SSM vote in danger
Claim government lacks legal authority to fund postal ballot
LAWYERS for the Federal Government will today fight for the survival of its same-sex marriage postal vote.
Marriage equality advocates, led by Denison MP Andrew Wilkie, are fighting to stop the vote, telling the High Court yesterday that the vote could not legally go ahead.
In a packed courtroom in Melbourne, the full bench of the court was told the Government did not 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 that allow an advance payment to the Finance Minister in circumstances where there is an urgent need for spending and the situation was unforeseen.
But challengers to the vote argued the spending did not fit the category of either “urgent” or “unforeseen”.
Ron Merkel, QC, said there had been a “misdirection of law” in relation to the appropriation, saying there was a requirement that an “urgent need” exist 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.
Mr Merkel said his client, Mr Wilkie, had been denied the opportunity to vote in Parliament on the issue.
“The people have given Mr Wilkie and other members of Parliament the constitutional role in ensuring that moneys are appropriated in accordance with the law,” he said.
He said there was no urgent need to fund the vote, making the $122 million advance payment constitutionally invalid.
The postal vote is facing two challenges.
The first is by Mr Wilkie, advocate Felicity Marlowe and the Parents and Friends of Lesbians and Gay. The second is on behalf of Australian Marriage Equality and Greens Senator Janet Rice.
The ABS has committed not to send any survey forms until the judgement is known.