No SSM plebiscite, no vote, says Abbott

Tony Abbott has told the PM to ‘find another way’ for a plebiscite if the High Court strikes down the postal survey.

Tony Abbott in question time. Picture: Kym Smith

Tony Abbott has told Malcolm Turnbull to “find another way” to hold a plebiscite on same-sex marriage if the High Court today strikes down the planned postal survey, declaring there can be no parliamentary vote on the controversial issue without a plebiscite occurring first.

The former prime minister spoke last night as the High Court finished hearing two legal challenges to the postal survey, with Chief Justice Susan Kiefel confirming orders would be made this afternoon on whether the Australian Bureau of Statistics could proceed in mailing out the survey forms next week.

Mr Abbott, a leading voice in the No campaign, said the government would “have to find another way” to hold a plebiscite if the challenges brought by independent MP Andrew Wilkie and lobby group Australian Marriage Equality succeeded.

“The Prime Minister should do what the Prime Minister is committed to do and that is that there won’t be any parliamentary vote without a plebiscite first,” Mr Abbott told 2GB radio. “Go back to the Senate and say to the Senate, ‘If you want to have any chance of change in this term of parliament, you’ve got to give us the plebiscite that we got elected promising’.”

Opponents of the postal survey have argued Finance Minister Mathias Cormann acted unlawfully in earmarking money for the Australian Bureau of Statistics to conduct the poll.

Defending the government’s decision to order the postal survey, Solicitor-General Stephen Donaghue QC yesterday told the court the $122 million appropriation to fund it was made in exactly the same way as previous appropriations by governments of both sides, including a $4m special advance for an arts centre in Mr Wilkie’s Tasmanian electorate.

Mr Wilkie’s barristers have argued the law — which allows appropriations to be made by the Finance Minister if the need is “urgent” and “unforeseen” — is invalid and that the possibility of a postal survey was also being contemplated by members of cabinet months before being announced.

Dr Donaghue highlighted the Moonah arts centre, among other examples of community facilities receiving funding by way of similar appropriations, and said none of those cases could fit a high standard for “urgent need for expenditure”.

Mr Wilkie, who helped Julia Gillard form government two years before the arts centre received the $4m in federal funds, has told The Australian he was unaware of how the funding originated.

Dr Donaghue said the power to determine appropriations had been a key function of government since 1901 and it would be “highly disruptive” for parliament’s legislative program if all expenditure needed to be approved by way of special appropriations bills “item by item”.

The government has also argued Mr Wilkie and his fellow challengers have no standing to bring the case against the postal survey as parliamentarians, voters, or people affected by the outcome of the vote.

Dr Donaghue said there was “no public interest” in the plebiscite being challenged and disputed the claim that receiving the survey form would be offensive for some homosexual people who felt it cast aspersions on the validity of their relationships.