Despite Yes vote, there’s still a way to go until same-sex marriage is legal in Australia
Australians have voted Yes and Prime Minister Turnbull says SSM should be legal by Christmas. But the debate is not over yet.
by Benedict Brook
November 15, 2017
Within 20 minutes of Australia voting Yes, Prime Minister Malcolm Turnbull made a promise.
“This year, before Christmas — that must be our commitment.”
The Australian Bureau of Statistics revealed just after 10am that Australia voted Yes in the same-sex marriage survey, with 61.6 per cent in favour and 38.4 per cent against.
Minutes afterwards at a press conference in Canberra, Mr Turnbull said Australia voted Yes and it was his job “to deliver it”.
“They have spoken in their millions and they have voted overwhelmingly yes for marriage equality. They voted yes for fairness, yes for commitment, yes for love,” he said.
“And now it is up to us here in the parliament of Australia to get on with it, to get on with the job the Australian people have tasked asked to do and get this done.
“We asked them for their opinion and they have given it to us. It is unequivocal, it is overwhelming. It is our job now to get on with it ... It is fair. The people have voted yes for marriage equality. Now it is our job to deliver it.”
Despite the excitement of Yes voters over a win, bureaucratically speaking, Australia is no closer to same-sex marriage. Legally, the survey counted for diddly-squat.
“There are no legal consequences one way or another with the result of the survey. Everything is still in the realm of politics,” Ryan Goss, a senior lecturer at Australian National University’s College of Law told news.com.au.
But, Mr Goss said, Australia may have fallen into a “Brexit trap” of asking a relatively simple question and then getting bogged down in the minutiae of turning a Yes or No answer into a workable law.
WHAT ARE THE NEXT STEPS?
The Yes campaigners will head to Canberra as soon as Thursday to lobby politicians for a swift law change. They will also be looking to ensure any marriage law does not simultaneously roll back anti-discrimination protections, which some of the No side have advocated.
Debates on same-sex marriage within parliament will likely began immediately in the Senate.
However, the House of Representatives, which also has to pass any law, does not sit until November 27.
The final day that either the Reps or Senate sits this year is December 7. If a same-sex marriage bill is not approved by then, Mr Turnbull will not secure his Christmas wish.
But this morning Mr Turnbull was upbeat and positive.
“We asked the Australian people for their view. This was an unprecedented exercise in democracy,” he said.
“A voluntary survey, a voluntary postal survey in which 80 per cent participated and over 61 per cent, 61.6 per cent have said yes.
“That is an overwhelming participation rate and an overwhelming yes vote. Now, I know that many people, a minority, obviously, voted no. But we are a fair nation.
“There is nothing more Australian than a fair go, than a equality and mutual respect. And everyone has had their say. That’s what we pledged at the last election.”
HOW SAME-SEX MARRIAGE WILL BECOME LAW
Right now, there are two parliamentary avenues towards same-sex marriage becoming legal. One proposed law change, backed by Yes, exempts religious ministers and organisations from being part of same-sex weddings. The other, backed by No, goes far further and has been criticised by legal experts for potentially rolling back decades old anti-discrimination laws.
That lack of clarity could delay any law change. It’s very possible, legal experts have said, that the law might not be passed until well into 2018. Even then, it could be months later that the first ceremonies are held.
COULD TAKE DAYS ... OR MONTHS
Ireland is the only country to have legalised same-sex marriage through a public vote and that’s because it had to as unions are defined in the constitution.
But that’s not the case in Australia. So after three months of campaigning we’re back where we began, which is a parliamentary vote.
“Certainly, there will now be political pressure to legislate quickly but there is no requirement to do that and no single legal text everyone has agreed on,” Mr Goss said.
“The crucial factor for how quickly same-sex marriage is legislated for is politics and, particularly, internal politics on the conservative side of parliament.”
The mechanism by which same-sex marriage will become law is through a bill — a draft law debated in the House of Representatives and Senate which, if approved, goes to the Governor-general who signs it into law.
“How long that will take is a bit like a piece of string,” Mr Goss said.
“Some bills take days, some months. If we imagine a world where there’s a bit of debate around the edges, but basically everyone agrees in marriage equality, it’s not hard to see legislation passed in a week.”
Indeed, both houses will sit for the fortnight up to December 7, so the law could be passed. But the consensus needed to do that looks shaky.
Australian Conservatives leader, Cory Bernardi, for instance, has said there should not be a vote until after the dual citizenship debacle was resolved.
Professor Carolyn Evans, of the Melbourne Law School, agreed that the bickering was far from done.
“Following a strong Yes vote, the focus will move to the exemptions, particularly when it comes to religion.”
AUSTRALIA’S ‘BREXIT TRAP’
The government has said it won’t introduce its own bill. Rather there are currently two private member’s bills in play. The one from Liberal Senator Dean Smith is backed, most significantly, by Mr Turnbull as well as many in the Yes campaign and by Labor.
“As presently drafted, the (Smith) bill protects religious and civil celebrants and religious organisations from participation in same-sex marriage celebrations. This is consistent with the approach that Australian discrimination law takes to similar situations,” Prof Evans said.
“It is a sensible compromise to allow a reasonable degree of protection to religious organisations without undermining existing legal protections for same-sex couples,”
But it doesn’t go far enough for No campaigners. They are settling in behind a rival bill from Liberal Senator James Paterson, who said he voted Yes. This bill extends Mr Smith’s exemptions to anyone who has merely a “conscientious” objection to same-sex marriage.
Law Council of Australia president, Fiona McLeod SC, said on Monday that would run contrary to state anti-discrimination laws.
“The bill would allow people to refuse to provide goods and services on the grounds of belief, thought and conscience taking us well beyond religious beliefs into uncharted waters.
“You could potentially see a situation where a hire car company could leave their customers stranded on the way to a marriage ceremony simply because the driver held a thought or belief against it. This is even if the belief had nothing to do with religion,” Ms McLeod said.
Mr Goss said it was no surprise.
“If you oppose Yes, the best way to delay implementation is to propose lots of amendments and demand they be debated at such great length it can’t be done before Christmas or even February.”
February is important because, if the legislation doesn’t pass by December 7, Parliament doesn’t sit again until February 5.
“I describe it as the ‘Brexit trap’ whereby, much like in Britain, Australia did a nationwide vote with no clear table of what would happen and why it would happen if people voted Yes.”
Mr Goss said to expect lots of discussion about whether bakers and florists should be able to legally discriminate against gay couples.
“The very same people who are saying there is not enough information (in the Smith bill) are the ones who argued for a (public vote), and that may not be a coincidence.”
WEDDINGS WON’T HAPPEN STRAIGHT AWAY
Despite Australia’s overwhelming thumbs up to marriage equality, some MPs will still vote against it given there is no legal compulsion to follow the survey’s results.
Nonetheless, with the vast majority of Labor MPs and a hefty chunk of Liberals in favour, Mr Goss said the law change should get over the line and less sensible amendments may be defeated.
Even then, trying to work out when the first weddings would be allowed to take place is tricky. In other countries there was a lag, often six months or more, between the law coming into effect and the first ceremony.
Ireland’s marriage equality referendum result happened in May 2015 but Cormac Gollogly and Richard Dowling, the first gay couple to wed in the country, had to wait until November to tie the knot.
“Once the Governor-General has signed the law it will depend on how parliament frames when it comes into force. It could be a matter of days or it could be months to give celebrants time to make arrangements.
“Under Australian marriage law you have to give 30 days notice so if the law went into effect on 1 January, it’s possible that we wouldn’t see marriage until early February,” he said.
And that’s an optimistic outlook.
Even though Australia has said Yes, it could be some time before gay couples can say “I do”.
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