Advice from one of Australia’s top constitutional barristers, Bret Walker SC, has confirmed that there are no legal barriers to the parliament introducing amendments to the Marriage Act that would come into force automatically upon a successful plebiscite vote.
Bret Walker SC and Perry Herzfeld of counsel were briefed by the Human Rights Law Centre to advise on a number of legal issues related to the plebiscite, and have advised in a Joint Opinion that amendments to the Marriage Act 1961 (Cth) expressed to come into force upon a successful plebiscite result would be constitutionally and legally permissible.
The Human Rights Law Centre's Director of Advocacy and Strategic Litigation, Anna Brown, said she hoped the advice would clear up any confusion on the legal issues following the article in the Daily Telegraph published yesterday suggesting that a self-executing plebiscite would raise constitutional issues.
"We have always argued that a plebiscite is unnecessary, costly and divisive but it's important that the public discussion about a plebiscite is informed by the facts. Leading constitutional experts have cleared the way for amendments to the Marriage Act to come into force automatically upon a successful plebiscite result. This would remove any uncertainty about the effect of the plebiscite and ensure that when Australians vote yes they do so in the knowledge that marriage equality will be the end result."
"The Government could simply insert the proposed amendments to the Marriage Act into the plebiscite machinery bill that establishes the plebiscite process. This is entirely uncontroversial and would alleviate significant public concern about the non-binding nature of the plebiscite. You can find examples of what are technically called "contingent commencement" clauses in other federal statutes such as tax and bankruptcy legislation."
The Joint Opinion also found that there are no legal restrictions or constraints on the question to be asked in the plebiscite.
"Some of the wording of questions discussed recently has been unnecessarily complicated. There is no legal reason to refer to a change of law or the mechanism for enacting the will of the people in the question itself. The plebiscite question should be as clear as possible and simply ask whether two adults should be allowed to marry, regardless of gender."
The Joint Opinion also considered the question of whether compulsory voting is constitutionally permissible for a plebiscite.
"It's useful that one of the nation's top constitutional experts has clarified that the plebiscite vote can be compulsory," said Ms Brown.
The Joint Opinion comes ahead of the next sitting week of parliament, where marriage equality is expected to be a hot topic for discussion. It follows a previous joint opinion authored by Bret Walker SC and Perry Herzfeld for the 2015 Senate inquiry into a plebiscite, which confirmed that a referendum on the issue of same-sex marriage was unnecessary and may have unintended legal consequences.
The Human Rights Law Centre would like to acknowledge the generous pro bono assistance of counsel and law firm Allens for their assistance with the Joint Opinion.
The Human Rights Law Centre represented Australian Marriage Equality in its amicus intervention in the 2013 High Court case that found the Commonwealth Parliament has the power to legislate for same-sex marriage.
You can download a copy of the Joint Opinion by Bret Walker SC and Perry Herzfeld here.