Urgent need a sham, High Court told

MARRIAGE equality advocates fighting to stop the same-sex marriage postal vote have told the High Court it can’t legally go ahead.

In front of a packed courtroom in Melbourne yesterday the full bench of the court was told the government didn’t have the power to fund the vote without parliamentary approval.

It was also argued the Australian Bureau of Statistics, tasked with conducting the vote, could not legally do so.

The government has allocated $122 million to fund the vote, using laws to make an advance payment to the finance minister in circumstances where there is an urgent need for spending and the situation is unforeseen.

But challengers to the vote argued the spending did not fit the category of either “urgent” or “unforeseen”.

Ron Merkel QC argued there had been a “misdirection of law” in relation to the appropriation, saying there was a requirement that an “urgent need” existed for a parliamentary appropriation.

He argued the vote, the government’s Plan B after its failed same-sex marriage plebiscite was blocked by the Senate, should have instead been put to the parliament – which could have passed legislation to pay for it.

He said there was no urgent need to fund the vote, making the $122 million advance payment constitutionally invalid.

“There was no urgent need because the government was quite able to put the appropriation for the survey to the House or the Senate, but it didn’t occur,” he said.

“On the facts of this case, no minister acting reasonably could have concluded in accordance with the law that this was an urgent need.

“You will look in vain for any circumstance that explains urgency outside of the government policy implementation.

“A date of 15 November is preferred but no reason is made for why that date should not be a month earlier or a month later,” he addADsaid.

The postal vote is facing two challenges that are being heard simultaneously.

The first is by Tasmanian independent MP Andrew Wilkie, advocate Felicity Marlowe and the Parents and Friends of Lesbians and Gays.

The second is on behalf of Australian Marriage Equality and Greens Senator Janet Rice.

While it is unclear whether the postal vote will go ahead, the survey is already costing taxpayers millions.

The ABS is due to start sending out the surveys on Tuesday and has already started printing the materials.

A spokesman said the ABS would be spending about $8 million regardless of what the High Court decided.

If it does go ahead, the survey is expected to cost $122 million.

– with Charis Chang