Expert legal advice confirms that a referendum on marriage equality is unnecessary

Advice from one of Australia's top constitutional barristers, Bret Walker SC, has confirmed that a referendum on marriage equality is completely unnecessary because the High Court has already established that parliament has the power to introduce the required changes.

The opinion was sought by Australian Marriage Equality through the Human Rights Law Centre and has been provided to the current Senate inquiry into the issue of a public vote on marriage equality.

The HRLC’s Director of Advocacy and Litigation, Anna Brown, said a referendum would unnecessarily overcomplicate the path to achieving marriage equality.

“It’s pretty clear that the opponents of marriage equality are simply pushing this idea of a referendum as a tricky tactic to delay and confuse the debate. It’s simply not necessary. Our parliament already has the power to make marriage equality a reality for all Australians,” said Ms Brown.

Ms Brown said constitution reform would be like using a sledge hammer to crack a nut.

“The problem isn’t in our constitution. The problem lies within the Marriage Act, so ultimately the real problem is just that our political leaders are failing to heed the wishes of the vast majority of Australians that want marriage equality,” said Ms Brown.

Mr Walker and his colleague, Perry Herzfeld, also confirmed that a plebiscite was not required – but found that it would be a better option than holding a referendum. Either way they noted the matter would still need return to parliament to be resolved.

“Even if a successful referendum or plebiscite was held, it would just be back to square one with the Australian Parliament needing to pass legislation, so it makes a lot more sense to just cut to the chase and have a vote in parliament now,” said Ms Brown.

In the advice, Mr Walker and his colleague, Perry Herzfeld, also warned that a referendum could have unforeseen legal consequences regarding the ability for the Government to regulate other aspects of marriage.

Australian Marriage Equality’s National Director, Rodney Croome, said he hoped the advice would help put the idea of holding referendum or plebiscite to bed.

"The advice from Mr Walker and Mr Herzfeld is very clear that a referendum on marriage equality is unnecessary and undesirable, and I hope MPs have the sense to kill off the idea once and for all," said Mr Croome.

A full copy of the advice can be found here.

The Human Rights Law Centre represented AME in its amicus intervention in the 2013 High Court case that found the Commonwealth has the power to legislate for same-sex marriage


For further information or comments, please contact: Anna Brown on 0422 235 522