Published in The Mercury, 25 August 2017
EVERY Australian, whatever their view on marriage equality, should be concerned when a government is prepared to exceed its powers and act illegally.
In my opinion that’s exactly what the Federal Government is doing right now with the proposed marriage equality postal vote.
That’s why I’ve gone to the High Court of Australia to try and stop what I see as a stunning disregard for proper process and the rule of law.
In essence, the Government has directed the Australian Bureau of Statistics to hold a postal vote asking people their views on marriage equality.
Ballot papers will be sent out from September 12 for an eight-week campaign with the result in November.
The vote will be done without any parliamentary debate, scrutiny or authorisation.
It will cost $122 million, be non-compulsory and the outcome will not be binding on the Parliament.
Voting will not have the normal legislative safeguards against fraud or the need for identity checks, secrecy or secure vote storage and handling.
Moreover, the drawn out postal vote will maximise the opportunity for some people to demonise the LGBTI community.
The filth that’s already been hurled my way, merely for supporting marriage equality and challenging the postal vote, is too putrid to describe.
Joining me as co-plaintiffs in the case against the Commonwealth are Felicity Marlowe and the Parents and Friends of Lesbians and Gays organisation. Felicity is a lesbian mum with three children.
We’ve engaged leading barrister Ron Merkel QC and the Public Interest Advocacy Centre on a no-win, no-fee basis.
Former Tasmanian of the Year, Rodney Croome AM, is involved and he’s done a marvellous job organising the project.
Our case includes that, without parliamentary approval, the Government does not have the power to use public funds to pay for the postal vote.
Readers will recall that the Government’s original attempt to hold a plebiscite had already been rejected twice by the Senate, so the Government has tried to go ahead without parliamentary support.
The Government is attempting to exploit a power under the Appropriations Act (No. 1) 2017-2018 that allows the Finance Minister to make an advance if there is an “urgent” or “unforeseen” need of funds. We’re arguing that the $122 million advance to the ABS is not urgent or unforeseen as the possibility of a postal vote has been discussed for many months.
We’re also arguing that the Government does not have the power to direct the ABS to conduct the postal vote for a number of reasons, including that the opinions being sought are not “statistical information” within the meaning of the Australian Bureau of Statistics Act 1975 or the Census and Statistics Act 1905, and are not considered “statistics” within the meaning of the relevant section of the Constitution.
The opinions also do not qualify under the Census and Statistics Regulations 1916.
The consequence is that the ABS does not have the statutory authority to carry out the postal vote.
There are also questions over the Australian Electoral Commission sharing the electoral roll with the ABS, as well as being involved directly in the vote by being responsible for posting the ballot papers to thousands of silent voters.
So what does all that mean in layman’s terms?
In essence the Government is exceeding its powers by attempting to conduct a postal vote without parliamentary approval, exceeding its powers by attempting to spend $122 million without parliamentary approval and exceeding its powers by directing the ABS to conduct a postal vote.
In other words the High Court challenge is about the power of the executive and what limits apply to that power. Addressing these issues is very much in the public interest and the High Court’s ruling will establish an important precedent for future cases.
It’s still anyone’s guess what the High Court will ultimately decide.
But we had a great start on August 11 when the Chief Justice indicated that the case could be heard urgently on September 5 and 6.
And significantly, the Commonwealth agreed not to distribute ballot papers before September 12.
There is of course another way to deal with marriage equality in Australia, and that’s to allow the Parliament to decide on amending the Marriage Act 1961, exactly as it did in 2004 when it amended the Act to limit marriage to between a man and a woman.
Hopefully I’ll prevail in the High Court and that will cause the Parliament to deal with the matter.
It’s certainly beyond time to put an end to the political game playing and time wasting and for politicians to do their jobs.
It’s time for marriage equality to be put to the Parliament and politicians allowed to vote with their conscience.
In my opinion it’s way beyond time for marriage equality.
The High Court challenge is being funded by donations from ordinary people who also support marriage equality and oppose the postal vote.