their heads this morning. How exactly can the Prime Minister justify spending $160 million on what is in effect a giant opinion poll that isn't even binding on his own members.'
3. A plebiscite on gay marriage is likely to be divisive and to further marginalise lesbians and homosexuals
Concern has been expressed that as part of the debate preceding the plebiscite on same-sex marriage the opposing arguments are likely to be framed in ways offensive to homosexual couples, their friends and families.
In a letter to the editor published in The Age on August 24, 2016, Kathryn Barnsley wrote, 'I am concerned about the effect that the...plebiscite will have on my family, our children and grandchildren, and all our friends who are LGBTI. We will have to listen to, watch and read homophobia on our televisions, newspapers and social media as they spray insults at our loved ones and all of us.'
Critics of a same-sex marriage plebiscite have used Ireland's plebiscite on this issue as an example of the harm that can be done.
In an opinion piece published in The Conversation of June 27, 2016, Brian Tobin, Lecturer below the Bar, NUI Galway, noted the extent to which the 'no' campaign in Ireland focused on the supposed unfitness of same-sex parents to rear children and how offensive this was to gay couples and to those children already in their care.
Tobin stated, 'Ireland's referendum was crude and uncertain. Homophobia masqueraded as concern for children's welfare and anti-gay views were widely shared for many months before the referendum.
One can only imagine the effect the misinformation and scaremongering had on gay citizens, let along the profound sense of rejection they would have felt if the majority had voted against the proposal.'
Tobin is critical of the degrading position in which the plebiscite placed Irish homosexual and lesbian citizens. Tobin stated, 'The...Irish ''yes'' campaign literally had its members knocking on doors throughout the country. Gay and lesbian people were reduced to ''begging'' for Irish society's approval of their most intimate relationships.'
Critics of the plebiscite have been particularly concerned about the impact that the 'no' campaign is likely to have on the young within the gay community.
David McCarthy, the lead host on Saturday Magazine JOY 94.9 and former co-convenor of the Victorian Gay and Lesbian Rights Lobby, has stated, 'We can't ignore the impact that the ''debate'' will have on young LGBTI kids who already have to deal with institutionalised discrimination, violence, abuse and mental illness. We can't afford to let loose the dogs of hate onto our young people that will end up in some of them self-harming or taking their lives.'
4. A plebiscite on gay marriage will be expensive
Critics of the plebiscite argue that it will be very expensive to implement.
The cost of the plebiscite is expected to come from two sources. There will be the expenses incurred prior to the plebiscite in advertising each side of the issue and there will be the administrative costs involved in producing voting materials, staffing booths and counting votes.
Regarding the promotion of each side of the issue, funding will be provided to two committees to run a 'yes' and 'no' campaign. Each committee will be made up of ten members: five politicians (two government MPs, two opposition MPs and one crossbench MP) and five members of the public.
The committees will each be given $7.5 million from the government to support their advertising campaigns in the four weeks leading up to the plebiscite. In addition, the committees will be able to accept donations, with contributions of up to $1,500 being tax-deductible.
The funding for the 'yes' and 'no' campaigns will be a relatively small part of the overall expense of the plebiscite. The majority of the expense will come from administrative costs. The government estimates the total cost will be some $170 million.
Others have suggested that this estimate is far too conservative and that the actual cost is likely to be much greater.
One of the world's most respected business accountancy consulting firms, PricewaterhouseCoopers (PwC) Australia, has undertaken modelling of the probable cost of the plebiscite, including in lost production, and have estimated it to be approximately $525 million.
The chief executive officer of PwC Australia, Luke Sayers, has stated, 'The real costs to government, the economy and members of the community to hold a stand-alone plebiscite are more than three times higher than the numbers commonly quoted.
Total economic costs have not been considered before and should be part of the debate on the best way to achieve a resolution to this issue.'
Mr Sayers has further described the plebiscite as 'a massive waste of time and money, that will remove focus on the economy, growth, and jobs, which is the real priority for Australia.'
Australian Marriage Equality national director, Rodney Croome, has stated, 'The more information we get about the plebiscite, the clearer it becomes that it's just an incredibly costly...opinion poll.'
5. Polls have already indicated public opinion on this issue
Opponents of a plebiscite on same-sex marriage argue that such a gauging of popular feeling is unnecessary as opinion polls have consistently indicated that a majority of Australians support same-sex couples being given access to the institution of marriage.
A Fairfax-Ipsos poll on the question conducted in July, 2016, (just prior to the federal election) found that 70 percent of the 1,377 voters surveyed favoured same-sex marriage. The poll found that support for the reform is broad-based, with a majority of Coalition voters (58 per cent), Labor voters (79 per cent) and Greens voters (97 per cent) backing the change.
The overall figure represents a rise from 69 per cent in August 2015, and 57 per cent in November 2010. Just 21 per cent of voters now oppose same-sex marriage, down from 25 per cent in August 2015 and 37 per cent in November 2010.
A Galaxy poll commissioned in August, 2011, found that even those whose religious beliefs might be anticipated to cause them to object to same-sex marriage actually favour the right to marry being extended to homosexuals and lesbians. The findings were 53 percent of Christians support same-sex marriage (with 41% opposed); 62 percent of members of other religions support same-sex marriage (with 30% opposed), while 67 percent of people with no religion support same-sex marriage (with 24% opposed).
It has further been noted that not only to successive opinion polls should clear popular support for legalising same-sex marriage; recent polls show that a majority of the electorate is no longer in support of a plebiscite.
The results of a Newspoll released on September 24, 2016, revealed that support for the plebiscite has fallen from 70 per cent earlier this year to 39 per cent, with 48 per cent of respondents saying they favour a vote by members of Parliament to resolve the issue.'