Tony Abbott has raised questions about whether a postal plebiscite would be “authoritative” ahead of a special meeting of the Liberal party room late on Monday to consider marriage equality.
At the start of the 4pm meeting Liberal MPs were told the cabinet, which also met on Monday, favoured a further attempt to pass the plebiscite bill in the Senate, followed by a postal plebiscite if that failed and a free vote in the parliament after that.
That course, if adopted, could satisfy conservatives’ demands to hold a plebiscite and moderates’ demands for a free vote, depending on timing.
Earlier on Monday Abbott told 2GB a postal plebiscite would be “certainly better than ramming the thing through the parliament without any vote”.
But he put a question mark over the mechanism being pursued by senior conservative players, including Peter Dutton and Mathias Cormann.
“There could be questions about how authoritative it would be,” Abbott said on Monday morning.
Marriage equality advocates have been signalling since last week they may challenge a postal plebiscite if the government ultimately adopts that position.
Anna Brown, the director of legal advocacy at the Human Rights Law Centre, on Monday released an opinion from three lawyers – Katherine Richardson, James Emmett and Surya Palaniappan – which suggests it would breach the constitution if the government tried to implement a postal plebiscite without first passing legislation.
Brown told reporters the marriage equality campaign would seek an interlocutory injunction to prevent a postal plebiscite from going ahead if there wasn’t appropriate legal authority for it to proceed.
As well as potential legal problems, Brown said a postal plebiscite was flawed because it could not ensure compulsory voting. “It won’t have the same privacy and procedural safeguards as a federal election.
“It would skew in favour of older, conservative voters and not reflect the views of young Australians or Australians in remote areas or overseas.”
Speaking ahead of Monday’s deliberations, the finance minister and the acting special minister of state, Mathias Cormann, left open the option of pursuing a postal plebiscite without underpinning legislation.
Asked if legislation was required for a plebiscite, Cormann said: “I’m going to pursue all of the arguments about how best to give effect to our firm commitment to the Australian people to ensure that they can have a say.”
Internal opinions are divided about what will likely emerge from Monday’s party room discussion, but many MPs feel the majority will stick with pursuing a plebiscite, either the original proposal or a postal ballot.
Conservatives like Abbott have been frontrunning that debate since last week by arguing the government needs to stick with the plebiscite position not only for this parliamentary term, but for the next one as well.
Some government MPs feel if Monday’s meeting doesn’t put a firm timetable on when a conscience vote would be allowed, the Liberal MPs currently pursuing a private members bill will cross the floor to try and trigger a parliamentary debate.
But on Monday Tim Wilson, one of the MPs who has not ruled out suspending standing orders to bring on a cross-party bill, told Sky News that he was “very open” to a postal plebiscite under certain conditions.
These included if “it’s constructive, if it moves us ... towards a free vote, which was the whole position we took to the election – it wasn’t just a plebiscite, it was a plebiscite with a free vote”.
The comments suggest that the threat of government MPs crossing the floor to suspend standing orders and bring on a free vote in the lower house could be defused by a promise of a free vote after a postal plebiscite.
Wilson said a postal plebiscite, because of its voluntary nature, would only be an “indication” or source of guidance for MPs and the majority of his electors in Goldstein wanted same-sex marriage legalised.
Ahead of the afternoon meeting, Liberal backbenchers ventilated their views. The Liberal MP John Alexander told Guardian Australia it would not be a broken promise to consider a course of action other than a plebiscite.
He said the trend is “firmly towards [marriage] equality”, and a mechanism to end discrimination based on sexuality “needs to be brought forward”.
“The Senate has blocked our election commitment to have a plebiscite, we can’t get it up.
“Given that, it is not a broken promise if we were to consider another course of action.”
Alexander said he was “not sure” how a postal plebiscite would work and it was not his preference to resolve the issue that way, indicating he will back a free vote in the Monday party room meeting.
Last week, the Victorian Liberal MP Jason Wood signalled he would also back a free vote in the event a bill made it successfully to the floor of parliament.
The Liberal MP Scott Buchholz said he opposed a free vote and would “support the position we took to the election” in favour of a plebiscite. A postal plebiscite would reduce the cost of asking the Australian people’s view and allow them to participate “in the privacy of their lounge rooms”, he said.
Buchholz said marriage equality advocates opposed the postal plebiscite because they are “concerned what the outcome might be, there’s a real concern that they may have read the mood of the Australian people incorrectly”.
He said the renewed push for a free vote was “whipped up by some self-interested colleagues” who had chosen to question Coalition policy that “had been dealt with”.
With the Liberal party set to deliberate, marriage equality advocates were out in force in Canberra.
Tiernan Brady, the director of Australians for Equality, told reporters if the country legalised same-sex marriage, nothing would change for the majority of people.
“Nobody will be less married. Nobody will be more gay,” Brady said.
“The one thing we feel confident about, and know, that the day marriage equality becomes the law of our land, the country will move on.”
