Two High Court challenges to the Australian Government's same-sex marriage postal survey get under way in Melbourne on Tuesday.
The Human Rights Law Centre (HRLC) is representing Australian Marriage Equality and Victorian Greens Senator Janet Rice while the Public Interest Advocacy Centre (PIAC) is representing independent MP Andrew Wilkie, PFLAG (Parents and Friends of Lesbians and Gays) and Felicity Marlowe, director of Rainbow Families Victoria and lesbian mother of three.
The challenges to the postal survey are being heard together due to the overlap between the two and are expected to run for two days. The decision is expected to be announced by Monday at the latest.
In a video posted to social media channels on Tuesday morning, Anna Brown and Lee Carnie from the HRLC explained their reasons for the challenge.
“All Australians should have the same opportunities for love, commitment and happiness. All Australians deserve to marry the person they love,” said Brown.
“LGBTI groups oppose this postal plebiscite and so do we. We already know that the plebiscite has been causing harm and abuse towards LGBTI communities and that’s why we’re challenging it in the High Court today,” said Carnie.
“Marriage equality could be achieved as soon as tomorrow through a simple vote in parliament. This glorified opinion poll is harmful, it’s costly and its unnecessary,” said Brown.
“If our challenge does not succeed, we will apply all of our efforts towards the Yes campaign. If our challenge does succeed, we will continue to advocate for a free vote in parliament to make marriage equality a reality for all Australians,” said Carnie.
Outside court on Tuesday morning, Felicity Marlowe spoke of the toll the No campaign is already having on her partner and their children.
“Our much-loved children have already been termed and described as the new ‘stolen generation’. This is such an offensive term to be used when really we know it refers to Aboriginal and Torres Strait Islander children who were stolen from their families by previous governments.”
“LGBTI parents like myself and Sarah have been called unworthy, unnatural, we’ve had our ability to parent properly questioned, our ability to nurture and love and care for our children questioned already on social media, on posters, on flyers, on advertisements in the newspapers.”
“This is not true. Sarah and I absolutely love our children.”
“Our children know where they came from, they know their biological heritage, they know they are cared for, they know they are loved, they know that they are wanted.”
“I am so worried that children like mine and trans and gender diverse children, as well as the LGBTI community, will become collateral damage in this government’s failure to act on bringing about marriage equality.”
The Human Rights Law Centre’s case will focus on whether its lawful for the government to spend $122 million on the postal plebiscite without parliamentary approval of the plebiscite.
The government says it can authorise this spending without parliamentary approval for the plebiscite because there are existing laws that allow it to authorise “urgent” and “unforeseen” spending and spending that is part of the ordinary services of government.
The HRLC will argue that the spending is not unforeseen and that the government has been considering and publicly debating a postal plebiscite for many months as well as arguing that funding a national postal plebiscite is not within the ordinary services of government.
Explaining the PIAC challenge, CEO Jonathan Hunyor said, “We think it’s parliament’s job to make big decisions about issues like marriage equality. We are asking the High Court to find that government can’t side-step parliament by funding a postal vote without authorisation."
“We are also concerned that the government is undermining the integrity of the Australian Bureau of Statistics and the Australian Electoral Commission by involving them in this process.”
“We will argue that the ABS can’t be used to run an exercise that isn’t in truth about statistics and the AEC can’t be used for a process that isn’t an election.”
If the challenges succeed, Prime Minister Turnbull will face enormous public pressure to allow a free vote in parliament and equal pressure from Coalition conservatives to hold to the party’s failed plebiscite policy. He can also do nothing until the next election or attempt to push legislation through parliament so the postal survey can continue.
Further updates to follow…