Legal advice to be sent to Malcolm Turnbull says a postal vote would likely be invalid without legislation. A postal vote on same-sex marriage would likely be invalid without legislation and struck down in the High Court, according to legal advice obtained by marriage equality advocates.
In the first detailed legal opinion to be presented on a same-sex marriage postal vote, lawyers argued the Turnbull government could not circumvent Parliament to enact a postal plebiscite.
The advice, prepared by Ron Merkel QC and Christopher Tran, and seen by Fairfax Media, suggested the High Court would likely rule a postal vote invalid unless authorised by a specific law.
Same-sex marriage campaigners have seized the advice and committed to a legal challenge if Prime Minister Malcolm Turnbull goes ahead with the idea, which has been gaining traction among Coalition MPs.
Shelley Argent, spokeswoman for Parents and Friends of Lesbians and Gays, said she “would not hesitate to take the government to the High Court” based on the advice, which will be sent to Mr Turnbull and Attorney-General George Brandis.
It comes as Liberal MPs prepare for a special meeting on Monday to debate alternatives to the plebiscite, which failed to get through the Senate, including moving straight to a free vote in Parliament.
The legal advice strongly backs the view that a postal vote cannot be paid for under existing laws, nor could such a vote be chalked up as “departmental expenditure” by a Commonwealth agency.
A postal vote could not reasonably be described as part of the government’s ordinary annual activities because plebiscites were historically rare and same-sex marriage was a socially momentous change, the lawyers advised.
And if guidance on same-sex marriage was to be sought from ns, it should be at the instigation of their elected representatives – the Parliament, not the Commonwealth Executive – they said.
Mr Merkel and Mr Tran noted there was scope under the Commonwealth Electoral Act for the n Electoral Commission to supply goods and services “to any person or body”.
However, they argued the government would still need authorisation by some other means – in this case, by passing a specific law – to request that service from the AEC.
“While this area is still attended by a great deal of uncertainty, the preferable view is that it is more likely than not that the High Court would find the proposed postal plebiscite and its funding to be invalid unless specific legislation is enacted to support it,” Mr Merkel and Mr Tran concluded.
Separately, Mr Turnbull and Senator Brandis have also received letters from legal groups concerned about the constitutional validity of a postal plebiscite.
Anna Brown, director of legal advocacy at the Human Rights Law Centre, said the idea was “potentially unlawful” and lacked the usual safeguards for procedural fairness, arguments once made by Mr Turnbull against a postal vote on the republic.
n Marriage Equality and the Human Rights Law Centre have commissioned legal advice from Kate Richardson SC, who is expected to make similar points to Mr Merkel, which will be presented to the government before this week’s debate.
It is understood the Turnbull government has sought its own advice on how a voluntary postal vote could be held without legislation, which Immigration Minister Peter Dutton has asserted as doable.
Jonathon Hunyor, chief executive of the Public Interest Advocacy Centre, said Mr Merkel’s legal advice strongly backed the view that a postal plebiscite “has to go back to Parliament” to ensure it is valid.
That would doom it to failure, as Nick Xenophon and Derryn Hinch have vowed to block a plebiscite, and Labor and the Greens remain implacably opposed.
Veteran gay rights campaigner Rodney Croome said: “Human rights and equality issues should be dealt with through the Parliament, not the post office.”
A spokeswoman for Senator Brandis said: “Consistent with long-standing practice, the government does not comment on legal advice.”