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Top lawyers warn Australian marriage referendum could weaken federal powers

Joseph McCormick September 4, 2015

CANBERRA, AUSTRALIA - OCTOBER 25: Tony Abbott arrives to House of Representatives question time at Parliament House on October 25, 2017 in Canberra, Australia. The Sydney and Melbourne offices of the Australian Workers Union' were raided by federal police yesterday as part of an investigation into donations made more than 10 years ago to the lobby group GetUp and to Labor candidates. Labor leader Bill Shorten has labelled the move as a smear campaign. (Photo by Stefan Postles/Getty Images)

If Australia were to hold a referendum on same-sex marriage, it could weaken federal power to legislate on marriage, top legal experts have warned.

In addition, a plebiscite, despite being a simpler option, would hold no legal force, and MPs would have no obligation to vote with the public majority.

The latter has been suggested by those opposed to same-sex marriage such as Australian Prime Minister Tony Abbott.

Last month the Prime Minister banned coalition MPs from a free vote on the issue of marriage equality.

Abbott’s cabinet will next week discuss its approach on the matter, possibly as early as the coming week.

Attorney General George Brandis has advised that a referendum is unnecessary, and it is likely that a plebiscite would be the most likely option.

Brandis said a referendum is an expensive and unnecessary measure, when Parliament is already qualified to pass laws on marriage.

Pro-equal marriage group Australian Marriage Equality has also sought legal advice on the issue from High Court barristers Bret Walker and Perry Herzfeld.

The barristers suggested that a referendum could introduce legal ambiguity.

Despite all polls finding that an overwhelming majority of the public are in favour of equality – making a plebiscite effectively redundant – Mr Abbott wants to lock in a vote after the next federal election in 2017.

The PM has threatened to sack any of his ministers who rebelled and voted in favour of equality without a public vote  – but a senior backbencher has fired a warning shot over the timing of the planned plebiscite.

Under Abbott’s current plan, it is highly unlikely same-sex couples will be able to tie the knot until 2018.

Yesterday, one of Tony Abbott’s backbench MPs has fired warning shots – over stalling on a planned public vote on same-sex marriage.

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