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Turnbull Government facing legal challenge over same-sex marriage

8 August 2017 9:45 AM
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Turnbull Government facing legal challenge over same-sex marriage

Marriage plebiscite date announced2:59

ATTORNEY-General George Brandis believes same-sex marriage will be legal by Christmas.

Mr Brandis told ABC he predicts the issue will be concluded in the affirmative by the end of this year.

The Senator was asked tonight by ABC 730 host Leigh Sales: “Do you think same-sex marriage will be legal by Christmas, yes or no?”

“Because I believe that one way or another we will give the Australian people a choice.

“My prediction, and it is only a prediction, is that in the plebiscite whichever of the two forms it takes, more people will vote yes than no.

“And the Prime Minister has said that in the event that there is a yes vote in the plebiscite he will facilitate a parliamentary vote on a bill to reform the Marriage Act before Christmas.”

Australians’ chance to have their say on whether to make gay marriage legal before the end of the year is set to cost taxpayers $122 million.

Coalition MPs have decided a postal vote on marriage equality will be held before November, if they are unable to secure support for a traditional plebiscite in Parliament this week.

Prime Minister Malcolm Turnbull and Finance Minister Mathias Cormann announced the government’s plans for the postal vote at Parliament House today.

Under the plan, the Australian Bureau of Statistics will be able to conduct the postal vote with assistance from Australian Electoral Commission officers.

Ballot papers would begin arriving in letter boxes in for every Australian on the electoral role by September 12.

The question will be whether Australians believe the Marriage Act should be changed to allow same-sex couples to marry.

Australians will not be forced to vote on the issue; the postal plebiscite would be voluntary.

MPs would then be given a free vote in Parliament if a majority of Australians vote ‘Yes’ but they would not be bound to vote based on the results.

If Australians vote ‘No’, the government will not go ahead with the free vote.

It’s understood the government will not provide public funds for a ‘Yes’ or ‘No’ campaign.

Prime Minister Turnbull said the postal vote was a way for the government to keep its election promise to Australians to allow a public vote on the issue.

“The important thing is that every Australian gets their say,” Mr Turnbull said.

The Prime Minister confirmed he personally would vote ‘Yes’ and would encourage others to as well.

“I believe that relationships, marriages, should be available to people like Lucy and me, people of different sex ... and also to people of the same sex,” he said.

“Other people have different views on that fundamental issue and I respect their views and they’re entitled to them.”

He rejected concerns that debate in the lead up could be harmful to vulnerable LGBTI, saying Australians were capable of having a respectful discussion on same-sex marriage.

If the government is able to secure support in the senate for the full plebiscite, which is unlikely given it was already blocked once in November, it would be held on November 25.

The traditional plebiscite would cost up to $170 million, Senator Cormann said today. That’s less than the $525 million consultants PwC estimated it would cost.

Senator Cormann will put a motion for a vote on the full plebiscite today.

The five Liberal MPs who sparked the renewed push for marriage equality told a joint party room meeting today they would not put up a private members bill while the postal vote process was underway.

Prime Minister Turnbull told the Coalition meeting this morning that Australians wanted to the government to deal with the issue and move on to other issues, such as energy, the economy and national security.

He told the meeting these three issues would be the government’s focus for the rest of the year.

Labor and marriage equality groups are questioning whether a postal vote would be legal, if the government does not gain authorisation to spend Commonwealth funds for one.

“The Commonwealth can’t spend money without legislation in the Parliament authorising the expenditure of that money, unless it’s part of the ordinary activities of a department,” Shadow Attorney-General Mark Dreyfus told Sky News today.

“On no view could the conduct of a national voluntary postal vote be seen as part of the ordinary activities of any of the commonwealth departments.”

Marriage equality campaigners have already warned they would launch a High Court challenge over the postal votes legality if the government attempted to hold one without senate authorisation.

Mr Dreyfus didn’t rule out Labor joining the legal action but said the party would only take that step if the case was not being put “adequately”.

He labelled the postal vote option an “extraordinary” action from an “incompetent” government.

“The government is blocked in the senate and will be blocked again from conducting a plebiscite,” he said.

“It’s now threatening that it’s going to go ahead with what is probably an illegal activity, not authorised by the parliament, spending between $40 and $100 million dollars ... simply to achieve further delay and to conduct an activity that they won’t be bound by.”

Senator Cormann rejected those concerns, saying the government’s proposal was legal under the ABS Act.

“The Treasurer will be directing the Australian Statistician to ... request on the voluntary basis ... statistical information from all Australians on the electoral roll as to their views on whether or not the law in relation to same-sex marriage should be changed to allow same-sex couples to marry,” he said.

The Whitlam Government used the same law and process to conduct a phone survey of Australians about whether to change the national anthem in 1974.

Senator Cormann also said he had the power, under a long standing arrangement called “the Finance Minister’s advance”, to authorise funds for the ABS to spend on the plebiscite without securing senate approval.

Aside from the legal threat, the Turnbull Government is facing pressure from the Australian Christian Lobby.

The ACL is threatening to campaign against the Coalition if it goes ahead with anything other than a plebiscite on the same-sex marriage issue.

The group has gathered 55,000 signatures on a petition urging the government to stick to its election promise to hold a plebiscite on marriage equality, or risk losing the support of “millions” of voters,The Australianreports.

Former Liberal turned Australian Conservatives leader Cory Bernardi will table the petition in the senate on the ACL’s behalf today.

It comes after Liberal Party MPs yesterday agreed in an emergency party room meeting to try for a second time to secure support for a traditional plebiscite in the Senate.

If that fails, the government believes it will be able to hold a voluntary, non-binding postal plebiscite before the end of the year on the issue.

A free vote would then be held in Parliament after the government receives the results of the postal vote.

ACL managing director Lyle Shelton has issued a warning to the Coalition ahead of the joint party room meeting this morning, where the Liberals and Nationals will decide on their official policy on how to progress the bid to legalise gay marriage.

“If the Liberal Party cannot provide a pathway to preserving marriage, freedom and gender norms, millions of Australians who support the Marriage Act will have no choice but to look for candidates with the resolve to preserve it,” Mr Shelton told The Australian.

Earlier today, Acting Special Minister of State Mathias Cormann defended the Liberal Party’s decision to hold a voluntary postal vote, if the government’s second attempt to secure a traditional plebiscite fails.

It’s first attempt was blocked in the upper house in November, and the second attempt is widely expected to fail.

A postal vote was the “next best option” to a plebiscite, Senator Cormann told ABC this morning.

Senator Cormann reiterated the government's belief, based on legal advice, that the postal option was legal and constitutional.

He also defended the decision to make the postal vote voluntary, despite Australian voting otherwise being compulsory.

“There are democratic jurisdictions overwhelming around the world that have voluntary voting now,” Senator Cormann said.

“The proposition that voluntary voting lacks legitimacy, I don’t accept.”

National Party leader Barnaby Joyce told reporters at Parliament House ahead of the joint party meeting today that he had “no problems” with a postal vote.

Opposition Leader Bill Shorten slammed the Liberal Party’s policy as a delaying tactic.

“There’s a constitutional question over whether or not this postal opinion poll is even legitimate,” he said.

“Why is it that the Liberal Party spend all of their agility and innovation on working out ways to delay marriage equality, I wish they’d put the same effort into electricity prices.”

Mr Shorten said gay marriage would be legalised in Australia once the Liberal Party was allowed a free vote as the “vast majority” of Labor MPs supported the change.

Labor deputy leader Tanya Plibersek also questioned the ability of the ABS to run the plebiscite after the “census debacle”.

“I can’t believe at a time when debt is heading to half a trillion dollars, in fact it’s crossed through the half a trillion barrier, that we are now talking about spending well over a hundred million dollars on something that is unnecessary, that is wasteful and that the right wing of the Liberal Party have already said they’ll ignore anyway, even if it is successful,” she told Sky News.

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