Same sex marriage plebiscite far from a sure thing … Brandis’ proposal for compulsory voting hits a constitutional impediment … Parliamentary vote the only way to resolve the issue  

THE Coalition’s proposed plebiscite on same-sex marriage, set for sometime later this year, has encountered a serious legal hurdle.  

Voting in a plebiscite is not compulsory, unlike voting in referenda or elections.

To get around this shortcoming Attorney General George Brandis has been seeking to include in the plebiscite legislation a proposal to make it mandatory to take part in the nationwide marriage equality poll – enforceable by the criminal sanction of a fine for non-attendance.  

However, he has been advised by the solicitor general and others that such a measure would be unconstitutional. Criminalising a failure to participate in the plebiscite is not incidental to a head of Commonwealth power.  

At best it would be a law with respect to a law with respect to marriage, but the advice the AG has received is that his proposal is not within a head of power or incidental to a s.51 power, e.g. census and statistics, s.51(xi) or marriage (s.51(xxi).  

This is a significant setback to the pro-marriage equality cause, because if the poll is not compulsory only those strongly committed to YES or NO are more likely to vote, and that would make it a close run thing.  

At the moment the marriage equality movement says the YES case is close to 70 percent in opinion polls. However, that is being treated with caution because people when asked abstractly how they will vote on a question that tests the extent of their belief in equality and their generosity of spirit are prone to answer positively.  

Marriage equality campaigners think that more realistically the plebiscite would return a YES vote closer to 50 percent. 

The question itself is not settled and that too is a vital ingredient in the possible outcome.  

Because of the constitutional impediment to a compulsory plebiscite, pressure is likely to intensify for a parliamentary vote to amend the Marriage Act, which is where the matter should be resolved.

A plebiscite does not compel the parliament to do anything, as various members of the Coalition have made clear. Further, there is no power to compel the public to express a view that doesn’t bind the parliament.  

The plebiscite was Tony Abbott’s way of pandering to religious opponents of gay marriage and an attempt at a back-door way of getting around the the secular rule of law entrenched in the Constitution. 

A parliamentary vote would minimise homophobic hate outbursts that are expected to be associated with a campaign on the issue hard fought on the hustings.  

It appears Abbott & Co have been much more cunning than expected in getting people to pin all their hopes and expectations on a largely unworkable plebiscite and locking PM Turnbull into the process as well.