High Court gives go-ahead for marriage ballot

Malcolm Turnbull received the result via a text during question time. Mick Tsikas/AAP

The High Court has struck down the challenges to the same-sex marriage ballot, clearing the way for voting papers to start going out next week.

The court’s decision was handed down at 2:15pm (AEST) while Question Time was on in federal parliament. Malcolm Turnbull received the result via a text.

It comes as a huge relief to the government, which would have been left scratching for a back-up plan if the ballot had been declared unconstitutional.

The seven judges were unanimous, and costs were awarded against those who brought the challenges.

A central argument mounted against the survey was that it was not legal to fund it out of the advance to the finance minister, which is supposed to be used for “unforeseen” and “urgent” expenditure.

Immediately after the decision, Turnbull told parliament he encouraged every Australian to have their say in the ballot, repeated that he and his wife Lucy would be voting yes, and turned on Bill Shorten.

Turnbull said that Shorten had “done everything he could in this parliament to stop Australians having their say. Much to his disappointment now, every Australian will have their say.”

Labor, Greens and crossbenchers prevented the government’s original plan for a compulsory plebiscite passing parliament. This led to its resorting to the voluntary postal vote, which is being done by the Australian Bureau of Statistics (ABS).

Turnbull said that unlike Shorten, “I respect every Australian’s view on this matter. And I thoroughly reject the way in which he has sought to vilify and demonise people who have a different view to him.”

Shorten asked Turnbull to join him in writing to all Australians urging a yes vote. But Turnbull said: “The leader of the opposition can make his case and I’ll make mine”.

Attorney-General George Brandis and Acting Special Minister of State Mathias Cormann welcomed the decision, saying in a statement they had always been confident the process met relevant requirements.

The ministers said the government would now quickly move with proposed legislation “to provide for relevant additional safeguards to complement existing legal protections and to support the fair and proper conduct” of the ballot.

This legislation will go to matters such as authorisation of material but not to the content of advertising.

Cormann said he would reach out over the weekend to stakeholders, parties and interested MPs about legislation that he’d hope – if agreement could be reached – to bring in next week.

“We would seek to align the protections available in this process as much as possible to what would apply in the context of an election”, he said.

But shadow attorney-general Mark Dreyfus said the protections should be more extensive than those in elections.

Before the decision, the ABS told a Senate hearing it had spent A$14.1 million so far, of which $8 million had been spent on media. The government has put the total cost of the ballot at $122 million.

Despite the uncertainty over whether the ballot would survive, the challenges campaigning from both the yes and no sides has been in full swing.

Nearly 100,000 new voters have enrolled for the ballot, two-thirds of them in the youngest voting group. Hundreds of thousands of people have updated their enrolment details, suggesting considerable interest in the vote. There are 16 million on the roll.

The postal survey information line has received more than 81,000 phone calls.

Ballot papers start to go on September 12, and the mail out should be completed by September 22. Voting papers must be in by November 7, although people are being told to return ballots by October 27. The result will be announced at 11.30am November 15. The government has said if there is a yes result, it will facilitate a private member’s bill to legalise same sex marriage.

The question on the ballot paper will be: “Should the law be changed to allow same-sex couples to marry?”

Trent Zimmerman, one of the leaders of the Liberal backbench push for same-sex marriage, said if there was a no vote, “I can’t see a marriage amendment bill getting through this parliament”.

The government has said it will not facilitate a parliamentary vote if the no side wins.

The Conversation is a non-profit + your donation is tax deductible. Help knowledge-based, ethical journalism today.