Independent Denison MHR Andrew Wilkie has joined forces with a prominent Tasmanian LGBTI advocate to launch a High Court challenge against the federal government’s plan for a postal plebiscite on same-sex marriage.
The basis of the High Court challenge is that the postal vote – scheduled for November 25 - would supposedly be unconstitutional.
The government’s hopes for a plebiscite now hinge on its postal vote proposal getting through both houses of Parliament.
Back in November 2016, the Senate blocked the government’s plan to hold a compulsory plebiscite, leading a group of five government backbenchers to push for a parliamentary vote.
The Coalition originally intended for Australians to go to polling booths to cast their votes, but the postal vote idea has recently taken precedence.
The idea of a plebiscite is that it gauges public opinion on an issue.
It is expected that a parliamentary vote will be held following the plebiscite result.
Dissenting voices have criticised the plebiscite proposal, however, noting that the results would be non-binding – meaning public sentiment would not necessarily inform MPs’ votes.
Mr Wilkie has even questioned whether the postal plebiscite is constitutional.
“My concerns are that the government is improperly trying to bypass Parliament and exceed its powers,” he said.
“Both the decision to have a voluntary postal vote, and the authorisation of the relevant expenditure, are clearly matters for the Parliament to decide and the government is trying to be a law unto itself by going it alone.
“Moreover, there’s not even a need for an expensive, divisive and contentious voluntary postal vote in the first place because the Parliament has the authority to amend the Marriage Act.”
Marriage equality advocate Rodney Croome, who is supporting Mr Wilkie’s High Court challenge, said he had received advice from Ron Merkel QC suggesting the government could not proceed with the postal vote without introducing specific legislation and a budgetary appropriation.
But the Coalition has commissioned the Australian Bureau of Statistics to oversee the postal plebiscite, seen in part as a means of getting around the legal issues posed by the move.
On Tuesday, the Australian Bureau of Statistics revealed that a postal plebiscite would cost roughly $122 million.
It is also expected that the Australian Electoral Commission will conduct the vote.
“We are seeking further advice to establish the constitutionality of the current proposal,” Mr Croome said.
“If the advice shows there are grounds to strike down the postal vote, we will see the government in court.”
The applicants in the court action are Mr Wilkie, PFLAG national spokesperson Shelley Argent and LGBTI mother Felicity Marlowe.
Ms Argent said a postal vote would be an “expensive … illegitimate process”.
“[It] will provide a platform for hate and go nowhere,” she said.
“This government is looking increasingly ridiculous because of the lengths it is going to stop Parliament doing its work and voting marriage equality through.”
Tasmanian Liberal Senator Eric Abetz said parliamentarians should be given “leeway” to determine how best to vote on same-sex marriage in the wake of the plebiscite.
“It is impossible to determine whether a parliamentarian should adhere to their electorate, their state or to the national vote and in those circumstances, all parliamentarians should be given a degree of leeway to adhere to how they can best represent those who elected them,” Senator Abetz said.