The Australian government is set to delay a bill to improve processes for the postal survey on same-sex marriage after the Australian Greens and marriage equality advocates warned that passing it might undermine the High Court challenge against the vote.
The Human Rights Law Centre, representing Australian Marriage Equality and the Greens lesbian, gay, bisexual, transgender and intersex (LGBTI) spokeswoman Janet Rice in the challenge, has advised that passing a bill to set rules for the survey run by the Australian Bureau of Statistics could harm their chances in court.
Marriage equality advocates are to write to Labor, the Greens and crossbench warning them not to pass any bill prematurely. The Greens have already written to the government urging it to delay legislation.
“The most likely timing for consideration of a bill to provide for additional legal safeguards ... to support the fair and proper conduct of [the survey] will be after the High Court’s hearings on 5 and 6 September,” Australian Deputy Leader of the Government in the Senate Mathias Cormann said yesterday.
On Friday last week, Cormann contacted Labor and the Greens, offering to extend electoral law provisions for authorizations of advertisements and banning misleading information, fraud, bribery and intimidation to protect the survey.
At first the government suggested the bill could be presented to parliament this week. It has given the bill to Labor, which is considering its position and crossbench parties.
No details of the bill are publicly available, but it extends basic electoral protections and goes no further.
“We are concerned about the potential interaction of this legislation with the High Court challenge, so we have informed the government that our strong preference is for this legislation to be considered after the challenge is concluded,” Rice said.
Rice said human rights “should not be put to a public vote” and described the plebiscite as a “hurtful waste of time” because, ultimately, parliament would have to vote to change the law.
On Sunday, Shadow Attorney General Mark Dreyfus raised the issue that passing a bill could have an impact on the cases set to be heard on Sept. 5 and Sept. 6, just a week before ballots are due to be mailed on Sept. 12.
Constitutional law expert George Williams agreed, warning it could undermine the challenge.
“A key part of the case is that the executive doesn’t have parliamentary support [for the postal vote] if new legislation expressly or impliedly provided support it could take the wind out of the sails of the challenge,” Williams said.
“[Labor and the Greens] have rejected legislation for the [compulsory] plebiscite. If they want to maintain the strength of the High Court challenge, they should exercise caution with whatever legislation might be seen to support the postal vote,” he said.
Legal advice from the Human Rights Law Centre aligns with Williams’ concerns, and Australian Marriage Equality will urge its allies in parliament to block any attempt to fix the postal survey this week.
Cormann yesterday issued a statement saying he had made a new direction to address a reported loophole that could have allowed 16 and 17-year-olds to vote in the postal survey.
He quoted the Australian Electoral Commission, saying 16 and 17-year-olds would never have been able to vote because they are only provisionally enrolled.
Nevertheless, he issued a new direction to the Australian Bureau of Statics “to make the intention absolutely clear” that only Australians who are 18 years or older on Thursday next week would be allowed to vote.
Labor and pro-marriage equality Coalition members have started to campaign for a “yes” vote. A Labor Web site declares “It’s time for marriage equality,” echoing its successful 1972 federal election slogan.
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