The Federal Government has voted to hold a postal vote to gauge the Australian public’s views on the issue of same sex marriage. The postal vote would be a non-binding ballot. The Australian Bureau of Statistics will be leading the postal vote.
The Marriage Act 1961
The Marriage Act 1961 states, “Marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
The Marriage Amendment Act 2004 was passed by the Senate on 13 August 2004. This act was specifically introduced by the Howard Government to exclude same sex couples and gay couples from adopting children from overseas. The act was amended in 2004 to include the commonly accepted definition of marriage as a union between a “man and a woman”. Prior to this there was no definition of marriage in the 1961 Act and the definition was based in the common law. Mr Howard said at the time, “As far as the measures are concerned, the government takes the view that not only is it a statement of its attitude towards marriage but it’s also a necessary assertion by the parliament of the country above all others to define what is regarded in our community as a marriage”. Mr Howard said, “the government is fundamentally opposed to same-sex couples adopting children”.
Over 13 years later and the current Prime Minister Turnbull supports same-sex marriage and has committed to a national plebiscite on the issue. The Opposition Leader Bill Shorten also supports same-sex marriage. Despite the support of the major parties the issue has been bitterly opposed by various factions of the Australian community, particularly human rights groups.
The postal vote forms for the plebiscite on same sex marriage are planned to be sent from 12 September 2017, with the result being announced on 15 November 2017.
Finance Minister Mathias Cormann (the Finance Minister) will rely on the authority of the Australian Bureau of Statistics to survey Australians, supported by the Finance Minister’s discretion to draw on funds already authorised under the Appropriation Act (No 1) 2016–2017.
The High Court of Australia has received two applications to stop the vote, the first application was lodged in Sydney by the Public Interest Advocacy Centre on behalf of Tasmanian independent MP Andrew Wilkie, advocate Felicity Marlowe and the Parents and Friends of Lesbians and Gays. The Human Rights Law Centre (HRLC) lodged its own application in Melbourne on behalf of Australian Marriage Equality and Greens Senator Janet Rice. The HRLC will argue that the government’s expenditure was not “unforeseen” given the Department of Finance sought legal advice about a postal plebiscite as early as March 2017.
The activists are mounting an argument questioning the constitutional legal validity of the postal plebiscite and the public expenditure of $122m for the optional ballot. The challenge is based on the argument that the government has acted outside its “executive power” in ordering the ballot, because it has not passed legislation in parliament to establish and fund the poll. The government is aiming to legislate its original plebiscite in the Senate but is expecting that it is likely to fail, and so leading it to resort to the postal vote.
The High Court cases come before the court on 4 and 5 September 2017. Copyright CCH
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