Challenge just hours after Senate rejected plebiscite based on legal advice the government has no power to order the ABS conduct the survey

This article is more than 3 years old

This article is more than 3 years old

The Coalition’s plan to hold a voluntary postal vote on same-sex marriage will be challenged in the high court by Andrew Wilkie and marriage equality advocates.

The challenge was announced on Wednesday by long-time LGBTI advocate, Rodney Croome, based on legal advice from QC Ron Merkel that the government has no power to order the Australian Bureau of Statistics to conduct the survey and appropriate $122m to conduct it.

The challenge was announced just hours after the Senate rejected the Turnbull government’s attempt to reintroduce its bill for its preferred compulsory plebiscite.

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At a press conference in Canberra, Croome explained that the case would argue the government may be exceeding executive authority and that a postal vote on marriage equality is not “statistic gathering” of the sort the ABS is authorised to undertake.



Guardian Australia understands the case will also question whether the direction to conduct the vote and the appropriation to pay for it are in fact “urgent”, when they could be made through an instrument the Senate could disallow.



Advocates will seek an expedited hearing to thwart the postal vote due to begin on 12 September.

The case will be fronted by Wilkie, the Parents and Friends of Lesbian and Gays national spokeswoman, Shelley Argent, and lesbian mother Felicity Marlowe, although Croome invited any other campaign groups, states governments or political parties to join the action.

Later on Wednesday Australian Marriage Equality co-chair, Alex Greenwich, announced the organisation would also seek a high court hearing to ask for an urgent injunction to stop the postal plebiscite.

Asked on Sky News about the possibility of a boycott, he said he was “not ruling anything in or out”, pending further details about the postal vote, but AME would continue to campaign for marriage equality.

On Wednesday Wilkie said it was “frightening” that the government was attempting to “bypass the parliament and somehow authorise the expenditure of more than $100m of taxpayer funds”. “It can’t, it’s wrong,” the independent MP said.

Bringing the case is a high-risk strategy that may delay marriage equality, as Malcolm Turnbull has not yet said what the government would do if the postal vote were struck down.

Argent suggested if advocates won the case the government may do nothing, because the vote was “designed to fail” and the Coalition did not want marriage equality legalised.

“They will just stand by and say, ‘well, we tried, we promised a plebiscite and they didn’t like it’.”

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Argent suggested that would be an acceptable outcome, because LGBTI people would know advocates had done their best to avert the harm of a plebiscite.

Croome said if advocates were successful, they would continue to demand a free vote on same-sex marriage. Challenging the postal vote would avert the “human cost” of LGBTI people hearing debate about “whether or not [their identity] is worthwhile and whether they deserve equal rights”, he said.

Asked what advocates should do if the challenge failed, Croome said that consultation with the LGBTI community should determine the outcome, but a poll before details of the postal vote were released suggested 56% wanted advocates to campaign to win and just 15% advocated a boycott.

On Tuesday the acting special minister of state, Mathias Cormann, said the government was on strong legal ground with a voluntary postal vote, citing as a precedent the Whitlam government using the ABS to conduct as survey of 60,000 Australians’ views on the national anthem.

Cormann said the treasurer would direct the Australian statistician to request a voluntary collection of information on Australians’ views on same-sex marriage, allowing the ABS to run the postal vote using staff seconded from the Australian Electoral Commission.

He said the voluntary vote would cost “up to $122m”, paid for by an appropriation made through a finance minister’s advance to the agency.

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Constitutional law experts including George Williams and Anne Twomey have raised concerns about the postal vote.

Williams noted the postal vote was “vulnerable to legal attack” because the expenditure of money on the postal vote “lacks parliamentary approval”. The use of the ABS “will open up a new line of attack based upon arguments that the functions of the ABS do not permit it to conduct a poll of this kind”, he said.

Twomey told Guardian Australia the ABS had the power to collect statistics, or “numerical data concerning facts”, describing it as “most unusual” for it 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,” she said.

On ABC’s AM, Twomey also questioned the method of appropriating funds, noting that a finance minister’s advance “has to be for some kind of emergency that’s unforeseen [and] here we have an issue that has been foreseen and previously there had been allocations for it in the budget”.