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Date set for Postal Plebiscite Challenge

Date set for Postal Plebiscite Challenge


A court date for The Commonwealth of Australia and Ors and Minister for Finance Mathias Cormann & Anor vs. Wilkie & Ors and Australian Marriage Equality Ltd. & Anor has been set for the 5th and 6th of September, following a directions hearing on the 11th of August at the Supreme Court of NSW and the high court of Australia in Melbourne. The hearing, conducted via video conference between the legal teams of the two plaintiffs, also set a hearing date in front of the Full Court for the 5th and 6th of September. Here’s a quick breakdown of what’s been happening.

The Plebiscite is being challenged?

You bet. In fact two challenges have been brought up, one by Independent MP Andrew Wilkie, advocate Felicity Marlowe, and Parents and Friends of Lesbians and Gays Brisbane, and the other by Australian Marriage Equality and Senator Janet Rice, who are the plaintiffs in the upcoming case. According to statements made by Rice, Australian Marriage Equality co-chair  Alex Greenwich, and the Director of Legal Advocacy at the Human Rights Centre, Anna Brown, following the directions hearing, proceedings had been filed as soon as possible following the announcement, due to concerns that the postal plebiscite could go ahead on an invalid basis.

Invalid basis?

Basically the arguments being made against the postal plebiscite are that the Australian Bureau of Statistics (ABS) does not have the power to hold a postal vote for the plebiscite, and that the allocation of the money for the plebiscite from the budget is invalid.

By definition, the ABS collects statistical information, which is why they’re famously, or infamously in charge of things like censuses and the like. However, an argument has been made that the defined role of the ABS does not cover things like plebiscites, and that therefore, it does not have the power or authority to hold and manage a postal vote of such nature.    

Long story short, the $122 million that has been going through the news cycle in the last few days was allocated under subsection 10(2) of the Appropriation Act (No. 1) 2017-2018, which states that the Financial Minister can issue amounts from the Advance to the Finance Minister (AFM) provided that there is an urgent need for expenditure that is not provided for, insufficiently provided for, or came up due to unforeseen circumstances. However, since legal advice regarding a postal plebiscite had been sought by the Finance Department as early as March 2017, which was before the implementation of the budget in May, an argument has been made that this allocation cannot be appropriated as an unforeseen circumstance, and is therefore invalid.

To put it shortly, the main legal issues being brought up by the plaintiffs, and that are being discussed and determined by the Courts are that the ABS does not have the authority to manage the postal plebiscite due to the way its role has been defined, and that the money allocated for the plebiscite was invalid. As I do not have access to the written submissions of the plaintiffs, there article will be updated when the exact arguments are published.   

What were the directions hearings about?

Aside from setting a date for the hearing in front of the Full Court, the directions hearing also helped to settle any potential problems between the plaintiffs’ legal teams. Because two legal issues were being made against the postal plebiscite, today’s hearing was to determine if the two of them should be heard together in the first place, given that there was a chance that the arguments could overlap with one another, and waste precious court time. Additionally, since one legal team had more arguments for one legal issue than the other, as well as different disputes to the case overall, the directions hearing also allowed for the two teams to discuss the arguments, and to see if one side had any problems with the other’s.

So what now?

The hearing on the 5th and 6th of September is when the case will be heard in front of the Full Court, with a decision having to be reached by the 6th, due to the timetable that has been set by the government for the plebiscite; postal votes are due to be sent out on the 12th of September. Until then, the next hearings will be between the legal teams of the plaintiffs to settle what arguments they will be making, as well as to obtain and file more information and evidence about the arguments they are using.

Also, in the event that the postal plebiscite does happen, make sure that you have registered to vote at http://aec.gov.au/enrol/ or to check your enrolment at https://check.aec.gov.au/ by the 24th of August.

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