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Senator Janet Rice and partner Penny Whetton (image via hetrozehuis.be).

The future of the Government’s plebiscite on marriage equality is still in doubt pending a challenge in the High Court; nevertheless, supporters are gearing up for a vocal and defiant "Yes" vote. Political editor Dr Martin Hirst reports.

ACCORDING to Greens Senator Janet Rice, if the marriage equality plebiscite is knocked down by the High Court challenge, it is almost certain that there will be a vote in Parliament “very quickly” afterwards.

Senator Rice says that Parliament should just “do its job” as there is “overwhelming support” for marriage equality among members and senators, even inside the Liberal Party.

Senator Rice told IA:

Both the Prime Minister and the Opposition Leader say they support marriage equality; it is ridiculous to be spending $122 million on an unnecessary and potentially divisive public debate. 

If the plebiscite is knocked off, you would think that finally Malcolm Turnbull would have a bit of backbone and show some heart and say, ‘Right, we’ve gone as far as we can — we’ve got to allow a free vote in the Parliament.'

However, if the High Court strikes down the two challenges, then LGBTI+ groups and their supporters will be campaigning hard for a "Yes" vote in the plebiscite, despite it being “shonky” and “torturous” for gay, lesbian and transgender families, according to Senator Rice.

Senator Rice said:

"The people who don’t want equal marriage are driven by their religious fundamentalism and are already saying that LGBTQI couples are not fit to be parents, that our children are likely to be drug addicts, unemployed, suffer mental health problems and have all sorts of problems. And so, particularly for young people, if they haven’t got the support of friends and family, this can be really, really damaging to their mental health."

The High Court challenges

There are two challenges pending the Coalition’s flawed marriage equality plebiscite and they will be heard in the High Court on 5 and 6 September. No plebiscite ballot papers will be sent out to voters until the challenges are resolved.

The first challenge is from the Human Rights Law Centre (HRLC) on behalf of Australian Marriage Equality (AME) and Senator Rice. This challenge centres on the power of Minister for Finance Mathias Cormann to authorise the expenditure of $122 million on the plebiscite.

Under Section 83 of the Commonwealth of Australia Constitution Act, Cormann can only authorise the release of the funds without a legislative mandate if the expenditure is for 'urgent and unforeseen' circumstances. Money for the plebiscite was not allocated in the 2017 Federal Budget and the Senate has blocked attempts to legislate for the plebiscite.

The HRLC submission to the High Court argues that the plebiscite is not 'urgent and unforeseen' as it has been on the government’s agenda for over a year.

A media release from the centre makes the case clearly:

'There are serious legal issues that need to be considered by the Court. Most importantly, how the expenditure of funds can be valid when the power the Minister is relying on applies only in ‘urgent and unforeseen’ circumstances. It’s difficult to see how the fulfilment of an election commitment is unforeseen.'

Australian Lawyers for Human Rights (ALHR) is also supporting the High Court challenges, arguing that the allocation of funds to the plebiscite is clearly unconstitutional.

Says ALHR LGBTI co-chair Nicholas Stewart:

'We question whether the Australian Constitution permits the Minister for Finance to fund this debacle. By virtue of s 83 of the Constitution, no money can be drawn from the Consolidated Fund unless authorised by statute or incidental to the executive power of the Commonwealth – which is clearly not the case here.'

The ALHR has also condemned the plebiscite as “undemocratic”.

The second challenge, which will be heard alongside the HRLC submission, was filed by Independent Tasmanian MP Andrew Wilkie. It makes similar arguments to the HRLC but also includes a challenge to the validity of the plebiscite being managed by the Australian Bureau of Statistics (ABS), rather than the Australian Electoral Commission.

Mr Wilkie argues that the job of the ABS is to collect and analyse statistics, not to run what amounts to a national vote, similar to an election.

In a media statement, Mr Wilkie said he remains firm in his view that the Government is:

' ... exceeding its powers by attempting to conduct a postal vote, doing so without authority to spend the funds, and misusing the Australian Bureau of Statistics.'

Australian Marriage Equality – the peak body representing the LGBTI+ community in the campaign – has condemned the non-binding postal plebiscite as an affront to the gay community. Co-Chair Alex Greenwich says it is a “failed policy already rejected by the Parliament”.

However, AME is also already campaigning for a 'Yes' vote, just in case the High Court challenge is unsuccessful.

If we have to vote, we’ll vote 'Yes'

Andrew Wilkie has told IA that while he is “hoping the High Court will rule in our favour and the postal vote will not go ahead”, if the challenge is struck down, he will be “strongly campaigning for a ‘Yes’ vote”.

The Greens are also gearing up to campaign for a "Yes" vote and Senator Rice has told IA that it is a campaign that will “reach into all corners of Australia”.

This might seem like a contradiction, given that Senator Rice is one of the claimants in the HRLC High Court challenge. But the Senator, who is herself in a same-sex marriage, says that an overwhelming majority of the LGBTI+ community and its supporters are clear that they want to have their say, even though the plebiscite process is flawed and “torturous” for gay and lesbian families.

Senator Rice expained:

“We’re planning for the ‘Yes’ vote already because we can’t wait for the High Court — we have to get everyone ready to vote ‘Yes’. So we’re already campaigning strongly for people to choose love and to vote ‘Yes’."

Listen to Doc Martin’s interview with Senator Janet Rice in which she outlines the High Court challenge, the case for a 'Yes' vote and discusses her own marriage story here: 

You can follow political editor Dr Martin Hirst on Twitter @ethicalmartini.

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