Turnbull tied to the Right. (Cartoon by John Graham)

Could the Greens' shot across the bows in refusing to support the plebiscite, inflict a mortal wound on Turnbull's leadership in the first week of the 45th parliament? Frank Brennan now argues Labor has no other option than to support it if they want Malcolm Turnbull to remain leader.

IN THE Australian Paul Kelly writing on the same sex marriage plebiscite said this week:

‘Lawyer and priest Frank Brennan, who has always argued the issue should properly be decided by parliament, told this column:

"Contrary to Justice Kirby I have urged proponents of same-sex marriage to support legislation for a plebiscite because there is no other way that the matter can be resolved during the life of this parliament with Malcolm Turnbull remaining as Prime Minister.'"

Let me explain.

I have always thought a plebiscite was a bad idea. There will be complexities in legislation which can only be determined by parliament. A plebiscite is not the usual Australian way for determining law or social policy. Once Abbott was no longer prime minister, I pointed out to groups such as the Australian Christian Lobby that it made little sense for them to be committed to a plebiscite when the PM, the Leader of the Opposition and the Greens all held a contrary position.

I always urged a conscience vote in the parliament as the best means of resolving this issue.

Once the ALP conference tinkered with the conscience vote provision, I knew it would open the gate to tinkering on the other side. It definitely reduced the compelling nature of the argument that the matter be resolved by conscience vote of the parliament.

Once Turnbull went to the election with a commitment not to legislate for same sex marriage except after the conduct of a successful plebiscite, it was inevitable that the ONLY way forward to resolving the issue during the life of this parliament would be by the parliament enacting legislation to authorise a plebiscite. In the absence of such authorising legislation, Turnbull has nowhere to go.

So either he goes, or the matter gets put on hold until after the next election.

A conscience vote in the parliament during the life of this parliament, and without a plebiscite, would leave the opponents of same sex marriage rightly feeling that the government had breached an election commitment. This anxiety on their part would then build on their sense that the cultural elites are cutting corners to achieve their objective. There were unfortunate exchanges in the High Court case involving the ACT’s attempt to legislate for same sex marriage when Justice Hayne made it very clear from the bench that the High Court was anxious to expand the constitutional definition of marriage to include same sex marriage even though there was no intervener to argue the contrary position.

The Commonwealth was arguing that the case could be decided without the court having to rule on whether "marriage" in the Constitution could include same sex marriage.

The Commonwealth Solicitor General had argued:

First of all, we have put something as the better view. The ACT commends that view. The intervener enthusiastically commends that view. The Court does not have a contradictor on that question. The Court would not decide any matter merely on agreement. That is just not on, absolutely not on. If the matter needs to be decided, the Court will decide it and what I had proposed to do, given there was not a contradictor, was to identify what I will call the narrow argument and then deal with what I will call the broader argument.

So I will seek to identify both those arguments, there being no contradictor. But I do not retreat from the proposition that because our law on any view has stayed on the right side of the relevant part of the circumference of the circle, it is either at the circumference or it is inside it. In that sense, it is not necessary to decide the constitutional question.

This exchange took place:

CRENNAN J: So that that category of trademarks has been widened in ways that once would have seemed unimaginable.

MR GLEESON: Certainly, that is so and that is consistent with established constitutional interpretation. It is an example of that form of development that can occur. I am simply identifying that there will be some outer limits which probably do not need to be resolved in this case whereby the power may not enable the Parliament to declare something to be a marriage which bears no recognisable resemblance to marriage which can be sourced in the common law, in statutory law or in any other materials that the Court can properly look at.

So it would raise a question whether in international developments, for instance, in the ICCPR where there are various rights accorded and where I currently understand it there is no absolute clarity on the answer to these questions, if international developments move to a position where marriage was recognised in the ICCPR as a broader set of unions that may, may be a material which might inform this question of the outer boundary of the constraint but the present case we are dealing with is, in a sense, one of the easier ones for saying was at least that much of Hyde v Hyde frozen.

HAYNE J: But the relevant social institution that is lying in behind is the social institution of personal unions. Now, the social institution called “marriage” — I would be surprised if there was debate about this, there may be, but has never, I think, been regarded as frozen. The social institution of marriage, if you look back pre, post, during Federation has changed.

MR GLEESON: Certainly changed in our — in the early part of our submissions we have said if you open the frame a bit further, it has changed even more over time through roman law notions.

HAYNE J: But once you say that 51(xxi) is not using the word “marriage” in the sense, “marriage” as defined in Hyde v Hyde, what are you left with except marriage as legally recognised and it would have other elements, social institution marked by personal union.

The discussion later culminated in Justice Hayne saying to the solicitor general:

"If you sit on the fence too long, Mr Solicitor, it becomes deeply uncomfortable." 

We had reached the stage that the bench thought the solicitor general was fence sitting simply because he was arguing that a constitutional question could remain unanswered when the case at hand could be resolved without the question being answered, especially given that there was no contradictor at the bar table.

My point is simply this. We need to follow due process in determining this policy question. Opponents of same sex marriage (of which I am not one) are starting to realise that the High Court reached a decision on the matter without their having a place at the Bar table.

Those opponents engaged in an election campaign in which government at their urging pledged not to legislate without first conducting a plebiscite. In principle, I thought a commitment to a plebiscite was foolish; in principle, once an election commitment is given, I think a plebiscite must be conducted during the life of this parliament prior to legislation for same sex marriage then being debated in the parliament.

The most Turnbull can now offer those supporters of same sex marriage who are at the same time opposed to a plebiscite is a promise to go the next election committed to a conscience vote in the next parliament without a prior plebiscite. If Turnbull were to attempt anything else during the life of this parliament, he would face the chopper, and so he should.

Fr Frank Brennan SJ is professor of law at Australian Catholic University. This article was published on John Menadue's blog 'Pearls and Irritations' on 26 August 2016. It is republished with permission.

Cartoon by John Graham. You can follow John on Twitter @JohnGrahamArt.

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