Australia says 'yes' to same-sex marriage: what happens now?

Results of the landmark yet tremendously controversial national postal survey are in, and Australian citizens has overwhelming voted in favour of legalising same-sex marriage. David Kalisch, Head Statistician from the Australian Bureau of Statistics, announced on Wednesday morning that 7.8 million Australians (61.9% of voters) voted ’yes’ to the legalisation of gay marriage, compared to 4.8 million (38.4%) "no" votes.

12.7 million people—79.5% of eligible voters—participated; an "outstanding result for a voluntary survey", according to Mr Kalisch. Crowds of ’yes’ supporters gathered at events across the nation, including at Sydney’s Prince Alfred Park where the throng grew heavy with anticipation during Mr Kalisch’s lengthy preamble to revealing the result. Suspense quickly turned to elation, with cheers, embraces and reports of on-the-spot marriage proposals.

However, these newly-engaged couples won’t be able to tie the knot just yet. Unlike a referendum, which in Australia is only called to seek public approval of changes to the constitution, the survey is voluntary and non-binding. This in part explains why the survey has been so maligned: affecting no automatic change to the law, both the financial and emotional costs of the survey have been lamented as both entirely unnecessary and inappropriate.

With polls already demonstrating that a majority of Australians support the legalisation of same-sex marriage, critics say that parliament should have passed the bill without recourse to a public vote, which some have deemed a "stalling tactic" on the part of conservative politicians.

The survey has come under fire for wreaking havoc on the mental well-being of LGBTQIA people, who witnessed highly contentious debates over their civil rights play out in the public sphere. Mental health providers reported a surge in Australians seeking support for anxiety and depression in the lead-up to the survey, with one organisation reporting a 40% rise in demand for services.

Back in September, a high court challenge brought by two groups of advocates for marriage equality argued, per The Guardian, that the "government acted inappropriately in allocating $122m to the ABS to conduct the vote". Barrister Kathleen Foley said that the question %27Should the law be changed to allow same-sex couples to marry?%27 was, in seeking out an opinion rather than a characteristic, outside the purview of the Australian Bureau of Statistics. However, the challenge was unanimously dismissed, with the seven justices finding that the survey was indeed lawful and that the government was entitled to distribute the money as such under the Allocations Act.

Next steps

The outcome of the survey means that parliament will now vote on a private member’s bill to legalise same-sex marriage. According to ABC News, 76% of the upper house and 73% of the lower house are expected to vote "yes" on such a bill.

By the time the results were announced, two rival bills had been released. One, introduced by liberal senator James Paterson, would have allowed businesses such as florists, bakers and photographers, to refuse goods and services directly related to same-sex weddings; overriding discrimination laws on the grounds of religious or "conscientious" objections to same-sex marriage. Senator Paterson abandoned his bill on Wednesday, acknowledging that the cross-party bill authored by his colleague Dean Smith, senator for Western Australia, had more support.

The latter bill was introduced this morning, with politicians from both sides of the political spectrum gearing up for a legislative battle.

Senator Paterson has pledged to "work constructively" on amendments to "ensure that the strongest possible protections for the freedoms of all Australians are enshrined in the final legislation.” Yet Senator Smith has warned that "amendments that seek to address other issues or which seek to deny gay and lesbian Australians with the full rights, responsibilities and privileges that they already have will be strenuously opposed". Rather, the bill will deal only with changes to the Marriage Act 1961, which in its current form only recognises monogamous, heterosexual marriages.

Australian Prime minister Malcolm Turnbull, calling the result "unequivocal and overwhelming", has stressed that the legislation should pass by Christmas:

“They voted yes for fairness, yes for commitment, yes for love. 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 asked us to do and get this done”

Leader of the the opposition, Labor’s Bill Shorten, also welcomed the news, declaring it a "fabulous day to be an Australian", promising that "today we celebrate, tomorrow we legislate". However, he also criticised the postal survey, stating "you shouldn’t have had to put up with this survey...I feel for young people who have had their relationships questioned in a way in which I wouldn’t have thought we would have seen ever again."

Should Australia pass the legislation as imminently as pledged, it would become the 26th country to achieve marriage equality (see our services for matters relating to same-sex relationships).

Vardags’ team of top divorce lawyers serving clients in Australia delivers a bespoke legal service to HNW and UHNW individuals, their families, and businesses.