With the election results throwing up a likely hung parliament or narrow Coalition win, the future of same-sex marriage legislation in Australia looks murkier than ever.
Before the election, both parties made clear commitments. Bill Shorten said a marriage-equality bill would be first order business, passed within the first 100 days, while Malcolm Turnbull has promised a plebiscite followed by a conscience vote.
"While the final election result remains unclear, we do know that this election has delivered more supporters of marriage equality across every party than ever before," Australian Marriage Equality CEO, Janine Middleton, told SBS.
While the nation awaits the Australian Electoral Commission to resume counting votes on Tuesday, there are four possible outcomes from the election: The Coalition forms a narrow majority government, the Coalition forms a minority government, the Labor party forms a minority government, or we go back to fresh elections.
Here’s how same-sex marriage legislation might fare in the lower house under each scenario, with a snapshot of the Senate at the base.
Coalition Majority Government
After a Speaker is appointed, a Coalition government is likely to have a razor thin majority of just one to three votes. Despite Turnbull’s promise to legislate a same-sex marriage plebiscite, it’s one of the most divisive issues in the parliamentary Liberal party, as shown by a marathon five-hour party room meeting on the issue in August last year.
Peta Credlin, former Chief of Staff to then Prime Minister Tony Abbott, last week said Turnbull would have a fight on his hands internally to pass the plebiscite legislation. "He'll have a fight on his backbench and he'll have a fight in his base," she said. “I think it will be a very big schism inside the Liberal Party.”
With the numbers on the floor of the house so close, rebellious Liberal and National MPs have more power than ever to squib Mr Turnbull’s plebiscite plans. Labor is unlikely to support the plebiscite, instead favoring passing legislation through a parliamentary vote.
Mr Turnbull himself might also pre-emptively maneuver to ditch the plebiscite plan. He’s an open supporter of marriage equality, but was stuck with the plebiscite as a legacy hanging over from last year’s leadership spill.
If a conscience vote is called, it’s likely that it would pass both the House of Representatives and the Senate, with strong support from Labor, mixed support on the cross-bench, and mixed support from the Liberal party.
Australian Marriage Equality estimates that 81 MPs in the lower house now support same-sex marriage.
Coalition Minority Government
If Malcolm Turnbull was forced to enter into minority government, plans for a plebiscite would be up in the air. Turnbull would be potentially negotiating with independents Bob Katter, Andrew Wilkie and Cathy McGowan, along with Greens MP Adam Bandt and Nick Xenophon’s Rebekha Sharkie and Andrea Broadfoot. Anything is possible with that crossbench combination.
The Coalition would also face a potential mine-field in the Senate if Labor and the Greens chose to block a plebiscite (see more below).
Bob Katter – Bob Katter is known to be opposed to same-sex marriage.
Adam Bandt – While the Greens support same-sex marriage, they’ve left the opportunity to support a plebiscite open. Mr Bandt has previously labelled the plebiscite as ‘divisive’.
Cathy McGowan and Andrew Wilkie – Both are opposed to a plebiscite, both support legalising same-sex marriage through a parliamentary vote.
Nick Xenophon Team – Nick Xenophon’s party supports same-sex marriage, with a strong preference to avoid the expense of a plebiscite in favour of a parliamentary vote.
Labor Minority Government
With Bill Shorten promising to legislate same-sex marriage in the party’s first bill to parliament, a Labor minority government would likely be the quickest path to same-sex marriage legislation. The Labor platform supports a conscience vote on the matter.
If a full conscience vote is granted in the lower house and the Senate, it would likely pass (for more on the Senate, see below).
If the Liberal party opposes a conscience vote and binds its members to oppose the legislation in order to force a plebiscite – something which may occur if Malcolm Turnbull is rolled in favor of someone from the right of the party – then the Bill Shorten may become wedged. It is likely that he’d have to force his MP’s to vote for the legislation in order for same-sex marriage legislation to pass.
If no government is formed and the Governor General calls for new elections, same-sex marriage legislation will be again up in the air. Whichever party forms government may be hesitant to send voters back to the polls yet again for a same-sex marriage plebiscite, especially with an Indigenous recognition referendum also on the cards.
Both a plebiscite and a conscience vote would have to pass the Senate to become law.
A conscience vote for same-sex marriage legislation would very likely pass the Senate easily based on current projections of its makeup. Labor, the Greens, the Nick Xenophon Team, Derryn Hinch and Liberal Democratic Senator David Leyonhjelm all support legalising same-sex marriage. That’s a 42-seat majority on current projections (39 votes are needed in the 76 seat Senate).
Legislation for a plebiscite may face trouble if opposed by Labor. If the Greens support the Coalition, a plebiscite will pass. If they do not, it will come down to the cross-benchers.
One Nation supports a plebiscite, which also appears to have support from Senator Jacqui Lambie. That would put support for a plebiscite at 33, six shy of a majority on current projections.
Derryn Hinch and the Nick Xenophon Team have said they prefer a free vote, but may potentially support a plebiscite. If both were brought on-board by the Coalition that would take them up to 37.
The Coalition would then need two votes from the remaining cross-bench, consisting of a Fred Nile candidate (strongly opposed to same-sex marriage) and David Leyonhjelm (strongly in support of same-sex marriage). Senator Leyonhjelm has previously stated same-sex marriage is a natural right which shouldn’t need to be put to a popular vote.
There is one other senate seat in doubt, but it’s anyone’s guess who that will fall to.