CONSTITUTIONAL lawyers say there is a “reasonable” chance that the postal plebiscite on marriage equality could be stopped by the High Court.
It could be shut down because it falls outside the ordinary functions of the Australian Bureau of Statistics and because of no legal basis for the $122 million funding, according to the Financial Review.
Legal experts say the High Court has been moving towards requiring laws to support spending, but the case could go either way.
Labor’s legal affairs spokesperson, Mark Dreyfus, said the challenge to the plebiscite had a 50-50 chance of success.
“I think there is a reasonable chance the challenge will succeed simply because the High Court has been, in recent times, much more concerned about the accountability of executive spending than it has been in the past,” said Professor Anne Twomey from the University of Sydney.
“The stronger argument relates to the financing. If the High Court takes a stricter view, in favour of parliamentary scrutiny and the need for legislation to authorise expenditure, it’s going to be less sympathetic [to the government].
“But it’s one of those cases that could easily go either way. You don’t know until you’ve seen the arguments.”
University of NSW law dean Professor George Williams said the outcome was still “far from clear”.
“It’s a major test case that will deal with some developing and especially important principles about what the Commonwealth can spend money on,” he said.
“It’s going to be a real contest.”
Should the plebiscite go ahead, the deadline for enrolling or updating details to vote is August 24.