Explainer: Marriage Equality Postal Plebiscite High Court Challenge

The Human Rights Law Centre has taken urgent legal action in the High Court on behalf of Australian Marriage Equality and Senator Janet Rice against the Australian Government to stop the marriage equality postal plebiscite.

The High Court challenge will be heard 5 and 6 September, 2017 at the High Court in Melbourne.

We want marriage equality

All Australians should have the same opportunities for love, commitment and happiness. All Australians should be able to marry the person they love. We have been working closely with the lesbian, gay, bisexual, trans and intersex (LGBTI) community for years to achieve marriage equality.

In 2014, we represented Australian Marriage Equality in a High Court case on ACT’s marriage laws, and helped to convince the court to rule that the Australian Parliament has the power to pass laws to achieve marriage equality.

This is how marriage equality can be achieved in Australia – with a simple vote right now by our elected Members of Parliament. The majority of the nation backs this straightforward reform. But the Coalition Government refuses to allow this vote to happen without a plebiscite first

We don’t need a marriage equality plebiscite

A plebiscite is a vote by the public to decide a particular issue. Legally, we don’t need a plebiscite to achieve marriage equality. But the Coalition Government decided that it wants to run a plebiscite on marriage equality. The decision to push for a plebiscite was a tactic by MPs opposed to marriage equality.

Parliament doesn’t want a plebiscite

The Government twice asked the Parliament to approve laws to allow the plebiscite to happen. Twice the Parliament rejected these laws – in November last year and again in August this year.

So what’s the postal plebiscite?

Because Parliament refused to approve laws for a plebiscite, the Government has tried to sidestep Parliament by asking the Australian Bureau of Statistics (ABS) to run what the Government has called a “postal plebiscite”.

Postal plebiscite is unnecessary, divisive and harmful

LGBTI groups strongly oppose the postal plebiscite and so do we. The plebiscite is unnecessary and will be divisive and harmful. Equality for LGBTI Australians should not have to rely on a glorified opinion poll. Telling one group of people that their rights have to be decided by a public vote sends a terrible message.

The method chosen for the plebiscite – a postal vote – will disadvantage younger voters. Close to 300,000 younger Australians aged 18-24, who are more likely to support marriage equality, are not on the electoral roll.

The postal plebiscite will not be binding

If the postal plebiscite goes ahead, the Government has said that if a majority of Australians who return postal votes approve of marriage equality, it will allow MPs in Parliament to have a free vote on marriage equality. But the result of plebiscite would not be binding on Coalition MPs. Even if their electorate voted “yes” they would not have to vote “yes” on marriage equality legislation.

The Government has said that if a majority of Australians who return postal votes, vote “no”, it will not allow MPs a free vote on marriage equality in Parliament.

We can achieve marriage equality without asking nearly 16 million voters to mail their approval or rejection of same-sex relationships to the ABS in a non-binding public opinion poll. We want MPs to do their job and vote on the issue in Parliament instead.

We think the plebiscite is unlawful

We think the plebiscite is unlawful and we’re taking action in the High Court to stop it. In the case, we are representing Australian Marriage Equality, one of the leading organisations in the national marriage equality campaign, and Senator Janet Rice, a long-time marriage equality advocate and member of the LGBTIQ community who voted against the plebiscite legislation.

Our case will focus on whether or not it is lawful for the Government to spend $122 million on the postal plebiscite without Parliamentary approval of the plebiscite, especially given Parliament has already twice rejected plebiscite legislation.

The Government says it can authorise this spending without needing to get approval for the plebiscite from Parliament because there are existing laws that allow it to authorise “urgent” and “unforeseen” spending and spending that is part of the ordinary services of government.

We will argue that the spending is not unforeseen and that the Government has been considering and publicly debating a postal plebiscite for many months. We will also be arguing that funding a national postal plebiscite is not within the ordinary services of government.

The legal issues raised in the case are critically important and go to the heart of the scope of government power in a parliamentary democracy like Australia. There are important checks and balances in our democracy to make sure that taxpayer money is spent responsibly. This case will test their limits.

Our friends at the Public Interest Advocacy Centre have brought a separate High Court case challenging the postal plebiscite, representing MP Andrew Wilkie and LGBTI rights advocates Felicity Marlowe and PFLAG Brisbane. The legal teams are working closely together and the cases will be heard together by the High Court on 5 and 6 September 2017 in Melbourne.

If we win?

We are asking the High Court to rule that the Government doesn’t have the power to pay the ABS to conduct a postal plebiscite without first passing legislation through Parliament. So if we win the case, the postal plebiscite, which is due to start on 12 September, will not go ahead. In that scenario we will of course resume pushing the Parliament to simply allow a free vote to make marriage equality a reality. (A suitable Bill has been prepared by a group of Liberal MPs which would deliver marriage equality and clarify the exemptions for ministers of religion - who will continue to be allowed to refuse to perform marriages that don’t conform to their religious doctrine or beliefs.)

If the challenges are not successful, the postal plebiscite will go ahead and we will continue to support the “yes” campaign.

Our legal team

We thank our barrister team Katherine Richardson SC, James Emmett, Surya Palaniappan and Gerald Ng for their exceptional work on this case.

MichelleBennettLGBTI Rights