Polls indicate popular support in Australia for marriage equality, but a standoff has dragged on for more than a decade amid political wrangling over the best way to decide the matter.
After parliament’s upper house, the Senate, last year rebuffed plans for a national plebiscite involving 15 million people, the government opted for a voluntary postal ballot, with papers due to be sent out next week.
Both options are strongly opposed by gay marriage advocates, who argue that a national vote is expensive and will subject gay people and their families to hate speech.
If the ballot goes ahead and a majority of Australians vote “yes”, the government would hold a free vote in parliament on the issue, with MPs not bound by party policy or the postal ballot’s result.
If there is a “no” outcome, there would be no parliamentary vote.
Anna Brown, from the Human Rights Centre which is representing advocacy group Australian Marriage Equality and Greens senator Janet Rice in the legal action, said she was confident the Melbourne court would rule the vote invalid.
“The postal plebiscite is unnecessary and is already proving divisive and harmful. LGBTI (lesbian, gay, bisexual, trans and intersex) groups strongly oppose the plebiscite and so do we,” she said.
“Telling one group of people that their rights have to be decided by a public vote sends a terrible message.”
It is one of two legal challenges being heard by the court, both essentially seeking the same thing.
The other, launched last month and being heard alongside Tuesday’s challenge, is led by Independent MP Andrew Wilkie, PFLAG (Parents, Family and Friends of Lesbians and Gays), and Melbourne mother Felicity Marlowe.
Opponents claim the survey falls outside the powers of the Australian Bureau of Statistics, which has been hired to conduct the poll.
They also say Canberra exceeded its executive authority by earmarking Aus$122 million (US$96 million) to carry it out without parliamentary approval.
The government argues it can authorise using the cash under laws that allow it to green-light “urgent” and “unforeseen” spending.
– ‘Vile hate and abuse’ –
“Our case is very tight,” Wilkie told reporters. “It’s very much about the power of the executive and whether or not a government has the right to conduct this sort of activity without the approval of the parliament.”
The government is expected to make its case on Wednesday, with legal experts saying a result is possible later this week.
“Nothing in the submissions put by the Commonwealth to the High Court alters my view that the survey will more likely than not be struck down,” constitutional law expert George Williams wrote in a column for the Sydney Morning Herald.
Prime Minister Malcolm Turnbull supports marriage equality, but he is battling with right-wing members of his own Liberal Party, who are against legalising such unions.
He has pleaded for respectful debate amid homophobic slurs expressed by opponents.
In signs the debate could turn toxic, a poster emblazoned “stop the fags” was put up in central Melbourne last month and flyers describing homosexuality as “a curse of death” were distributed in suburban Sydney.
Marlow, a lesbian mother-of-three, said since the postal survey was announced, she has suffered “vile hate and abuse”.
“Our ability to nurture and love and care for our children has been questioned already on social media, on posters, on flyers, on advertisements in the newspapers,” she said.
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