By Malcolm Mackerras

On the afternoon of Friday October 28, I went to my office at the Australian Catholic University and watched the video of my conversation on Switzer TV with Peter the previous night. I see no reason to elaborate on anything I said in the first half of the interview. However, towards the very end, I made some comments on same-sex marriage upon which I now feel the need to expound. I predicted that on Saturday February 11 next year, we would have a referendum to amend the Constitution with respect to marriage. My prediction is that the question will be titled Constitution Alteration (Marriage) 2016 with the long title being “a Bill for an Act to amend the Constitution with respect to marriage”. Let me explain.

At present, the Constitution has a section 51 which begins: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to . . .” There follows 39 heads of power of which the 21st is simply “Marriage”.

We all know what the Founding Fathers meant by that. They meant “Christian marriage”, that is, between a man and a woman. It would never have occurred to them to imagine that in 2014, the High Court might rule that “marriage” could be between two men or two women. In these modern days, we know all that, so why amend the Constitution to say so? I give the answer below.

Referendum on February 11

What I am predicting is that we Australian voters will be asked next February 11 to change that power to read: Marriage, including between a man and a woman, between two men or between two women”. The question I ask myself is this: we know this amendment is un-necessary, so why do it? The answer is that the politics of the situation means we shall do that, notwithstanding there is no need to do so. 

There is a significant body of Australian opinion that such a change should not be made except by the people. It should not be made by mere act of parliament, as in the United Kingdom and New Zealand, such people assert. Likewise, they say, it’s even less appropriate for the Supreme Court of the USA to mandate such a change. These views led to Malcolm Turnbull promising back in May that, if he won the upcoming federal general election in July, then there would be a plebiscite so that the people could have their say.

Plebiscite v Referendum

Here we strike a semantic problem. The rest of the democratic world uses the word “referendum” in a way we no longer do in Australia. For example, the Brexit referendum was not legally binding, so we would have called that a “plebiscite”, to distinguish it from a “referendum”, which we use only for constitutional amendment. The essential point is that in this case, the Senate can block the legislation for a plebiscite because a plebiscite is unusual, so it requires a special piece of legislation.

Labor’s stance

So, what do I think about Labor’s stance on this? In normal circumstances, I would agree with Labor that this is a waste of money. However, these circumstances are not normal. Turnbull promised a plebiscite when he campaigned for the July election. The Senate, therefore, should allow him to keep his promise. He won the election and Labor lost, so Labor should accept his mandate to have a plebiscite. The Labor Party thinks it’s standing on the moral high ground on this. It is deluding itself. Its belief in its moral position is given in the answer that the LGBTIQ community does not want a public vote. The reality is that the Labor Party is being bloody-minded and, for once, history will show that bloody mindedness did not pay.

I accept that the Plebiscite (Same-Sex Marriage) Bill 2016 will be rejected by the Senate. What comes next? I predict this: the day after that Senate rejection, Turnbull will introduce the Constitution Alteration (Marriage) Bill 2016 into the House of Representatives. Here is where Turnbull’s knowledge of the Constitution will come in handy. Section 128 deals with “Alteration of the Constitution” and its second paragraph reads exactly as my next paragraph:

“But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.”

Consequently, since the Senate can only delay, not actually prevent a referendum to amend the Constitution, the Labor Party will allow the bill passage through both houses and the referendum could then easily take place on February 11 next year. The Labor Party will, therefore, regret its decision to join with The Greens, Xenophon and Derryn Hinch in the matter of the plebiscite.

In several articles on this website, I have severely criticised Turnbull over so-called “Senate reform”. I now make essentially the same criticism of Shorten over this matter. Politicians often delude themselves by imagining they stand on the moral high ground when an outsider such as yours truly can see the situation otherwise. Turnbull did not realise that his “Senate reform” would resurrect Pauline Hanson and her One Nation Party. Likewise Shorten did not realise he was playing into Turnbull’s hands by blocking the plebiscite for which Turnbull has a clear-cut mandate. The backfire on Turnbull over Senate reform will now backfire on Shorten over same-sex marriage. Or so I predict!

(Malcolm Mackerras is a visiting fellow at the Australian Catholic University’s Canberra campus.