High court hurdles emerge for marriage-equality postal vote

Critics of the plan for a $122m postal vote on same-sex marriage will seek to block the move in the High Court.

Malcolm Turnbull and Acting Special Minister of State Mathias Cormann yesterday. Picture Gary Ramage

A new legal threat is looming over Malcolm Turnbull’s plan for a $122 million postal vote on same- sex marriage as his critics seek ­urgent advice to block the move in the High Court within weeks.

The government is aiming to send out ballot papers from September 12 after trying to sidestep opponents yesterday by calling in the Australian Bureau of Statistics to carry out the survey.

Finance Minister Mathias Cormann appears set to authorise the postal vote within days to clear the way for three months of public campaigning with a ­November 7 deadline for the ­optional ballots to be returned for counting. It relies on the authority of the ABS to survey Australians and is backed by the Finance Minister’s discretion to draw on funds already authorised under an ­existing appropriation act.

University of Sydney professor of constitutional law Anne Twomey told The Australian it looked “most unusual” to use the ABS for the purpose and that the plan could be challenged in the courts over the source of funds.

“The ABS collects statistics upon the number of households with same-sex couples,” Professor Twomey said. “It would appear most unusual, however, for it instead to collect opinions, rather than facts. It is arguable that this goes outside its functions, although it could also be argued that it was collecting statistics about the number of people who hold particular opinions.

“Finally, there are also doubts as to whether this could be funded through the advance to the ­Finance Minister.”

The Human Rights Law Centre sought new advice from Katherine Richardson QC to update earlier conclusions about the scope to challenge a postal vote carried out by the Australian Electoral Commission.

The centre’s director, legal advocacy, Anna Brown, said the initial advice on the use of the ABS suggested there were “real legal risks” in the government’s new approach and these should be tested by the High Court before it spent $122m of taxpayer funds.

Ms Brown said the postal vote was likely to be challenged from several quarters, including from opponents of marriage equality if it went against them.

A separate legal challenge ­­is being considered by a marriage equality advocate, Rodney ­Croome, and the Parents & Friends of Lesbians & Gays, given earlier advice from Ron Merkel QC that the plan without legislation to authorise the spending was open to challenge.

While Senator Cormann ­argues that existing legislation ­allows him to draw down as much as $295m, his opponents say that power is limited to “urgent and unforeseen circumstances” that could not include a longstanding election policy.

It is highly likely the High Court will have to rule on the postal vote amid the public campaign to influence the outcome.

The Prime Minister justified the postal vote by saying he was delivering on an election promise to hold a plebiscite. He blamed Bill Shorten for stopping the original plan even though the Opposition Leader had made no complaint about a plebiscite in a speech to ­religious groups in 2013.

“Strong leaders carry out their promises. Weak leaders break them,” Mr Turnbull said. “I’m a strong leader. I made that promise again and again, as you lamented, on the campaign trail, on that long campaign. And you heard me, again, say again and again that every Australian will have a say on this issue. Now we have sought to have a compulsory attendance plebiscite. The only reason it has not been held is because of Bill Shorten’s opposition.”

The government will try to legislate its original plebiscite in the Senate but is likely to fail, leading it to resort to the postal vote.