The High Court of Australia just said the same-sex marriage postal vote can go ahead

Photo: Peter Parks/AFP/Getty Images

The High Court of Australia has unanimously dismissed two challenges by same-sex marriage advocates against Turnbull government’s $122 million voluntary postal vote.

The court dismissed the challenges, heard over two days earlier which, which sought to stop the survey mostly based the argument that it was not funded legally.

Ballot papers for the postal vote, which is being run by the Australian Bureau of Statistics (ABS) are now due to be sent out to letterboxes from next Tuesday, September 12. Registered voters will have until 6pm on November 7 to return their ballot.

The ABS says voters are “strongly encouraged” to return the ballot paper by October 27. Around 16 million people are eligible to vote, but unlike elections, casting the ballot is not compulsory.

The result of the non-binding vote will be declared on November 15 and prime minister Malcolm Turnbull says he plans to hold a parliamentary vote on the issue by the end of the year. The way MPs vote is not linked to the results of the survey, although the prime minister has said that if a majority of voters choose no, the issue will not go to a vote in parliament.

The prime minister was in parliament for question time when the High Court decision in the government’s favour was announced and said “We encourage every Australian to vote in this survey, to have their say, and as I have said in this House and in many other places, [my wife] Lucy and I will be voting yes and I will be encouraging others to vote yes”.

Opposition leader Bill Shorten asked the PM if he was prepared to join him in writing a joint letter to Australian voters outlining the “yes” case, but Turnbull said

Mr Shorten asks Mr Turnbull if he will write a joint letter to all Australians outlining the case for a ‘yes’ vote.

“I’m interested in the assumption that the Leader of the Opposition makes that joining his signature to mine would actually increase the case for the yes vote,” the prime minister replied.

“The Leader of the Opposition can make his case and I’ll make mine.”

Today’s decision is a big win for Turnbull and the Coalition government after some observers expected the case to go against them.

The postal survey is the government’s plan B after the Senate refused twice to pass legislation for a compulsory plebiscite – a Coalition election promise.

Among those who challenged the survey plan were independent Tasmanian MP Andrew Wilkie, and Shelley Argent from PFLAG (parents family, friends of lesbians and gays). Advocacy group Australian Marriage Equality and Greens senator Janet Rice launched their own separate challenge.

Central to their argument was that the vote was unlawfully funded and is unconstitutional. The High Court did not accept that view.

Fairfax Media reported ahead of the High Court decision that the Turnbull government is already considering ways to circumvent any ruling against the plan.

The courts decision was about how to pay for the ballot rather than the vote itself, and ABS boss David Kalisch, who is running the ballot on behalf of the government, and finance minister Mathias Cormann began contingency planning last week, Fairfax says.

Today’s High Court decision also leaves yes campaigners with a potentially large legal bill, including the cost of the government’s defence.

Chief justice Susan Keifel said “The court is unanimously of the view that the application should be dismissed with costs” in the Wilkie case, and also left Australian Marriage Equality and Rice with the bill for their challenge.

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