The Coalition will on the issue after six hours of talks on Tuesday night.
Instead, Mr Abbott opened the door to a plebiscite or referendum on gay marriage being held in the next parliamentary term. He said the plan would be "the democratic and fair thing to do".
Constitutional law expert at the University of New South Wales said holding a plebiscite or referendum may not be the best way of dealing with the issue of legislating same-sex marriage. She spoke to SBS reporter :
What is difference between a plebiscite and a referendum?
One is just asking about the Australian people’s views about an issue of deep importance and moral disagreement. And the second is changing the Constitution, which is just not necessary in this case.
So is the key difference that a plebiscite is not binding?
That's right, it’s about the bindingness and also about how much it’s seeking Australians’ views on a question of political importance versus asking them to support a change to the Constitution.
In Ireland, which had a recent referendum on same-sex marriage, most experts believed you did need to actually change Article 41 of the Irish Constitution in order to recognise same-sex marriage. But the High Court of Australia in 2013, when it heard a case about marriage in the ACT and the conflict between federal legislation and ACT same-sex relationship recognition said, ‘no, absolutely not. You do not need to change the Constitution in Australia to recognise same-sex marriage'. The Commonwealth Parliament already clearly has the power to do that if they want to.’ The High Court stopped there and didn’t say whether they should or not but we know in Australia that our Parliament has the power to recognise same-sex marriage under our existing powers in Constitution. The only question is will they take that step?
"You do not need to change the Constitution in Australia to recognise same-sex marriage."
Tony Abbott said the best way to resolve this was by 'putting it to the people.' As a constitutional law expert, do you share that opinion?
I think the best thing to say to the prime minister when he says, "plebiscite" or "referendum" [is] that we don't need a referendum. The High Court has spoken and says the Parliament has the power. If he wants to put it to the Australian people to get their views, that's a different question because if we look at current opinion polls it seems very clear what the answer to that question will be, which is that the overwhelmingly majority of Australians support same-sex marriage and I think a plebiscite will say that.
A referendum is both unnecessary and sets the bar too high for what it would mean for Australians to support change.
What have plebiscites and referenda typically been used for in the past?
Constitutional change has happened in a broad variety of areas and it has been proposed in even more.
Plebiscites are quite different. We've only had two of them and they were in 1916 and '17 around conscription.
One of the things really important to note around that is that is there were two features of the conscription debate. One: Australians were deeply, deeply divided. The plebiscites were almost 50-50 in terms of the split. Slightly more against than for but very deeply divided public opinion in a way I don’t think we have any more for same-sex marriage in Australia.
The second is that it was asking people to make a huge personal sacrifice so the support of the Australian people was quite important for the policy to work. The precedent for a plebiscite is very limited.
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Could the government just change the Marriage Act? Would that be simpler?
Yes. The parliament could allow for a conscience vote and take Entsch's proposal for a bill - vote on it – and we would have [same-sex] marriage almost immediately. There's nothing standing in the way of this, legally. It’s politics standing in the way.
How much do referenda typically cost to hold?
It depends on the nature of the issue and whether it’s combined with a general election. And sometimes when it's changing the Constitution, there's a lot of money put into educating the public and having a yes-no campaign. It usually runs in the millions of dollars for that kind of campaign. [However] If it was combined with a general election and there was a limited amount of education put into it, it could be quite cheap.
"There's nothing standing in the way of this, legally. It's politics standing in the way."
Could we hold a referendum on gay marriage and Indigenous recognition in the Constitution at the same time?
Sometimes it makes sense for Australians to be asked to vote on a number of things when those ideas are connected. So if we’re asking people to revisit our relationship with Australia’s First People and consider our status as a Republic, for me those questions have natural connections. But most people would say it’s dangerous to link big and controversial issues. Most people want to separate them and I think in this instance, the big danger of putting them together is you do not need constitutional change for same-sex marriage in Australia. We are talking about constitutional change for indigenous Australians and the confusion that putting them together, in terms of timing, could create is a problem for both sides of that issues debate.
Listen to the interview here:
