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High Court of Australia’s gay marriage postal vote decision

7 September 2017 8:22 AM
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High Court of Australia’s gay marriage postal vote decision

THE High Court’s decision to dismiss a challenge against the postal vote has been met with mixed reaction as Bill Shorten warns of a ‘booby trap’.

The full bench of the High Court has this afternoon ruled the $122 million postal vote to be conducted by the Australian Bureau of Statistics can go ahead.

However, Opposition Leader Bill Shorten has warned of a “booby trap” by government conservatives that threatens to derail the survey.

“What I warn the government against, and the coalition members, is they said we’ve got to have a survey. Without a survey, they can’t do their day job,” he told reporters in Canberra.

“But then if the conservatives argue, ‘We are having the survey but we haven’t seen the final details of the bill, therefore, you must vote no’ – that is a booby trap by the survey.”

The court handed down its decision at 2.15pm AEST, less than 24 hours after submissions closed following a two day hearing.

Marriage equality advocates launched two cases, that were heard simulatenously, in a bid to stop the vote.

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

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

Ballots will now be sent out from next week. Australians will be strongly encouraged to send in their responses by October 27 but all votes must be in by November 7.

The decision was announced just as Question Time was beginning in federal parliament, sparking an immediate face-off between Prime Minister Malcolm Turnbull and Opposition leader Bill Shorten.

Mr Turnbull called out Mr Shorten for backing a public vote to the Australian Christian Lobby in 2013 and since changing his mind, while the Labor leader highlighted the cost of the unnecessary $122 million postal vote.

But the Prime Minister welcomed the High Court’s decision, saying: “Every Australian will have their say.”

“We encourage every Australian to vote in this survey, to have their say, and as I have said in this House and in many other places, Lucy and I will be voting ‘Yes’ and I will be encouraging others to vote yes.”

The Prime Minister declined Mr Shorten’s offer to send a joint letter to all Australians recommending they vote ‘Yes’.

A rainbow appeared over Parliament House in Canberra this morning and Penny Wong took it as a sign.

“I thought ‘I wonder what that means for the High Court case,” she said at a press conference in Canberra.

“Hope that the fairness and decency in the Australian community can be translated into a ‘Yes’ vote and into marriage equality becoming a reality.”

Senator Wong, who has two children with her partner Sophie Allouache, urged all Australians to vote.

“Campaign, talk to people, get out the vote - let’s get this done,” she said.

Labor frontbencher Tanya Plibersek gave a heartfelt speech on who she would be voting for.

“I’m voting yes for someone I have never met, for some 17-year-old somewhere in a country town who hasn’t told anyone that they are same-sex attracted,” she told reporters in Canberra.

“I’m voting yes for that person because no-one should feel alone, no-one should feel that they are being judged by the broad mass of the Australian community for who they are.

“Same-sex couples don’t deserve to have their relationships put to a vote of people who have never met them.

Opposition leader Bill Shorten vowed not to make it a political issue, although he took aim at the Turnbull Government for insisting on the $122 million “waste of taxpayers’ money”.

Labor would actively campaign for a ‘Yes’ vote if the plebiscite had to go ahead, he said.

“We will be on the frontline talking to family and friends, to people in workplaces, to people in shopping centres, on street corners, encouraging people to vote Yes for marriage equality.

“It’s one thing to say that you support marriage equality but when you have a position of leadership in this country, you should lead, not hide.”

Shadow-Attorney General Mark Dreyfus has been working with the government to so a bill on protections can be brought before the parliament next week.

Opposition leader Tony Abbott has taken aim at Bill Shorten, accusing the Labor leader of “elitist bullying” after he gave a statement saying he would legislate same-sex marriage regardless of the people’s vote.

“I will respect the people’s vote on SSM and, if “yes”, facilitate the passage of a bill,” Abbott tweeted.

“Shorten has just said that he’ll legislate SSM regardless of the people’s vote.

“This is the kind of elitist bullying that people so dislike and are rightly concerned to reject.”

Gay marriage will likely be legal by the end of the year if the majority of Australians vote ‘Yes’ in the upcoming postal survey.

Finance Minister Mathias Cormann said the government would allow a private member’s bill to change the Marriage Act to be put before parliament if a ‘Yes’ vote was successful.

“In a scenario where people indicate through the survey they would like to see the law changed to allow same-sex couples to marry, we are confident a law to give effect to the Australian people’s wishes will pass by the end of the year,” he told reporters in Canberra.

If most people vote ‘No’, the Turnbull Government will do nothing more in this term to change the laws.

“Dean Smith has put forward a bill, others might choose to do the same,” Senator Cormann said.

“Ultimately it is going to be a for the Parliament to determine what the final bill will be.

The Minister said the government could not guarantee all campaigners would be respectful but he believed Australians were capable of having the debate in a “proper manner”.

“I believe, and the government believes, that the Australian people are up for this and the Australian people are able to have this debate respectfully and courteously,” Senator Cormann said.

“We certainly call on all Australians to participate in this debate with courtesy and respect.

“Can I guarantee that all Australians will at all times express their opinions on that basis? No, I can’t.

“But neither can anyone give that guarantee in the context of any democratic process that takes place. I believe Australians are absolutely able to do this.”

Both campaigns for and against legalising same-sex marriage have called for a respectful debate.

The lobbying kicked off moments after the High Court handed down its decision, with the ‘No’ campaigners framing it as a “David and Goliath battle”.

Coalition for Marriage spokesman Lyle Shelton called on Australians who backed a ‘No’ vote to contribute to the campaign, saying the campaign would not have the resources of the mammoth ‘Yes’ campaign.

Mr Shelton, also the director of the Australian Christian Lobby, called for respectful campaigning from both sides.

“What happens online happens - there are bad people online, unfortunately.

“But in terms of the Coalition for Marriage, we will continue to run a respectful campaign that focuses on the freedoms that will be effected - freedom of speech, freedom of religion and this issue of radical LGBTIQ sex-education in schools, which is a consequence of refining marriage.”

Marriage equality activists who launched the High Court challenged said they would respect the decision and called on Australians to support the LGBTI community and vote ‘Yes’.

“It’s time to move forward as a nation, to move forward, to vote ‘Yes’, and to deliver marriage equality for gay and lesbian people across Australia, their friends and their families,” Human Rights Law Centre director of Legal Advocacy Anna Brown said.

Australian Marriage Equality co-chair Alex Greenwich said the plebiscite was completely unnecessary but it was “absolutely vital” Australians got involved and voted ‘Yes’.

“Vote ‘Yes’ for the dignity of gay and lesbian people, vote ‘Yes’ to allow them to marry those that they love, vote ‘Yes’ for love.”

Tiernan Brady, Executive Director of The Equality Campaign, said the ‘Yes’ campaign for marriage equality will lead a national conversation encouraging every Australian to vote for fairness so every person in this nation is able to get married.

“We are in it to win it. We are committed to doing all in our power to ensure that the long held wish of the Australian people for marriage equality for all Australians is reflected in the results of the survey,” he said.

The Australian Greens, who were part of the High Court challenge, urged Australians not to boycott the postal vote.

“What I say to people who are considering not participating in this vote is, like you, we don’t think basic rights should be subjected to an opinion poll but it’s here - get involved, join the movement, and let’s make sure we choose love and, if the Prime Minister wants to hear from people, he hears from them loud and clear,” Greens leader Richard Di Natale said.

Greens senator Janet Rice defended her decision to join the legal challenge.

“It was worth doing because people’s human rights should not be put to a public vote,” she said.

“We know there will be hurt and harm caused by this public vote so it was absolutely worth doing.”

Moments after the decision, Attorney-General George Brandis and Finance Minister Mathias Cormann released a statement that the government would soon introduce new legislation for safeguards to ensure a “fair and proper” survey would be held.

Liberal Senator Eric Abetz, a vocal opponent to legalising gay marriage, welcomed the court’s decision.

He said the vote would allow “forgotten” Australians to have their say despite “elites” trying to stifle democracy.

“Following the High Court case brought by self-appointed elites trying to stifle the Australian people being thrown out, I am pleased that all Australians will have their say on marriage,” senator Abetz said in a statement posted to social media.

“This case was hypocrisy writ-large from the left like Andrew Wilkie who used the exact same process to extract funding from the Gillard/Brown Government.

“Democracy is an infinite good and political elites should never seek to stand in the way of the people having their say.

“This plebiscite will give all Australians, especially the forgotten people who are concerned about the consequences for free speech, freedom of religion and parental choice, to have their say.”

Marriage equality advocates fought to stop the voluntary postal survey, arguing the government should not have bypassed parliament in funding it.

The government told the full bench of the High Court that the Finance Minister had the power to pay for the $122 million survey using a modest contingency fund.

The government found the $122 million by using laws to make an advance payment to the Finance Minister in circumstances where there is an urgent need for spending and the situation was unforeseen.

The voluntary survey was plan B after the Senate blocked the compulsory plebiscite promised by the Coalition at the 2016 election.

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